Observations Concerning the VCP Program

November 4, 2002

Where the gubernatorial candidates stand on the issue

H. Carl McCall (Democrat): "Provide planning incentives to local governments that are working to clean up brownfields and refinance the Superfund program without changing cleanup standards."  [translation: the same stringent standards should apply to brownfields and Superfund sites].

Gov. George Pataki (Republican): "Ease cleanup standards to allow private businesses to quickly clean up contaminated sites."  [commentary: the Governor's Superfund Reform legislation advocates applying the same cleanup standards to voluntary cleanup program, Superfund, and oil spill sites].

Where the New York State Assembly stands

From Comments of Assemblyman Tom DiNapoli (Chair, Environmental Conservation Committee) on DEC Draft Voluntary Cleanup Program Guide:

• "[T]he cleanup standards and remedy selection process laid out in the Guide are inadequate" because, inter alia, "[t]he risk-based approach to cleanup adopted in the Guide... will continue to result in cleanups that are not protective of public health and the environment over the long term."
   
•  "[T]he Department's issuance of the draft VCP Guide do[es] not conform with either the State Administrative Procedure Act... [or] the State Environmental Quality Review Act" and DEC has operated the VCP illegally for seven years "without once subjecting the program to public scrutiny and review, or to an analysis of environmental impacts."
   
•  "The Department does not have the authority to invite Superfund sites to participate in an unauthorized and less protective program" [i.e., the VCP].
   
•  "In attempting to make the VCP program attractive to volunteers, the Department has created a program with inadequate cleanup requirements that will not be protective over the long term."
   
• The debate over cleanup standards in New York "revolves around two conflicting philosophies"--(1) "Cleaner is Better," and (2) "Risk-Based" or "Use-Based" cleanup.  The first of these "emphasizes that before settling for a lesser cleanup, decision makers and the public should take a 'hard look' at the feasibility and cost of cleaning up a site to levels that would allow it to be used for any purpose without restriction."  The second philosophy "reflects the belief that any degree of contamination can be left in the ground as long as restrictions on the use of the site, or engineered barriers, 'cut off' exposure."  The "danger" of this approach is that it relies on institutional controls and engineered barriers the protectiveness and long-term reliability of which has not been established.
   
• The draft VCP Guide is also deficient in saying virtually nothing "on the issue of cleaning up contaminated groundwater."
   
• It is also unclear "whether a qualitative human health exposure assessment, as outlined in the Guide, will be adequate to assess the presence of a significant threat to human health or the environment."
   

• "I believe that a VCP progam adopted pursuant to statutory authorization should clearly reflect the principle that 'cleaner is better' with the goal of restoring groundwater over the long term."

Mr. DiNapoli's proposed "Cleanup Goal and Remedy Selection Language":  "The remedial goal of the voluntary cleanup program shall be the complete and permanent cleanup of contaminated sites that will allow such sites to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls, and includes the long-term restoration of groundwater to drinking water quality.  The minimum objective shall be the protection of public health and the environment, and the elimination of all significant threats to public health and the environment presented by hazardous substances through proper application of scientific and engineering principles."
 

Where NYS DEC (Dale Desnoyers) stands

Dale's position (as expressed at the October 2002) New York State Business Council Industry-Environment Conference) basically consists of the following elements:

1. It doesn't make any difference to someone on an adjoining property whether you're a "volunteer" or a PRP.  If there's problematic contamination, it needs to be cleaned up.  [My response: "Yeah, but beyond a certain point, you should make the guy who caused the contamination clean it up--not the innocent volunteer."]

2. DEC and DOH need to adhere to "accepted remedial goals" (i.e., protection of public health and the environment) and require the same cleanup standards and the same treatment for all volunteers.  [Me: "Treat all volunteers alike--except maybe for some differences between Upstate and Downstate real estate--but don't treat them like operators of Superfund sites. Protection of health and the environment is a good place to start, but you can't end there.  The volunteer's investigation and cleanup responsibilities have to reflect the site's contemplated future use and strike an appropriate balance between the environmental risk burden placed on the volunteer and the volunteer's anticipated Return on Investment.  Otherwise, no rational person will ever volunteer."]

3. The State is doing a lot of good things to help promote economic development.  ["Yes, but most of them are outside of DEC and have very little to do with brownfields or the VCP."]

4. The VCP has been successful.  397 sites have been or are being addressed--including 45 or 50 manufactured gas plant sites that ConEd recently entered into a VCA on.  50 investigations are complete, as are 90 remediations.  ["But, why are there so many fewer completions than there have been VCAs?  And, why have the number of completions been declining every year for at least the last 3 years?]

5. Experience has show that the better the work plans and reports, the faster the process moves.  ["But, without VCP-specific cleanup standards, it is hard to develop a definitive work plan--and the more time and money are wasted as the volunteer and DEC try to negotiate an end-point.  Again, only foolhardy volunteers will enter into a VCA without knowing upfront the extent of the cleanup required."]

