Preliminary Comments

As a preliminary matter, we wish to commend the New York State Department of Environmental Conservation (NYSDEC) for having prepared and circulated the draft Voluntary Clean-Up Program (VCP) Guide for comment.  The Department has been criticized in the past for relying on unpublished informal guidance in its administration of the VCP.  This informality, which sometimes provides parties with flexibility that is useful in administering the VCP, also carries the potential for arbitrariness and unpredictability.  On balance, we believe that the lack of clear rules impairs the usefulness and effectiveness of the VCP, whose success depends heavily on the ability of parties to predict the cost and timing of likely outcomes.

The lack of predictability has also caused volunteers under the VCP to expend disproportionate legal and technical resources negotiating procedures and endpoints compared to programs in other states, resulting in fewer cleanups being performed than in neighboring jurisdictions.  While, according to NYSDEC, approximately 330 sites have enrolled in the VCP since its inception in 1994, New Jersey and Pennsylvania have each had over 1,000 site cleanups under their programs during the same time period.  The additional certainty and direction provided by the Guide should help accelerate the number and pace of cleanups performed under the VCP.

A VCP Guide adopted as final after public review and comment will represent a major step forward in shedding greater light on how NYSDEC actually is administering this very important program.  However, NYSDEC should add language in the preamble making clear that, if there is a conflict between a provision of the VCP Guide and the terms of an applicable Voluntary Cleanup Agreement (VCA), the VCA terms will govern.

No dissenting comment.

1. Exclusions from Site Eligibility Based on Nature of Contamination

Through its definition of “eligible parties” (§ 2.2.2.a; § 3.3), the Guide effectively excludes “petroleum-only” sites (other than ones being remediated by “innocent owners” or “innocent non-owners”) from the VCP.  Eligiblity for hazardous waste and mixed hazardous waste-petroleum sites, by contrast, is much broader. This distinction is counterproductive and is inconsistent with the trend at the federal level (see, e.g., the Brownfields Revitalization and Environmental Restoration Act of 2001 (BRERA), which for the first time includes petroleum sites in the definition of brownfields and mandates that 25% of the brownfields revitalization funding be made available for such sites), other states’ programs, and with the Governor’s own Superfund reform bill.

This exclusion is particularly troublesome because the majority of contaminated sites in New York are contaminated with petroleum.  This fact was reflected in the first few years of the VCP, when nearly half of the VCAs involved sites contaminated with petroleum.  Allowing petroleum sites to be addressed by the VCP would not only enable the largest category of contaminated sites to be remediated in a timely manner but would also preserve the limited resources of the Oil Spill Fund for those petroleum sites that pose the greatest risk to human health and the environment.

The Guide also generally excludes all sites regulated under the Resource Conservation and Recovery Act (RCRA) and its state counterpart (see § 2.2.1.c).   We urge NYSDEC to narrow this restriction to those sites which are actually subject to an administrative order or consent decree requiring a facility to perform RCRA corrective action or which are undergoing corrective action pursuant to a RCRA permit.  The broader restriction on RCRA sites’ eligibility has in the past been justified by NYSDEC on the basis of EPA’s asserted unwillingness to allow the VCP to be used at RCRA sites. However, EPA has recently launched a RCRA brownfields initiative and is looking to use state VCPs to accelerate the pace of cleanups of RCRA brownfields sites.  A broadening of eligibility for RCRA sites would be consistent with the current direction of the national RCRA program and facilitate the productive reuse of New York State’s many RCRA sites.  Indeed, the recent EPA “Proposal Guidelines for Brownfields Assessment, Revolving Loan Fund, and Cleanup Grants” specifically allows the foregoing types of RCRA sites to receive federal brownfields funds.

Agree that the definition of “eligible parties” in §2.2.2.a. does, indeed, exclude the discharger at a petroleum site from being a “Volunteer,” but find this entirely consistent with the exclusion of a PRP at a hazardous waste site.  In other words, petroleum sites are not excluded from the VCP; rather, the responsible parties at any kind of site are excluded from being considered “Volunteers” for the purposes of the Guide.  They believe that approach is appropriate.

