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COMMENTS OF ___________
On Behalf of ___________
[Location]
Comment Deadline: August 27, 2002
Comments on DRAFT “Voluntary Cleanup Program Guide”
As Announced in DEC’s Environmental Notice Bulletin of May 29, 2002
http://www.dec.state.ny.us/website/der/vcp/VCPGuide.pdf
I/we commend DEC
for publishing this guidance and inviting public comment. For far too long,
the VCP has operated with insufficient public information and frequently
changing requirements.
1.
Preamble:
The “Notice” preceding the Table of Contents (p. i) asserts that this
Program Guide “does not create legally binding obligations,” etc.
Comment
and Recommended Action: A statement should be added
to this
Notice as follows: “Where provisions of this document conflict
with the
terms of a duly executed Voluntary Cleanup Agreement (VCA),
the terms of
the VCA shall govern.”
This statement
is consistent with the balance of the Notice. It is necessary because
provisions of previous “VCP Internal Procedures,” sometimes appeared to
conflict with understandings embodied in VCAs.
2.
Role of DOH:
The draft Program Guide repeatedly references the role the State Department
of Health (DOH) is playing, along with DEC, in the establishment and
implementation of VCA work plans. The clear indication is that no
investigation or remediation work plans or reports will be approved or
accepted without DOH sign-off.
Sections 1,
5: VCP as “a cooperative approach … to investigate and/or remediate
contaminated sites and return these sites to productive use”; Section 2.5:
DEC, “along with the NYSDOH, will review the investigation and remediation
reports and determine if the project has been completed satisfactorily”;
Section 6.1: “Work plans must be submitted for review by the Department
and the NYSDOH. Once an application to enter the VCP is signed, no
investigation work should commence until the Department approvals are
obtained”; Section 6.7.2: “Department and NYSDOH review and approve
[investigation] work plan”; and Section 7.5: “Department and NYSDOH
review and approve [remedial action] work plan.”
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Comment:
The concept of soliciting inputs from DOH on matters within its
expertise is unobjectionable. However, the proposal to confer on
DOH joint approval authority (and, by implication, joint disapproval
authority) under a DEC program involving legally enforceable agreements
between DEC and cleanup volunteers, leading to a liability release, to
which DOH is not a signatory and to which it does not consider itself
bound is problematic. There are three primary problems with
this arrangement: |
a. There are no
criteria governing the nature, extent, or timing of appropriate DOH inputs,
or the permissible grounds for withholding its approval of an investigation
or remedial action work plan (or other submittal by a cleanup volunteer).
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Comment:
DOH inputs and objections should be limited to concerns related
to human health and to issues regarding conformity with applicable (or
at least, relevant and appropriate) standards, criteria and guidance.
Recommended action: The Guide should clearly specify areas that
are and are not within DOH’s purview and the bases on which a work plan
will be disapproved or a report will not be accepted. |
b. The New York
State Legislature has chosen to confer certain powers and responsibilities
on DOH and has withheld others. The Legislature’s grant of authority sets
limits on the scope of the role DEC may lawfully give to DOH under the VCP.
Clearly, DEC may not delegate more authority to DOH indirectly than the
Legislature has chosen to give DOH directly. Under the Public Health Law (§
1389-b), the only authority DOH was granted by the Legislature in connection
with contaminated sites was limited to “inactive hazardous waste disposal
sites” and to “a condition dangerous to life or health resulting from [such
a site].”
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Comment:
DOH should only be permitted to share work plan approval
authority with DEC at those VCP sites that (a) are listed on the
Registry of inactive hazardous waste disposal sites, and (b) are
determined by the DOH Commissioner to present “a condition dangerous to
life or health” resulting from its status as a Registry site; in all
other instances, DOH’s role should be treated as cooperative and
advisory, with ultimate approval authority residing solely with DEC.
(See footnote 1.)
Recommended action: The Guide should be revised to limit DOH’s
disapproval authority to that which is authorized in the Public Health
Law. |
c. DOH’s
authority under the Draft Program Guide is even greater than that of DEC,
because DOH is not a party to VCAs and is not bound or limited by the terms
and conditions of VCAs or by the resultant liability release. Commitments
by DEC to a cleanup volunteer, as set forth in a VCA, are meaningless if
they can be circumvented by another agency working in concert with DEC. For
example, in the master VCA, DEC agrees to provide written comments
explaining its reasons for rejecting work plan reports or other submittals
by cleanup volunteers. Not being a party to the VCA, DOH has no similar
obligation. Thus, it may object to any element of a cleanup volunteer’s
submittal for a good reason, a bad reason, or no reason at all, without any
duty of explanation. DEC may earnestly explain to the volunteer that “you
need to do this in order to get DOH’s sign-off,” but the volunteer has still
been denied the explanation to which it is entitled.
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Comment:
DOH should either be made a party to voluntary cleanup agreements
(if it is going to share in DEC’s authority to approve or disapprove
work plan submittals) and be subject to the same obligations and
constraints as DEC, or the authority given to DOH by DEC in the VCP
Program Guide (or otherwise) should be limited to providing advisory
inputs to DEC.
