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Voluntary Cleanup Program Comments |
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Version 2: Sample Comments |
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COMMENTS OF THE __________________
Comments on DRAFT “Voluntary Cleanup Program Guide” New York State Department of Environmental Conservation Comment Deadline August 27, 2002
Who We Are
______________________________________ ______________________________________________________________________ ______________________________________
General Comment
We commend DEC for releasing the Voluntary Cleanup Program Guide for public review and comment. The Voluntary Cleanup Program (VCP) is one of DEC’s most important initiatives even though it does not yet enjoy a specific Legislative basis. ______________________________________________________________________ ______________________________________ Many more brownfield sites would participate in DEC’s voluntary cleanup and environmental restoration programs if these programs were more “user-friendly.”
The [jurisdiction] has a shortage of new developable land with adequate infrastructure. The economic revitalization of [locality or localities], and other urban parts of the County is critically dependent on the ability of local governments and private owners to recycle previously used industrial and commercial land. Since many of these sites are or may be contaminated, DEC and the VCP could play a major role in returning these sites to productive use. Unfortunately, some [insert adjective, if desired] elements of the existing VCP have prevented this program from realizing its potential.
The ___________ offers the following comments and suggestions out of a desire to strengthen both the environmental protection and the economic revitalization functions of DEC’s voluntary cleanup program.
1. The Role of the State Department of Health (DOH) Needs to be More Clearly Defined and Limited
There is a basic disconnect in the roles and responsibilities of DOH as currently outlined in the Program Guide. On the one hand, DOH is not a party or signatory to the Voluntary Cleanup Agreements (VCA) entered into between cleanup volunteers and the DEC, and is therefore not subject to or bound by the terms of these Agreements. But, on the other hand, DEC (as reflected in the Program Guide) has given DOH considerable authority to participate with DEC in the oversight and approval (or disapproval) of voluntary cleanups. We have heard complaints from consultants, developers, and attorneys that DOH representatives sometimes add significant delay and cost to the VCP process by taking too long to submit comments to DEC, by adding onerous new requirements beyond the scope of voluntary cleanup agreements (or their authority under the Public Health Law), and by not sufficiently explaining in writing to the cleanup volunteer (or DEC) the reasons for their comments or the need for additional measures.
Comment: We have no issue with DEC’s desire to tap into DOH’s considerable expertise on the public health implications of contaminated sites. Indeed, the concept of a cooperative effort by DEC and DOH is commendable. However, we do have major concerns with the mechanics of the proposed arrangement, which has been in place informally for several years.
If DEC desires to give DOH the power (i.e., by withholding or delaying its written concurrence) to block approval of VCP investigation and remedial action work plans (§§ 6.7.2, 7.5) and acceptance of investigation and remediation reports (§ 2.5), it should only do so subject to the following criteria and safeguards:
(a) DOH’s role (whether advisory or sharing in DEC’s review and approval authority) should be specifically delineated in the Program Guide. It should be clear to all concerned what the issue areas are on which DOH comments and involvement are being sought. For example: evaluating site-specific exposure pathways with a potential to adversely effect public health (as set forth in a qualitative exposure assessment); assessing the need for and adequacy of a Community Air Monitoring Plan, but not questioning whether emission controls are needed on an SVE system or other pollution control equipment (which is regulated by DEC), at sites where VOC and/or particulate emissions are deemed to be a concern); etc.
(b) DOH’s concurrence
should be sought only on issues within its scope and authority under the
Public Health Law (see, e.g., PHL § 1389-b), or on closely related issues,
(c) DOH should not be given veto power over a volunteer’s work plan or submittal unless it has become a party to the VCA and agrees to be bound by its terms and by any resulting liability release (§ 4.4). If DOH is not a party to the VCA, any inputs it provides to DEC must be considered solely advisory and subject to the same timing, relevance, and explanation constraints as DEC is itself.