Would add that the EPA RCRA brownfields initiative also seeks to have state VCP’s assist, where appropriate, at sites undergoing corrective action

2. Exclusion from Site Eligibility Based on Enforcement Status

The VCP Guide excludes from eligibility any PRP subject to an “enforcement action”, defined as “the issuance of any notification pursuant to federal law that commences an administrative or judicial proceeding….” § 2.2.2.c(ii).   The Guide should clarify that this exclusion applies only to notifications from governmental agencies and not, for example, to judicial proceedings for cost recovery or contribution brought against the volunteer by private parties.  Additionally, this exclusion requires clarification so that it is not interpreted to preclude VCP participation by entities that have merely received a § 104(e) information request or a PRP notice.   Parties may receive information requests or even PRP notices from EPA, only to have them withdrawn after providing information demonstrating that they are not PRPs.  A more appropriate trigger for non-eligibility would be a party’s becoming subject to a cleanup order.

Disagree with comment that “more appropriate trigger for non-eligibility would be a party’s becoming subject to a cleanup order.”  Believe that issuance of an EPA notice letter should render the recipient ineligible for participation in the VCP.  The notice letter indicates that EPA is actively involved in the site.

3. Timing of Issuance of Release and Covenant Not To Sue

The VCP Guide states that “[i]f operation, maintenance and monitoring (OM&M) of the remedy is needed, a Release will be issued after construction is completed even though the remedial goals have not been fully achieved.”  § 8.4.2.  This provision is susceptible to confusion because some NYSDEC personnel have taken the position that operation of a remedial system (e.g., an SVE system) before remedial goals have been achieved means that the project is still in the remediation, as opposed being in a post-remedial O&M phase.  Accordingly, the Guide should clarify that the release may be issued upon a demonstration that a groundwater monitoring or treatment system has been installed and is properly operating, regardless of whether remedial goals have yet been achieved.  Of course, such a release would be conditioned on the continued operation of the system.

No dissenting comment.

4. Time Frames for DEC Responses to Submissions

Lengthy delays in responses to submissions have, unfortunately, all too frequently been a significant problem for volunteers facing real time constraints in closing real estate transactions or securing financing.  Section 3.5 highlights the imbalance between the time limits that NYSDEC imposes on others (15 days to return a signed document) and on itself (best efforts to respond within 45 days). 

For example, NYSDEC should not need more than 15 days to respond to a VCP application, since the eligibility criteria are quite detailed and straightforward. The Guide should contain maximum timeframes for NYSDEC to accept (or seek modification of) work plan submittals (and NYSDOH should be subject to these same timeframes).

Would give NYSDEC 30 days to respond to VCP application instead of 15 days, and think Guide should contain “proposed” timeframes rather than “maximum” timeframes to accept proposals

5. Role of NYS Department of Health

The Guide provides (see p. 1, par. 5) that NYSDOH is responsible for determining if workplans are protective of human health and appropriate for the Contemplated Use.  Many members of the Section have experienced lengthy delays in workplan approvals because of the time it takes for NYSDOH to review the workplans.  Oftentimes, the NYSDEC case manager has not had any comments to the work plan, but the cleanup or investigatory work has not been able to start because comments have not been received from NYSDOH.

While we recognize that NYSDOH staff has been overwhelmed in the wake of the events of 9/11, we strongly feel that some adjustment must be made to the NYSDEC/NYSDOH process if the VCP is going to accomplish its goals.  In prior years there was a more efficient process that the two agencies used to approve cleanups under the State Superfund program.  It would be beneficial to have this process applied to the VCP.  Alternatively, there should be reasonable maximum time frames established for NYSDOH to review and provide comments to work plans.

