Introduction

In 1996, Governor Pataki addressed the Business Council of New York State.[i] He praised reforms that led New York to be ranked for the first time by Site Selection Magazine as being “among the top ten sites in the country to locate new industrial sites or expand existing facilities.” He boasted of putting State government “on a strict diet of less spending, less regulating, and a lot less taxing.” In a brief reference to environmental issues, he affirmed. “We’ve already proven that economic development and environmental protection go hand in hand.” He trumpeted the “good news” that “today, victims of bureaucracy no longer have to tolerate the intolerable” and pledged that “when this government is not acting as it should,” let us know “and it will be fixed.” “You can count on it ….” “Case by case,” he said, “we’re replacing the slow and cynical attitude of the past with a new attitude that embraces change, rises to new challenges and moves with us on the road to renewal.”

In localities across the State, the Governor and his environmental conservation commissioner have endorsed the State’s brownfields program as a way of turning abandoned or underused properties “into community assets, creating jobs and revenues for local residents,” and as “providing a successful mechanism for environmental renewal and economic opportunity.”[ii]

On a statewide basis, the Governor has pressed for legislation to refinance and improve New York’s Superfund program, endorsing among many other points a recommendation by the 1999 Superfund Working Group that State law should “Focus liability on true polluters and free innocent purchasers from liability, while ensuring that actual polluters are not relieved of any financial or legal responsibilities.”[iii] Unfortunately, some of the Governor’s other proposals may have counterproductive consequences. For example, the Governor has proposed to maintain “the most stringent environmental and public health standards in the nation,”[iv] and to apply to the voluntary cleanup program “the same goal as set forth in the State Superfund Program.”[v] Establishing “one cleanup objective for the State Superfund Program, Voluntary Cleanup Program, and remediations which do not constitute an immediate response cleanup under the Oil Spill Program” (unified program approach) is justified as a way to “provide certainty, predictability and consistency among the State’s many cleanup programs ….”[vi] The bill provides that the common “cleanup goal be protection of the public health and environment and, at a minimum, elimination or mitigation of all significant threats to the public health and environment.”[vii]

A cynic might wonder whether the overriding goal of a unified program may not really be “to get more sites cleaned up more quickly with private dollars… [which will] reduce the burden on New York taxpayers and businesses for the costs of the state share on cleanups.[viii] A better way to reduce costs and create positive cash flows—as the State has recognized in its commendable Empire Zone program—is to incentivize the cleanup and redevelopment of festering brownfield sites so that they start generating meaningful property, sales, and income taxes.

A results-oriented cleanup goal, related to health and environmental risk, is clearly preferable to the arbitrary goal of restoring all contaminated sites “to predisposal conditions.”[ix] However, there is cause for concern that, in the interest of “certainty, predictability and consistency,” cleanup volunteers who did not cause or contribute to contamination of low-risk brownfield sites will be held (both under the Governor’s Superfund reform program and under most of the other reform proposals put forward by other political leaders) to the same procedural and/or substantive standards as recalcitrant polluters responsible for creating high-risk superfund sites. Indeed, even if brownfield volunteers were ultimately subjected to lesser cleanup obligations (based on lower risks), if they were forced to carry out steadily-expanding monitoring for many years to prove to the satisfaction of DEC and DOH that their site did not present a significant risk, the deterrent effect on volunteers might be similar.[x]

Although I view some elements of the Governor’s reform legislation as problematic (while other features are clearly meritorious[xi]), most of the other Superfund reauthorization proposals (offered by various legislators) raise similar or even more significant concerns.

Under current law (Article 27, title 13), DEC has authority to order “responsible parties”[xii] to remediate inactive hazardous waste disposal sites that pose a significant threat to the environment. Under proposed reform legislation, cleanup volunteers would be held to the same standards as responsible parties—even at sites that are not inactive waste disposal sites and which do not present a significant threat to the environment. That hardly sounds like focusing liability on true polluters and freeing innocent purchasers from liability. Nor does it sound like a lessening of intolerable bureaucracy or like a way to attract new employers to New York State.

[i] Remarks of Governor George E. Pataki to the Annual Meeting of the Business Council of New York State, The Sagamore, Bolton Landing, September 25, 1996.

[ii] Governor Pataki Announces $918,466 to Restore Brownfields, Press Release, May 17, 2001.

[iii] Governor Pataki Calls for Immediate Passage of Superfund Reform, Press Release, April 18, 2001.

[iv] Id. The 1999 Superfund Working Group also recommended (p. 23) that “the cleanup goal of the State Superfund Program, the Oil Spill Program for long-term remediations, and the Voluntary Cleanup Program [should] be the protection of public health and the environment and at a minimum, must eliminate or mitigate all significant threats to public health and the environment presented by the hazardous wastes, hazardous substances, or petroleum at the sites through proper application of scientific and engineering principles.” However, it recommended (p. 27) that the selection of remedies “consider the current, intended, and reasonably anticipated future land uses at a site and surrounding properties ….” And it recommended (p. 30) that “non-responsible parties conducting a cleanup under the Voluntary Cleanup Program… be required to clean up [only] on-site contamination,” but that the State should “require the responsible party or parties to conduct [any] off-site remediation” or should seek cost recovery against such parties if public funds are used to conduct such remediation.” Superfund Working Group Report.. The Executive Committee of the New York State Bar Association’s Environmental Law Section transmitted to the Governor (on February 14, 2000) the recommendations of its Ad Hoc Task Force. See, Report of the Ad Hoc Task Force on Superfund Reform (as amended—October 3, 1999), New York Environmental Lawyer, Vol. 20, No. 1 (Winter 2000) pp. 30-32.

