Pending New York State Legislation
2002
Brownfields-related bills currently (2002) pending in the State Senate and State Assembly are listed here.
On June 17, 2002, State Senator Marcellino introduced S. 7745--"An Act to amend the environmental conservation law, the general municipal law, the state finance law, the navigation law, the public authorities law, and the public health law, in relation to providing a comprehensive brownfield cleanup program; and to repeal section 1389-e of the public health law, relating to hazardous substance waste disposal site study; and to amend the environmental conservation law; the tax law and the public authorities law, in relation to the redevelopment and remediation of brownfields; and to amend chapter 83 of the laws of 1995 amending the state finance law and other laws relating to bonds, notes and revenues, in relation to the effectiveness of such provisions." This bill is very different from previously introduced Assembly bills.
The State Senate merged a modified version of the Governor's Superfund/Brownfield bill (S. 7798) with his late-session proposal on waste tire management, and passed the combined bill (S. 7686) largely on party lines and with minimal debate on July 2, 2002.
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See Bill Text (S. 7798)
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See Bill Text (S. 7686)
The Legislature adjourned without the Assembly adopting the Senate bill.
". . . no longer do we just have an urban area.
You see brownfield sites. You see vacant buildings. And as you see that
emptiness now, it's on the periphery of our city into the inner suburbs. And you
see the strip malls and you see the buildings that are vacant there. So what we
really need to do, obviously, is to utilize the infrastructure that we have in
place, our water and sewer system, our conduits for energy, and not to go out
into our greenspace and spread further out."
—Mayor Roy Bernardi
City of Syracuse
Central New York RegionalRoundtable
4/19/00
The most recent comparison of pending bills by The Business Council of NYS, Inc. (revised 1/28/02) [http://www.bcnys.org/inside/env/super0302.pdf ] has led me to the following opinions regarding the comparative efficacy and desirability of various provisions (issue numbers are keyed to those in the Business Council's tabulation) in each of the major proposals:
|
ISSUE |
My Position on the Merits of Various Bills (see KEY at bottom) |
| General Framework (1) | Because the Voluntary Cleanup / Brownfields program has unique economic development objectives, it should be administered independently of the DEC Division of Environmental Remediation. BC creates a Land Redevelopment and Remediation Office within DEC to administer the VCP. It also creates an Office of Brownfield Development to coordinate State agency activities and to assist program participants. The only other major bill to address this issue is A, which creates an Office of Brownfield Ombudsman to oversee program implementation. |
| Definition of hazardous wastes (2) | All 4 bills expand the "hazardous waste site" definition to include "hazardous substance sites." This could abruptly subject sites not currently regulated by DEC to costly and disruptive cleanup requirements. A "grandfather" mechanism is needed to exclude from this new coverage hazardous substance sites that are either in productive use when the new legislation becomes effective or are in the process of being redeveloped within 1 year of the legislation's effective date. |
| Voluntary Cleanup Program Eligibility (4) | All 4 bills would broadly cover hazardous waste/hazardous substance sites and petroleum sites subject to various exclusions. B provides the most limited exclusions (even sites subject to active enforcement would be eligible--as long as not all agreed-to remedial activities have been completed). BC would exclude only Class I Registry Sites, NPL sites, permitted corrective action sites, and sites subject to federal cleanup order. A has the longest list of excluded sites (Class 1 and 2 Registry sites, NPL sites, corrective action sites, oil spill sites subject to State order, sites subject to any federal or state environmental remediation or enforcement action, or other sites where DEC determines that VCP participation would not serve "the public interest"). I would support a broad list of exclusions (i.e., very selective list of lightly-contaminated brownfield sites permitted to participate in the VCP) in return for an accelerated process with favorable cleanup requirements for a narrow class of Cleanup Volunteers. I would even support a program that limited the most lenient cleanup standards to designated "Brownfield Redevelopment Areas" (see A) or "Land Reuse Opportunity Areas" (see BC). |
| Timetable for review of VCP projects (5) | Successful Voluntary Cleanup Programs provide for accelerated review and approval timetables. The lack of review time limits, or overly lengthy time limits, can have a significant negative impact on the willingness of prospective purchasers or developers to proceed with their projects and/or undertake voluntary cleanups. All four bills set review time limits, ranging from 20 days (BC) for review of the application's completeness, to 60 days for reviewing the applicant's eligibility to participate in the program (G, A). G then requires DEC to make a "best effort" to review the proposed VCA within 60 days, while BC allows up to 90 days for work plan reviews (including 30 days for any revision), and another 45 days to review the final project report. A provides 45 days for public comment on draft investigation plans, 60 days for comment on the remedial plan, and 90+ days for DEC review of the remedial plan. B would eliminate the eligibility determination timeframe entirely by accepting all VCP applications (and