(d) DOH could be of additional assistance to DEC if the two agencies collaborated on development of guidance on “presumptive remedies” for frequently occurring site contamination scenarios (e.g., sites contaminated with dry cleaning solvents; heavy metal-contaminated sites; sites with petroleum contamination; sites with PAH contamination). Such presumptive remedies would allow cleanup volunteers to initiate a remedy more quickly. This would not only bring more rapid environmental and public health benefits, but it would reduce delay, save money, and allow more efficient allocation of agency oversight resources.
2. Release where no further action is needed
The Program Guide provides that a liability release will be issued where an investigation is “completed under Department oversight and pursuant to a VCA” and it is determined that “no remediation is needed to meet the remedial goal of the VCP” (§§ 1, 8.2.2). It also specifies (§ 4.4) 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.
Comment: With the exception of Class 2 inactive hazardous waste sites, which are only allowed to participate in the VCP at the behest of a non-“PRP”, most sites in the VCP are only slightly or moderately contaminated. If a site is obviously clean or otherwise requires no further action, why should DEC be unwilling to consider (if so requested and given adequate documentation) granting a liability release or a less formal “No Further Action” letter, even in the absence of DEC oversight and approval or where “substantive work” has not been carried out under a VCA?
(a) DEC should be promoting the identification and certification of no-risk and low-risk brownfield sites suitable for productive reuse. It should not matter what precise procedure was used to arrive at the no-risk or low-risk characterization, as long as it is adequately substantiated. The Program Guide should not rule out the possibility of providing some form of “No Further Action” letter (or even a full liability release) where DEC has reasonable assurance, based on appropriate quality control and other criteria set by DEC, that they pose no ongoing risk. One example where this approach may be warranted is a site on which a qualified environmental consultant has performed an ASTM-compliant Phase II environmental site assessment, and concludes, after reviewing sampling and analysis results that, if certain steps are taken by the site owner or prospective purchaser (e.g., removal and proper offsite disposal of stained soils and leaking tanks), there are no further environmental concerns. If a bank asks for “a letter from DEC” before it will finance a development project on the site, why should DEC not be willing or eager to provide one—as long as it is given the opportunity to review the Phase II report and concur in the adequacy of its analysis?
Indeed, in Section 6.3.1, DEC already recognizes that it is appropriate and advantageous for the Department to “accept analytical data generated without Department oversight,” where the Volunteer “show[s] that the results are valid and useable” (e.g., “through the submittal of validation reports or Data Usability Summary Reports”). Instead of limiting its acceptance of prior assessment results to cases where a Volunteer has decided to participate in the VCP, but has prior data it wants to incorporate, we encourage the Department to adopt a broader, more flexible policy on validation of privately-generated analytical results. (DEC might wish, for example, to limit its acceptance of privately-generated Phase II ESA results to situations in which the ESA consultant or the person retaining the consultant provided timely advance notification to DEC that Phase II sample-taking would be occurring and DEC was given the opportunity to be present and, if desired, to take split samples.)
(b) Although DEC may prefer to avoid “cluttering its agenda” with a lot of lower-risk sites of this kind, such sites should rather be viewed as “low-hanging fruit” that are ripe to be harvested. It is hard to imagine a more socially beneficial role for DEC to play (and take credit for) than to help clear the way for dozens (or even hundreds) of low-risk sites to be returned to productive use.
3. Hazardous substance site:
The Program Guide defines such a site (§ 2.1.1) broadly (similar to the federal CERCLA definition) to include any kind of “hazardous substance.” See also § 4.4.5 (extension of reopener to “hazardous substance” sites). However, as is generally recognized, New York’s State Superfund Law is not as broad as federal Superfund and does not include “hazardous substance” sites that contain neither hazardous wastes nor petroleum ECL § 27-1301 et seq. This omission of hazardous substance authority under State Superfund is one of the problems the Governor is seeking to correct in his Superfund Reform proposals.
