National Clothesline

In a majority of states, it’s not clean-up fund bureaucracies that address contamination. Voluntary assessment and remediation get the job done.

With renewed attention by IFI regarding the possibilities associated with industry specific state-run remediation programs, one quiet effort continues to successfully address contamination assessment and clean-up. It’s called voluntary assessment and remediation.

An article in the July/August 2004 edition of IFI’s Fabricare, failed to mention that anything other than a cleaning industry specific state-run clean-up fund bureaucracy exists.

Starting with a groundbreaking model created in Colorado during the early 1990s, voluntary assessment and clean-up programs rapidly expanded beginning in the mid-1990s and are now working to clean up contaminated sites in at least 34 states. In some states voluntary clean-up is combined with other remediation programs such as urban-oriented Brownfields clean-up and redevelopment actions. Tax credits are often part of the mix.

Without rancor that has turned cleaner against cleaner, created deep resentment within and toward trade associations, created a continuing and always growing financial burden, and further escalated the profile of the industry by focusing attention, voluntary environmental assessment and remediation programs are alive and doing well in Virginia, West Virginia, Maryland, and the District of Columbia.

The availability and implementation of a voluntary clean-up program represents that all too rare government framework within which a state has created guidelines and oversight with the singular aim of expediting a clean-up. In the case of the cleaning industry, voluntary opportunities go a long way toward helping solve private property contamination issues.

A voluntary clean-up program creates a privilege for information and immunity from administrative or civil penalties to those who investigate and, if necessary, clean up soil and groundwater contamination. It does not, however, extend to information that demonstrates a clear, imminent and substantial danger to public health or the environment. Neither do industry specific programs.

Voluntary clean-up programs create a risk-based streamlined mechanism for property owners and all potentially responsible parties to address contamination issues without having to resort to litigation. With a goal of accomplishing a satisfactory clean-up, multiple factors are evaluated. Chief among these are: what kind of contamination exists, how much there is, where is it, and the overall value and importance that will result from the remediation.

When successfully completed, the respective state department of the environment issues a certificate of satisfactory completion or remediation. This provides assurance that the site will not later become the subject of an enforcement action unless new issues are discovered.

Compared with state-run industry specific clean-up fund programs, voluntary assessment and remediation has advantages.

They are not industry specific. Rather they work for the remediation of any contamination without the continuing costs associated with industry-specific funds. Voluntary programs are initiated by the state agency that deals with environmental issues through its own annual legislative agenda. Interested parties (that’s us) have opportunities for input by reviewing proposed legislation and the important regulations which carry the voluntary program into effect.

Working with and through the respective state environmental agency or department on voluntary clean-up relieves the drycleaning industry of being singled out and becoming the focus of attention regarding contamination. And, to the greatest possible extent, it helps remove extreme polarizing politics from the legislative and regulatory process. The industry is thereby not placed in a position that pits one industry group against another, or one company against another.

There is no ongoing annual fee or tax. Eligibility is liberal and easy to obtain with an application fee (typically ranging from $200 to $6,000, or in some cases a maximum of 1 percent of the estimated clean-up costs) that easily offsets always-escalating costs associated with a cleaning-specific industry fund. There is no deductible amount that must be paid by the cleaner before a clean-up begins. There are no increasing solvent surcharges that serve to penalize our industry for continuing to use less and less solvent each year.

The Fabricare article states “had the funds [from states with industry specific clean-up programs] not been available, those sites would not have been cleaned up, and the owner of the business most likely have been run into bankruptcy.”

That may have been accurate ten years ago, but not today.

It also states, “if your business is located in one of the states that has a clean-up fund, you may be safe from litigation. You may also be in for a long wait before any clean-up gets done. The funding mechanism that drives such funds cannot pay for all of the clean-ups that need to be done at once, so a waiting list begins.”

Indeed, some industry specific clean-up programs reflect zero clean-ups completed even after several years of existence.

Within a voluntary program there is no constant assessing and reassessing of potential contamination danger from sites triaged awaiting their turn to get something done. Clean-up can begin following approval of the remediation plan.

If you are a property owner or own a business that is a potentially responsible party along with all previous property owners and all previous owners of the business, emerging methods of determining who pays what are coming to the fore.

Contamination assessment and clean-up technologies continue to advance and are not as expensive as they once were. Arriving at a common sense determination of “how clean is clean” for a specific site may hold down costs. Detailed investigation of insurance policies of property and business owners, public low-cost environmental or Brownfields type loan funds and private financial services, are helping to eliminate the scary thought and long-term effects of seeking bankruptcy protection or facing financial ruin.

One area not to be overlooked when discussing contamination is the availability of pollution liability insurance coverage. It’s widely available and it is not cost prohibitive. Most new leases contain a provision that this type of coverage in a specified amount will be obtained naming the property owner as co-insured.

Even if a lease does not contain a pollution liability provision, owners would be well advised to obtain coverage in the unlikely event it will ever be needed. Knowing that a site is clean and insurable is a good feeling. The bad feeling comes if a business is located in one of the states with an industry-specific clean-up fund that requires an annual fee, payment of a surcharge per gallon of solvent, or a percentage of gross receipts. Writing that check or paying that bill might be tough to swallow knowing it’s going into something that can never remediate all the sites that need cleaning up… one of which is not yours.

Also printed in Fabricare is an article entitled “Viewpoint: Why State Fund Contamination Clean-up Programs Make Dollars & Sense” that hails the importance of industry-specific clean-up funds.

The assertion that clean up of contamination would financially bankrupt most cleaners concludes with a statement that “a state fund clean-up program is not only your best bet but your only insurance against the potential financial ruin of a solvent contamination discovery and/or clean-up.”

This viewpoint has been discarded by a growing majority of state governments in favor of a substantially better way of resolving clean-up within a voluntary framework.

Unfortunately, even with an acknowledged better way to address clean-up issues without the forever costs associated with an industry specific clean-up fund, the potential to withdraw from or shut down an existing industry fund within a state that also has a voluntary program is unlikely. Voluntary programs existing within those states generally incorporate the industry specific fund by reference, thereby continuing the collection of funds from everyone in the industry while limiting remediation to a few drycleaning sites over a period of many years.

If there is one common thread that does unite industry specific clean-up programs, it is the near constant strife and issues of fairness that have been part of each of these undertakings.

Therefore, perhaps the best attribute of voluntary assessment and remediation programs, especially when you consider our industry is often its own worst enemy, is that a voluntary program is not put in place nor positioned in such a manner as to create a chasm within the industry and/or tear apart a trade association.

Within a voluntary framework, property and business owners and other potentially responsible parties that need to address a contamination issue can do so. Industry owners with no need to address a contamination issue are not continually financially penalized.

Whether through a voluntary or industry specific funded program, dealing with contamination will take an emotional and financial toll. However, thanks to very many dedicated industry professionals, trade associations and the miracle of free enterprise, it does not represent the life altering experience it once was.