Moreover, we believe (a) there should be criteria governing the scope of NYSDOH comments, and these criteria should be related to the scope of NYSDOH’s authority under the Public Health Law; and (b) as the decisionmaking agency—and as the entity that entered into a VCA with the volunteer—all final decisions should rest with NYSDEC.  The VCP Guide should make clear that inputs (or the lack thereof) from NYSDOH will be considered by NYSDEC in making its decisions, but that NYSDOH’s comments will not be viewed as dispositive except in situations where State law gives NYSDOH lead decisionmaking responsibility.

Suggest that NYSDEC secure a commitment from NYSDOH to complete its review and comment on work plans within a reasonable timeframe, after which DEC would be free to proceed without further delay.

Think it is unclear how DEC could impose time conditions unilaterally on a sister state agency and suggest that it would be better to provide a mechanism for full and fair disclosure and exchange of information between DEC and the volunteer, as well as between DEC and its sister agencies (including DOH). Do not agree that DEC should be foreclosed from relying on DOH’s comments and believe they should be able to consider them dispositive should they wish to do so.  Also believe that DOH should be free to offer comments in keeping with its mandate to protect the public health without having to cite authority under the Public Health Law.  Find the suggestion that DOH must do the latter, or that its comments must be so limited, unnecessarily restrictive.  Believe that DEC should be free to consult with its sister agencies, including NYSDOH, as it sees fit.  (The same concerns, incidentally, would arise regardless of the agencies involved; the fundamental value is one of ensuring a full opportunity for inter-agency consultation.)

6. Need for VCP-Specific Cleanup Standards

There is a need for a separate set of VCP-specific cleanup standards that not only are protective of human health and the environment but also take into account the contemplated site use and the benefits of economic revitalization.  While NYSDEC clearly needs to insure protectiveness, it also should be conscious of cost-effectiveness (so that volunteers are willing step forward) and of tailoring cleanup to the proposed use of the site.  Taking land use into account helps the NYSDEC address the actual and not theoretical risks posed by a site.  A “one size fits all” approach that applies cleanup standards developed for Superfund sites—e.g., Part 375 factors, including SGCs—to low-risk brownfields sites, particularly those involving non-residential end-uses, is not appropriate. 

Disagree with comment that cleanup standards should take into account “the benefits of economic revitalization”.  Do not think that economic benefit should be an additional factor (separate from the reasonably anticipated future land use) to be considered in the selection of cleanup standards.  Question whether a high economic benefit would justify lower cleanup standards, or vice versa?

Believe that the suggestions in paragraphs 6 and 13 should be harmonized.  While paragraph 6 suggests that the proposed land use must be taken into account in determining the appropriate level of protectiveness, paragraph 13 argues against imposing restrictions on future uses of the property.  If, in fact, the volunteer is not willing to accept such restrictions (they should, in fact, be included in the deed), it cannot be assured that a property will not be put to a “higher” use in the future.

Believe that the cleanup standard discussion in comment 6 is simplistic and does not reflect many of the environmental concerns that have been raised in this context.  Agree that a case can be made for flexibility as long as the standards are "protective," but the formulation for such an ideal is elusive.  What is being asked for here is not very clear and appears one-sided.  The comment also seems to say that a lesser standard is appropriate for greater economic benefit.  The Section should consider if it really wants to go on record that this is a trade-off that communities should be compelled to make.

7. Issuance of Single Release Binding on All State Agencies

For the VCP to work efficiently, the release should be from the State, not just NYSDEC.  We believe that NYSDEC, the  Attorney General and the Comptroller need to enter into a Memorandum of Understanding to allow the release issued under the VCP to bind all state agencies. EPA and the Department of Justice were able to coordinate their efforts in this regard under the Prospective Purchaser Agreement program; there is no reason why NYSDEC, the AG and the Comptroller cannot reach a similar arrangement.

Doubt that other agencies -- particularly NYSDOL-- will agree to be bound without the opportunity for full consultation, and therefore consider this comment to be of questionable practicality.