Comment: It is not clear whether it is appropriate under existing New York State law to include non-waste, non-petroleum “hazardous substance” sites within the ambit of the VCP.
4. SEQRA exemption except for innocent non-owners:
It is anomalous to subject cleanup volunteers who are innocent non-owners to SEQR review, while culpable responsible parties and (legally responsible) current owners are both exempt from SEQR review based on SEQRA’s enforcement exemption.
Comment: This anomaly could be eliminated by making voluntary cleanups at the behest of innocent non-owners a “Type II” action under 6 NYCRR 617.13—at least where the site involved is not a “Class 2” State Superfund site. The SEQR “Type II” list is the list of actions NOT requiring review under the State Environmental Quality Review Act based on their presumptive lack of environmental significance. Given the nature of voluntary cleanups which are designed to enhance environmental quality, such a listing is entirely appropriate. It is especially appropriate where the cleanup volunteer is an innocent non-owner with no connection to the original contamination.
5. Re-openers for off-site migration and previously unknown conditions
The Program Guide distinguishes between “PRPs” and innocent owners and non-owners with respect to off-site migration of contaminants (§ 6.1). “PRPs” are required to remediate such contamination; innocent owners and non-owners are not (but they have some investigation responsibilities). The Program Guide also provides for reopening a liability release for further investigation or remediation (§ 4.4.1) where contaminants migrate off-site and cause consequential impacts on environmental resources, human health, or other biota—but only if the cleanup volunteer is a “PRP”. (If the liability release was obtained by a non-PRP, DEC’s policy is to hold the PRPs, if any, responsible for needed cleanup. If no viable PRPs can be found, DEC will abate the offsite migration problem itself, using State cleanup funds.) A liability release can also be reopened (§ 4.4.2) when previously unknown environmental conditions are discovered that limit the protectiveness of the previously implemented work plan. This reopener does not distinguish between “PRPs” and innocent owners or non-owners. The Program Guide does not address the situation where contamination of the subject site originates offsite on or under a contiguous property.
Comments: It is commendable that DEC has seen fit to limit the liability of non-“PRPs” for off-site migration of contaminants. This is fully in keeping with the principles that “the polluter should pay” and the innocent should not be punished. However, we urge DEC to consider going a step or two further:
(a) DEC should consider taking a similar approach (and following New Jersey’s lead) by absolving innocent non-owners entirely (New Jersey also covers what DEC refers to as “innocent owners”), after receipt of a liability release, from any further cleanup responsibility even if previously unknown contamination is found ONSITE. As in the case of off-site releases, if additional cleanup is needed, DEC should pursue the responsible parties (or, if necessary, perform the necessary cleanup itself). Finding previously missed contamination that undermines a previous response action is not likely to be a frequent occurrence. However, the psychological importance of being able to assure a non-“PRP” (especially an innocent non-owner) that once a liability release has been issued it is (virtually) inviolate cannot be overemphasized. It is one of the key factors cited by New Jersey officials as contributing to the success of their VCP.
(b) DEC should also add to the Program Guide an exemption similar to that recently enacted in the new federal Brownfields Revitalization Act (P.L. 107-118) for contamination originating offsite on or under a contiguous property (new CERCLA § 107(q), 42 U.S.C. § 9607(q)). The federal approach is to not treat as a potentially responsible “owner” or “operator” a person who owns a property that was contaminated by the acts or omissions of unrelated entities on contiguous (or similarly situated) property. As under the federal approach, the property owner would only be relieved of liability if he had no “relationship” (including buyer-seller) to the party responsible for the contamination, and if he did not know or have reason to know of the contamination when he acquired his property.
