HomeMy WebLinkAbout20230378 Washington Land Disturbance Public Comment (53)Outlook
Environmental concerns
From Lolly L <lolly1234@live.com>
Date Mon 1/13/2025 7:55 PM
To Julia Destino <Julia.Destino@saratoga-springs.org>; Stephanie Ferradino <Stef@ferradinofirm.com>; Blue R.
Neils <brn5@cornell.edu>; Michelle.Lafay@dec.ny.gov <Michelle.Lafay@dec.ny.gov>; Demers, Timothy (DEC)
<Timothy.Demers@dec.ny.gov>
1 attachment (26 KB)
Letter prior to Thursday meeting.docx;
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I'll be at the next planning board mee ng. Thanks. Laura
1/14/25, 8:22 AM Mail - Julia Destino - Outlook
https://outlook.office365.com/mail/inbox/id/AAQkADI5NDIzZGRiLTQwNjEtNGM1MS05ZmQxLTUyZTNkMzFiZDJiZQAQALsIzi5ITKNBhsoMhtnWjNw%3D 1/1
July 13, 2025
Saratoga Springs Planning Board
Attention: Susan Barden
City Hall – 474 Broadway
Saratoga Springs, New York 12866
Laura Benton
42 Outlook Avenue
Saratoga Springs, New York 12866
Dear Susan and planning board members:
There has been much discussion on this “just a site disturbance” permit about
jurisdiction and applicable regulations.
The overriding elephant-in-the-room issue is the potential environmental impact.
I do see there was a Short Form Environmental Assessment Form (EAF) submitted
in Dec. 2024 but it does not address contaminations in a deeper examination like
a Phase I ESA.
Just for the record and as an example of the confusing paperwork, Question #3 on
the EAF claims the applicant will disturb 2.6 acres out of a total 8.90 acres … a
description completely different from either the August or November SWPPP’s
given the planning board.
20230378 Washington St. Land Disturbance EAF
Saratoga Planning Board
January 13 2025
Page 2
Components of a Phase I ESA Checklist
A Phase I Environmental Site Assessment Checklist includes four main
components with multiple pieces of information to be gathered for each one.
1. Records Review
A records review involves obtaining and reviewing records in an extensive
background search of the property to assess its use and analyze past activities
that could lead to contaminations. Records may include:
Standard Federal, State, and Tribal Environmental Record Sources: This includes
any past ESAs as well as site and municipal plans to determine locations with
maximum potential of contamination such as hazardous waste sites, disposal sites
and cleanup sites.
Regulatory Agency File and Records Review: If the property or adjoining
properties are identified on one or more standard environmental record sources,
regulatory records associated with the property should be reviewed to determine
if a concern exists.
Land Titles: This includes a list of all previous business owners in the correct
order, which gives the assessor a better understanding of past activities on the
site.
Maps and Geological Surveys: These physical setting sources provide information
about the geologic, hydrogeologic, hydrologic, or topographic characteristics of
the site.
Saratoga Planning Board
January 13 2025
Page 3
Historical Use: Identify the property’s previous uses through means such as aerial
photographs, fire insurance maps, property tax files, recorded land title records,
topographic maps, local street directories, building department records,
zoning/land use records.
2. Site Visit
After reviewing records to better understand where to focus, a site visit is the
next step. The objective of a site visit is to gather information that would indicate
the likelihood of identifying recognized environmental conditions in connection
with the property. This includes:
Visual Inspection of Buildings’ Interior and Exterior: If a building exists on the
property, both the interior and exterior are observed.
Current and Past Business Use: Determine the operations and use of the current
property as well as look for effects from past property uses and disposal of
hazardous materials.
Adjoining Properties: Make exterior visual observations of any adjoining
properties and, if possible, inspect the interior with permission of the respective
owner.
Hazardous Substances and Petroleum Products: List any hazardous materials and
substances that both can and cannot be identified, detailing quantity, disposal
methods and storage conditions.
Saratoga Planning Board
January 13 2025
Page 4
Tanks and Storage Containers: Identify all tanks both currently in use or
decommissioned, including both underground and above ground as well as the
size, year built, contents and location.
Stains and Drainage Systems: Make note of any stains located inside the
property, such as on walls, ceilings or floors, as well as stains outside the
property, such as in the parking lot.
