How the DEC Program Departs from Accepted Brownfields/VCP Principles

Voluntary Cleanup Programs established by the U.S. Environmental Protection Agency and the vast majority of U.S. states and territories reflect certain essential principles to promote the cleanup and redevelopment of brownfield sites.  Programs that depart from these principles cannot be fully effective in promoting and achieving VCP objectives.

While many DEC and other New York State officials (as well as various NYS working groups, task forces, and coalitions) may claim to support some or all of these principles in concept, the practical reality has often been very different. 

Unfortunately, in order for the brownfields/voluntary cleanup program in New York State to accomplish its complementary environmental cleanup and economic development objectives, would-be private sector (and/or municipal) participants must have reason to believe (a) that there is some benefit to participating in the program (as opposed to proceeding on their own or finding a less risky greenfield site), and (b) that, in setting rules and procedures, DEC says what it means and means what it says.

Ten key principles, and the steps needed to attain them, are outlined below:

1. Program procedures, standards, and objectives must be written, clear, enforceable and stable.  In New York currently, the voluntary cleanup program has no explicit statutory or regulatory authority.  Program objectives have been primarily set forth in speeches and press releases rather than in written guidance.  The emphasis and requirements of the program have changed with changes in responsible DEC personnel.  The DEC professionals (i.e., in field offices and at the regional level) who primarily deal with cleanup volunteers have little autonomy to make decisions or provide reliable guidance because they can be (and often are) overruled by headquarters officials.  What written guidance has been developed is often unpublished and withheld from the public.[i]

What is Needed:  The voluntary cleanup program must be given specific legislative authorization, backed up by duly promulgated rules, and in accordance with published guidance and procedures.  Superfund reform legislation proposed by the Governor and others would give the voluntary cleanup program a statutory basis.  (This is good in principle—although an unworkable statutory program is no better than an unworkable administrative one.)  If such legislation is not enacted shortly, however, DEC should move forward with the establishment of formal VCP regulations, following notice-and-comment rulemaking.

2. The program must provide certainty and predictability.  Currently, the only certain and predictable feature of the DEC program is its lack of certainty and predictability.  Voluntary cleanup agreements will often establish performance objectives (e.g., removal of contamination sources, avoidance of adverse impacts on human health or the environment).  However, DEC will typically require extensive monitoring—to verify that sources have been removed, then to ensure that trends are in the right direction, then to answer questions about how quickly levels will decline, and finally in the name of operation and maintenance.  If levels in soil, groundwater, or indoor (or outdoor) air are considered “too high” at any stage by anyone in the decisionmaking framework, engineering controls may be required—even if natural attenuation would quickly yield the same result.  (Even if presumptive remedies are implemented early on, this will usually not be viewed as reducing the need for extensive investigation or continued monitoring.)  If groundwater is contaminated, monitoring and cleanup requirements are likely to be extensive and protracted—unless concentrations are consistently low in relation to DEC regulatory limits, regardless of whether nearby groundwater is used as a drinking water source, and even if nearby drinking water supplies are shown not to be threatened.  This is especially the case if groundwater contaminants are known or suspected carcinogens.[ii]   

What is Needed: Upfront certainty and predictability (while permitting appropriate site-specific flexibility).  Cleanup volunteers must be able to rely on the immutability and inviolability of the obligations set forth in the Voluntary Cleanup Agreement they signed onto. 

The Governor’s Superfund reform bill proposes to provide predictability by providing “one cleanup objective” (i.e., a very stringent one) for the State Superfund Program, the Voluntary Cleanup Program, and certain Oil Spill cleanups.  While this may provide “certainty, predictability and consistency” among all of the State’s cleanup programs, it is likely to eliminate any incentive for a volunteer to step forward.  Unless the site is very valuable, a prospective purchaser or developer will simply go to another site that won’t require a costly DEC cleanup, while an existing site owner or operator who may be forced to clean up if DEC gets on their trail will be tempted to “hide in the weeds” and hope that DEC will never get around to them.  Trying to force consistency among very different cleanup programs will be counterproductive.  What is needed are fast-track procedures for low-risk brownfield sites and more deliberative requirements for higher-risk sites.  Instead of requiring all residents to wear Size 9 shoes for the sake of uniformity, it would be better to ensure that shoe sizes have a consistent meaning from one part of the state to another and that resources are not being misallocated by making shoes larger than they need to be.  (I apologize for the shoe metaphor, but if the shoe fits ….)

3. The voluntary cleanup program needs to have cleanup standards[iii] that are risk-based, if volunteers are to have an incentive to participate.   If a volunteer at a low-risk brownfields site is forced to clean the site up to pre-disposal pristine conditions, or if a volunteer who wants to use the site for a factory must clean it up to the same standards as a playground or nursing home, fewer and fewer volunteers will come forward. 