6. Relationship between the VCA and the Registry:
The Program Guide takes what may be a counter-productive approach in how it proposes to handle the possibility of Registry listing of a site being addressed under the VCP. It is appropriate to defer Registry listing (of a site that would normally be listed) to encourage investigation and remediation under the VCP (§ 6.1). Calling upon DEC (§ 8.1.2) to reconsider a site’s Registry status based on information generated during a VCA-generated investigation is more problematic (especially for an innocent non-owner). Even worse, is using the threat of Registry listing (§ 6.1) as a way to “encourage” an innocent owner or non-owner into taking responsibility for off-site contamination (for which they would not otherwise be responsible) simply to avoid the stigma of Registry listing.
Comments: The polluter should pay, but the innocent should not be punished or intimidated. Cleanup volunteers are more likely to come forward and investigate and remediate sites for which they are not responsible, if coming forward reduces rather than increases their liability exposure. Threatening innocent non-“PRPs” with the stigma of Registry listing to coerce them into doing something they could not otherwise be required to do is both wrong and counter-productive.
(a) DEC should follow the example of the State of Maryland, which has had great success in involving sites in its VCP by (i) offering free (very thorough) baseline site assessments (funded by U.S. EPA), coupled with (ii) 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, remediated and recycled than would otherwise have been the case.
(b) Even if DEC does not adopt Maryland’s approach to site assessments, it should at least adopt a similar philosophy with regard to the proper relationship between the VCP and the Registry-listing process under State Superfund. Specifically, DEC should establish a firm policy against post-VCA Registry listings in circumstances likely to be counter-productive to the goals of the VCP. For example, after completing an investigation-VCA at a site that was never previously proposed for Registry listing (or at least formally considered a candidate for listing), an innocent owner or non-owner should not have to worry about the threat of the site being listed on the Registry as a result of information uncovered during the VCP process. If entering into an investigation-VCA can yield information that DEC will use to list the site, few volunteers will knowingly place themselves in that situation. (If an environmental hazard materializes, DEC can still pursue it in the same way off-site contamination is addressed under §6.1.)
(c) As a matter of fairness and good public policy, DEC should also never use the threat of Registry listing as a way to coerce innocent parties to take responsibility for off-site contamination (where they would not otherwise be required to do so) simply to avoid the stigma of Registry-listing.
7. Qualitative exposure assessments:
The Program Guide requires (§ 6.6) all Volunteers to complete a “qualitative on-site and off-site public health exposure assessment.”
Comments: There are many useful roles (and some counter-productive roles) such an exposure assessment could perform, but the Program Guide does not explain how DEC plans to use it.
(a) The Guide should recognize that the same magnitude of exposure assessment, or level of detail, should not be necessary in all cases.
(b) One of the best uses of an exposure assessment in a VCP is to provide a basis for risk-based decisions on cleanup standards geared to particular end-uses. The Program Guide should state as explicitly as possible, how an exposure assessment will be used in defining cleanup goals.
(c) If the requirement of preparing a “Community Air Monitoring Plan” (Appendix D) is to be retained in its present form, it should not be required in all instances. (See Comment 8, below.) At most, air monitoring of this type should be required only where a qualitative exposure assessment indicates that there is a site-specific risk of significant exposure by potentially dangerous VOCs and particulates of sensitive receptors.
(d) The importance of exposure assessments also demonstrates the short-sightedness of forcing cleanup volunteers to choose registered Professional Engineers as their preferred environmental consultants. Many other disciplines are better suited to performing exposure assessments. (See Comment 9, below.)
8. Community Air Monitoring Plan (Appendix D):
The Program Guide makes no reference to “Community Air Monitoring Plans” (CAMP) other than in Appendix D. There is no indication as to where a CAMP might fit in the sequence of events relating to the development or implementation of Investigation Work Plans (§ 6) or the Remedy Selection process (§ 7), or how to determine when such a Plan is needed. Appendix D itself is ambiguous: “Depending on the nature of known or potential contaminants at each site, real-time air monitoring for volatile organic compounds (VOCs) and/or particulate levels at the perimeter of the exclusion zone or work area will be necessary. Most sites will involve VOC and particulate monitoring ….” It also states: “Specific requirements should be reviewed for each situation in consultation with NYSDOH to ensure proper applicability.” (Is this another blank check for DOH?)