Absent mandatory consultation with all likely affected state agencies, question the wisdom (or for that matter appropriateness) of a statewide release as contemplated in paragraph 7.  The volunteer should, in fact, be able to determine whether there are any other state agencies which would have concerns regarding the cleanup and use of the property, and consult with them as well.

Think that a statute would be beneficial since DEC certainly does not have the power, especially in a guidance document, to require anything of another agency, and it is hard to imagine the Attorney General's Office volunteering a rubber stamp.  Also think it may be possible through a MOU to get other agencies to cooperate on some level, but it should not happen without a publicly vetted process and a clear statement of jurisdictional interests.  As one example, the Attorney General's office would probably be interested in assuring compliance with common law principles.

8. Need to Pay More Attention to Land Recycling Objectives

Structurally, the VCP and Brownfields programs should be located outside the Division of Environmental Remediation and placed in a division (or other unit) concerned primarily with site reclamation and restoration.  As long as the VCP continues to be operated as just one more cleanup program, New York State will not receive the benefits—enjoyed by many other states—of a dynamic economic engine where recycling of previously used land drives the cleanup and revitalization of brownfield sites.  This alternative approach not only would provide a badly needed boost to the State’s economy, but it would also energize the cleanup program and result in far more brownfield cleanups than under the present enforcement-driven approach.

Disagree with Section comment that it would be desirable to have a separate VCP unit located outside the Division of Environmental Remediation.

9. Responsibility of Innocent Owners and Non-Owners for Offsite Contamination

We question both the legal basis for, and the policy judgment reflecting, NYSDEC’s position that innocent parties ought to be required to chase offsite petroleum plumes as a precondition for admission to the VCP.  See § 6.1, introductory paragraphs.  To the extent that NYSDEC should be offering inducements to innocent parties to engage in cleanups, it makes little sense to burden them with obligations that NYSDEC has (in our view) no legal authority to impose. The Governor’s Superfund reform bill recognized this strong disincentive and does not require non-PRPs to address offsite contamination. The first paragraph of § 6.1 should state that innocent owners and non-owners will not be required to chase contamination that has migrated from the site regardless of whether the contamination consists of hazardous substances or petroleum.  The VCP Guide should also reflect NYSDEC’s current practice of allowing a site to have more than one volunteer (e.g., both the current owner and the prospective purchaser) execute the VCA with, as appropriate, a broader form of release being provided for the innocent owner or non-owner. 

Comment 9 talks about chasing plumes.  Agree it may well be important to protect true volunteers from this kind of liability, but only if there is clearly a program to assure that the plume otherwise gets addressed by pursuing PRPs for example or by requiring DEC to take action.  As for owners, innocent or otherwise, there may be common law liability, contrary to the assertions made here.

10. Types of Projects Requiring SEQRA Review

Section 2.4 requires innocent non-owners to undergo a SEQRA review in connection with remedial activities under the VCP.  Such a requirement is not consistent with the goals of either the VCP (which is to facilitate site cleanup) or SEQRA (which is to protect the State’s environment).  It is unclear to us how site cleanup, in and of itself, will ever have a negative environmental effect.  Making sure that any development or other activity associated with the site still needs to go through the appropriate SEQRA process, will adequately protect the State’s interest while not creating unnecessary delays of site cleanups that are in the public interest to encourage.

NYSDEC has established the category “innocent non-owner” as an administrative interpretation of the ECL. Certainly, the SEQRA exemption for enforcement discretion can be extended to this administratively-created category of non-PRP.  If NYSDEC does not consider it appropriate to extend the exemption for enforcement discretion to innocent volunteers who are not enforcement targets, NYSDEC should at a minimum add innocent volunteers under the VCP to the list of “Type II” actions under the SEQRA regulations.

Believe that there can be no waiver of SEQRA without a statute, as suggested in comment 10.  If the argument is that this is an enforcement program eligible for waiver, this is only arguably true for Class 2 sites, which are covered by Articles 27 and 71.  There is no enforcement aspect to the VCP; even aside from the lack of a statute, the very title of the program argues that it is not about enforcement.

