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Charles Sullivan Speech |
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| The Department of Environmental Conservation's
Brownfields Programs by Charles E. Sullivan, Jr., Esq. Chief, State Superfund and Voluntary Cleanup Practice Group Division of Environmental Enforcement date of this document: 27 March 1997 THE DEPARTMENT'S VOLUNTARY REMEDIAL PROGRAM I. Definitions for purposes of the voluntary cleanup program: "PRP:" a party responsible under law to remediate contamination disposed on or released from a property. "non-PRP:" someone who is not a PRP. Also includes the present owner if that owner purchased the property in an already contaminated condition and is not otherwise a PRP with respect to the contamination's remediation. A. Covered contamination: The program covers any contaminated property located in the State the remediation of which the federal government does not have lead responsibility. B. Eligible participants Anyone other than a PRP for property that is: A Class 1 or 2 Registry site A TSDF subject to corrective action or closure under permit or order issued under the Department's hazardous waste management regulatory ("RCRA") program a TSDF operating under interim status under the RCRA program that is subject to enforcement action leading to the issuance of an order containing a corrective action schedule (note: interim status facilities which have closed, or which have desire to close, the regulated unit, before receiving a Part 373 permit are eligible to participate in the Department's Voluntary Remedial Program) subject to any other "enforcement action" requiring the PRP to remove or remediate a hazardous substance. For this purpose, an "enforcement action" commences against a PRP: under state law, upon issuance of a notification of violation or upon commencement of enforcement under Article 71 of the Environmental Conservation Law or upon issuance of any notification under Article 27, Title 13 of the Environmental Conservation Law that the PRP is a PRP for the property in question or upon issuance of an accusatory instrument under the Criminal Procedure Law. under federal law the purpose of which includes requiring the subject of the action to remove or remediate hazardous substance, upon issuance of any notification that requires the removal or remediation of hazardous substances that is issued pursuant to federal law. C. The Commitment Document 1. Form of the Commitment Document: the volunteer's choice--either a consent order or an agreement. 2. The Commitment Document's Contents: a. the commitment: investigation only; remediation only; combination--volunteer's choice b. cost reimbursement: non-PRP volunteer--oversight only; PRP: past and oversight 3. Cleanup Objective: a. On site: safe for the contemplated use, from a human health and environmental protection perspective [RE TAGM 4046: until VCP-specific soil cleanup guidance is issued, TAGM 4046 will guide soil cleanup level determinations. However, as contrasted with TAGM 4046's use in the State Superfund program context--where it is used to develop cleanup objectives to allow the site, and the groundwater underlying it, to be used without restriction--the voluntary remedial program uses TAGM 4046's evaluation method with an exposure scenario tailored to the circumstances of the site's contemplated use. Also, we continue to evaluate how to apply the risk-based assessment methodology to contaminated groundwater situations; at this point it does not appear clear how we would apply risk-based determinations any differently than what presently is done for non-volunteer sites, viz., groundwater standards are considered, as are the potential for use, discharge to surface water, and the practicability of cleaning up to standards.] b. If there is off-site migration: non-PRP--remove on-site source only; PRP--remove on-site source and address off-site impacts that are not inconsequential c. Developing concept: remove readily apparent contamination 4. Institutional Controls: must be imposed, if needed. Volunteer cannot challenge them or their enforcement. D. Public Participation 1. Non-Class 2 sites: the Department and the volunteer will execute the agreement, which will include the workplan for the site's cleanup. The Department will then notify the public (through the Environmental Notice Bulletin) and local governmental entities of the existence of the agreement and afford the public and those governments a 30 day opportunity to comment on the workplan. Any significant new information received during this process may be used to reopen the agreement to revise the workplan appropriately. 2. Class 2 Registry Sites: citizen participation will be conducted pursuant to the requirements of the Inactive Hazardous Waste Disposal Site Remedial Program,(1) the New York State Inactive Hazardous Waste Site Citizen Participation Plan, and the Citizen Participation Plan Interim Guidance, to the extent practicable. 3. If a spill, or other event or condition occurs, whether natural or human-made, as the result of which a release or threat of release of contaminants presents an immediate threat to life, health, property, or natural resources, the public participation provisions may be waived. E. Qualified Release 1. 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, the Department does not contemplate further action needing to be taken at the site. It also will release the volunteer from further past contamination remediation liability, subject to the reopeners. 2. While the qualified release covers onsite and offsite remedial responsibilities arising out of past contamination, with respect to a non-PRP volunteer, cleaning up the onsite contamination triggers the release; and with respect to PRP volunteer, cleaning up on-site contamination and addressing offsite impacts trigger the release. 3. A non-PRP volunteer also will receive a release that will cover natural resource damages. 4. Reopeners: the response action we require the volunteer to undertake is not sufficiently protective to allow the contemplated use of the site to proceed safely, from a human health and environmental protection perspective 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 the volunteer fraudulently obtains the release environmental conditions present at the affected site at the time the voluntary agreement was executed by the Department that were unknown to the Department at such time 5. Key considerations: the Department's release binds only itself and does not bind private parties harmed by contamination emanating from property covered by a voluntary remedial agreement; does not prevent the Attorney General from commencing litigation to abate a common law nuisance that the contamination may cause; does not bind the United States Environmental Protection Agency. The Department's agreeing to a specified cleanup level again only binds the Department. Under present law, to bind others to a Department-determined cleanup program requires either agreements with those other parties. The Department's policy statements do not affect the Oil Spill Fund's authority to require cleanup activities nor its authority to seek reimbursement for cleanup activities. Volunteers seeking liability protection when confronted with petroleum-contaminated property ultimately must get it from the Oil Spill Fund Administrator. All of the volunteer's successors and assigns (except the site's PRPs) benefit from the release given to the volunteer. Also, the reopener affects only the volunteer, successor, or assign which owns or operates the property at the time of the reopening, and thereafter. The extent of the investigation and remediation determines the breadth, and hence, value, of the release. The lesson to draw from this is that the more comprehensive the remedial response, the more comprehensive the release. II. The Department's Voluntary Cleanup Program and SEQRA A. Investigation only: exempt from SEQRA. 