With the New York State Department of Environmental Conservation’s (“NYSDEC”) Voluntary Cleanup Program (“VCP”) drawing to a close, over 100 VCP sites throughout New York must choose whether to complete remediation by the end of March 2018, or transition to another remedial program by the end of this year. The sunset of the program is a result of the New York State Supreme Court decision, Town of Brookhaven v. Metropolitan Transit Authority

Created by NYSDEC in 1994, the VCP allows participants to remediate sites under NYSDEC oversight after execution of a Voluntary Cleanup Agreement. However, the VCP was never authorized by statute or regulation, and existed only through NYSDEC’s administrative guidance.

In 2003, using the VCP as a model, the New York State Legislature enacted the Brownfield Cleanup Program (“BCP”) under Article 27 of the Environmental Conservation Law (“ECL”), effectively replacing the VCP. With the new BCP in place, NYSDEC essentially stopped enrolling sites in the VCP in late 2003. However, implementation of remedial activities continued under the VCP for sites already enrolled in that program.

Currently, at least 149 sites, the vast majority of which were enrolled into the VCP prior to December 31, 2003, remain active in the VCP. Included in this category is the site which gave rise to the end of the VCP—a rail yard owned and operated by the Metropolitan Transportation Authority and the Long Island Rail Road (“LIRR”) located in Yaphank, New York (the “Yaphank Site” or “Site”). The Yaphank Site was enrolled in the VCP in 2002, and in 2014, NYSDEC selected an excavation and cap remedy for contaminated Site soils.

In 2015, the Town of Brookhaven commenced an Article 78 proceeding in the New York State Supreme Court, Suffolk County, against NYSDEC and the Site owners to require full remediation of the Site, instead of the excavation and cap approach selected by NYSDEC. The Town argued, in part, that NYSDEC acted without authority in implementing a remedy for the Site under the VCP as the VCP had no foundation in law or regulation.

In February 2016, the Court agreed with the Town and held that NYSDEC acted ultra vires by utilizing the VCP to engage in a voluntary agreement with the LIRR.

Since the Brookhaven decision, NYSDEC has quietly begun transitioning sites out of the VCP to close out the unauthorized program. As part of the transition earlier this year, NYSDEC began notifying VCP volunteers that site remediation would need to be completed by March 31, 2018, or transitioned to another program by the end of this year. This transition may occur through an application to the BCP or by execution of a Consent Order with NYSDEC under the State Superfund program. It is understood that NYSDEC will terminate non-complying sites from the VCP by the end of March 2018.

While the Brookhaven decision forged the path toward terminating the VCP, the issue of the legal rights, duties and obligations of the volunteers and NYSDEC under existing VCAs remains open.