New York's Current (Administrative) Voluntary Cleanup Program

Although doubtless established with the best of intentions, the VCP has mutated into a bureaucratic quagmire from which, once entered, there is no painless escape.  Indeed, sophisticated property owners, developers, environmental professionals, and muncipal officials in New York State have come to recognize that, for most brownfields sites, it is vastly quicker, easier, less expensive, and less risky to proceed (based on the advice of their own environmental professionals) without involving DEC than to try to obtain a liability release under the VCP.  There is unfortunately little to suggest that proposed new regulations or legislation will change matters significantly for the better.  Indeed, in some important respects, the proposed reforms may make matters worse.

DEC launched the VCP in October 1994 pursuant to the general grant of authority under ECL § 3-301.  Administrative guidance, seen by few outsiders, can be found in Organization and Delegation Memo # 94-32, Policy: Voluntary Cleanup Program.[i]   The only “published” guidance (undated, but not issued until long after the program was initiated) is contained in a 3-page Division of Environmental Remediation Fact Sheet (Voluntary Cleanup Program Web Site, which can be found at http://www.dec.state.ny.us/website/der/vcp/vcps.html).

In the early years of the program, written guidance to prospective VCP applicants largely consisted of reprints of speeches by Charles E. Sullivan, Jr., then Chief of the Inactive Hazardous Waste Site Enforcement Bureau of DEC’s Division of Environmental Enforcement.[ii]  (Larry Schnapf, an active member of the Environmental Law Section, has aptly referred to this as “rulemaking by speechmaking.”)  Among other things, a typical Sullivan speech included the following assertions:

  … Dealing head-on with developer concern over potentially unlimited

  remedial liability when involved with contaminated parcels, this 

  program provides a definite end point to the developer’s remedial

  commitment by establishing pre-determined cleanup objectives that,

  once reached will trigger the Department’s provision of qualified past

  contamination remediation liability releases….  (p. 2).

The volunteer will investigate the site to gather information needed to determine the appropriate cleanup level, which will be a level consistent with the safe use of the property for the purpose to which the volunteer intends the property to be used and the document will identify the cleanup level to be attained or the process to be used to determine that level….  As can be seen, then, risk-based assessments determine cleanup levels [emphasis added].  However, while the ARAR concept does not automatically drive cleanup levels—as it does under CERCLA, State standards certainly must be accounted for in the risk-based assessment decisionmaking; how they are accounted for is determined on a site-specific basis.  This being said, though, we continue to evaluate how to apply the risk-based assessment methodology to contaminated groundwater situations; at this point it does not appear clear how we would apply risk-based determinations any differently than what presently is done for non-volunteer sites, viz, groundwater standards are considered, as are the potential for use, discharge to surface water, and the practicability of cleaning up to standards.  (p. 5).

          …  Volunteers who are not PRPs [Potentially Responsible Parties]

          and volunteers who are PRPs solely by reason of site ownership must

          remediate on-site contamination to agreed-upon levels and must

          eliminate sources of onsite contamination that cause offsite impacts. 

          (p. 5).

To aid attorneys in the negotiation of Voluntary Cleanup Agreements (VCAs), the Hazardous Site Remediation Committee of the NYSBA’s Environmental Law Section formed a Brownfields Subcommittee to review the agreements issued by DEC and to prepare periodic reports summarizing these agreements and analyzing certain features and trends in these agreements.  The first such report was published in The New York Environmental Lawyer, Vol. 16, No. 4, Fall 1996, pp. 17-28.  (It covered agreements—Nos. 1-31 and 34—issued through September 20, 1996.)  The twelfth and final report (covering agreements Nos.95-97) was published in the Spring/Summer 2000 issue (Vol. 20, No. 2).[iii] 

The first report by the Environmental Law Section’s Brownfields Subcommittee included a useful summary of the “Elements of the Voluntary Cleanup Program,” at least as reflected in the first 30-plus VCAs.  One observation in this report (p. 19) is worth highlighting.  The report states:  “For cleanups under the ECL, the DEC has taken the intended site use into account when developing cleanup standards for the voluntary cleanup program, but it does not appear that the cleanup standards for non-residential uses are any less stringent than for non-residential property cleanups under the traditional ECL program.”  (Emphasis added.)  No mantra is recited more frequently in the context of the VCP than that sites are to be cleaned up consistent with their present and anticipated uses.  However, no guiding principle seems to be more casually disregarded.  This is unfortunate because use-based (or risk-based) cleanups are the fundamental underpinning of successful voluntary cleanup programs throughout the U.S.

  A note by Larry Schnapf in the Fall 2000 issue (Vol. 20, No. 3) announced that the Brownfields Subcommittee would “no longer be reviewing prior VCP agreements” in light of DEC’s plans to change “the form VCP agreement to one that does not undergo negotiation.”   The note also referred to consideration being given by DEC to issuance of “a new informal technical guidance document which would be designed to expedite the investigation and remediation process.”  As of the beginning of 2002, neither of these guidance documents had been formally promulgated (although models were available in draft form).

Although establishing non-negotiable VCA forms and standard site characterization and remediation procedures can be a good thing—from the standpoint of reducing transaction costs and enhancing certainty and predictability,  it is not an unmixed blessing.  An immutable form of agreement suggests a rigid, one-size-fits-all philosophy that may not always make sense and may serve to further inhibit volunteerism.  And standardization of procedures, while a convenience for regulatory personnel, may smother the ability to expedite signoffs on low-risk sites.  This is in no way meant to downplay the importance of clearly stated, predictable, upfront “rules” that define the procedures by which the “game” will be played and the goals by which the outcome will be evaluated.  Certainly, written rules are better than no rules, or rules that are available only to the umpires, but not to the players.[iv]  Unfortunately, DEC has been known to disregard the rules in the past (e.g., as set forth in mutually binding VCAs) and to change the rules in the middle of the game.   It is not clear that merely issuing another “playbook” will necessarily improve matters in this regard. 

Whoever penned the aphorism, “no good deed goes unpunished,” could have had New York’s Voluntary Cleanup Program (VCP) in mind.  Indeed, DEC sometimes appears to apply more energy and attention to exacting the last ounce of cleanup or monitoring from well-intentioned volunteers than it does to ferreting out and bringing to justice unrepentant polluters.