Recommended action: Unless DOH signs the VCA and joins in the
resulting liability release, the Guide should limit its role to
providing advisory inputs to DEC—rather than sharing in approval and
disapproval authority. |
2.
Requirement of certification by a New
York State-registered licensed
professional engineer:
The Guide requires “a licensed professional engineer registered
in New York State” to do all of the following:
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sign and seal “all Remedial Design and Remedial Action Work
Plan documents” (Section 7.1.5);
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include in Remedial Action Work Plans an “Engineering
Evaluation of the Remedy” (Section 7.3(2)) and “an engineering analysis”
demonstrating “that the remedy can achieve the cleanup goals for the site”
including a “Remedial Action Selection Report” evaluating the remedy against
the factors given in 6 NYCRR 375-1.10(c)” (Section 7.4);
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prepare, sign, seal, and submit, within 90 days after
completion of remediation, “a final engineering report and ‘as-built’
drawings that include all changes made to the final design during
construction and an OM&M plan, if appropriate” (Section 8.3.1).
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attest, among other things, that “the Remedial Action Work
Plan (or Remedial Design) was implemented and that all construction
activities” were “personally witnessed by [the engineer] (or ‘by a person
under [his] direct supervision’)” (Section 8.3.1).
Interestingly,
the P.E. certification requirement doesn’t apply to certain underground
storage tank closures (based, presumably, on Navigation Law provisions).
Section 7.4.
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Comment:
Singling out professional engineers in this fashion and compelling
cleanup volunteers to retain a P.E. to the exclusion of all other
environmental professionals in implementing the VCP is unfair,
unnecessary, counter-productive, and devoid of legal basis or
justification for all of the following reasons:
a. It
goes beyond anything required by any other state or EPA in a similar
context.
It is one thing to require a P.E. to stamp plans for complex
engineering designs—such as those outlined in Section 7.2 for a
“full-scale remedial design” (which is appropriate); it is quite another
to allow only an engineer to certify that a proposed cleanup plan (which
may or may not include engineering controls) will effectively achieve
desirable environmental objectives—which may more directly implicate the
expertise of biologists, hydrogeologists, chemists, toxicologists, etc.
(which is not appropriate). By mandating the use of P.E.s (and of
P.E.s only), the Guide ensures that other (often more relevant)
expertise is not utilized to the extent that it should be, resulting in
“well-engineered” remedies built upon an inadequate scientific
foundation and responding to poorly defined risks.
b. The
Guide requires all of the major SCGs (Standards, Criteria and
Guidelines) for the site to be listed and discussed as part of the Part
375 “engineering” evaluation (Section 7.4.2). This is highly
inappropriate. In cases where particular SCGs are clearly
inapplicable in a particular VCP situation (e.g., because no exposure
pathway exists under the circumstances of anticipated site use), most
engineers are singularly ill-equipped to analyze and explain this.
The Guide also requires a “Qualitative Public Health Exposure
Assessment” to be completed for all VCP sites (Section 6.6). This
is another area where most P.E.s would be ill-equipped to make the
necessary biological, chemical, hydrogeological, and toxicological
judgments. Other environmental professionals would be far
better-suited to perform these roles.
c.
Although under New York’s Education Law (Chapter 16, Title VIII,
Article 145) engineers and land surveyors are the only relevant
professionals that are licensed or registered by the State, the
qualifications required for such registration are not
overwhelming (the main substantive requirements for a P.E. are a
bachelor’s degree and four years of “work” experience). While it is
true that the State has some theoretical control over the quality of a
registered engineer’s work by virtue of the possibility that the
registration could be revoked in extreme cases of malfeasance, there
are other ways DEC could ensure the quality of consultants active in the
VCP. (For example, it could develop a list or database of approved
or “qualified” VCP consultants based on a published Request for
Qualifications [RFQ] to the consultant community. The fear of being
dropped from “the list” or falling into disfavor by DEC for substandard
work or poor ethical behavior provides an adequate and more realistic
deterrent. There are also a number of environmental
professional associations with their own registration and certification
procedures—which are often more rigorous than what New York State
requires of P.E.s.).
d. One
suitable alternative procedure is already utilized by DEC in its
municipal brownfields program (the environmental restoration program
under the 1996 Bond Act). Under DEC’s Brownfields Procedures
Handbook—Brownfields Program (TAGM #4058), Section 3, municipalities
are free (for some but not all purposes) to use a consultant “on
DEC’s Qualified Remedial Consultants (QRC) List,” or include “a
description of the consultant’s experience in investigating
environmental contami- nation.” The description “must document that
the firm employs a sufficient number of staff with experience of
sufficient duration, diversity, and expertise to complete the proposed
project.” The same approach (but more broadly applied) could and
should be used in the private-party VCP context.
e.
Another problem with insisting on P.E.s for certain VCP tasks is that
this goes beyond what was required in many negotiated VCAs
(especially during the first several years of the program)—some of which
still have yet-to-be-completed work plan requirements. The effect of
this new P.E. requirement on volunteers who are still subject to those
early agreements is to impose new, ex post facto requirements on
them not called for in the VCAs they negotiated with DEC. This is
clearly inappropriate.
