NY Brownfields/FOIL

The New York State Department of Environmental Conservation (DEC) for some reason seems to have an aversion to formal rulemaking and to sharing its policies and procedures with the public--at least on matters dealing with contaminated sites, including brownfields.

It is not clear whether this reluctance has any relationship to Governor George Pataki's regulatory reform initiative which, early in his Administration, included a freeze on new regulations.

However, from the earliest inception of DEC's Voluntary Cleanup Program (when it was announced by Governor Cuomo on October 19, 1994), the Department's preferred mode of conveying information regarding this program seems to have been through speeches by senior department officials. (One New York attorney, Lawrence Schnapf, has referred sarcastically to this practice as "rulemaking by speechmaking.") If a member of the public or of the regulated community wanted information about the Voluntary Cleanup Program, DEC would provide the requester with a copy of the latest speech.

In 1997, a new "Policy System" was adopted for development of DEC "guidance documents." Under this system, "new or existing guidance documents are issued as either Commissioner Policies, Program Policies, or Internal Guidance Procedures. Division Director guidance that "affect(s) outside constituents (the public, regulated community, consultants, and others)" was to become "Program Policy." On the other hand, "Guidance directed to staff that addresses primarily internal procedures for DER's programs" was to become "Internal Guidance Procedures."

Program Policies in the "DER-# series," and "Technical and Administrative Guidance Memorand[a] (TAGMs)" in the 4000 Series (developed to provide Department staff with guidance for identification, investigation and remediation of contaminated waste sites), as well as the "Spill Technology and Remediation Series (STARS) guidance (for responding to and remediating petroleum-related spills) were to be "reevaluated and... reissued as Internal Guidance Procedures or Program Policy, as appropriate."

In a remarkable statement illustrating DEC's desire to "have its cake and eat it too" (i.e., by issuing formal guidance binding on the public without going through formal rulemaking procedures, at the same time refusing to be bound by the contents of the guidance when raised as a defense), DEC states the following concerning the applicability of its guidance documents:

"These guidance documents are used to ensure compliance with statutory and regulatory requirements, including case law interpretations, and to provide consistent treatment of similar situations. TAGMs and STARS may also be used by the public to gain technical guidance and insight regarding how the department staff may analyze an issue and factors in their consideration of particular facts and circumstances. These documents contain guidance and are not a fixed rule under the State Administrative Procedure Act section 102(2)(a)(i). Furthermore, nothing set forth herein prevents staff from varying this guidance as the specific facts and circumstances may dictate, provided staff's actions comply with applicable statutory and regulatory requirements. TAGMs and STARS do not create any enforceable rights for the benefit of any party."

Virtually no published guidance exists today on DEC's Voluntary Cleanup Program--apart from the VCP application form and its one page of instructions and a one-page web site. DEC does not even still distribute copies of speeches by present or former officials. The regulated community is left largely to its own devices and DEC retains maximum flexibility to change the program's requirements without warning or notice.

Two internal guidance documents are available to guide program staff, but are not widely available to the public. One of these documents, Organization and Delegation Memorandum # 94-32 ("Policy: Voluntary Cleanup Program"), Dec. 9, 1994, was recently released in response to a Freedom of Information Law request. (The Department probably found it difficult to argue that a document labeled "Policy", with "policy" underlined, did not fall in the category of disclosable Program Policies.)

The Department's steadfast refusal to release a second document ("Voluntary Cleanup Program Internal Procedures," rev. 11/30/99) was appealed to an administrative law judge. This document was, apparently, further revised in November 2000 and in January 2002.

In a major new development, DEC published in the Environmental Notice Bulletin of May 29, 2002 a 46-page DRAFT "Voluntary Cleanup Program Guide," which sets forth "the programmatic requirements for the Voluntary Cleanup Program as that program is being administered by the Department" (according to a DEC Assistant Commissioner). Public comments were being accepted until June 28, 2002. This deadline was extended (on June 19, 2002) to August 27, 2002. [There are indications that the deadline will be further extended until at least the end of September.]

Since this document serves to provide access to the public of the information sought in the FOIL request and appeal described above, the requesting attorney has agreed to withdraw his appeal. Responding to the request for comments, the attorney has prepared extensive comments to DEC on the DRAFT Program Guide, most of them recommendations for improvement of the Program.

Through successive extensions of the public comment deadline, DEC has managed to preserve the status quo indefinitely.