weeding out ineligible applications later). In my opinion, 20 days is ample for confirming eligibility, 30 days is sufficient for approving a VCA including project work plan, and 15 days should be sufficient for review of any work plan modifications or status reports. Review of the final remedial plan should take no more than 30 days. Where a project is deemed by DEC to present issues of substantial public health or environmental significance, and/or a high degree of interest is shown in the project by affected members of the public, it would be appropriate to add no more than an additional 15 days to these time limits for public comment (or, in rare cases, for a public meeting). Where established time limits are exceeded, DEC should be required to return the Volunteer's application fee. And, where established time limits are exceeded by more than 10 days, the applicant's submittal should be "deemed approved." Establishing these consequences will provide an incentive for quick and decisive regulatory action. |
| Cleanup Goals and Target Risks (6) | It is unobjectionable to establish a cleanup "goal" of "protecting public health and the environment" (in the same sense that the Federal Clean Water Act has a goal of "fishable and swimmable" waters), as long as this is not interpreted to require low-risk brownfield sites to meet the same regulatory standards as highly contaminated Superfund sites. Not only must cleanup standards be risk-based (i.e., geared to current, intended, and reasonably anticipated site uses), but they must take into account site-specific circumstances. The Volunteer should be given the option of carrying out a more-complete-than-necessary cleanup in return for fewer and more limited liability reopeners. Where cleanup volunteers did not cause or contribute to the contamination, the threshold standard should be source reduction or removal and avoidance of significant degradation (at low-hazard sites) or elimination or mitigation of all significant threats (G, B, A) (at significant threat sites), rather than an across-the-board goal of cleanup to pre-disposal conditions (A). Once DEC has established "presumptive remedies" for different source types or categories of contamination, a Volunteer should be free to implement such remedies without having to also carry out extensive testing and evaluation to help DEC determine whether more may be needed. Cancer risk targets should not be set rigidly at 10-6 especially for contaminants that have never been shown to be human carcinogens; soil cleanup standards should not be established as ends in themselves, but only as a means to avoid direct contact (i.e., where surface soils are contaminated) or contamination of potable water supplies (i.e., in cases where contamination has affected deeper soils overlying potable aquifers). Where in-place isolation and containment of contaminants in soils protects health and the environment through immobilization or biodegradation that should be viewed as a legitimate form of remediation. |
| Technical Advisory Committee (7) | Selection criteria should place heaviest emphasis on choosing people with extensive training and experience in environmental toxicology or in establishing use-based (soil) cleanup standards. Once a qualified field of candidates is identified, an appropriate balance should be struck among public health professionals, environmental advocates, academic and research scientists, and qualified business and developer representatives. |
| Soil Standards (8) | Soil standards need to reflect the reality that the mere presence of contaminants in soil is not a hazard to public health or the environment unless there is a pathway for exposure of sensitive humans or biota. BC makes no provision for site-specific soil cleanup standards (it provides for "methodology-based standards," which generally connotes statewide numerical standards taking various circumstances into account). Both G and B allow the use of site-specific, risk-based cleanup levels. BC is also the most stringent in defining "Tier 1" standards in terms of "naturally occurring conditions." The Volunteer should have the maximum possible range of options, with more extensive cleanups resulting in broader liability releases. |
| Groundwater Standards (9) | The focus of VCPs should be on eliminating "source areas" of contamination--not cleaning up pre-existing groundwater contamination. Addressing subsurface soil contamination (see previous issue) should help avoid future groundwater problems. As in B, if the groundwater is not a "potable supply," the cleanup objective should be "prevention of significant deterioration" via removal, control or isolation of source areas. Even where potable, non-contributory Volunteers should be required to do no more than remediate ongoing source areas. |
| Investigation and Cleanup Requirements; Remedy Selection Criteria (10) | The 4 bills differ widely on the extent to which contributory responsible parties (CRPs), non-contributory new owners (NCRPs), and non-responsible party volunteers (non-RPs) would be required to investigate and/or remediate onsite versus offsite contamination. A and BC are the most stringent. They would require remedial plans to be consistent with Part 375 criteria, and would require all parties to investigate and characterize both on and off-site contamination. A requires remediation plans to address on-site contamination only, but they may not be inconsistent with the NCP. BC requires even NCRPs to be responsible for offsite remediation if the contamination poses a significant threat. G requires owners and RPs to remediate off-site contamination. Expresses a preference for remedies that address "hot spots." B expresses a preference for addressing "source areas." In my view, neither Volunteers, owners, nor NCRPs should be responsible for any more than remediation of onsite source areas. |