11. Impact of BRERA

BRERA, enacted into law at the federal level earlier this year, has the potential greatly to affect both state voluntary cleanup programs and private parties doing cleanups under such programs.  Among the more important BRERA provisions affecting such programs are the need for a centralized database for use in creating a brownfields inventory; the requirement for follow-up procedures to make sure that institutional controls are implemented and maintained; provision regarding monitoring of institutional controls; and provisions dealing with exemptions for offsite sources of contamination and for “bona fide prospective purchasers”.  Yet the Guide never once mentions BRERA and does not appear to have considered its provisions and their potential  impact on the VCP.  We recommend  that NYSDEC carefully review this new federal statute and discuss in the Guide how, if at all, NYSDEC will be addressing BRERA’s provisions in the implementation of the VCP.

Do not object to comment, but are not sure that BRERA will in fact have much impact on implementation of the New York VCP. 

12. Cost Recovery

The Guide does not distinguish between “true PRPs”, innocent owners and innocent non-owners with respect to payment of NYSDEC and NYSDOH oversight costs.  See § 2.5.  Innocent owners and innocent non-owners should not, as a policy matter, be required to reimburse either agency for past costs.

Agree that past costs need not be sought from such parties, but believe that such parties should be expected to pay oversight costs.

13. Contemplated Use Categories

The Guide implies that any restrictions on site use (even ones that are totally academic, such as “no use of groundwater for drinking water purposes” at sites in New York City, Syracuse, Rochester and Buffalo) will result in a site’s being placed in “restricted residential” or “restricted commercial” category.  See § 3.4.  NYSDEC should not burden sites with the term “restricted” unless there is a realistic possibility that, without an express restriction, the prohibited activities or uses could actually occur.  Such designations can stigmatize and thereby discourage redevelopment of these sites.

Think that uses or activities that seem unrealistic today may not always be so.  Even in New York City – at least parts thereof – groundwater was used for drinking water until quite recently, and will remain available for use again in the future during drought conditions.  In any event, if the cleanup leaves groundwater or other contamination unaddressed, such that certain activities or uses should be restricted, there must be a way to capture and memorialize that information, e.g., in a registry of some sort, so it can be easily retrieved in the future.

14. Source Identification for Non-Drinking Water Aquifers

The Guide appears to require precise source identification for developing appropriate remedial technology, irrespective of groundwater use or the necessity of treatment.  See § 6.4.  Under such circumstances, these requirements may impose unnecessary costs and delays, particularly on non-PRP volunteers.  NYSDEC should consider eliminating these obligations in appropriate circumstances. 

Disagree with the Taskforce’s comment and think this section of the guidance seems perfectly sensible.  It says that there should be a “careful review” of site history and that the “nature and extent of each source area should be carefully defined.”  The alternative - to ignore the source area - is not appropriate.

Removal of the source of contamination is basic to remediation.  Even programs that rely totally on risk management seek to remove sources; this is one of the most cost-effective remedial actions that can be taken and it assures that concentrated masses of pollution are not left to threaten public health or the environment over both the short and long term.

15. Remedial Alternative Reports for Non-Class 2 Sites

The Guide reserves the right to impose the requirement for a Remedial Alternatives Report (RAR) even for sites other than Class 2 sites.  See § 7.4.  We believe that, in order not to create disincentives for using the VCP, RARs should be required only for Class 2 sites.  For other sites, the volunteer’s cleanup consultant can be required to certify that the proposed remedy will be effective in achieving the agreed-upon cleanup objectives.  The volunteer should be given the option, at its sole election, to submit a “Cost-Effectiveness Analysis” to demonstrate, as appropriate, that the cleanup technology chosen is the most (or only) cost-effective way to achieve (or approach achieving) the specified cleanup objectives.

