The New York City Voluntary Cleanup Program (VCP) is a voluntary environmental remediation program administered by the New York City Office of Environmental Remediation (OER). It was established to ensure that any vacant property in NYC with light to moderate levels of contamination can be cleaned up to New York State standards with government support to protect public health and the environment and redeveloped in a timely manner.
The VCP was established in 2011 that has now engaged 500 projects on over 1,200 tax lots, making it one of the most productive environmental remediation and redevelopment programs in the country. The VCP is responsive and predictable.
As the name suggests, the VCP is voluntary. In addition to providing a responsive and predictable regulatory process that results in a safe new building, the VCP provides government environmental liability protection to lower development risk—the assurance that city or state government will not take future environmental enforcement action to compel additional remediation for environmental or public safety protection. The VCP has many other innovative incentives including low- or no-cost soil recycling, grants to offset some cleanup costs, waivers for certain government taxes and fees on cleanup, and formal city certification of completed projects that symbolizes the city’s confidence that properties are among the safest places to live and work.
The First Step. A prospective volunteer for the NYC VCP starts a project by meeting with OER in a Pre-Application Meeting. This meeting will usually include a discussion of the development plan, the project schedule, available information on the site history and environmental data, and a scoping session to define the elements of any required environmental field investigation.
After confirming the field study plans with a field investigation short form, field work—called a Remedial Investigation—is performed and the data is submitted to OER. It is common for all of the steps in this process to be completed within just a few weeks. Once this data has been generated, it is used to develop a Remedial Investigation Report and establish a Remedial Action Work Plan (cleanup plan). The Remedial Investigation is performed prior to formal enrollment in the NYC VCP. This minimizes process requirements and focuses attention on completing field investigation work and keeping the project on schedule.
Once OER receives the field data for the project, a Remedial Action Work Plan Scoping Session is usually conducted within two or three days. This meeting, commonly conducted by conference call with the project team, will assess the field data and the proposed building design and property use, and will establish a conceptual cleanup plan for the project. With the conceptual cleanup plan in hand, the information can easily be developed into a Remedial Action Work Plan and Remedial Investigation Report, usually in about a week. It is at this point—as early as three weeks from the Pre-Application Meeting—that the requirements for cleanup are fully established and the developer can plan the cleanup schedule and budget. With this information, important risk factors to the project are eliminated. To summarize, the time required to conduct an initial Pre-Application meeting with OER, complete the environmental field work, establish a conceptual cleanup plan and complete the Remedial Action Work Plan can confidently be less than one month.
Once a volunteer decides to enroll in the VCP, four documents are required to formally apply: a Remedial Investigation Report, a Remedial Action Work Plan, a NYC VCP Application and a NYC VCP Agreement. Each of these documents has a well-defined template, or boilerplate, that simplifies preparation and enables predictable and timely navigation of the NYC VCP. In addition, OER encourages use of ‘comps’—documents from comparable projects that have already been approved and enrolled in the program—to guide document preparation. OER often edits documents directly instead of preparing lengthy comments and critiques, simplifying review and speeding approval. If other changes are needed, they are made in a cover letter or ‘stipulation list’ that acts as a rider to the original document, simplifying the review process. If negotiation is required, it is conducted in face-to-face meetings that usually result in final document approval. The NYC VCP is also an entirely paperless program and all documents are submitted digitally, speeding submittal and review, and conserving valuable resources. Taken together, these approaches make the NYC VCP perhaps the most timely and responsive cleanup programs in the country.
The Remedial Investigation Report (RIR) is prepared based on the environmental field data generated during the field work and provides information required to document contaminant distribution and behavior on a property and establish the basis for selection of an appropriate remedy. The basic goals of the Remedial Investigation Report for a property include:
Identify all potential sources of contamination based on investigation of past uses;
Define the nature and extent of contamination in all media both laterally and vertically;
Perform a human health exposure assessment;
Assess contaminant fate and transport including the existing and potential impacts on groundwater, soil and soil vapor; and
Produce data of sufficient quantity and quality to support the development of a Remedial Action Work Plan.
The RIR is developed in a manner consistent with existing guidance for implementation of voluntary cleanup in New York State. OER provides a template for the RIR that gives detailed guidance for the structure and content of the document. Contact OER to obtain a template. The RIR is usually submitted to OER with the NYC VCP application for enrollment.