[v] Memorandum in Support of Governor’s Superfund Reform Bill (can be found on the State of New York website at: http://www.state.ny.us/dob/pubs/executive/0102articleviibills/healthmhec_memo.html).

[vi] Memorandum in Support, p. 20 of 45.

[vii] Id., p. 20 of 45.

[viii] Brownfields Coalition Final Report, pp. 39-40.

[ix] Similarity of DEC and Sierra Club Approaches: The Sierra Club in New York State has adopted the unabashed policy on brownfield sites of driving cleanups to predisposal conditions. (Mr. John Stouffer, Legislative Director, Sierra Club Atlantic Chapter, Albany, NY, personal communication.) Although doubtless well-intentioned, such an approach would produce many undesirable and unintended consequences. It would create a strong disincentive against volunteering to do cleanups—except at the most desirable, high-value brownfield sites. Less posh sites, including the areas most in need of revitalization, would be left to rot and leach their pollution. New development would gravitate to outlying suburbs, contributing to sprawl. Unfortunately, New York State’s approach to brownfields more closely resembles that of the Sierra Club than that of most other U.S. states. Under current law (ECL §27-1313(5)(d)), the goal of the State Superfund Program “shall be a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal.” DEC by regulation (6 NYCRR 375-1.10(b)) has translated this goal into language that could almost have been written by the Sierra Club: “the goal of the program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible and authorized by law.” It goes on to state: “At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by hazardous waste disposed of at the site through the proper application of scientific and engineering principles.”

[x] One especially troublesome provision in the Governor’s bill (proposed ECL §27-1313(1)(b)) would require DEC to consider a list of factors in selecting a remedy—including “conformance to standards and criteria that are generally applicable, consistently applied, and officially promulgated, that are either directly applicable, or that are not directly applicable but are relevant and appropriate, unless good cause exists why conformity should be dispensed with ….” This “conformance to standards, criteria, and guidelines” (SCG) factor is based upon the so-called “ARAR” (applicable or relevant and appropriate) approach under Federal Superfund, which basically allows regulators to impose cleanups capable of meeting the most stringent numerical standards relevant to the environmental medium (or media) found to be contaminated (or threatened). In New York State, where all (non-saline) groundwater is designated as drinking water, and acceptable risks for potential carcinogens have been set up to 100 times lower (more stringent) than those set by the U.S. Environmental Protection Agency, and the Governor boasts of having “the most stringent environmental and public health standards in the nation,” would-be cleanup volunteers at non-Superfund sites would have to be very foolish to agree to such a conformity requirement in most instances.

The bill also proposes (new §27-1316) to require the DEC commissioner to establish a technical advisory panel to recommend soil cleanup levels that will provide for a multi-category approach to contaminated sites, where the more complete the cleanup, the fewer the restrictions on allowable site uses. While this may help avoid wildly excessive soil cleanup requirements, it may leave sites with even low-level groundwater contamination (especially if the contaminant is a known or suspected carcinogen) with cleanup burdens so onerous that only the very wealthy or very foolish will be willing to undertake them.

[xi] At the request of DEC, for example, I participated (as a representative of the business community) in a May 3, 2001 Press Conference in Binghamton with Commissioner Erin M. Crotty to support Governor Pataki’s Superfund refinancing and reform package. However, I agreed to participate only if I could share two one-page lists with DEC. The first was a list of “Positive Features of [the] Governor’s Superfund Reform Bill.” These were the points I emphasized at the press conference. The second was a list of what I viewed to be the “Less Positive Features of [the] Governor’s Superfund Reform Bill.” These points I kept to myself.

[xii] Under both federal and state Superfund laws, “responsible parties” include current owners of contaminated sites, even if they did not cause or contribute to the contamination. However, for much of the past decade, EPA and most states have been willing to exercise their enforcement discretion to not hold innocent or non-contributory owners (who are willing voluntarily to perform partial site cleanups) to the same standard of liability as true polluters. There is, thus, no legal imperative requiring DEC or the State to pursue non-contributory current owners who agree to cooperate with the same prosecutorial zeal as those who actually caused or contributed to the contamination. Moreover, many cleanup volunteers at brownfield sites are not even non-contributory “owners.” They enter into voluntary cleanup agreements as prospective purchasers, prior to assuming ownership of the property. There is no standard or theory of liability under which would-be buyers not yet in possession could be forced to clean up a site—much less subject to the same remedial objectives as responsible parties.