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[____ Letterhead]
_____ __,
2002
NYS Department
of Environmental Conservation
Attn: Andrew
English
625 Broadway
Albany, New
York 12233-7017
(e-mail:
ajenglis@gw.dec.state.ny.us)
Re: Comments on DRAFT Voluntary Cleanup Program Guide
(May 2002)
Dear Mr.
English:
In response to
the invitation to comment contained in the referenced DRAFT Program Guide,
as published in the Environmental Notice Bulletin of May 29, 2002,
the __________________ (Insert Acronym) is pleased to offer the accompanying
comments.
The _____ is
_____ County government’s ________ board on local __________ matters, with a
mission to ____________________. Our members are volunteers from a variety
of occupational and professional backgrounds. [INSERT ADDITIONAL
DESCRIPTION OF WHAT THE BOARD, AGENCY, OR ENTITY DOES].
The
Department’s Voluntary Cleanup Program and how it is structured and
administered have a crucial bearing on this community’s ability to strike a
viable balance between our quality of life and sustainable development
objectives.
It is from this
vantage point and in this spirit that we offer the accompanying comments.
We commend DEC for publishing the Draft Program Guide and for providing this
opportunity for public review and comment—which affords the public its first
opportunity to comment on the way the VCP is structured and administered.
We hope DEC will act promptly, following the close of the comment period, to
issue a revised VCP Guide which reflects the valid and persuasive comments
received. We also hope that DEC will take advantage of the dialogue
initiated by this process to convene—following the publication of a revised
VCP Guide—public workshops around the State to exchange ideas on ways to
further improve New York’s VCP and to make it more “user friendly.” (We
stand ready to assist DEC in scheduling and hosting such a forum in
Binghamton.)
Our comments
can be briefly summarized as follows:
-
The role of the State
Department of Health (DOH) in the approval of VCP work plans and reports
needs to be more carefully delineated to ensure that DOH’s inputs are
timely, focused on relevant public health concerns, and consistent with
the understandings established in the applicable Voluntary Cleanup
Agreement (VCA).
-
DEC should take a more flexible
role when it comes to issuing a liability release (or lesser form of
assurance, such as a No Further Action letter) in appropriate cases (e.g.,
where a Phase I ESA properly concludes that there are no “recognized
environmental conditions” warranting further action), even where a
property owner or prospective purchaser has not completed an investigation
or other “substantive work” under a VCA.
-
It is not clear that existing
law gives DEC the authority to enter into VCAs at “hazardous substance”
sites that do not also involve State-regulated hazardous wastes and/or
petroleum—at least without the knowing and explicit agreement of the
volunteer to assume cleanup responsibility for these currently unregulated
materials.
-
DEC should eliminate the
anomalous SEQR coverage of voluntary cleanups undertaken by innocent
non-owners (while responsible parties and owners are exempt), by amending
the SEQR regulations to add such cleanups (at other than “Class 2”
Registry sites) to the list of SEQRA-exempt “Type II” actions.
-
As an incentive to join the VCP,
DEC should consider eliminating as reservations or re-openers in liability
releases granted to innocent non-owners the discovery of previously
unknown onsite or offsite contamination. Also, the Program Guide should
add an exemption, similar to that recently established by federal law,
absolving innocent owners from liability for contamination originating
offsite on or under the property of an unrelated third party.
-
DEC should establish a firm
policy against post-VCA Registry listings (or threatened listings) in
circumstances likely to be counter-productive to the goals of the VCP.
The threat of Registry listing should never be used to coerce innocent
owners or non-owners to take responsibility for cleanup activities for
which they have no legal liability or culpability.
-
The Program Guide should
establish a clear role for “Qualitative Exposure Assessments” in setting
risk-based cleanup standards or objectives appropriate (and protective)
for the contemplated use, and in determining when there is a sufficient
risk of downwind air emission exposures to justify the preparation of a
Community Air Monitoring Plan.
-
In any case, the Program Guide
needs to make more clear the intended role of the Community Air Monitoring
Plan, which is referenced only in Appendix D.
-
DEC’s insistence on the use of
“licensed professional engineers registered in New York State,” to the
exclusion of all other environmental professionals, in the preparation of
all remedial work plan documents, in personally overseeing and
implementing the work plan and all construction activities, and in
evaluating the adequacy of all remedies (whether or not involving
engineering controls) is inappropriate and unnecessary.
-
If DEC decides to retain the
use in the VCP, even for non-Registry sites, of the Part 375 remedy
evaluation factors (many of which are not relevant and/or appropriate), it
should at least add the following two factors (which ARE relevant and
appropriate): (1) protectiveness of the remedy in light of the
contemplated use; and (2) compatibility with opportunities for productive
reuse.
-
Given the lack of VCP-specific
cleanup standards, DEC should either drop the requirement that all of the
“major SCGs for the site” [SCGs are State Standards, Criteria, and
Guidance] must be listed and discussed, or allow cleanup volunteers to
retain qualified environmental professionals (not limited to engineers) to
document why some or all of these SCGs are inapplicable to a particular
VCP site in light of site-specific conditions and/or the site’s
contemplated use.
Thank you for
your consideration of these comments.
Respectfully
submitted,
[AGENCY OR
ORGANIZATION]
By:
_______________
Chairman
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