Counter-Productive Internal Procedures

DEC’s unpublished “Voluntary Cleanup Program Internal Procedures” were most recently revised in January 2002.  (Earlier versions date back to 1998 or 1999--about the same timeframe as the precipitous decline in VCP completions.)  I don’t know when the Procedures were first established, except that it was well after the initiation of the Voluntary Cleanup Program in 1994.

A primary focus of the Procedures appears to be “to promote statewide consistency in the program.”  (p. 1.)  To this end, elaborate procedural steps and paper-trail requirements are established to ensure that the Project Manager coordinates with the regional project attorney, the regional engineer, and “all other regulatory programs in the Region (e.g., Air, Water, Solid and Hazardous Materials, Fish and Wildlife)” before a given cleanup volunteer and site are considered eligible to participate in the program.   Before the draft VCA can be approved, consistency reviews must also be conducted by the project attorney’s supervisor, by the central office legal coordinator, by the central office voluntary cleanup program coordinator (to verify that the technical requirements of both the agreement and the work plans and are consistent with similar projects across the State), and by the project manager’s supervisor.  In addition, the Procedures require “written concurrence” from the New York State Department of Health at every significant stage of the process: before the draft VCA is approved; on remediation work plans; and prior to final sign-off on Investigation and/or Remediation approvals.

The unconditional requirement of written DOH concurrence is objectionable for multiple reasons:

(1) Not being a party to VCAs, DOH does not consider itself bound by the terms and conditions of the Agreements.  Thus, cleanup volunteers, having entered into a good faith agreement with DEC with finite obligations, may find themselves suddenly subject to new, unbargained-for requirements as the price of DOH concurrence.

(2) Although VCAs typically require DEC to respond to submittals within a set period of time and to provide reasons where a submittal is not accepted, no such constraint limits DOH.  DOH can take as long as it wants and/or be as arbitrary as it wants, knowing that no approval can be given without its written concurrence.

(3) If DOH got involved on its own with a voluntary cleanup program site, its authority would be limited to that conferred by the State Legislature under the Public Health Law.  That authority would be nil for a site not even classified as an inactive hazardous waste disposal site.  (Under PHL § 1389-b, DOH is given certain authority to respond to “a condition dangerous to life or health resulting from an inactive hazardous waste disposal site.”)  However, by virtue of the power conferred by DEC for it to withhold its concurrence, DOH need not worry about such technicalities.  I am waiting for someone to explain how DEC can confer on DOH more power to act indirectly than the State Legislature has given DOH to act directly.

Since the DEC Procedures are internal mandates from DEC higher-ups with the power to reward and punish subordinate officials, the requirement of numerous sign-offs by multiple levels of DEC’s own bureaucracy can also be a way of inducing lower-echelon employees to succumb to “suggestions” that lack technical merit or legal authority, and to bludgeon battle-weary volunteers to agree to “one or two more requirements” (beyond the last departure from what was agreed to in the VCA) as a way of shaking loose a needed DEC approval.  [This is in the highest tradition of car dealerships that require a “manager” to sign off on deals negotiated by a salesman before they become final.]

Moreover, the very premise of statewide consistency is faulty—or at least untested by the rigors of a public rulemaking proceeding.  It is far from self-evident that a cleanup remedy which can be justified as cost-effective in Scarsdale, where land may be worth $5 million an acre, or on Long Island where groundwater is used extensively as a drinking water source (and land is also expensive), should be applied for the sake of consistency to such places as Binghamton or Utica, where neither land values nor groundwater dependency provide comparable imperatives.

The Procedures also require remediation agreements to “include requirements for appropriate engineering and/or institutional controls (e.g., deed restrictions) that may be deemed necessary to allow for the contemplated use of the site ….”  This seems like overkill, especially where the same stringent remedy is commonly imposed on non-residential land uses as would be applied if a residential use were contemplated.  Deed restrictions (especially where not justified from an exposure assessment standpoint) may be enough to quash a commercial real estate deal, where the buyer is not willing to purchase encumbered land.  Deed restrictions and other institutional controls have a legitimate role in a properly designed and functioning program.

Some states have established by statute that brownfields (or VCP) cleanups must be approved by “licensed environmental professionals.”[i]  Very few, if any, are restrictive to the point of requiring sign-off by a registered professional engineer.  Yet, the Procedures impose this requirement (p. 4).  Not only is there no statutory foundation for rejecting the findings and results of environmental professionals who are not registered P.E.s, but this requirement goes beyond the obligations contained in most if not all voluntary cleanup agreements.[ii]  The requirement is therefore not only arbitrary and ultra vires, but ex post facto.

The Procedures inexplicably (p. 10) specify that projects completed under an investigation-only agreement cannot receive an assignable release from DEC “even if the Department concludes that no remediation is necessary.”  (Instead, they must content themselves with a “Satisfactory Completion” letter from the project manager.)  By contrast, when work is done under a combination investigation-remediation agreement but the investigation shows that no remediation is necessary, the volunteer is eligible for an assignable release and covenant not to sue issued by the Central Office Legal Coordinator.  Quibbling about these distinctions may be more an exercise in sophistry than of practical import, since it is hard to envision DEC under the present program ever concluding that no remediation is necessary.

Finally, not only must the cleanup volunteer obtain an engineering certification he didn’t bargain for, but that certification must address the seven remedy selection “factors given in 6 NYCRR 375-1.10(c).”  The problem is that these factors were intended to apply only to State and federal Superfund sites.  They include conformity with New York State Standards, Criteria and Guidelines (“SCGs,” which are similar to federal ARARs)[iii]—which are extraordinarily stringent in New York State.  (Not only would the Governor’s Superfund Reform Legislation give this requirement the force of law for all of the State’s contaminated sites programs, even for non-Registry sites, but it would add two additional—albeit not necessarily objectionable--factors that would have to be considered.  One of these is current, future or reasonable anticipated land uses of a site and surrounding properties.  The other creates a presumption that any soil contamination will be cleaned up to residential levels at certain Class 1 or Class 2 sites.)[iv]