and DAMN DAMN DAMN
I wish I had sat in on that session and got my two cents in about VCUP VS Superfund
I've been trying to get the law changed here the last three years in Colorado and can't get past the first round at the State House and most legislators are afraid to carry the Bill, it takes a lot of planning.
In Colorado there is no Public Participation in VCUP and that's why we formed a Voluntary Clean-up Advisory Board to oversee The Gates Project, which really should have been a Superfund site. Under VCUP its filed through the Colorado Department of Public Health and Environment. EPA Region 8, may be notified but are usually hands off unless an Emergency Team is needed to investigate migrating plumes off property. Denver Environmental Health is Notified and has tried to enforce Regulations but they lost at the State Supreme Court of Appeals after filing on the Shattuck Superfund Site.
So as the Average citizen faced with Contamination, Non-Disclosure and feuding jurisdictions, we took it upon ourselves to get involved. Now CDPHE does have a web site and posts on Brownfield sites that have filed under VCUP but the site is about three years behind and all applications as well as, No Further Action Determination letters have been given out. And Development can proceed as is. So Joe Public has No Clue, much less do we know where in general to find the web-site.
With that Said the Colorado VCUP law was passed for the Mom and Pop sites of the world, with small contamination problems, that they can disclose to the State and then come up with a clean-up plan over a period of time and avoid being fined as a Polluter and yet, clean it up. Without going Bankrupt and out of Business. So the example may be the privately owned Supply Store or Gas Station. And not a Superfund site like Gates and others.
The process is the Owner are Developer enters VCUP by filing an application with the State which gives them a 45 Day window to come up with a solution and comply. If after the first 10 days the State does not respond to the application, it is considered approved and can move forward. At anytime either party can waive the 10 day period or get an extension of time. After the 10 day period there is a 20 Day period of back and forth around the clean up process and the applicant submits the remediation piece of the plan and the State reviews it and may hint at some recommendations but cannot insist on a solution to the problem. And of course remediation only has to meet State Standards which is another can of worms. In the final 15 days, there is more back and forth and the plan is approved. The problem there is the State is under staffed and things fall through the cracks, allowing some bad no further action determinations to get
approved. Because their is No Public Participation.
So here is what my group did. Bitched Loudly and went to the Source. We educated the six communities affected by holding public meetings with the EPA, CDPHE and DEH. We brought in legislators and senators to leverage CDPHE and we did our home work.
We got the State Standards changed on Vapor Intrusion where we lowered the Standard but changed the trigger point and action level. And got my friend Lenny down here to help me out as well as others.
We got the Developer to post the VCUP applications in the Decker Library so they could be open to the Public for review, even though there is no Public Participation. There were a few times they failed to do so and I called them and the State on it.
CDPHE has a library open to the public for review by appointment with the person in charge of the site, during business hours. Which the average Joe Citizen can not access. Furthermore the applications are often missing un-kept are completely file incorrectly, the list is long and again we showed the State and the Developer that.
I was able to get U.S. Congresswoman Diana Degette to help me leverage the Director of CDPHE to test some wells, that both the State, City and the Denver Water Board said did not exist. What they learned was indeed there are tons of active water wells and that they haven't been monitored since the 1950's and were Grandfathered in.
And my Big Win in forcing Public Participation; was when working in Milwaukee they filed and approved a VCUP application at Christmas time with two days notice and without placing it in the Library. With my hands basically tied and out of State I wrote an emergency grant hired an expert in the field to review the application and Demanded from the State and the Developer a 30 day extension of time for review. They did not like it, I am sure but it was granted and that was the first official Public Participation with a VCUP application in Colorado.
From there, Denver Environmental Health provided me with all the VCUP documents and when the State asked them why? And I won't name names here, but one of them retired thank goodness. The City guy told them, He's a concerned citizen and tax payer we work for them and you do to! I've met with them and will continue to meet there requests and answer any and all questions they have and support them. Denver finally stepped up.
As for Region 8 EPA, we never got much from them. They did have a emergency response team who investigated and determined who the polluter was, "officially", of course we already knew who it was but no one would listen to us. We could never get a grant from them, because we are State Non Profit and not a 501c3 which is the only type the EPA funds.
I got my funding for my group after taking a Social Justice class and with the completion I was eligible to write and apply for a grant up to $5000.00 dollars. I wrote the grant based on environmental justice went through the review process and was given $2500. Later I met some folks from Montana Tech University and they helped fund my group through TAG money I believe it was. It went away quick and last year I believe it was E2 or E Squared who got the entire grant for the Country. And we've been going it alone ever since.
Until we get the VCUP law and others to involve Public Participation we'll continue to go it alone and fight for everyone's rights.
I wish I had got in on that session since I know all of you and have heard you speak, if I ever get the chance with David Lloyd are anyone else in D.C., I will show them just a few of the things we are up against. We're not anti-development, but we are tired of stuff being swept under the carpet and left to fester. The Public has a Right to Know!
Voluntary Clean-Up Advisory Board
367 Bannock Street
Denver, Colorado 80223
From: Peter Strauss <email@example.com>
Subject: Re: [CPEO-BIF] Voluntary Cleanup vs. CERCLA
Cc: "Brownfields Internet Forum" <firstname.lastname@example.org>
Date: Saturday, November 21, 2009, 1:36 AM
The discussion at the conference was very interesting (an entertaining), but not totally on point. The issue of voluntary cleanup vs, superfund type cleanup, as was the original issue at Gowanus, was only touched upon briefly. But it was in this discussion that developers along the canal stated that they would back out of development projects if Gowanus was named a Superfund site.
The debate shifted to disclosure requirements, and to some extent, whether property transactions should be protected at the cost of public health protection. These are important issues, to say the least. In my opinion the proponents of more stringent disclosure requirements (Larry and Lenny) were essentially turning the concept of due diligence on its head: that is, instead of due diligence on the buyers side, proponents would have stiffer requirements for due care and disclosure on the part of owners and
responsible parties. In my opinion, proponents are seeking a substantial cultural/value change. I am not opposed to it. On the other hand, the proponent of the protection of the market-driven system (Barry) made some important points that can't be overlooked. That is, if money dries up for transactions at Brownfield sites, they will sit idle, as they did once before.
So the real problem is how can we develop a policy that has two goals in mind: 1) to not unduly burden property owners (economically and legally), and 2) protecting public health to the fullest extent practical. The way that I see it now, neither goal is being fully met. (I recognize that I have simplified a complex legal, economic, and environmental issue, and I apologize to the panelists if I've misrepresented their positions.) I am hoping that this dialogue continues.
On Nov 18, 2009, at
3:33 PM, Lenny Siegel wrote:
> Yesterday, at the Brownfields conference in New Orleans, we had a lively panel discussion that addressed, among other things, state requirements for public disclosure and involvement under voluntary cleanup programs? When (if ever) do members of the public - particularly site neighbors - learn about releases of hazardous substances? Are regulatory requirements met?
> Tell the list what happens in your state.
> Lenny Siegel
> Executive Director, Center for Public Environmental Oversight
> a project of the Pacific Studies Center
> 278-A Hope St., Mountain View, CA 94041
> Voice: 650/961-8918 or 650/969-1545
> Fax: 650/961-8918
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