Recommended actions: (a) Eliminate the requirement of P.E.
certification, except for complex engineering design, construction, and
analysis work where engineering expertise is truly necessary and
appropriate (i.e., the Part 375 evaluation should NOT be placed in the
hands of engineers—although it is appropriate to require an engineer to
certify that a complex engineering design or structure will perform in
the manner intended); (b) allow VCP cleanup volunteers to use
qualified environmental consultants of their choosing (for all
matters not specifically requiring engineering expertise), as long as
the consultant(s) in question is/are: on DEC’s Qualified Remedial
Consultants list; the volunteer documents that the consulting firm
“employs a sufficient number of staff with experience of sufficient
duration, diversity, and expertise to complete the proposed project”;
and/or the consultants utilized have been recognized as competent in
their fields by virtue of having received the certification or
registration of a relevant governmental authority, educational
institution, or recognized professional licensing or certification
organization; and (c) eliminate the need for P.E. certification in
all cases where an applicable VCA contains no such requirement or
restriction. |
3.
Evaluation of remedy against Part 375 factors:
The Guide requires (Section 7.4) the proposed remedy to be evaluated
“against the factors given in 6 NYCRR 375-1.10(c)”—except that it
acknowledges that “it is not necessary to evaluate cost effectiveness or
community acceptance in this evaluation.” The factors which are required to
be evaluated and addressed are: protection of human health and the
environment; standards, criteria, & guidance (SCG); short-term effectiveness
& impacts; long-term effectiveness & permanence; reduction of toxicity,
mobility, or volume; and implementability.
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Comment:
These are the same factors (with the two indicated exceptions)
that are required to be evaluated for high-hazard federal and State
Superfund sites. The requirement that VCP remedies address the
Part 375 evaluation factors (even at low-risk brownfield sites that are
not eligible for “Class 2” listing or for inclusion on the Registry at
all) effectively makes TAGM #4030 (“Selection of Remedial Actions at
Inactive Hazardous Waste Sites”) applicable to a much broader array
of sites than was ever intended. Requiring conformity with State SCGs—which
for the most part are also geared to Superfund-caliber sites—simply
serves to compound this anomaly.
At least
two key points should be made:
a. There
is no compelling reason for DEC to carry over the Part 375 factors from
the inactive hazardous waste sites (Superfund) program to the VCP,
as DEC seems itself to recognize by eliminating two of the original Part
375 factors. The least defensible factor to carry over is application
of SCGs. The VCP needs its own.
b. If
ANY of the Part 375 factors are to be retained, the following two VCP-specific
considerations should be added: i) protectiveness of the remedy
in light of the current or anticipated land use; and ii)
compatibility of the remedy with opportunities for productive reuse of
the site and associated community benefits. (The first of these
corresponds to one of Governor Pataki’s reform proposals—but clearly
does not require legislative authorization for non-Superfund, non-oil
spill VCP sites.)
Recommended actions: (a) The Guide should eliminate the requirement
that Part 375 remedy selection criteria designed for high-hazard
Superfund sites be applied to low-hazard VCP sites; and (b) if any of
the Part 375 remedy selection criteria are retained, two more should be
added in the case of VCP sites: one that requires contemplated site use
to be taken into account; and one that requires consideration of
community benefits of restoring the site to productive use. |
4.
Need for VCP-specific, use-based cleanup
standards to ensure that the
cleanup plan is protective for the
contemplated use:
As the Guide
correctly notes (Sections 1, 3.4, 7.1.1), “the goal under the VCP is to
remediate the site to a level that is protective of public health and the
environment for the Contemplated Use of the property.” However, the
Guide gives little guidance as to how use-based cleanup standards are to be
arrived at, beyond declaring (Section 7.1.4) that the Remedial Action
Work Plan “will identify cleanup levels to be attained or the process to be
used to determine the cleanup levels” and “will describe the basis for
concluding that the results of the remediation will be protective of public
health and the environment.”
In essence,
every time a VCP cleanup work plan is negotiated, it is negotiated ad
hoc based on the subjective judgments and preferences of the involved
DEC staff. (The only exception is “Class 2” sites, for which definitive
cleanup requirements have been established.) The absence of clear cut
upfront cleanup standards applicable to the VCP has created major
uncertainties and made many prospective purchasers and redevelopers
reluctant to participate in the Program. Simply setting forth a set of
qualitative cleanup objectives in a cleanup work plan (developed on a
case-by-case basis through negotiation between the Volunteer and DEC) as
part of a VCA is not an adequate substitute for objective, use-based cleanup
standards.
The Guide
appears to give much more attention to ensuring that the results of the
remediation are protective than to ensuring that the remediation is
use-based and cost-effective (which is the major driving force of a
voluntary cleanup program).