Comments: As stated in § 6.1, “Volunteers commit to completing the specific activities set forth in the Investigation Work Plan.” If the Work Plan lacks “specific activities,” with details to be provided later in consultation with DOH or DEC, one of the major purposes of the VCP will not be fulfilled: predictability and certainty as to cleanup goals and standards.
(a) DEC should provide definitive criteria for determining when a CAMP is really necessary and when it would be overkill.
(b) Alternatively, the qualitative public health exposure assessment (§ 6.6) would be the logical place to determine whether VOCs and/or particulates are present under circumstances which could potentially threaten the health of downwind receptors. If they are, a CAMP might be necessary and appropriate. If they aren’t, preparing a CAMP would be an inefficient use of resources.
9. Certification by a licensed professional engineer:
The Program Guide requires: that all Remedial Design and Remedial Action work plan documents “be signed and sealed by a licensed professional engineer registered in New York State” (“P.E. Certification”) (§ 7.1.5); that there be an “Engineering Evaluation of the Remedy” (§ 7.3(2)); that a P.E.-certified Remedial Action Selection Report document evaluation of the remedy in accordance with the Part 375 remedy selection factors (§ 7.4); that a final engineering report and as-built drawings are provided within 90 days after the remediation is complete (§ 8.3.1); and that the Remedial Action Work Plan is implemented by the P.E. and all construction activities were personally witnessed by the P.E. (§ 8.3.1). The only exception to P.E. oversight and certification are certain underground storage tank closures. The Program Guide accepts no other form of certification, qualification, or training, and mandates the use of no other environmental or technical discipline.
Comments: The Program Guide’s approach on this issue is unnecessary and inappropriate.
(a) It is reasonable to require a P.E. to stamp plans for “a full-scale remedial design” (§ 7.2) or other complex engineering designs. It is not reasonable to allow only an engineer to certify that a proposed cleanup plan is the best way to minimize environmental and public health risks. No other state (to our knowledge) assigns such a major role to engineers in its VCP.
(b) Requiring the use of
State-licensed engineers is not the only way, or even the best way, to
ensure the use of high-quality VCP consultants or to discipline sub-standard
performance.
For example, DEC
could
(c) The free marketplace already provides an efficient means of screening out substandard or unethical consultants. If the work-product of certain environmental consultants selected by Volunteers is routinely rejected by DEC and must be repeatedly redone at the Volunteer’s expense, those consultants will become quickly identified as not producing results acceptable to DEC. Property owners, developers, and prospective purchasers will “get the word” and cease to utilize such consultants. The market will clearly favor those consultants who consistently produce results that are accepted by DEC. A marketplace mechanism of this kind is appropriate where voluntary cleanups are being carried out with private funding and no financial assistance from the State is involved.
(d) If not content to
rely entirely on the marketplace, DEC could
readily develop a list or a database of approved or acceptable VCP
consultants based on a published Request for Qualifications (RFQ) to the
consultant community. Listings could be tailored to the particular areas of
specialized expertise required for different elements of the VCP. DEC has
already established a “Qualified Remedial Consultants (QRC) List,” for use
by municipalities in the environmental restoration (brownfields) program.