Think the sentence regarding certification by volunteer’s cleanup consultant is not clear.  Section 7.4 of the guidance discusses two types of reports – a “Remedial Action Selection” (“RAS”) report, and a Remedial Alternatives Report (“RAR”).  The guidance says that even where a RAR is not done, an RAS report does have to be done to explain how the remedy would be protective of human health and the environment.  The guidance lists a whole series of things that the RAS report should include.  If the Taskforce is suggesting that none of the enumerated information should have to be prepared by the Volunteer and its consultant, they disagree.

Comment 15 argues for the lessening of reporting and analytical work at non-class 2 sites.  Think the Taskforce’s comments seem to overreach on behalf of a small constituency.  Cost/benefit should not be the only consideration and the clean up approach should not be based on economics alone.  A statute could provide a funding mechanism to assist when cleanup costs are high, but cleanups should not vary based on economic benefit as proposed here.  Every participant in the program should at least look at what the cost and available methods are to do a complete cleanup -- feasibility should be the byword and not cost/benefit.  Something less onerous than a full RI/FS surely can be justified, but the economic standard is simply not appropriate from an environmental protection point of view and the Section should be taking an environmental protection point of view.  Do not think it can be assumed that all brownfields are necessarily less contaminated or less of a threat than superfund sites; creating a distinction between Class 2 and all other sites is not clearly defensible.    

16. Right of Volunteers to Use the Qualified Consultant(s) of Their Choosing

Cleanup volunteers should not be forced to use registered P.E.s, to the exclusion of all other competent environmental professionals, except in circumstances where the use of professional engineers is required by some other state law.  Certain critical VCP-related determinations are more within the competence and expertise of other environmental professionals, such as toxicologists, biochemists and hydrogeologists.  Volunteers should have the latitude to retain the best mix of consulting expertise for their specific projects. 

No dissenting comment.

17. Validity of Data Collected Without NYSDEC Oversight

Section 4.4 indicates that data collected and the results of other investigation performed without NYSDEC oversight “may not be usable under this program”.  While this statement is true (and a truism), the Guide should at least confirm that such work can still be used to support submissions if  the volunteer can demonstrate that such work satisfies the validity and usability standards set forth in § 6.3.1.  Even if NYSDEC is unwilling to accept data not collected under the VCP for purposes of issuing a liability release, it should consider offering a less formal signoff or “comfort letter”, when requested, in instances where the data is relatively reliable and it is reasonably clear that a site poses no risk.  In such cases, for relatively little effort on NYSDEC’s part, sites that are low-risk “low-hanging fruit” can be freed up for redevelopment and promotion of economic revitalization.

No dissenting comment.

18. Unspecified Role of Qualitative Exposure Assessment

 While the “qualitative on-site and off-site public health exposure assessment” called for in the Guide (§ 6.6) could be very valuable in arriving at a use-based cleanup, the Guide provides no indication of how it should or will be used in practice.  The preparation of qualitative exposure assessments should be linked to other elements of the Guide, including the review of SCGs (if retained), the need for a “Community Air Monitoring Plan” (Appendix D), and the existence of actual or potential threats to fish and wildlife resources (§ 6.1).

No dissenting comment.

19. “Existing Contamination” versus “Covered Contamination”

The distinction between these two terms, and the relevance of the definitions to the VCP, has in the past eluded all but the most knowledgeable practitioners (and it is not so clear to many of them, either).  The Guide offers an excellent opportunity to clarify the use and significance of these terms, but current § 4.3 does not shed much light on this subject.  We recommend that NYSDEC provide a clearer explanation of these terms.

No dissenting comment.

20. Unspecified Role of “Community Air Monitoring Plan”

The Guide sets forth (Appendix D) the elements of a “Community Air Monitoring Plan,” without specifying the circumstances under which such a Plan must be developed.  As noted in ¶ 18 above, the qualitative exposure assessment could be useful in this regard.

No dissenting comment.

21. Enforcement

The exception in § 4.1.4 for enforcement of “Orders” should be extended to Stipulations entered into pursuant to the Navigation Law.

No dissenting comment.