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Comments: There are basically three approaches contemplated by the
Guide to produce the desired remedial result:
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evaluation of the proposed remedy in light of the Part
375 remedy selection factors. This includes requiring (§ 7.4.2) all
of the major SCGs to be listed and discussed as part of an “engineering
evaluation.” The P.E.s conducting this evaluation are unlikely to have
the toxicological sophistication to argue persuasively that certain SCGs
will have little relevance in the site-specific circumstances of a
particular end-use.
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completion of a “qualitative on-site and off-site
public health exposure assessment” (Section 6.6). While this could
be very valuable in arriving at a use-based cleanup, its potential
effectiveness is undermined by the lack of guidance as to how it should
or will be used. For example, there is no link made to the review of
SCGs, or to the need (or lack of need) for a “Community Air Monitoring
Plan” (Appendix D) under the circumstances of a particular site or
contemplated use.
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(There is
also no link made to the requirement (Section 6.1) that the Work Plan
evaluate potential impacts on fish and wildlife at sites where
contamination “presents actual or potential threats to fish and wildlife
resources.” While it is appropriate that the qualitative exposure
assessment retain its public health focus, it would make sense to
evaluate “actual or potential threats to fish and wildlife resources”—at
least, where there are indications that such threats might be
“consequential”—as part of the exposure assessment, rather than doing so
in total isolation.)
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The
potential value of the exposure assessment approach is also undercut by
the Guide’s requirement that engineering consultants be used rather than
other environmental professionals who might be more comfortable with
conducting an exposure assessment.
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deferral to DOH in
evaluating the adequacy of investigation and cleanup work plans and reports (see Comment #2).
While DOH undoubtedly brings relevant expertise to bear, deferring to
their discretion is not a substitute for rules and criteria that provide
upfront certainty and predictability.
Recommend action: DEC should build upon the qualitative exposure
assessment requirement
to create predictable criteria for use-based cleanups under the VCP.
As a minimum,
the Guide should spell out how the exposure assessment relates to other elements
of the Guide, including the review of SCGs and the need for a Community
Air Monitoring
Plan.
DEC also
needs to give high priority to developing VCP-specific, use-
based cleanup standards and objectives. DEC
should develop and promulgate at the earliest
possible time soil cleanup objectives and other use-based cleanup
standards specific
to the VCP.
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5.
SEQRA exemption except for innocent
non-owners:
As DEC is
well aware, it is anomalous (but, arguably, necessary under the framework of
SEQRA) to require SEQR review only for innocent non-owners (Section 2.4).
(Legally-defined PRPs, including innocent-owners, arguably fall under
SEQRA’s enforcement exemption.)
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Comment:
This anomaly could be resolved by a minor amendment to the SEQR regulations, which DEC is encouraged to pursue.
Recommended action: “The conduct of a voluntary cleanup [at other
than a Class 2 inactive hazardous waste site] by an innocent non-owner”
should be added to the list of “Type II actions” under 6 NYCRR 617.13.
This is a list of actions not requiring review under SEQRA. The
proposed addition to the Type II list is abundantly appropriate. An
innocent non-owner who voluntarily undertakes to clean up a contaminated
site despite the lack of any legal responsibility to do so is clearly
not going to have a significant adverse impact on the environment. To
the contrary, any environmental impact will be beneficial. (Out of an
excess of caution, the bracketed language—excluding Class 2 sites—could
be added to the new Type II list entry, if desired by DEC.) |
6.
Release where no further action is needed:
The Program Guide states (Sections 1 and 8.2.2): “If the investigation
completed under Department oversight and pursuant to a VCA indicates that no
remediation is needed to meet the remedial goal of the VCP, a release will …
be issued.” Elsewhere [Section 4.4], the Guide specifies that “a Volunteer
must perform substantive work under a VCA to receive a Release from
the Department” and that work done without DEC oversight and approval “may
not be usable” under the VCP and “may not be sufficient to warrant a
release” from DEC [Section 4.4]. The Guide also provides (Section 8.2.1)
that DEC will only issue a Release under an Investigation-VCA if remediation
is found to be required and the Volunteer agrees to proceed with the
cleanup. Otherwise, the Volunteer will have to settle for an “investigation
approval letter.”
With the
exception of Class 2 inactive hazardous waste sites, which are allowed to
participate in the VCP only if the cleanup volunteer did not cause or
contribute to the contamination, most sites addressed by the VCP are only
slightly or moderately contaminated. Indeed, many are “brownfield” sites
which are merely “perceived” to be contaminated because of their status as
former commercial or industrial sites. A number of states (e.g., Maryland)
provide abbreviated procedures for securing state sign-offs where a site is
shown to be uncontaminated or to contain only insignificant trace levels of
contamination. This is desirable because it simplifies and facilitates the
sale, financing, and redevelopment of sites that might otherwise carry an
undeserved “stigma” of contamination.
