NYSDEC To Finally End Voluntary Cleanup Program

In 1994, the New York State Department of Environmental Conservation (NYSDEC) established an administrative voluntary cleanup program (VCP) in which landowners, prospective purchasers and other parties could investigate and/or remediate sites that are contaminated with hazardous substances and petroleum under the supervision of the NYSDEC (See “Organization and Delegation Memorandum #94-32, Policy: Voluntary Cleanup Program”). When the cleanup was completed, the VCP applicant would receive a release from liability from NYSDEC. The VCP was administered pursuant to the NYSDEC Voluntary Cleanup Program Guide.

The Brownfield Cleanup Program (BCP) was intended to supersede the VCP. The NYSDEC stopped accepting VCP applications on October 31, 2003. Existing VCP applicants had the option of transitioning into the BCP by June 1, 2004 or to complete the remediation under the VCP. Indeed, at one point the NYSDEC would not allow purchasers of VCP sites to enroll in the BCP.

Back in 2015, the Town of Brookhaven filed a combined Article 78 petition and complaint to challenge a waste consolidation and capping remedy approved by NYSDEC under the VCP. The town argued, inter alia,  the remedy was arbitrary and capricious, that NYSDEC lacked authority to require the cleanup of the Site under the VCP, and that NYSDEC violated the State Environmental Quality Review Act (“SEQRA”) because the agency did  not  take  into  consideration the  proximity   of the  contaminated landfilled materials  to  the Carman River,  a New  York  State-designated Wild  and Scenic River that derived 95% of its flow from surrounding groundwater. The town sought an order requiring the Metropolitan Transportation Authority (“MTA”) and the Long Island Railroad (LIRR) to undertake a full remediation and removal of all contaminated soils and hazardous materials that had been disposed near the LIRR Yaphank station.

The state supreme court judge ruled that the NYSDEC lacked authority to create the administrative VCP. As a result, the court barred the agency from requiring the VCP volunteers from implementing the remedy approved in the NYSDEC a decision document. Town of Brookhaven vs Metropolitan Transportation Authority, No. Index No. 2015-04273 (Sup Ct.-Suffolk Cty)

The court said NYSDEC created the VCP “out of whole cloth” without enabling legislation. Moreover, the court noted:

“The DEC has not promulgated any Rules in the New York Code Rules and Regulations described or remotely resembling a Voluntary Cleanup Program. There are no Rules or statutes governing or guiding admission into the program, there are no Rules or statutes governing the obligations of a volunteer, and there are no Rule or statutes governing or guiding what benefits volunteers are to receive upon completion of the program. Without enabling legislation or Rules, the DEC has, in effect, written on a “clean slate” to create an entirely new program based solely on what DEC administrators may personally believe is good public policy, without guidance, instructions, or authority from the Legislature.

As a result, the court found NYSDEC violated the constitutional separation of powers/non-delegation doctrine and that its VCP was illegal, ultra vires, and contrary to law.

Rather than appealing this decision, the NYSDEC has decided to finally wind down the VCP.  The agency recently sent letters to the approximately 150 existing VCP projects informing them that they have until March 31, 2018 to complete a remedial program and receive a Release or No Further Action Letter. After that date, all Voluntary Cleanup Agreements (VCAs) will be terminated.  Volunteers who cannot complete their projects by that date may apply to BCP or enter into an Order on Consent under the state superfund program.  Projects that are currently subject to a multi-site VCA that cannot be completed by March 31, 2018 may pursue entry into the BCP on an individual site basis, or may be the subject of a multi-site Order on Consent.

We think the court erred that NYSDEC did not have the authority to create the VCP. Afterall, the NYSDEC has broad authority to abate pollution under ECL § 03-301 and to arrange for private parties to respond to petroleum discharges under Navigation Law § 176(7)(c). See also Consolidated Edison Co. of New York, Inc. v. Department of Environmental Conservation, 71 N.Y.2d  186, 192-93{1988). Nevertheless, 14 years after the BCP was enacted, we think NYSDEC is right to terminate the VCP.

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