The Remedial Action Work Plan (RAWP) describes the remedial actions that are necessary to render a site protective of public health and the environment for the intended use. There are four categories of intended use for a site:
unrestricted (cleaned up to the highest standard that enables any use without restriction)
restricted residential (highest use of site is residential and some contamination is left onsite requiring some controls)
restricted commercial (highest use of site is commercial and some contamination is left onsite requiring some controls)
restricted industrial (highest use of site is industrial and some contamination is left onsite requiring some controls)
To render a site protective for its intended use, the NYC VCP uses New York State soil cleanup standards and alternative cleanup tracks established by New York State Department of Environmental Conservation (NYS DEC). Parties should contact OER for more information about cleanup requirements.
The RAWP is subject to a 30-day public comment period that begins shortly after submission of the plan to OER. Like the RIR, the RAWP is developed in a manner that is consistent with existing guidance for the implementation of voluntary cleanup in New York State. OER will provide you with a template for the RAWP.
The RAWP includes a remedial alternatives analysis that provides a basis for the proposed remedial action, and explains why the remedial action is protective of public health and the environment for the intended use. The RAWP also includes a remedial work schedule, a Health and Safety Plan, a description of all Engineering and Institutional Controls (if contaminants are left behind after completion of construction) and an explanation of site management requirements that make sure that any remaining contamination does not pose any exposure risk in the future.
The Remedial Action Work Plan also includes a Community Protection Statement that summarizes community protections to be implemented during the remedial process. It summarizes such issues as the community air monitoring plan, all odor, dust and noise control measures, hours of operation, and other good housekeeping practices that will be implemented at each NYC VCP site. This is an important document because it addresses the most common public concerns and builds confidence within the community. The Community Protection Statement is written in easily understandable, non-technical language so that community members are able to understand why they will be safe when the work to be performed. It is also translated into five of the most commonly spoken languages in NYC so it can be more accessible to all community members.
Upon completion of the remedial action, the volunteer submits a Remedial Action Report (RAR) to OER. Contact OER to obtain a RAR template. The RAR typically includes documentation showing that the remedial action has been achieved and a description of Engineering and Institutional Controls.
Engineering Controls and Institutional Controls are physical and non-physical controls commonly used to enable long-term management of residual contamination at remedial sites after completion of the approved remedial actions. Not all cleanups leave residuals behind. About half achieve the State’s highest standards for soil cleanup—known as a Track 1 cleanup—and engineering and institutional controls are not required. If Engineering Controls and Institutional Controls are part of a site cleanup plan, the RAR will describe the mechanisms that will be used to maintain and inspect these controls—usually in a Site Management Plan.
All Engineering and Institutional Controls are managed under a Site Management Plan (SMP) submitted as part of the RAR. The Site Management Plan provides for periodic inspection of the Engineering and Institutional Controls to ensure that the remedy remains protective for the long term. OER approves the SMP and RAR prior to issuance of the Notice of Completion.
Completion of the NYC VCP occurs when a Notice of Completion is issued to the volunteer by the Director of OER. This occurs after OER has determined that all remedial requirements defined in the RAWP have been achieved and documented in an OER-approved Remedial Action Report. Upon issuance of the Notice of Completion, a volunteer is eligible for liability protection and a NYC Green Property Certification for the property.
At the time that the Notice of Completion is issued to the volunteer, the City of New York pledges that the volunteer has no further environmental liability to the City with respect to the enrolled site, subject to certain conditions. This liability protection is assignable to the volunteer’s successors and assigns who take title to, develop, or otherwise occupy the site, provided such parties adhere to the requirements of the Voluntary Cleanup Agreement. Furthermore, under an agreement with New York State, the volunteer will also receive liability protection from the NYS Department of Environmental Conservation (NYS DEC) in the form of a statement that the NYS DEC has no further interest in the enrolled property and does not plan to take enforcement or require remedial action under CERCLA or the State Environmental Conservation Law.
Citizen participation is an important component of the NYC VCP. The following steps are included in the Citizen Participation Plan:
Document repositories make the principal documents produced during the remedial program available so that the RAWP and Community Protection Statement are accessible for review. OER has established an online repository for document maintenance to simplify this process.
Public Notice and Public Comment
A Site Contact List is prepared for each project that is used to inform the public of important project information and invite public comment on the RAWP. The Site Contact List includes owners of on-site and adjacent buildings and residences, administrators of nearby schools, hospitals and day care centers, the local Community Board, and elected officials. Members of the public can request to be added to the Site Contact List. A fact sheet is sent at three times during the remedial program: at the start of the project announcing availability of the RAWP for comment, at the start of the remedial action, and at the end of the remedial action. Fact sheets contain descriptive project summaries, updates on recent and upcoming project activities, repository information, and OER contact information. Final review of work plans by OER will consider all public comments and OER will not approve work plans until the public comment period has been completed.