Under this program, municipalities may also justify the use of an unlisted
consultant by providing “a description of the consultant’s experience in
investigating environmental contamination.” 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.” A similar approach could
(e) The Program Guide’s insistence on P.E.s for certain VCP tasks, in addition to its questionable benefits, also flies in the face of many VCAs which contain no such restrictions. After a cleanup volunteer has reached an agreement with DEC as to what will be required of it in the VCP, it is both unfair and a violation of a binding agreement to impose additional requirements by means of after-the-fact policy pronouncements. 10. Evaluation of remedy against Part 375 factors: The Guide requires (§ 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. Comments: These are the same factors (with the two indicated exceptions) that are required to be evaluated for State Superfund sites. They also closely resemble the evaluation criteria under federal CERCLA that are used for federal Superfund sites. (a) The VCP really needs its own remedy evaluation factors, as DEC seems itself to recognize by eliminating as irrelevant two of the original Part 375 factors. (Even more irrelevant would seem to be the use of Superfund-specified SCGs in the context of low-hazard VCP sites.) (b) If the Part 375 factors are to be retained in whole or in part, they should at least be supplemented by two factors that have some relevance to the VCP: 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 is also one of Governor Pataki’s reform proposals—but does not require legislative authorization for non-Superfund, non-oil spill VCP sites.) 11. Standards, Criteria & Guidance (SCG): All of the major SCGs for the site must be listed (§ 7.4.2) and whether the proposed remedy complies with them must be discussed. Comment: The Program Guide requires this to be done as part of an “engineering evaluation.” Few engineers are likely to have the biological, chemical, toxicological, and hydrogeological expertise to provide a persuasive rationale for departing from particular SCGs. This argues for relaxing or eliminating (a) the SCG requirement, and/or (b) the P.E. certification requirement. 12. DEC (and DOH) responses to Volunteer submittals: One of the major benefits of the VCP process, as compared to State Superfund, is the possibility of accelerated review and approval by DEC. To the extent that many or most VCP sites are “brownfields” with redevelopment potential, these sites present both environmental and real estate issues. Since these sites are generally of low to moderate significance from an environmental and public health standpoint, environmental cleanup considerations do not usually present an urgent need for expeditious site remediation. On the other hand, from a real estate standpoint, if a brownfield site is to compete effectively with an uncontaminated “greenfield,” time is generally of the essence. Few developers or sellers are likely to enter into multi-year option agreements, or do real estate deals on speculation, while a diffuse VCP process runs its meandering course through a lengthy sequence of regulatory twists and turns. Although not given much attention in the Program Guide, a key positive element of the VCP is the elimination of some of the time-consuming procedural steps involved in Superfund. However, unlike the VCPs of many other states, there is little reference in the Program Guide to deadlines or timetables for completing various stages of the VCP process. Thus, Section 3.5, in talking about DEC’s response to an application to participate in the VCP, merely indicates that “The Department uses best efforts to send an application response letter within 45 days of receipt of a complete application stating if the applicant is eligible to participate in the program.” The fact that DEC needs a month-and-a-half (and won’t even commit itself to that timeframe) to make the most straightforward and clearcut determination in the whole VCP process, suggests that expeditious completion of the process is not high enough on DEC’s priority list. Other states have made rapid review of voluntary cleanups a major hallmark of their programs. For example, in Pennsylvania, if state decisions are not made within specified deadlines, the application or submittal involved is “deemed” automatically approved (in practice, the state ensures that its reviews are completed within the time limits). In Michigan, once a new owner has prepared a “Baseline Environmental Assessment,” he receives a liability release for any past contamination “by operation of law” as long as certain “due care” measures are taken. And, in Massachusetts, the whole process has been “privatized,” to allow private consultants (subject to various controls and safeguards) to develop and implement voluntary cleanup work plans—so that state DEP staff don’t create a bottleneck in the review and approval process (this has reportedly allowed the number of sites cleaned up to increase by 14-fold). Senate Bill 7745, introduced by Senator Marcellino on June 17, 2002, would impose the following brownfield review timeline: 20 days for DEC to issue an application completeness determination; 60 days to review the remediation workplan; 45 days to review the final project report. Comment: The Program Guide should seek to be more responsive to the time-sensitivity of many VCP projects. Where possible, realistic deadlines should be specified (for both DEC and DOH) for responding to applicant or Volunteer submittals. If a submittal is deemed deficient, that deficiency should be communicated as quickly as possible to the Volunteer, so that it can be corrected expeditiously. |