Bodies of Water and Vegetation: Examine any pits, ponds or lagoons for
contamination and evaluate local vegetation for signs of environmental stress
caused by contamination.
3. Interviews
Additional information is gained by conducting interviews with people who are
connected to the property. This includes:
Past and Present Owners and Operators of the Property: Individuals who are
closely associated with the property should be able to provide important
information about its uses and conditions.
Key Site Manager: This is typically the property manager, chief physical plant
supervisor, head of maintenance or owner. Any of these people will have good
knowledge of the uses and physical characteristics of the property.
Occupants: This includes anyone who is currently occupying the property or
has occupied it in the past.
Saratoga Planning Board
January 13 2025
Page 5
State and/or Local Government and Agency Officials: Gather information from
agencies such as the local fire department, state or local health agency, local
agencies responsible for hazardous wastes, and local agencies responsible for
building permits or groundwater permits.
4. Evaluation and Report
The final step to the Phase I Environmental Site Assessment Checklist is to deliver
the findings and insights, along with any conclusions and recommendations that
can be made from the information gathered. Information in the report should
include:
Description of Assessed Property: Describe the details of the property, including
its location, size and owners.
Client Relationship: The relationship between the client and assessor must be
summarized during reporting.
Scope of Services: Include a description of all the services that were performed in
sufficient detail so that another party would be able to reconstruct the work.
Summary of Information Gathered: All information that is discovered (including
no findings) as well as insight gained from the records review, site visit, and
interviews should be summarized in an organized format.
Data gaps (if applicable): Identify and comment on significant data gaps that
affect the ability of the assessor to identify any recognized environmental
conditions. Include the sources of information that were consulted to address the
data gaps.
Saratoga Planning Board
January 13 2025
Page 6
Findings, Conclusions and Recommendations: Summarize all findings and
conclusions based on the information gathered and the professional opinion of
the assessor. Then, make recommendations for next steps for the client.
Supporting Documentation and References: All documents and references
leading to the conclusion must be attached to the report in an appendix.
Qualifications of Assessor and Signatures: The assessor must sign the original
document to verify their conclusions are valid based on their appropriate
qualifications.
Environmental conditions can limit or restrict the use of a given property and
represent a potential liability; there needs to be a deeper evaluation of
undiscovered contaminants. I particularly want to address the “all appropriate
inquiry” to protect contiguous property owners and the city’s taxpayers if
contaminants are released into the city’s storm water system even if
unintentionally.
In New York, if you plan to purchase or finance a commercial property without
performing a Phase I Environmental Site Assessment (ESA), you likely will be held
responsible for any contamination or clean-up of the property. If you have a
Phase I ESA performed following ASTM-E-1527-13, this “due diligence” process
relieves you of the clean-up or restoration of the property either by placing the
clean-up or restoration of the property either by placing the responsibility on the
original owner or it can be covered under the Superfund.
The cost of such cleanup may exceed, by many times, both the amount of the
loan granted to the borrower, as well as the value of the property.
Federal regulations are strict.
Saratoga Planning Board
January 13 2025
Page 7
The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA or Superfund) authorizes the U.S. Environmental Protection Agency
(EPA) to respond to human health and environmental hazards posed by
hazardous substances at properties. The courts have applied a strict liability
standard under CERCLA. Liability is imposed regardless of fault and can be
imposed retroactively (i.e., before CERCLA was enacted). The liability is also joint
and several, meaning that liability can be imposed regardless of relative
contribution.
Under CERCLA, EPA can require liable parties to conduct cleanups, or EPA can
conduct a cleanup and subsequently seek cleanup cost recovery from liable
parties. CERCLA defines a liable party as: (1) the current owner and operator of a
contaminated property; (2) any owner or operator at the time of disposal of any
hazardous substances; (3) any person who arranged for the disposal or treatment
of hazardous substances, or arranged for the transportation of hazardous
substances for disposal or treatment; and (4) any person who accepts hazardous
substances for transport to the property and selects the disposal site.
State regulations:
In addition to CERCLA (Federal), most states have also enacted legislation that
establishes similar liability under state law for contamination cleanup costs. Some
states have a law which also allows the state to place a super lien status on the
property to secure the state’s cost of cleanup. This super lien status may be prior
to and senior to the bank’s mortgages and may substantially reduce the value of
the bank’s collateral position.