What is Needed: The cleanup remedy must be geared, both in concept and in reality, to current, intended and reasonably anticipated future land uses at the site.  Adjacent property uses should also be taken into account, but only where there is a plausible risk that such properties may be significantly impacted (e.g., are in the downgradient path of a rapidly moving contaminant plume).  Merely saying that the remedy is geared to present and future land uses does no good if the same stringent procedures and cleanup standards end up being applied in practice without regard to the land use.

4. The program must not treat volunteer, non-contributory owners and prospective purchasers and developers the same as culpable responsible parties. DEC has great leverage over responsible parties at Class 2 inactive hazardous waste (State Superfund) sites, especially if they directly contributed to the contamination.  If such PRPs do not cooperate, DEC can take enforcement action against them.  (Legislative reforms, such as those advocated by the Governor, to enhance DEC’s power to issue administrative orders and pursue treble damage penalties against recalcitrant PRPs, are—if appropriately structured—necessary, reasonable, and even desirable.) 

Although DEC may also find itself with great leverage over non-contributory cleanup volunteers, it is critical that DEC resist the temptation to treat the innocent volunteer as either an evil-doer deserving of punishment, or as a deep-pocket ripe for the plucking.  Volunteers, who often have no existing connection to the brownfield site in question, typically come forward because they’d like to do something with the site that may be beneficial both to them and the community, but are concerned about real or perceived contamination (usually of unknown severity).  If they can obtain assurances from DEC that they are not opening themselves up to never-ending cleanup liability, they may be willing to embark upon a voluntary cleanup—if the rules are explained clearly upfront, if the process has a clear beginning and end, and if closure can be achieved relatively expeditiously.  Nothing could be more destructive to the volunteer’s willingness to participate than to be treated like the enemy by DEC. 

If cleanup volunteers are treated like polluters (for the sake of consistency, or otherwise) the supply of volunteers will quickly dry up.  There are alarming signs that this is already occurring.  (According to DEC data,[iv] 12 VCP investigations and 14 remediations were completed between March 31, 1998, and March 31, 1999, but those numbers dropped to 6 investigations and 9 remediations during the following fiscal year, and to only 2 investigations and 4 remediations during the fiscal year ended March 31, 2001. This rapid downward trend should signal decisionmakers that “something is rotten in the State of Denmark.”)  Since innocent volunteers cannot be forced to volunteer or to stay in the program through the threat of enforcement, ill-treatment of volunteers will either force volunteers to gravitate to less risky sites (generally further removed from the urban core), or induce them to rehabilitate sites on their own without involving DEC.

The former outcome is undesirable in the long-run from the standpoint of both environmental management and socioeconomics.  The latter outcome is probably the most sensible in most cases (given the realities of the DEC program), but could be risky to the volunteer if a serious environmental problem were present but was not detected (or, if detected, was not properly addressed).

At the risk of overkill, a capital punishment metaphor may be appropriate in this context.  It is better for society that the system allows 1 guilty person out of 100 to go free, than it is to have a system that is willing to execute 1 innocent person out of 100 in order to ensure that no guilty person goes unpunished.  In the voluntary cleanup program context, a program that gives volunteers the benefit of the doubt and facilitates accelerated cleanups will clean up many more sites, more quickly, than a program entwined in red-tape that suspects everyone and scrutinizes every detail for fear of allowing an unclean site to be redeveloped.  In fact, the latter type of program may succeed only in losing all its volunteers and in cleaning up nothing.

What is Needed:  An approach that recognizes and acknowledges the crucial differences between volunteers and responsible parties, and between brownfields and Superfund Sites.  One that does not blindly worship consistency or exalt means over ends.  In my opinion, the failure to address this reality is the biggest problem with most of the so-called “reform” proposals.  True, the overriding objective in all cases is to protect human health and the environment.  However, the means by which that objective is achieved must vary with the circumstances of each case (or, at least, each broad category of cases).

Instead of abusing cleanup volunteers, DEC should be helping them—for example, (ideally) by conducting or paying for initial site characterization (to remove uncertainty and fear of open-ended liability) and then holding the volunteers harmless for all pre-existing contamination.    

5. The program must provide a broad liability release in return for a voluntary cleanup.  Currently, most liability releases bind only DEC and are not binding on other agencies or on the State Attorney General--although cleanup volunteers have the option of entering into a consent decree that is signed by both DEC and the State Attorney General.  Broad releases should be routinely available not only for extensive cleanups, but for low risks.  Just because the desired release is broad (or the volunteer’s pockets are deep) is no reason to demand a more extensive or protracted cleanup than is warranted and required by the site-specific risk.  Indeed, even if the site-specific risk is significant due to ubiquitous contamination of nearby properties, or to other factors not caused or contributed to by the cleanup volunteer, liability releases should be freely issued—as long as present and proposed site users can be protected.

