My presentation hammered away at the points that the VCP in New York (like those elsewhere in the country) needs to aim for certain attributes like flexibility, fairness, predictability, and speed--and that Voluntary Cleanup Programs work only to the extent they actually encourage volunteers to come forward.  When volunteers come forward, sites get cleaned up, redevelopment occurs, and good things happen.  When volunteers don't come forward, nothing happens.  Brownfields continue to deteriorate and the economy continues its downward spiral.

I then rattled off the 10 major problems with the VCP, compared elements of New York's program to applicable provisions of the new federal Brownfields legislation, and concluded with a plea that New York could and should have a better program.

 
Kenneth S. Kamlet

Vestal, NY

My role is to provide constructive criticism on DEC’s Voluntary Cleanup Program.

I am currently in-house counsel to a national shopping center developer, but I am a member of 3 state bars and have had extensive experience with brownfields and other contaminated sites for nearly 30 years.

After a brief introduction, I will discuss 10 areas of needed improvement in New York’s VCP.  I will conclude by comparing and contrasting the new Federal Brownfields law with corresponding features of New York’s program.

New York’s program should be evaluated based on desirable characteristics of VCPs throughout the U.S.  The end result should be sites that are both cleaner and more economically productive.

Promoting redevelopment of blighted sites by encouraging prospective purchasers and developers to conduct voluntary cleanups, leads to economic revitalization, more attractive sites, and environmental cleanups.  Discouraging volunteers by emphasizing enforcement and remediation leads to sites that continue to decay.

Whether or not a cleanup volunteer will step forward to redevelop a brownfield site is a function of the balance between the expected return on investment (ROI) and the risk of environmental liability.  The higher the ROI and the lower the liability risk, the more viable the prospects for redevelopment.  Between the two extremes are a large number of “threshold” sites.  These can be pushed into the “viable” category through a combination of financial incentives and/or relaxed regulatory disincentives.

The first of my 10 recommendations for improving the effectiveness of the State’s VCP, by restoring fairness, certainty, and finality to the program, is to require DEC and the State Department of Health to abide by the terms of Voluntary Cleanup Agreements entered into with prospective purchasers and developers of brownfield sites.  Currently, DEC’s constantly changing procedures take precedence over what was agreed to in a VCA.  DEC also needs to end the practice of applying unpublished internal rules which are adopted and modified behind closed doors, and start developing VCP standards and procedures that can withstand public scrutiny and are not constantly changed.

My second recommendation is to sharply curtail the open-ended veto power DEC has conferred on DOH through its practice of requiring DOH’s written concurrence before work plans and other submittals by cleanup volunteers can be approved.  DOH’s tardiness in responding and insatiable appetite for information have resulted in escalating costs and delays for volunteers without obvious public health benefits.  DOH should confine itself to issues it has the authority to regulate under the Public Health Law and it should be no less bound by the terms of a VCA than DEC.

My third recommendation is that DEC not seek to dictate to cleanup volunteers which qualified environmental professionals they may and may not use to help develop and implement Work Plans under the VCP.  New York is currently the only state in the country that mandates the use of state-licensed Professional Engineers to the exclusion of toxicologists, hydrogeologists, chemists, and biologists who may have more expertise in assessing environmental risks.  The DEC approach promotes well-engineered, high-tech remedies that are built on inadequate science and respond to ill-defined risks.

My fourth recommendation is that DEC needs to stop requiring low-risk brownfield sites to adhere to “standards, criteria and guidance” established for high-hazard Superfund sites.  DEC needs to pay as much attention to ensuring that prospective purchasers and developers are willing to volunteer to do cleanups as it does to ensuring that such cleanups are fully protective of the environment and public health.

My fifth recommendation is that DEC needs to address the anomaly in its VCP procedures and in its SEQR rules that makes only the LEAST risky activities by the LEAST culpable parties subject to preparing an Environmental Assessment Form and going through a 30-day public review and comment period.  This anomaly arises because of the enforcement exemption in SEQRA which has been interpreted to cover only potentially responsible parties, but not innocent puchasers or developers who had nothing to do with the contamination.  (Where a brownfield site is cleaned up to make way for a development project, the applicability of SEQRA to the underlying development project should govern the need to follow SEQR procedures.)

My sixth recommendation is that, in the interest of promoting beneficial reuse of clearly non-hazardous brownfield sites, DEC should provide a mechanism for informally attesting to a site’s lack of harmful contamination—in appropriate cases, where supported by reliable data—without insisting (as it does now) that the site first go through the full VCP process.

My seventh recommendation is that, while it is reasonable and proper for DEC to try to force polluters to pay, it should not punish the innocent or try to coerce innocent volunteers to clean up sites contaminated by others to Garden of Eden pristiness.  DEC needs to keep in mind that good things happen if volunteers are encouraged to come forward, but nothing happens if they are not.

My eighth recommendation is that the Brownfields and Voluntary Cleanup Programs should be placed in a DEC division concerned with site reclamation and restoration rather than treating it as an enforcement and remediation program.  The aphorism that more flies are attracted to honey than to vinegar is equally applicable here.  (DEC seems to be relying on the observation that manure also attracts flies.)

My ninth recommendation is that DEC recognize that time is of the essence in real estate transactions and that both sides of a VCP agreement be required to abide by reasonable time limits and deadlines.  On the government side, that includes both DEC and DOH.

My tenth recommendation is that DEC needs to evaluate how New York’s Voluntary Cleanup Program compares and contrasts with the new Federal Brownfields law, to determine where conforming changes are necessary and/or prudent.

Specifically, New York’s VCP includes a broader universe of eligible sites and volunteers than under the Brownfields law, but does not incorporate the Brownfield law’s exemptions for prospective purchasers who exercise “appropriate care” and for owners and operators of sites that are contaminated by unrelated entities on upgradient properties.

DEC should also recognize that it may miss out on desirable Federal Brownfield grants if it does not satisfy criteria specified in the Brownfields law.  Two of the more problematic criteria are the ones that require:

•          A timely survey and inventory of state brownfield sites; and

•          A state program that will permit leveraging of federal funds to promote brownfields reuse and stimulate economic development.

New York has thus far made no effort to inventory brownfield sites, and the VCP is not currently geared to promoting reuse or economic development.

New York’s VCP, when evaluated by the commonly accepted criteria that underpin other states’ programs, unfortunately, does not measure up.

Let me conclude with the observation that, if I had never seen an effective brownfields program in operation and didn’t know that something better was possible, I might be more willing to tolerate New York’s program as imperfect but unfixable.  However, I have personally seen better programs in operation.  Perfection may be unattainable, but something better is not.  It is actually possible to have a Voluntary Cleanup Program that generates enthusiasm and energy by both regulators and the private sector.  Gloom, doom, and frustration and wasted time, effort, and resources are NOT inevitable and unfixable.  New Yorkers don’t have to settle for less!