Voluntary Environmental Cleanup: the Epa's Buy-in to Colorado's Program
| Publication year | 1996 |
| Pages | 105 |
| Citation | Vol. 25 No. 11 Pg. 105 |
1996, November, Pg. 105. Voluntary Environmental Cleanup: The EPA's Buy-In to Colorado's Program
Remediation of contaminated properties is not, however, the exclusive province of the CDPHE; the U.S. Environmental Protection Agency ("EPA") has overlapping and independent authorities to direct and oversee cleanup, most notably through the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), commonly known as "Super-fund."(fn5) Without EPA buy-in, any determination by the CDPHE has only limited value.
In April 1996, the CDPHE and EPA signed a Memorandum of Agreement intended to aid in implementation of the state's Voluntary Cleanup Program and to provide the EPA's much-sought-after buy-in ("VCUP Agreement"). After the VCUP Agreement was signed, and recognizing that several other Colorado statutes affect voluntary cleanup actions at various sites, the CDPHE developed a "roadmap" of the different state programs to assist the regulated community in understanding the sometimes maze-like requirements of regulatory procedures. This article reviews the new draft "Voluntary Cleanup Road-map" prepared by the CDPHE, as well as highlights of the major elements of the VCUP Agreement from the perspectives of private parties and EPA Region VIII. The text of the VCUP Agreement and the related program description are contained in the Appendices to this article.
It is important to recognize that the VCUP Agreement between the CDPHE and EPA Region VIII that is the central topic of this article focuses on activities that are conducted only under the authority of the Colorado Voluntary Cleanup and Redevelopment Act. That statute specifically excludes from its purview any sites that come within the jurisdiction of: (1) CERCLA as a property listed or proposed for listing on the National Priorities List of Superfund sites; (2) the Resource Conservation and Recovery Act ("RCRA")(fn6) as a property that is the subject of corrective action orders or agreements; (3) the Water Quality Control Act(fn7) as a property that is the subject of an order issued by, or an agreement (including permits) with, the Water Quality Control Division; (4) RCRA Subtitle C as a property subject to the permitting or interim status requirements for treatment, storage, or disposal of hazardous waste; and (5) the underground storage tank ("UST") registration and remedial action requirements of the State Oil Inspector in the Colorado Department of Labor.(fn8)
Using the words of the state agency staff who have the job of running the program, the Colorado Voluntary Cleanup Program ("VCUP") is designed to "operate quickly and with a minimum of administrative processes and costs." Indeed, no agency regulations have been promulgated pursuant to the Act. Instead, the Hazardous Materials and Waste Management Division of the CDPHE has issued guidance documents to assist applicants in jumping through the VCUP hoops. That guidance includes an application checklist and description of the factors the agency staff will use to decide whether to approve a cleanup plan or to issue a no further action determination.
In addition, the agency staff members have worked closely with a special task force made up of representatives of private industry and other interested parties (as a part of the CDPHE "Change" initiative) to prepare a new guidance document (in draft form as of this writing)
called the Voluntary Cleanup Roadmap. The Roadmap goes well beyond the VCUP, however.
Representatives from private companies on the task force expressed concern that, although the VCUP was a major step forward in providing some comfort to property developers and lenders that the light at the end of the environmental cleanup tunnel was sunshine instead of a locomotive headed their way, the statutory exclusions that limited the voluntary cleanup program's scope were problematic and confusing. Therefore, the regulated community encouraged the CDPHE staff to prepare a guide to the various state-run corrective action and remedial programs (including the VCUP) that would help a developer or lender successfully run the environmental cleanup gauntlet. The draft Roadmap is the result.
The Roadmap addresses the procedures, generally, that a party would pursue for voluntary cleanups at sites that are addressed by the VCUP and other regulatory programs. The Roadmap first attempts to define the "type of site" involved in a voluntary cleanup premised, not on the type of contamination or the kind of business at the site, but rather based on various regulatory definitions that would bring the site under the jurisdiction of a particular agency or section of the CDPHE. For example, a significant "radioactive waste" issue would likely fall into the hands of the Radiation Control Division, rather than the staff of VCUP. Similarly, facilities with a RCRA permit or interim status are exempt from the VCUP and are handled by the Hazardous Waste Unit.
The Roadmap provides an outline of each program, including the VCUP, and specifies the criteria that will be used to determine which agency, division, or unit would be responsible for managing the voluntary cleanup, again depending on specific regulatory definitions that may apply to the site. The list of agencies and programs described in the draft Roadmap includes VCUP, the Solid Waste Program, the RCRA Corrective Action Program, the Radiation Control Division Program, and the Water Quality Control Division Program.
Keeping in mind that the VCUP Agreement with the EPA operates exclusively within the strictures of the state Voluntary Cleanup and Redevelopment Act and applicable federal law, the following section discusses some specific issues addressed in the negotiations among the parties that led to the VCUP Agreement.
The EPA and CDPHE share common interests in encouraging redevelopment of contaminated properties. Both agencies are interested in expeditious cleanup of contaminated sites that pose some risk to human health and the environment, but are low on the EPA's funding priority list. Both agencies also would like to encourage private-party redevelopment and return of properties to productive use. The VCUP Agreement...
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