What is Needed:  As many of the reform proposals would do, any liability release received for a voluntary cleanup should be binding on the State as a whole and not just on DEC.  (If this reform is to be of any benefit, the quid pro quo cannot be still more onerous cleanup demands before State signoff will be provided.)  New York needs an approach that resists the need to punish the innocent just because contamination may be present.  If more cleanup is needed than it is fair to impose on the volunteer, DEC (i.e., the taxpayer) should pay for it—if those responsible for the problem cannot be made to pay.  (If DEC foots the bill, cost-recovery should be pursued against those responsible—plus a sizable penalty if the responsible parties are uncooperative and recalcitrant.)  Volunteers must be given the incentive to come forward with the prospect of a broad release from liability in return for their volunteerism.  Only fraud or newly discovered hazards (to the extent of such hazards) should generally be the basis for reopeners.

6. The program must provide an accelerated process for meeting voluntary cleanup commitments.  Just as “justice delayed is justice denied,” real estate deals that must be put on hold until a sluggish bureaucracy uses up all its red tape are deals that won’t go forward and will seldom be repeated.  They are truly lost opportunities.

What is Needed:  A lean and mean program that rewards decisiveness, creativity, and speed over consistency, timidity, and bureaucracy.  A program that creates a clear path to “Yes!”—not a maze in which all paths lead to “No!”

7. Financial incentives should be made available to private as well as local government volunteers to encourage voluntary cleanups. Taxpayers’ money should be husbanded and expended wisely and sparingly.  However, the use of public funds to rehabilitate brownfield sites and promote their reuse should be viewed, not as a cost, but as an investment that enriches the tax base.  Bond Act funding for municipally-owned brownfields is viewed in this light—much to the State’s credit.  (Proposed reform legislation to enhance the attractiveness of such funding, while further limiting liability for municipally-owned sites, is a good step or two in the right direction.) 

The State needs to recognize that the same logic would apply to providing financial incentives to privately-owned brownfield sites.  Indeed, the State does recognize this in the context of Empire Zones (which are often dominated by brownfield sites).  Unfortunately, in the voluntary cleanup program context (where one is dealing with privately-owned brownfield sites), the State’s emphasis seems to be on (1) getting volunteers to reimburse the State’s oversight and administration costs, and (2) getting volunteers to spend as much private money as possible on cleanups, so that the possibility that public funds will ever need to be expended is minimized.  That is penny-wise and pound-foolish.  And it sets up externalities under which cost-effectiveness only matters to DEC as long as it is public money being saved.  [It is like a cash-strapped student who would rather charge $50 to Dad’s credit card on a day’s worth of restaurant food than spend her last $10 bill on several days’ worth of groceries.]

Even worse, it creates a counterproductive risk-aversiveness that promotes more investigation and cleanup than necessary, and a more protracted process than desirable—all in an effort to stretch scarce program dollars and avoid unbudgeted program expenditures as much as possible.  If the same philosophy had been applied in the early days of this country, the pioneer colonists would have never made it west of West Virginia.

  It is true that public funds should not be casually distributed to a private profit-making enterprise without provision for profit-sharing, or at least for a return of the initial public investment.  There are a host of such mechanisms in place in jurisdictions throughout the country (and, indeed, even in New York State).  Examples are Tax Increment Financing (where a local government or taxing authority helps fund a brownfields cleanup or redevelopment project by floating bonds which are eventually repaid by the increased tax revenues that result from the new development) and Revolving Loan Funds (which provide bridge financing to move a project forward; when the successful project repays its loan, new financing is available to fund the next project).

What is Needed:  An attitude change on the part of State regulators (and legislators) that begins to recognize that the more attractive the voluntary cleanup program is made to prospective volunteers, the more the State and State taxpayers will benefit. It is not “us” versus “them.”  “They” is “us.”  (Nobody benefits from a bureaucratic program that lumbers forward slowly and cautiously to avoid making mistakes, but which does nothing to inspire or attract the volunteers who are the “engine” that must drive this “machine” forward.)  

If the VCP were revamped so that each element were scrutinized from the standpoint of “will this make the program more or less attractive to cleanup volunteers?” the result would be a vastly better program.  More volunteers would participate.  More decaying sites would be rehabilitated.  More neighborhoods would be revitalized.  And, yes, more contamination would be cleaned up.