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Comment:
Why is it necessary for DEC to insist that work have been
performed “under a VCA” in order for a Release to be obtained? Why isn’t
it sufficient to give the proponent the burden of proving that a
Release—or some less formal assurance letter—is warranted even in the
absence of a formal VCA or formal DEC oversight and approval? For
example, if a qualified consultant performs an ASTM-compliant Phase I
environmental site assessment and appropriately concludes that there are
no “recognized environmental conditions” necessitating or warranting
either further action or a Phase II ESA, shouldn’t DEC have the
discretion to issue, if not a liability release, at least a “No Further
Action” letter—or even an “investigation approval letter” (which a bank
may ask for). Avoiding red tape for low-risk sites of this kind, would
allow more economically beneficial projects to go forward more quickly,
avoid the expenditure of unnecessary DEC staff time (allowing more
Department resources to be spent on high-risk sites), and allow DEC to
take credit for processing more sites through the VCP.
Other
examples of situations where DEC in its discretion should be at least
able to consider the issuance of “comfort” letters of this kind
include: (a) where a qualified environmental consultant performs a
Phase II Environmental Site Assessment in accordance with ASTM
procedures, remedial measures recommended by the consultant are
implemented (after test results are shared with DEC), and DEC, after
reviewing the Phase II report, is satisfied that no significant risk
remains; and (b) where a cleanup volunteer initiates an Investigation-VCA
under DEC oversight, but elects not proceed to completion when it
becomes apparent that only de minimus contamination is present
(and DEC concurs).
Nothing is
lost if DEC agrees to consider this lesser form of assurance in
some or all of the instances listed above. In cases where it does not
believe an assurance letter is justified, it is free to decline to issue
one on this basis. In cases where it agrees such a letter is
appropriate, DEC has the opportunity to help promote socially beneficial
brownfields redevelopment and to take credit for helping to remove
another site from the rolls of abandoned or underutilized property. No
purpose is served by blanketly refusing to provide any form of comfort
or acknowledgement in cases where full VCP procedures have not been
followed to completion. |
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Recommended action: The Guide should make provision for some form
of No Further Remedial Action letter or notice (similar to that in
Maryland) if a non-PRP can demonstrate to DEC’s satisfaction—even
without going through a full Investigation-VCA process, that no further
work is needed. Also, if the investigation reveals that only part of
the site is contaminated and requires remediation, it should be possible
to obtain a full release for the part of the site that requires no
further remediation. |
7.
Appropriate Treatment of PRPs and Non-PRPs:
The Program Guide appropriately excludes (Section 2.1.3) an “innocent owner”
and an “innocent non-owner” from the definition of a “Potentially
Responsible Party” (PRP) for purposes of the VCP. Clearly, those who played
no culpable role in causing or maintaining contamination deserve to be
treated more leniently under a voluntary cleanup program than culpable
responsible parties. A further distinction arguably can and should be
made between innocent owners (who enjoy the benefits of site ownership and
also share in legal liability under CERCLA) and innocent non-owners (who
have no connection to the site whatever). However the Guide currently
treats innocent owners and non-owners virtually the same. See Chart Nos. 4,
5, and 6.
a. The
differential approach (Section 4.4.1) toward “PRPs” versus innocent owners
and non-owners (in the case of off-site migration of contaminants—both in
terms of initial cleanup responsibility and in terms of reopening a
liability release) is appropriate and commendable—because it confirms the
important principles that “the polluter should pay” and “the innocent should
not be penalized.” But, again, it is not clear that innocent non-owners
and innocent owners should be treated the same.
b. The reopener
for previously unknown conditions is well-worded to require (Section 4.4.2)
the simultaneous occurrence of both previously unknown conditions
and potential environmental consequences. However, the public policy
rationale is unclear for applying this reopener AT ALL to non-PRPs. One of
the praiseworthy elements of the New Jersey VCP that his contributed to the
success of that program is that innocent parties are NOT subject to this
type of re-opener. In such circumstances, if there is a need for additional
investigation or cleanup (even ONSITE), the State either carries it out
itself or directs a non-innocent PRP to do so (similar to DEC’s approach to
remediation of off-site contamination in the case of innocent parties).
c. The Guide
correctly (Section 6.4) underscores the importance of “Source Areas” as a
critical focus of VCP investigations. DEC misses an opportunity, however,
in not defining differential roles for PRPs, innocent-owners, and
innocent-non-owners in controlling or removing such source areas.
d. It is
eminently appropriate (Section 6.1) that innocent parties not be required
“to investigate or remediate off-site contamination.” It is also
appropriate that, if there is a “significant threat” of off-site
contamination, DEC should proceed with the off-site work “either with a
responsible party or under the State Superfund.” But is it appropriate to
threaten Registry listing to coerce innocent parties to address offsite
issues anyway?
e. It is
appropriate and desirable (Section 6.1) to provide for deferral of Registry
listing (for sites that would normally be listed) to encourage investigation
and/or remediation under the VCP. It may be less defensible, however, to
require (Section 8.1.2) DEC to reconsider a “site’s status in the Registry”
based on “information generated during the completion of the
investigation”—particularly where the volunteer is a non-PRP—as a means of
providing added incentive to move forward to a “voluntary” cleanup.
