At the time when Superfund was flexing its muscle and impacting the ability of successful completion of property transfers, most states developed some form of voluntary cleanup program or “VCP”. Those programs were supposed to allow for rapid and effective assessment and remediation, and furnish liability releases or covenants with liability protection. Sounded good huh?
And how many of our clients have a small collection of such sites that they volunteered to assess and address with the sweet promise of walking away, and quickly? Some used the voluntary cleanup program as a risk allocation tool in property transfers. Others wanted the promised release or covenant in order to obtain an environmentally worry-free, and thus more valuable, property that was theirs to sell.
Some states have had the fortitude to reform their voluntary cleanup programs by privatizing the process. In those states licensed professionals determine whether property investigations and remediation are necessary and when they are complete. They then issue some form of certification that leads to a covenant not to sue or a release. [See "New Jersey Follows Massachusetts into the World of Licensed Environmental Consultants and Privatized Cleanup Oversight", David Farer ,July 9, 2009].
In other states the agencies have not overcome their dependence on the fees generated by voluntary cleanup programs, utilizing those fees to pay the salaries of agency personnel engaged in the oversight of voluntary cleanup activities. In these states "voluntary" really means "hooked and can't get out." Let's look at a familiar ballad - best read while listening to Eric Clapton's Voodoo Chile (Live from Madison Square Garden):
Well on the day I signed up
For the Voluntary Cleanup Plan
Well I was promised fast and efficient
Get you out of a jam
It gives you certainty and freedom
And you'll be able to transfer worry free
Lord I'm a VCP chump
Oh Lord, I'm a VCP chump
Well I had a grain elevator
With a little dab of carbon tet
Oh Yeah, just a little dab
In the shallow soil
VCP had me test it
Oh, just a little dab at low levels
Lord I'm a VCP chump
Oh Lord, I'm a VCP chump
And I said I am finished
But VCP said not so fast
So I started on the groundwater
Even though it was 200 feet down
Yeah I started drilling
And haven't hit bottom yet
Now it's 10 years later
From the time I began
Yeah, it's 10 years later
And I haven't found that carbon tet yet
But I 'm gonna keep goin
Cause I'm in the money so deep
My heirs and assigns ask me
Say – what's goin on?
I have to tell them
My sad, sad song
Lord I'm a VCP chump
Oh Lord, I'm a VCP chump
So, most ballads eventually come to an end. How can we continue VCP reform in states where the VCP Bluesy Ballad still is being sung?