8. The program should afford reasonable opportunities for review and comment by interested and affected members of the public, but the degree of public participation should be commensurate with the degree of risk realistically presented.  Programs that try to please everyone, end up pleasing no one.  There is no such thing as “zero risk.”  And voluntary cleanups, brownfields, and acceptable risks for scary-sounding chemicals are be complex and mysterious concepts for most people.  However, government regulators have the responsibility to make difficult decisions in our behalf and, in cases where the risks to the public are significant and public concern is strong, regulators must help explain the risks and give the public an opportunity to get their questions answered and to give voice to their fears and concerns.

Public participation is basic to our democratic process.  But that doesn’t mean that all decisions must be made by a consensus of the public.  Ours is a representative democracy.  We must rely on our elected and appointed public officials to safeguard our interests.

In the case of most brownfield / voluntary cleanup program sites, a notice in the Environmental Notice Bulletin of the proposed finalization of a Voluntary Cleanup Agreement, with an opportunity for public comment, is appropriate and sufficient.  In higher-risk situations, where public concern is more pronounced, more elaborate procedures for both notice and comment are appropriate.  In some cases (e.g., where volunteer experts are not available from a local university), taxpayer-funded technical assistance grants may be necessary and appropriate to allow concerned residents to come to grips with the issues and alternatives.  This is most often justified where Federal or State Superfund sites are involved.

What is Needed:  There does not appear to be a problem currently in most cases.  What needs to be guarded against is either too little opportunity for public involvement at one extreme (where there is significant risk and a real basis for concern), or too much participation which merely adds to red-tape and delay at the other extreme (where there is a low-risk site and a need to move quickly). 

9. A separate Voluntary Cleanup Program Coordinator should be designated under the Deputy Commissioner for Water Quality and Environmental Remediation, but outside the Division of Environmental Remediation.  The alarming slide in recent years in the number of completed voluntary cleanup program investigations and remediations suggests that there is something seriously wrong with the program that requires immediate attention.  The fact that there has not yet been a parallel drop in new VCP agreements should be small comfort.  Is it likely that new volunteers will continue to come forward to enter the VCP program, if it takes longer and longer to complete the work called for by DEC and to receive DEC signoffs?

I believe that a big part of the problem is that VCP requirements have been getting more and more onerous and have become more and more difficult to differentiate from those of DEC’s more heavy-duty remediation programs.  A major thrust of the Governor’s (and other) reform proposals would be to formalize and accelerate this trend (in the name of consistency).  This would be a serious mistake, in my opinion. 

What is Needed:  The Voluntary Cleanup and Brownfields programs need to be autonomous of the Division of Environmental Remediation, the major thrust of which is enforcement and creative coercion, and placed under a brownfields “czar” (still reporting to the Deputy Commissioner for Water Quality and Environmental Remediation) whose primary mission is to clean up and redevelop underutilized brownfield sites.  What the Voluntary Cleanup Program needs is regulatory and economic incentives.  What it does NOT need are “handcuffs” and “leg irons” borrowed from the Superfund and Oil Spill programs (administered by the Division of Environmental Remediation). 

10. Even within the Voluntary Cleanup Program, statewide consistency should not be viewed as an end in itself, where there are plausible reasons for site-specific or region-specific variability.  One cannot fault the underlying principles that (a) all contaminated sites should be regulated consistent with protecting public health and the environment, and (b) the polluter should pay.  However, applying these principles to different types of sites requires different tools and procedures,

Just as it is not appropriate to apply to low-risk brownfield sites being cleaned up by innocent volunteers the same stringent and punitive procedures and standards that are needed and justified at high-risk Superfund sites where responsible parties refuse to cooperate, it does not make sense to apply a one-size-fits-all approach to all brownfield sites—regardless of site-specific or geographic differences. 

Not only will the extent of contamination and potential for offsite exposure vary from site to site, but so will such factors as: the cost-effectiveness of a full cleanup (e.g., in light of the value of the cleaned-up property and the contemplated site use); the financial viability and accessibility of those who caused or contributed to the contamination; the willingness and ability of the would-be cleanup volunteer to expend the time, effort, and resources necessary to accomplish a full cleanup; the logistics of the business deal [e.g., is there a narrow time window within which the transaction must be completed?]; and the importance ascribed by the local community to redeveloping the particular site [in relation to plans for the surrounding area].

It is bad public policy for Albany to try to dictate to field staff how every brownfield site in the State must be handled in every conceivable circumstance.  It is even more wrong-headed to apply a lowest-common-denominator approach by which every site is regulated as though it were the worst site.   Yet this is the inevitable impact, stripped of its rhetorical camouflage, of attempting to impose statewide consistency.

What is Needed:  More flexible guidance from Albany and more autonomy for field staff to make appropriate site-specific judgments.