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Comments: DEC should give serious consideration to revising the
Guide to better reflect the non-culpable, even exemplary role of
innocent non-owners under the VCP.
a. DEC
should absolve innocent-non-owners entirely from ANY responsibility for
addressing off-site migration, once they had complied with their
onsite assessment and cleanup responsibilities under the Work Plan.
b. As is
the case in New Jersey, the reopener for previously unknown
conditions should not apply to innocent non-owners (or, in theory,
to innocent owners either). As a practical matter, this situation will
arise infrequently. However, psychologically, this additional
dispensation may encourage more prospective purchasers and developers to
take a chance on a brownfield site.
c. Clearly,
PRPs should have the broadest responsibility for remediating (i.e.,
removing or treating) the source areas they themselves created. Is it
not equally clear, however, that innocent-non-owners (who played no
role in causing or maintaining the contamination) should be given
maximum latitude to employ source control (e.g., containment) measures
where this is protective of health and the environment considering the
contemplated use? Requiring innocent parties no less than PRPs to
pursue costly source removal remedies will only serve to “punish the
innocent” and discourage prospective purchasers and developers from
volunteering to enter the VCP and help restore the site to productive
use. (Although there may be sites in certain parts of the State with a
sufficiently high real estate value as to stimulate even high-cost
source removal actions by innocent parties in return for promised
profits, this is not true in many parts of the State—especially
Upstate. Even absent this consideration, is it fair to penalize the
innocent just because they can afford it?)
d. We
encourage DEC to adopt a policy of NOT listing on the Registry after
completion of an investigation-VCA by an innocent owner or non-owner, of
a site that was not already proposed for Registry listing (or at least
formally considered a candidate for listing) prior to the conduct
of a VCA investigation. This is to avoid creating a disincentive to
initiating a site investigation under the VCP. If the investigation
reveals a threat to health or the environment requiring prompt
attention, DEC should compel response action by responsible parties, or
take action itself and seek response costs under various CERCLA and
State law mechanisms.
Similar
forebearance in analogous circumstances has been used to good advantage
by other states. For example, the State of Maryland has had great
success in involving sites in its VCP by (a) offering free (very
thorough) baseline site assessments (funded by U.S. EPA), coupled with
(b) a commitment not to pursue non-PRPs no matter what the assessments
turn up and even if the volunteer opts to withdraw from the VCA. This
has allowed many more sites to be characterized than would otherwise
have been the case and, since the degree of contamination is seldom as
bad as the site owners fear that it is, it has allowed many more sites
to be remediated and returned to productive use.
e. It may
be counter-productive to list a site on the Registry, even though it was
previously determined to be eligible for listing and the listing was
deferred so that an investigation-VCA could be executed and
implemented. This is because, although Registry listing may strengthen
DEC’s hand in proceeding against PRPs under State Superfund, it may also
give the site a stigma that makes it more difficult to restore the site
to productive use. In most cases, Registry listing should NOT be
necessary in order to go after PRPs—because the A.G. is free to seek
response action under federal CERCLA, or to pursue cost recovery if the
State steps in to control the site. Nor is it appropriate if the main
purpose of Registry listing is coerce innocent parties to take
undeserved responsibility for off-site contamination, as a means of
avoiding the stigma of having the site listed on the Registry.
Punishing the innocent is never an appropriate public policy tool.
Recommended actions:
a. The
Guide should not require innocent non-owners to address offsite
contamination either in the first instance or as a reservation in a
liability release.
b.
Liability releases issued to innocent non-owners should not be subject
to reopening based on discovery either onsite or offsite of previously
unknown contamination.
c. Innocent
non-owners should be given maximum latitude to employ source control
rather than full source removal.
d. The
Guide should specify that it is DEC policy not to list a site on the
Registry based on the results of an investigation-VCA, where the site
was not considered eligible for listing prior to the VCA. (Listing
would simply make it more difficult for a non-PRP to pursue a voluntary
cleanup and restore the site to productive use [i.e., because of the
stigma of listing], while not making it appreciably easier to pursue a
response action against the site’s PRP[s].)
e. Even
where the site WAS considered eligible for listing prior to the VCA, the
Guide should specify that DEC reserves the discretion not to list
it on the Registry based on the results of an investigation-VCA, based
on a judgment as to how best to promote site cleanup and reuse. |
8.
VCP Staffing and Management:
DEC has “delegated responsibility for managing the VCP to staff in the
Divisions of Environmental Remediation (DER) and Environmental Enforcement
(DEE),” but indicates that “[o]ther program divisions may manage voluntary
cleanup projects consistent with these procedures” (Section 1).
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Comment:
DEC should explore a more efficient management approach.
a.
Principles of effective management suggest that a single division
director or branch chief should have lead responsibility for managing
and overseeing the program within the Department.
b.
Experience with VCPs throughout the United States indicates that the
most effective and highly-rated programs are administered by program
officials whose primary responsibility is site reclamation, restoration,
recycling, or redevelopment rather than site remediation. Unless the
VCP program has as one of its driving missions and priorities the
restoration and reclamation of underutilized sites, the necessary
vision, creativity, and aggressiveness to accomplish that objective may
be lacking.
Recommended actions:
a. A single
division director should be given lead responsibility for the VCP within
New York State DEC.
b. Ideally,
the VCP should be under the management jurisdiction of a DEC division
concerned primarily with site reclamation and restoration rather than
remediation to reflect the primary driving force of the most effective
state VCPs. |
9.
