MEMORANDUM FROM
LANGDON MARSH,
Commissioner
New York State
Department of Environmental Conservation
DEC 09 1994
TO: Executive Staff,
Division and regional Directors
FROM: Langdon
Marsh
SUBJECT: ORGANIZATION
AND DELEGATION MEMORANDUM # 94- 32
Policy: Voluntary Cleanup Program
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PURPOSE
On October 19, 1994, Governor Cuomo formally
announced the Department's
Voluntary Cleanup Program. This program
enhances the remedial element of the
Department's enforcement program by
encouraging those who otherwise would not be
responsible for addressing a site's
remediation to step forward and undertake that task.
In consideration for this commitment, the
Department provides a qualified release to the
Volunteer from past contamination liability.
Hence, since the typical volunteer is one
who seeks economic benefit ftom the property,
the Voluntary Cleanup Program relies
on private incentives to drive cleanups that
return contaminated sites to productive use
while getting contaminated sites cleaned up
sooner rather than later--if at all.
As Governor Cuomo noted in his announcement,
while the Department is
developing legislative proposals to make the
Voluntary Cleanup Program more
attractive, the key elements of the Program
already are in place and implementable
under existing statutory authority and
enforcement discretion. The attachment to this
memorandum describes the major conceptual
elements of the Program, provides copies
of the appropriate application forms, and
describes the commitment document.
Because actions taken under the Voluntary
Cleanup program are expected to cut
across a variety of the Department's existing
programs, maximum flexibility will be
used in fitting the right technical and legal
resources to address a particular
negotiation's circumstances. Further, since
the program is still evolving, Central Office
coordination and oversight of Regional efforts
are key to the Program's
2.
successful and uniform implementation.
Accordingly, effective immediately, I
hereby designate Christine Costopoulos, the
Department's Remediation Program
Development Coordinator, as the Department's
public contact. I also designate
Charles N. Goddard, Assistant Director of the
Division of Hazardous Waste
Remediation, and Charles E. Sullivan, Jr., Chief
of the Inactive Hazardous Waste
Site Enforcement Bureau, as the individuals who
shall provide, respectively,
technical and legal oversight of the Program.
Attachment
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NewYork State Department of Environmental
Conservation
Voluntary Cleanup Program
1. Major conceptual elements
A. the program covers all sites over which the
Department exercises enforcement jurisdiction, not just those on the New York
State Registry of Inactive Hazardous Waste Disposal Sites
B. those who are not legally responsible for
having caused or maintained the site's contamination are eligible to avail
themselves of the program (for example, a developer having no previous
culpable contact with the site). In addition, there are
limited
circumstances where other parties who may be legally responsible parties may be
eligible for the program. For example:
·
a secured lender if it
undertakes cleanup as a way to make the collateral more marketable
·
a municipality that
forecloses on property to recover back taxes
·
an IDA conduit financier
However, a party otherwise eligible is rendered
ineligible if that party intends to convey
or lease or suffer the site's use by any of the
site's PRPS; or if any of the site's PRPs has
the site conveyed or leased to it sometime in
the future.
C. the volunteer enters into a legally
enforceable document--either an agreement
or a consent order, at the volunteer's option
·
the volunteer will commit to
undertake specific activities set forth in a scope of work, and the
application will contain an estimate of how much the contemplated commitment
will cost and a commitment that the volunteer has the wherewithal to cover
that level of expenditure.
·
We expect the volunteer to
complete the work agreed to but, requests to withdraw from the commitment
will be considered on a circumstance-specific basis. However, even if the
Department approves the withdrawal, the volunteer will be required to leave
the site no worse, from an environmental and human health perspective, than
when it began its activities.
·
the volunteer pays the State's
oversight costs.
·
the volunteer will investigate the site to gather information
needed to determine the appropriate cleanup level. If the volunteer
contemplates using the site for industrial/commercial purposes, it will be
required to clean up to a level
consistent with the safe use of the property
for those purposes and the document will identify the cleanup level to be
attained or the process to be used to determine that level.
·
the response commitment must
include source removal activities if the pollution significantly affects
groundwater or surface water quality.
·
the volunteer must put into
place any institutional controls (including deed restrictions) that the
State may deem necessary to allow the contemplated use to proceed and cannot
challenge State attempts to enforce them.
D. there will be public participation
in.decisionmaking appropriate to the
circumstances.
E. once the cleanup level is met, the
Department will issue a letter declaring that
the Department agrees that the volunteer has
cleaned the site to the previously agreed-
upon cleanup level and that, barring an event
triggering a reopener--discussed below, the Department does not contemplate
further action needing to be taken at the site.
F. the volunteer also will
receive a release that will cover NRD--with certain reopeners:
·
the response action we require
the volunteer to undertake is not sufficiently protective to allow the
contemplated use of the site
·
the volunteer, or its
successor, changes the site's use to a use requiring a lower level of
residual contamination before that use can be implemented safely
Note: all of the volunteer's successors and
assigns benefit from the release except any
that are PRPs for the site as of the time of the
release's effective date (which would be
when the Department is satisfied that the
cleanup levels have been reached). Also, the reopener affects only the
volunteer, successor, or assign which owns or operates the property at the time
of the reopening, and thereafter.
Note: the extent of the investigation and
remediation determines the breadth of the
release. Hence, the more comprehensive the
remedial. response, the more complete the release.
II. Documents
A. Application forms
See
the attached form and its associated instructions.
B. Commitment document
See
attached model voluntary cleanup agreement.
C. Sample text of Voluntary Cleanup
Program notification letter: see the
attached
sample.
CES/ces:c:clnup16.cst
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