RE: [CPEO-BIF] New York's Brownfields and Voluntary Cleanup Programs: How They

[Emery Graham <egraham@ci.wilmington.de.us>]

It's interesting that you don't mention a requirement for compliancw with
40CFR 311 and 29 CFR 1910.120. The State of NY is reacting like most
corporate entities in their efforts to recoil from public responsibility.
The life, health, and safety of the citizens of NY and the municipal workers
whose jobs may require them to be on a waste site is an overlooked matter
that will eventually come back to bite all of you in the court system. 

Emery Graham
Author of Wilmington, Delaware's 
Brownfields Program
-----Original Message-----
From: kkamlet@hotmail.com [mailto:kkamlet@hotmail.com]
Sent: Wednesday, September 04, 2002 4:18 PM
To: cpeo-brownfields
Subject: [CPEO-BIF] New York's Brownfields and Voluntary Cleanup
Programs: How They Stack




I am pleased to be a brand-new member of the Brownfields Internet Forum.

Let's see if I can provoke some lively discussion!

New York State remains one of the few U.S. states and territories to not yet

have a statutorily-authorized Voluntary Cleanup Program (VCP).  An 
administrative VCP was hurriedly established in 1994 (in the heat of a 
gubernatorial election campaign--which led to George Pataki's defeat of 
incumbent Mario Cuomo).  For eight years program staff in New York's 
Department of Environmental Conservation kept the details of the VCP largely

to themselves, retaining the flexibility to change the unwritten "rules" as 
they went along.  A few months ago, details of the VCP were published for 
the first time for public review in a draft "VCP Guide" 
(http://www.dec.state.ny.us/website/der/vcp/VCPGuide.pdf), and opened for 
public comment.  An initial 30-day comment period was extended by 90 days 
(to August 27th).  Rumor is that it has been extended again through at least

the end of September.

DEC's VCP program has many problematic features that could benefit greatly 
from a major overhaul.  For example, no distinction is made between 
low-hazard brownfield sites and high-risk state Superfund sites (except that

Superfund PRPs are not eligible to participate).  Although the program pays 
lip-service to the principle that cleanups should be protective in light of 
the site's contemplated use, in reality, there are no VCP-specific cleanup 
standards, and it is difficult to discern a difference between standards 
applied to cleanup volunteers at brownfield sites and those applied to the 
most recalcitrant polluters at Superfund sites.  As an additional "wild 
card" (to keep potential volunteers off balance?), DEC has given the State 
Department of Health (DOH) the open-ended authority to veto investigation- 
and cleanup work plans (and work plan submittals) by prohibiting DEC project

managers from moving forward without DOH's written concurrence.  Since DOH 
is not a party to Voluntary Cleanup Agreements and is not subject to their 
terms, DOH interventions have often resulted in lengthy time delays and 
substantial cost increases--generally without apparent public health or 
environmental benefits.  (In one VCP project I was involved in, DOH 
involvement contributed to increases in cleanup costs from an initial 
estimate of $16,000 to upwards of $250,000.)

The DEC program also contains no time limits (at least for DEC or DOH), and 
it includes the (arbitrary) requirement that only state-licensed registered 
professional engineers can oversee or sign off on most aspects of Work Plan 
development and implementation.

Nor is it clear that legislative authorization of the program would improve 
matters much.  The Legislature established a municipal brownfields 
(environmental restoration) program under the 1996 Clean Water/Clean Air 
Bond Act.  Unfortunately, they made it so difficult and expensive to qualify

for funding under this program, that few municipalities have been willing to

step up to the plate.  Specifically, the Legislature made funding available 
only where the municipality agrees to Superfund-level cleanups both on- and 
offsite.  Since the locals must pay a 20% matching share, the high-cost 
cleanups mandated by the Legislature make the 80% grant funding offered by 
the State unattractive.  (A June 2001 Albany Business Review article cites 
some other problems with the program: 
http://albany.bizjournals.com/albany/stories/2001/06/11/story4.html?t=printa
ble 
).

Governor Pataki has sought to "reform" New York's Superfund, Oil Spill, and 
Voluntary Cleanup programs for at least the past 3 or 4 years.  Each year, 
his proposals have died in the State Legislature.  (New York is "blessed" 
with a highly fractionated Legislature.  Upstate Republicans control the 
State Senate, while the Assembly is controlled by Downstate Democrats.)  A 
major thrust of the Governor's reform proposals is to establish uniform and 
consistent standards for the State's three cleanup programs. Unfortunately, 
this is likely to have a counterproductive impact on the cleanup and 
redevelopment of low-risk brownfield sites.  The State Assembly wants even 
tougher rules and the Senate has its own approach.

I have published a series of three articles on the subject.  The first is a 
no-holds barred critique of New York's VCP.  The other two (a 2-part series)

compare New York's program to those of 5 "leading" states: Maryland, 
Massachusetts, Michigan, New Jersey, and Pennsylvania.  If you e-mail me, 
I'd be glad to send you (pdf versions of) my articles.

I have also established a website on such issues, which Forum members are 
welcome to visit: http://www.ny-brownfields.com .

I'd be very interested in comments on any of the above from Forum members.

Ken Kamlet

-----------------------------------
    Kenneth S. Kamlet, Esquire
    Director of Legal Affairs
    Newman Development Grp., L.L.C.
    3101 Shippers Road, P.O. Box 678
    Vestal, New York 13851-0678
    607-770-1010, FAX: 607-770-3482
    kkamlet@hotmail.com




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