Hazardous substance site:
This is defined (Section 2.1.1) as “one that contains any kind of hazardous
waste, hazardous substance…, solid waste, or a mixture of
petroleum with either hazardous waste, hazardous substances, or solid
waste.” Similar language is used in Section 4.4.5 in discussing the
reopener for a threatened release.
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Comment:
The New York State “Superfund” program applies only to hazardous
waste sites (ECL § 27-1301 et seq.). The Governor has proposed
reform legislation to add hazardous substance sites to the State
Superfund. Under current law, the only enforcement action the State may
pursue against non-“waste,” non-petroleum hazardous substance
sites is by the Attorney General utilizing Federal CERCLA authorities.
Since the VCP does not provide a liability release binding upon the
Attorney General (i.e., the VCP is an offshoot of State rather than
federal Superfund), is it appropriate to include such hazardous
substance sites in the VCP until State law is changed by the
Legislature?
Recommended action:
Until State
Superfund is amended by the Legislature to include hazardous
substance sites, the Guide should recognize that, absent the knowing
and voluntary agreement of a cleanup volunteer to explicitly assume
responsibility for hazardous substance contamination—when not
mixed with hazardous wastes and/or petroleum—DEC lacks the authority to
extend VCP coverage to hazardous substance sites. |
10.
Timing of DEC responses and relationship of
VCA to work plan: DEC
proposes (Section 3.5) to use “best efforts to send an application response
letter within 45 days of receipt of a complete application ….” Any
provisions for promoting quick turnaround by DEC are welcome because a
prospective developer’s potential interest in a brownfield site will rapidly
wane the longer the time horizon for a DEC decision.
It is unclear
why DEC specifies (Section 4.2) that “[w]ork plans are developed after the
Department executes the VCA.”
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Comment:
One of the main benefits of the VCP to a potential developer, and
one of the key necessities for leveling the playing field between
brownfield and greenfield sites, is an accelerated DEC review process.
Forty-five days for acting on a VCP application is not excessive (that
is the timeframe set by Pennsylvania as well—but there it is a firm
deadline, not just a “goal”). A deadline would be better than a goal,
however.
It might be
easier to meet if (a) the VCA and work plan could be negotiated
concurrently rather than sequentially, and (b) DOH were subject to the
same time limits as DEC in providing its VCP concurrences. There should
also be firm deadlines set forth in the Guide for DEC and DOH reviews
and approvals of other submittals by the cleanup volunteer.
(Recognizing that time is of the essence, Pennsylvania has gone even
further in its VCP. If PADEP does not meet the deadlines specified in
its VCP procedures, the submittals involved are “deemed” approved. It
is extremely rare that PADEP fails to meet its deadlines.)
Recommended actions:
a. The
Guide should set a 45-day time-limit on DEC action, after receipt of a
complete VCA application, for acting on the application. (If no action
is taken within this timeframe, the application should be deemed
approved.)
b. Time
limits should also be set for taking action on work plan submittals, and
for approving work plan reports.
c. DOH
should be expressly subject to the same time limits as DEC.
d. The
Guide should allow the VCA and work plan to be negotiated concurrently
rather than sequentially (with appropriate time-limit adjustments), in
the discretion of DEC and the cleanup volunteer. |
11.
Changes to conform to the federal Brownfields
Revitalization Act:
The
new federal Brownfields Revitalization Act excludes from its definition of
“brownfield” sites, not only NPL sites, but also sites “proposed for
listing.” P.L. 107-118 § 211(a); new CERCLA § 101(39)(B)(ii).
The new law
also has a very specific exclusion for sites currently subject to federal
enforcement action. Specifically, new CERCLA §§ 101(39)(B)(iii) and (iv)
exclude, respectively: (a) “a facility that is the
subject of a unilateral administrative order, a court order, an
administrative order on consent or judicial consent decree that has been
issued to or entered into by the parties under this Act [CERLA]” ; and
(b) “a facility that is the subject of a unilateral administrative order, a
court order, an administrative order on consent or judicial consent decree
that has been issued to or entered into by the parties… under the Solid
Waste Disposal Act…, the Federal Water Pollution Control Act…, the Toxic
Substances Control Act…, or the Safe Drinking Water Act….”
The new law
also adopts and formalizes a longstanding EPA policy against treating as a
potentially liable “owner” or “operator” the owner of land that was
contaminated as a result of pollutant releases by unrelated parties on
contiguous (or similarly situated) property. New CERCLA § 107(q), 42 U.S.C.
§ 9607(q).
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Comment:
DEC may wish to modify the Guide so that the language and effect of
New York’s VCP conform to corresponding language in the new federal
Brownfields law.
Recommended actions:
a. DEC may
wish to add “sites proposed for NPL listing” to its list of excluded
sites in order to conform to the federal approach.
b. If DEC
wished to conform its exclusion for sites subject to federal enforcement
action to the approach in the new Brownfields Revitalization Act, it may
wish to reference the new federal language.
c. DEC
should adopt the federal exclusion for offsite sources of groundwater
contamination. |
12.