Saratoga Planning Board
January 13 2025
Page 8
EPA’s “All Appropriate Inquiry” Rule
To be eligible for liability protection under CERCLA as an innocent landowner,
contiguous property owner, or bona fide prospective purchaser, prospective
property owners must conduct “All Appropriate Inquiries” prior to acquiring the
property. The AAI Rule sets Federal standards and practices for conducting AAIs.
The AAI rule applies to anyone who is purchasing a commercial or industrial
property, financing or re-financing, or seeking federal grant money for
contaminated site characterization and assessment.
The inquiry of the environmental professional must include:
interviews with past and present owners, operators, and occupants;
reviews of historical sources of information;
reviews of Federal, state, tribal, and local government records;
visual inspections of the facility and adjoining properties; commonly known or
reasonably ascertainable information; and degree of obviousness of the presence
or likely presence of contamination at the property and the ability to detect the
contamination.
Additional inquiries that must be conducted by or for the prospective landowner
or grantee include:
searches for environmental cleanup liens;
assessments of any specialized knowledge or experience of the prospective
landowner (or grantee);
an assessment of the relationship of the purchase price to the fair market value of
the property, if the property was not contaminated; and commonly known or
reasonably ascertainable information.
Saratoga Planning Board
January 13 2025
Page 9
All Appropriate Inquiries must be conducted or updated within one year prior to
acquiring ownership of a property. Certain aspects or provisions of All
Appropriate Inquiries (i.e., interviews of current and past owners, review of
government records, on-site visual inspection, and searches for environmental
cleanup liens) must be conducted or updated within 180 days prior to acquiring
ownership of a property.
Updated and stricter pollution laws:
At the federal level, the EPA recently reversed a 25-year loophole and clarified
that states and local governments can regulate pollution from locomotives
(including noise). This is a component not discussed regarding the site disturbance
or the already approved major projects within the 17 acres along West Avenue
near the train station.
New York’s take:
https://www.epa.gov/regulations-emissions-vehicles-and-engines/locomotives-
and-locomotive-engines-preemption-state-and
I strongly urge the planning board to require additional due diligence. The land
allegedly has been an illegal fly tip for decades and by every measure would be
red-flagged because auto-related businesses are located less than half a mile from
the site. Not cherry picking, but I am still waiting for a current evaluation of the
older two-bay car wash on site to see if it meets existing pollution regulations.
Car washes are one of the chief sources of ground water contamination.
Saratoga Planning Board
January 13 2025
Page 10
No one would even buy a house without an asbestos and lead inspection, much
less disturb a working bio-system. There is a sad realization of the consequences
of materials that were once commonplace like asbestos and lead – irreversible in
children. Lead in particular is so dangerous a contaminant for children that the
state has allocated millions to remediate this issue.
https://www.health.ny.gov/press/releases/2024/2024-12-30_lead.htm
If remediation is needed, it should be done now.
Before rushing into a results-driven site approval, even a conditionally, I would
like to require:
A baseline pollution check on existing storm water being released along
Washington St. and West Avenue.
A Phase I Environmental Site Assessment (ESA).
A review of the confusing two SWPPP’s that don’t even address what
corporate entity of person would be held legally liable. One of the SWPPP’s
doesn’t even have the right tax parcel number.
Just for a second opinion, could the ESA be contracted to another firm
besides LaBella. In both SWPPPs LaBella promotes actions that contradict
the 2024 Stormwater Manual. LaBella associates were key contributors to
the updated manual.
Saratoga Planning Board
January 13 2025
Page 11
The cost of a Phase I ESA in negligible in comparison to potential legal liabilities,
private lawsuits and DEC penalties. Our adjoining streets almost merit a pediatric
zip code of concerned parents; taxpayers would not want to be embroiled if any
part of the process causes problems that weren’t sufficiently investigated up front.
Again, I stress that there has never been any objection to a responsible
development, only that all laws be obeyed.
I have forwarded this letter to Stephanie Ferradino, the DEC compliance officer
Michelle Lafay, Dennis Demers an analyst for the Division of Environmental
Permits and Blue O’Neil, Saratoga County’s storm water advisor.
Laura Benton
42 Outlook Avenue
Lolly1234@live.com