MEMORANDUM FROM

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

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.

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

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

C. the volunteer enters into a legally enforceable document--either an agreement

· 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

· 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 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.

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.

· 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.