6 NYCRR 617.5(c)(18). B. Remediation associated with a project subject to SEQRA: agreement is considered in the course of the evaluation of that project. C. Remediation not associated with a project subject to SEQRA and volunteer is a PRP/discharger: exempt from SEQRA. 6 NYCRR 617.5(c)(29). D. Remediation not associated with a project subject to SEQRA and volunteer is a non-PRP/discharger: subject to SEQRA. III. The Department's Voluntary Cleanup Program's Relationship to the Registry of Inactive Hazardous Waste Disposal Sites A. The Department will continue its practice of listing only inactive sites having "consequential" amounts of hazardous waste disposed at them.(2) B. But it will create a new administrative category(3) in the Registry: one for sites that were not previously listed in the Registry that are covered under the Department's Voluntary Remedial Program and have a consequential amount of hazardous waste disposed at them. C. The Department will postpone the classification determination of inactive sites within this "V" category of Registry sites until the satisfactory completion of the property's cleanup under the Department's Voluntary Remedial Program. EXCEPTION: if the Department becomes aware of known significant threats to the public health or to the environment and the volunteer does not satisfactorily address them under its agreement (for example, where the volunteer is a non-PRP and therefore is not required to remediate offsite adverse impacts to groundwater supplies), the Department will list the property as "Class 2." IV. Municipal Liability Protection The Department typically will not commence or maintain administrative proceedings pursuant to ECL 27-1313.3 and .4, 71-2705.1, 71-2727.1 or .3, or refer to the Department of Law for the commencement and prosecution of judicial civil litigation pursuant to any statutory or common-law cause of action, against the following persons under the following circumstances: 1. A public corporation that took action in response to an emergency created by the release or threatened release of hazardous waste by another person, provided that the public corporation's action did not constitute reckless, willful, wanton, or intentional misconduct. 2. A public corporation that merely owns the location of a release or threatened release of hazardous waste by another person, provided that such ownership by the public corporation was acquired and thereafter retained without participation in management, either involuntarily, or voluntarily by virtue of its sovereign functions (as, through tax foreclosure). For these purposes, the term "public corporation" includes: a municipal corporation (i.e., a county, a city, a town, a village or a school district); a district corporation (i.e. any other territorial division of the State possessing the power to contract indebtedness and to levy or require the levy of taxes or assessments upon realty); and a public benefit corporation (i.e. any corporation organized to construct or operate a public improvement wholly or partly within the State the profits of which inure to the benefit of the State or the people thereof), provided, however, with respect to a public corporation that is an industrial development agency, such agency must own mere title to the location and have no authority to manage or control activities at such location. None of the above affects the obligations of a public corporation according to any existing order or judgment or comparable instrument finally disposing of any prospective or final administrative proceeding or judicial litigation. V. Limitations on the Department's Voluntary Cleanup Program A. The Department's forbearance would bind only itself. Specifically, it would not bind private parties harmed by contamination emanating from the site. it would not prevent the Attorney General from commencing litigation to abate a common law nuisance that the contamination may cause. The Department and the Attorney General's office are working closely together in the remediation arena, and I expect that as a result and barring something unusual, the Attorney General would not commence such litigation without first consulting the Department. it would not bind the United States Environmental Protection Agency. To address this, the Department presently is negotiating a Memorandum of Understanding with USEPA that would result in USEPA's not taking any action at a non-NPL, non-"NPL caliber" site being addressed under the Department's voluntary remedial program. B. The Department's forbearance is a matter of policy, not statute. If a more secure basis for liability exemption is desired, legislation must be enacted. C. The Department's policy statements do not affect the Oil Spill Fund's authority to require cleanup activities nor its authority to seek reimbursement for cleanup activities. Those seeking liability protection when confronted with petroleum-contaminated property ultimately must get it from the Oil Spill Fund Administrator. VI. Comparing the Department's Program with USEPA's A. USEPA's prospective purchaser policy: In 1995, the United States Environmental Protection Agency issued its prospective purchaser policy, a copy of which is in the materials. While the policy statement provides qualified releases from past contamination remedial liability to prospective purchasers of realty, it differs from the Department's program in three major respects: (a) the policy is primarily intended for use at sites where USEPA has taken, is taking, or plans to take action under CERCLA and where it is used, (b) the release provided is not readily transferable and (c) PRPs are not eligible. B. Respecting non-NPL sites where no USEPA
removal action has occurred, the Department and USEPA Region II presently
are negotiating a Memorandum of Agreement the objective of which is that,
barring an emergency situation, USEPA will refrain from taking any action
against a volunteer at property subject to a Department voluntary remedial
commitment that is not on the NPL and not an "NPL-caliber site," viz., a
site the HRS of which is more than 28.5. The difficulty is that USEPA's
current policy in this area is not to commit to such forbearance, which
renders useless such an MOA. We are awaiting Headquarters, USEPA
clarification of its policy in this area. VII. The Voluntary Remedial Program's Development as an Iterative Process
It is important to keep in mind that this program remains in the development stage: it will change over time in the intended direction of enhancing its value to the people of the State. To demonstrate our commitment to this objective's attainment,
in determining whether to change existing, or introduce new, aspects of the program, we are considering "lessons learned" and recommendations from interested parties.
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