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Critical Review of the DEC Voluntary Cleanup Program (adapted from an article by Ken Kamlet published in
the Winter 2002 issue of The New York Environmental Lawyer, Vol. 22, No.
1, pp. 2-24.) What appears below is from the first portion of the article
("Brownfields Regulation in New York State: A Disappointing Report Card").
The second portion of the article is a Case Study, set forth elsewhere on this
website.
Introduction: history of brownfields regulation
New
York State background
New
York's current (administrative) Voluntary Cleanup Program
How the
DEC program departs from accepted brownfields/VCP principles
Counter-productive internal procedures
A not-so-hypothetical
case study
After reading the preceding description and
critique of the DEC program, ask yourself how well the Department addresses each
of the following priority issues:
Priority Issues to Be Addressed in a Voluntary Cleanup (Brownfields)
Program - Kenneth S. Kamlet (11/17/95):
1. Economic Driver: The
program's overriding thrust should be the promotion of economic development and
urban revitalization. Environmental benefits will flow automatically from
recycling of existing sites and restoring vacant sites to productive use.
2. Clean-To-Use Standards: State cleanup standards must be modified
so that the objective is to avoid significant risk [NOT all risk]; industrial
and commercial sites need not be cleaned up to residential levels.
3. Need For Certainty: Cleanup standards must be clearly and simply
defined and widely dissemintated and interested parties must have a way to
secure rapid State approval of cleanup workplans that will satisfy these
standards.
4. Need For Finality: Parties need assurance that, if they meet
their cleanup commitments, the State will not come back and impose new
requirements.
5. Broad Program Scope: The program should cover both actual and
perceived contamination, and should not categorically exclude any type of
contamination (except where a site is the subject of active State or Federal
regulation or enforcement action).
6. Don't Punish The Innocent: While those responsible for site
contamination should be held to a high standard of accountability, a more
flexible approach should be taken toward non-responsible purchasers and
developers ["inculpable parties" under Maryland law]--particularly where they
are providing significant economic benefits.
7. Need For Liability Assurances: When a voluntary party (which was
not responsible for the contamination) cleans up to State standards, it should
receive broad and legally enforceable protections against liability.
8. Need For Financial Incentives: The State should earmark a small
percentage (e.g., 10%) of available economic development funds to provide
financial incentives--including low-rate and government-backed loans, grants,
and tax abatements--to stimulate the cleanup, acquisition and development of
brownfield sites in urban and designated growth areas.
9. Funding Priorities: If financing is limited, priority should go
to financing of initial site assessment and quantification of cleanup costs, and
non-responsible parties and public agencies should receive preference over
responsible parties.
10. Need To Leverage Financial Resources: Public moneys should be
used, to the extent possible, to leverage private resources--i.e., repayable
loans, loan guarantees, etc. should be preferred over grants.
Is DEC's Voluntary Cleanup Program Working?
DEC's report, "New York State Inactive Hazardous
Waste Disposal Site Remedial Plan: 2001 Report," available on DEC's website at
www.dec.state.ny.us/website/der/rplan2001.pdf, shows the cumulative number
of completed Voluntary Cleanup projects at the end (March 31) of each DEC fiscal
year. See Figure 11 (mislabeled in
the Report as "Figure 12") on page 23. Although the graph conveys
the impression of a steadily increasing number of completed projects, what it
really shows is a steadily decreasing number both of completed
investigations and completed cleanups between FY 1999 and FY 2001.
This can be seen on the following chart, which uses DEC data from Figure 11:
|
Fiscal Year
(ended Mar. 31) |
Completed
Investigations |
Completed
Cleanups |
| 1998 |
8 [5]* |
14 [18]* |
| 1999 |
12 [6]* |
14 [17]* |
| 2000 |
6 [3]* |
9 |
| 2001 |
2 [7]* |
4 [7]* |
| 2002 |
19* (44 initiated) |
13* (19 initiated) |
* Bracketed information is new information provided
in DEC's 2002 Remedial Plan; other asterisked information is new and updated.
See 2002 Remedial Plan, pp. 25 (Fig. 11) and 26 (Fig. 12). http://www.dec.state.ny.us/website/der/index.html
.
How do the number of completed Voluntary Cleanup
Program projects compare to the number of Voluntary Cleanup Agreements entered
into?
|
DEC Fiscal Yr.
Ending Mar. 31 |
Cumulative No. of
VCAs Signed |
Cumulative No. of
Properties Addressed |
Avg. No. of Properties
per VCA |
| 1998 |
? |
119 |
? |
| 1999 |
? |
? |
? |
| 2000 |
134 |
164 |
1.22 |
| 2001 |
196 |
255 |
1.30 |
| 2002 |
? |
332* |
? |
VCP Completion Trends
|
Time Interval
(FY-FY) |
New
VCAs |
New Completions |
Year-to-Year Change (%) |
| 1997-1998 |
? |
22 [23]* |
- |
| 1998-1999 |
? |
26 [23]* |
+18% |
| 1999-2000 |
? |
15 [12]* |
-42% |
| 2000-2001 |
62 |
6 [14]* |
-60% |
| 2001-2002 |
? |
32* |
+56% |
|
Cumulative total |
196 |
83 [104] |
|
Although there has been no apparent diminution in
the number of new Agreements entered into in recent years, the number of annual
project completions (both investigations and cleanups) declined dramatically
between 1999 and 2001, but increased in 2002.
As of the end of DEC's 2001 fiscal year (Mar. 31,
2001):
| |
In Program (VCA Agreement or Bond Act Award) |
Completed Projects |
|
VCP Sites |
236
332*
|
83
104
(31%--down
from 35%) |
|
"Brownfield Sites"
(Bond Act) |
101--down
from 106 |
24
40
(39.6%--up
from 22.6%) |
|
|
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