| Enforcement Provisions (11) | BC approach is preferable to G in limiting treble (and lesser punitive) damages to instances in which an RP acts in "bad faith" and is issued a recalcitrance notice. B would delete from G both treble damages and other expanded enforcement authority. I would be willing to except expanded enforcement authorities, including treble damages, in return for more relaxed treatment of non-CRPs at brownfield sites. |
| Liability Standards, Defenses and Exemptions (12) | Definition of "person" should exempt lenders, fiduciaries, public corporations, industrial development agencies, municipalities, and not-for-profits (where the site is used for "community purposes") where they take title to a site but do not participate in site management. (Arranging for cleanup in accordance with a DEC-approved plan should not be considered to be site management.) Broader immunity should be provided for state agencies, public corporations, IDAs, and municipalities who act in a sovereign (rather than pecuniary) capacity. |
| Liability Releases (13) | Liability releases should be issued promptly after completion of a remediation project, should address all liability to the state, should be transferable to non-RPs, and should cover Natural Resource Damage claims (except for CRPs). They should provide "contribution protection." Post-remediation certificates to NCRPs should make them eligible for site-related tax incentives. AG should not have the authority to "decline to execute" liability releases (as in BC). |
| Reopeners /Reservations applied to Liability Releases (14) | As in B, the only reservations that should apply to non-CRPs at VCP sites are: fraud, failure to comply with the VCA, and change in site use. Changes in environmental standards should never be grounds for reopening a remedial action plan. |
| State Cost Recovery (16) | As in B, non-RPs at VCP sites should only be required to pay a $2K application fee rather than be responsible for all state oversight costs. It should be made explicit that the cost of Technical Assistance Grants are not recoverable from RPs (contrary to A). |
| Contribution Claims by RPs and Volunteers (17) | As in G, RPs reaching settlement with DEC should receive contribution protection againts claims by other RPs, and any party conducting cleanup under a VCA can seek contribution from RPs. |
| Oversight of Institutional and Engineering Controls (18) | DEC database of sites with institutional controls (as under G), rather than a new permit program (as under BC) or by imposing environmental easements (as in A) should suffice for oversight of such controls. |
| Criteria for Financial Incentives (19) | All non-CRPs should be eligible for financial incentives. These incentives should be especially generous in distressed areas, those in Land Reuse Opportunity Areas, and/or those in designated "Environmental Opportunity Zones." |
| Financial Assistance (20) | Should offer a full range of financial incentives (to both municipalities and non-CRPs), for assessment, remediation, and redevelopment. Should also (as per B) create a new state-subsidized VCP site insurance program that includes cost overrun and loan loss coverage. |
| Real Property Tax Incentives (21) | All of the measures proposed are desirable. Municipalities should be authorized to cancel back taxes on properties remediated by non-CRPs. |
| Citizen Participation (22) | A goes too far in formalizing this process--without regard to the level of public interest or the significance of the environmental threat. As in BC, DEC should issue "fact sheets" on all VCP sites, but public hearings should be reserved for high public interest, significant threat sites. TAG grants should be limited to "local" groups that are "directly affected" by the site. The amount of the grants should be geared to the nature and extent of the threat and the level of public interest, but not to exceed $50K. In no case, may the cost of a TAG grant be charged to the Cleanup Volunteer as a project "oversight" cost. |
| Planning Grants (23) | These provisions are very desirable to promote pre-planning related to site reuse or designation of target areas. |
| Municipal Brownfield Program Amendments (24) | All of the provisions in G are desirable and should be supported. In addition, municipalities should receive the same immunity as state agencies when they act in their sovereign capacity to clean up or revitalize brownfield sites. |
| Other Provisions (25) | DEC should develop a geographic information system (as in A) to track all brownfield (including VCP) sites. |
KEY TO BILL COMPARISON: G = Governor's 2003 Budget Bill (S. 6257 / A. 9759); B = Business Council's proposed amendments to G (S.4787-A [Marcellino]); BC = "Brownfield Coalition" Bill (S. 4788 [Marcellino] / A.7498-A [Lopez]); and A = "Assembly Package" (A.9265-A [Brodsky] / A.9203-B [Lopez]).
The Business Council of New York State also prepared a comparison of 2001 brownfield bills.
Other relevant background documents include the following:
* Recommendations to Reform and Finance New York's Remedial Programs, Superfund Working Group, June 2, 1999.
* Brownfields Coalition Final Report, June 3, 1999 (reprinted in the NYSBA The New York Environmental Lawyer, Vol. 19, No. 3, Summer 1999, pp. 23-67). http://www.nysba.org/sections/environ/brownfields/final.html.
* Report of the Ad Hoc Task Force on Superfund Reform [as amended, October 3, 1999], NYSBA, Environmental Law Section, Executive Committee (reprinted in NYSBA, The New York Environmental Lawyer, Vol. 20, No. 1, Winter 2000, pp. 30-32). http://www.nysba.org/sections/environ/committees/hazsites/superfund.html.
* DEC Press Release in Support of the Governor's Superfund Reform Package. http://www.dec.state.ny.us/website/press/pressrel/2001-72.html.