Annual certification that institutional or
engineering controls are still
in place:
This is not
unreasonable. It should be noted, however, that other jurisdictions have
utilized other mechanisms to accomplish the objective of insuring that ICs
and ECs are not discontinued prematurely. One of the more innovative such
approaches is the so-called ”Environmental Guardian Trust” program,
which several states, including California and Pennsylvania have operated on
a pilot basis, and at least Pennsylvania is planning to begin running on a
regular basis in the near future. The Environmental Guardian Trust is a way
to privatize post-remediation responsibilities—notably overseeing the
long-term stewardship of Institutional and Engineering Controls. The Trust
operates as a non-profit entity on a fee-for-service basis. It would not be
necessary for DEC to fund the Trust (beyond limited start-up costs?) because
fees for future oversight build up over time. Such an approach would avoid
the need for annual certifications by cleanup volunteers (and their
successors) to provide annual certifications, and would avoid the need for
continued oversight and monitoring by DEC.
13.
Confirmation of survey data:
The Guide’s acknowledgement (Section 6.3.2) that licensed land surveyors are
the appropriate professionals to certify the reliability of “survey data
used to define site boundaries and features or provide data used for
interpreting groundwater conditions” shows that DEC recognizes that it is
not only registered Professional Engineers that have a role to play in
implementing the VCP. [Of course, surveyors, like engineers, are
licensed/registered by the State Department of Education.]
14.
Remediation reports:
The Guide
states that Volunteers “should” submit a final engineering report and
“as-built” drawings within 90 days after completion of remediation (Section
8.3.1). It is not clear why this is necessary since any departures from the
original Work Plan would have had to have been reviewed and approved by DEC.
15.
Suggested clarifications:
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a.
Exclusion of PRPs subject to enforcement action from eligible parties
list: No comment or concern, except that clarity and good syntax
dictate that the words “at the site” be moved to the end of the first
sentence of Section 2.2.2(c).
b.
Inclusion of past costs in the VCA: In the interest of clarity and
full disclosure, DEC should state explicitly in this Program Guide
(Section 2.5) that, before being allowed to participate in a voluntary
cleanup, (non-innocent) PRPs must repay any outstanding “past costs” for
response actions (or DEC oversight) at the VCP site.
c.
Release contingent upon satisfactory completion of OM&M Plan: The
statement (Section 2.6.1) that a Release is “contingent upon
satisfactory completion of the OM&M Plan” could be read to require that
implementation of the Plan must be completed before a Release
will be issued. The formulation in Section 8.4.2 is clearer.
Comparable language or clarification should be provided in Section
2.6.1. |
16.
Specific endorsements of DEC approach:
Much of what is contained in the draft Program Guide is
straightforward and unobjectionable and I have no difficulty supporting and
endorsing it. In singling out the following two points for special
mention, I do not mean to disparage by implication any other points not
specifically addressed.
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a. VCA
in the form of an “order”: DEC’s willingness (Section 4.1) to
accommodate the volunteer in this fashion (i.e., by issuing a VCA in the
form of an “order”) is commendable.
b.
Existing contamination: DEC’s inclusion in “existing contamination”
(Section 4.3) both of contamination known at the time the VCA is
negotiated and contamination found and characterized during
implementation of the VCA is eminently logical and appropriate. |
Closing
Note:
Responsiveness of DEC to Comments Received
DEC, having
taken the highly commendable step of promulgating a DRAFT Voluntary Cleanup
Program Guide, should not vitiate or dilute its action by waiting too long
to issue a FINAL (or INTERIM FINAL) version of the Guide. Considering that
the public was given 90 days to comment on the Draft Guide, a maximum of 90 days for DEC
to digest and evaluate the comments received would not seem unreasonable.
In the interest
of getting a “Final” (or "Interim Final") version of the Guide out as quickly as possible, the
following suggestions are respectfully offered:
-
A comprehensive “responsiveness summary” is not necessary
(particularly given that this is not a formal rulemaking).
-
DEC should, however, indicate which suggestions not
immediately incorporated into the revised Guide it has taken under
advisement and is continuing to review and entertain.
-
The revised Guide resulting initially from these public
comments could be designated an “Interim Final” Guide, reflecting the
Department’s continued consideration of further refinements and
improvements.
-
Such an “Interim Final” Guide could serve as the basis for a
series of DEC “workshops” or public meetings around the State to solicit
additional inputs from local governments, regulated industry, and the
interested public on how to make New York’s VCP more “user friendly” and,
generally, on how to enhance the Program’s effectiveness.
The original
VCP in New York was announced abruptly in 1994 by a previous gubernatorial
administration in the heat of a vigorous election campaign. DEC has been
attempting to give the VCP a suitable concept-ual framework ever since. The
publication of a Voluntary Cleanup Program Guide presents DEC and the
current Administration with a golden opportunity to seize the initiative and
give the program the solid foundation it was denied eight years ago.
[Provide Contact Information]
_____ __, 2002
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