6. Testimonial ("Quotable Quote") from Doug Sutherland of Franklin Properties, Inc.: "It is clear to us the DEC is serious about solving problems and giving these great old buildings a new life." [Many counter-testimonials are available from people unhappy and frustrated about the VCP in New York State.]

Where the NYS Department of Health (DOH) stands

(per Andy Carlson)

As expressed at the October 2002 NYS Business Council Conference, Andy Carlson of DOH essentially proceeded from the premise that DOH has a RESPONSIBILITY to ensure that (a) the data generated are appropriate to evaluate potential exposures, and (b) the remedy selected will be protective of public health for the contemplated use of the site.

When questioned as to where this RESPONSIBILITY comes from (since DEC has delegated more authority to DOH than the latter has received from the Legislature under the Pulic Health Law), Dr. Carlson can do no more than assert that, just as DEC's administrative authority to operate the VCP emanates ultimately from State Superfund, so does DOH's authority to conduct open-ended public health reviews.  [I suspect that is why DEC and DOH are both so unwilling to divorce the VCP from State Superfund--i.e., because, if it were taken out of Superfund, they'd be hard-pressed to find other Legislative authority to base it on.]

Encouraging Signs on the Administrative Front?

To their credit, Dale Desnoyers (DEC) and Andy Carlson (DOH) unveiled their intention to begin adhering to a review timetable--at least, once they receive submittals they consider to be "complete."  Investigation and Remedial Action Workplans will be reviewed within 30 days and any Workplan revisions will be reviewed in 15 days.

Dale also indicated that he has established a "committee" within DEC's Division of Environmental Remediation to review the department's brownfields programs and recommend programmatic adjustments.  DEC is also planning increased outreach and education; the development of a Web Site with "useful tools" and "resources" (on the VCP); and an update of the Financial Resources Manual.

Dale and Andy also indicated that they were working on a "Technical Guide," which would include soil cleanup standards, etc.  Andy stated that, while the Guide would provide greater certainty, he guaranteed that there would be a lot of yelling and screaming by people who feel that the standards are either too stringent or not stringent enough.

A Path for Resolving the Legislative Stalemate?

1. Concern: Risk-based cleanups are not sufficiently protective for sites with significant contamination.*  For such sites, a "cleaner is better" philosophy must prevail.

Suggested resolution: Do not allow sites with significant contamination (e.g., "Class 2" Registry sites) to participate in the voluntary cleanup program.  Reserve the VCP for lesser-contaminated "brownfield" sites.

2. Concern: Non-culpable owners, prospective purchasers, and would-be redevelopers will not volunteer to clean up and redevelop brownfield sites if they are treated like Responsible Parties and are forced to restore the sites to pre-release conditions--even where the actual risks of harm to users of the redeveloped sites are remote.

Suggested resolution: Reserve the VCP for lesser-contaminated "brownfield" sites.  For such sites, allow risk-based cleanups which are protective of the contemplated uses.  (If higher levels of cleanup are deemed necessary, the State should pursue those responsible for the contamination--not the innocent volunteer.)

3. Concern: Engineered barriers and/or institutional controls provide little assurance that risks won't increase in the future as barriers are allowed to deteriorate and controls are allowed to lapse. 

Suggested resolution: Consider utilizing a not-for-profit trust mechanism for the long-term stewardship of institutional and engineering controls--as recently demonstrated in a pilot study conducted by MGP Environmental Partners LLC and an advisory committee comprised of EPA, the California, Maryland, and Pennsylvania environmental protection agencies, and the Department of the Navy.  For additional information, see The Guardian Trust.

The irony is that the lack of an independent legislative basis for the VCP seems to be what has forced the VCP, State Superfund, and Oil Spill programs to amalgamate into a single cleanup program applying a single set of standards--supposedly in the name of consistency and uniformity.  (Since the VCP has no independent statutory authority, it seeks its justification in an amalgamation of separate authorities.)  This in turn has caused the business community to criticize the program as too inflexible, while the environmental community (and its Assembly allies) criticize the program as not stringent enough.
 

*All cleanups are necessarily "risk-based"--to the extent they are carried out to a defined cleanup endpoint, or even to an agreed-upon limit of detection.  There is no such thing as a "complete" cleanup.  Even if there were, there aren't enough dollars in the Treasury to pay for such a cleanup.  And, if there were enough dollars in the Treasury, it is highly doubtful that the most zealous government regulator would be willing to spend all available resources on cleaning a single site.  All decisions, including those in the environmental field, involve tradeoffs and the balancing of costs against benefits.  There is always a point of diminishing returns, when a dollar of expenditures begins to yield considerably less in benefits. (The problem arises when the dollars being spent belong to somebody else.)