(1)

Amends Article 27, Title 13 (New York's existing "superfund" program)

(2)

"Hazardous substances" exclude:

• Wastes from nuclear "incident" and nuclear processing plants.
• Residue from vehicle exhaust
• Natural gas and petroleum

Part 375 definition of "hazardous waste" would be deemed amended to be consistent with above upon adoption of this bill.

- "normal application of fertilizer and pesticides."

- any substances migrating from a municipal solid waste disposal facility.

Clarifies that the Title 13 definition of hazardous wastes does not affect other programs (e.g., RCRA)

• CBS list (6 NYCR Part 597)
• Clean Water Act haz. substance list (33 USC 1321(b))
• CERCLA list (42 USC 9602)
• Federal RCRA list (42 USC 3001) • CWA toxic pollutants list (33 USC 1317(a))
• Clean Air Act "hazardous air pollutants" (42 USC 7412)
• TSCA "imminently hazardous" materials (15 USC 2606) Excludes petroleum products

(3)

New revenues from:

• hazardous waste program fees surcharges (ranging from $4,000 to $360,000), with total new revenues of $19 million.
• 100% increase in PBS registration fees for non-major facilities (<400,000 gallons), with total new revenue of $1 million.
• General Fund resource.

Disposal of cleanup wastes under Title 14 are exempt from per ton special assessments on hazardous waste management/disposal.

Title 13-related civil penalty income (including any income from "treble damage" assessments) is diverted from the General Fund to the state's remedial fund.

Existing hazardous wastes fees will support the remedial fund once sufficient income has been generated to pay 50% of 1986 EQBA debt service.

"Superfund" spending for FY 2002 is about $80 million.

Eliminates the Governor's proposed increases in hazardous waste program fees and petroleum storage facility registration fees.

Keeps civil penalty income in the General Fund.

(4)

Responsible parties are eligible.

Ineligible sites include:

• NPL sites
• Class 1 and 2 sites, if VCP proposed by owner or RP
• Sites subject to pending enforcement actions
• Sites covered by RCRA permit

All contaminated sites -- except NPL sites -- are eligible to participate in Title 14, whether or not the site would be subject to state enforcement under Title 13 or the Oil Spill Program.

Sites already subject to an order or agreement are eligible if:

• remediation has not "substantially commenced"
• RIFS is done, but project design is not "substantially commenced"
• all previously agreed-to remedial activities have been completed.

Hazardous substance and petroleum sites are eligible

Class 2 sites, and sites subject to corrective action or other cleanup order, or "other enforcement actions," are ineligible

(5)

• 60 day review of program eligibility

• DEC will make "best effort" to review proposed voluntary agreement within 60 days

Provide that DEC shall render decisions as expeditiously as possible, but no later than the time limits proposed by the Governor.

• 45 day review of remediation workplan for soil cleanups
• 90 day review of remediation workplan for groundwater cleanups

(6)

• cleanup goal is "protective of public health and the environment."
• Minimum requirement is elimination or mitigation of all significant threats.

For immediate response actions under the Navigation Law, goal is restoration of environment to pre-spill conditions.

For soil standards, target risks of 1x 10^-6 for known and probable carcinogens, 1x10^-5 for possible carcinogens; hazard index of 1 for non-cancer health risks.

For oil spill program only, cleanup goal for immediate response actions is to achieve pre-release conditions or, if impractical to determine such conditions, to a "reasonably sound environmental condition." For non-immediate response sites, goals is protection of public health and the environment through elimination or mitigation of significant threats, based on the current, intended or reasonably anticipated use of the site.

Refine definition of "immediate response" site to include any site where no water supply is affected.

Under EOZA, cleanups must be consistent with requirements of ECL 27-1313. Goal is defined as cleaning up or restoring sites for unrestricted future use.

(7)

Comprised of public health and environmental advocates, business and municipal representatives.

"Charge" is to make recommendations on site use-based soil cleanup standards.

Adds "academicians" to list of panel members.

(8)

Technical advisory committee to make recommendations on tiered standards:

• Tier 1 is for unrestricted site use
• Tier 2 is for restricted use based on future site use
• Tier 3 is process for developing site-specific cleanup levels.

Requires use of site-specific risk assessments until standards are adopted.

• health risks (including "strength of data")
• background levels and other exposure routes
• sensitivity of specific sub-populations
• environmental fate of contaminants
• protection of groundwater, surface water, air and environmental receptors (separate standards are adopted to apply where groundwater is not a current or future water supply.)
• synergistic, antagonistic and cumulative effects.

Clarify that Tier 3 will allow range of risk assessment options, including modification of DEC standard-setting formula to address site-specific conditions.

Clarify that mixed-Tier cleanups are allowed (e.g., use of Tier 2 values for some contaminants and Tier 3 assessment for others.)

(9)

• Part 703 standards apply if they can be "practically attained."
• If attainment of standards in not practical, minimum requirement is "protection of public health and the environment;"and the removal, control or isolation of "source areas."

If not a potable supply, cleanup objective is "prevention of significant deterioration" by removal, control or isolation of "source areas."

Presumption that drinking water standards do not apply if groundwater:

• • is not used or intended for use as potable supply
• is not potable due to natural conditions
• cannot provide 2 gal/minute yield for 12 hours
• contains contaminants from multiple sources.

Presumption can be overcome by DEC findings that it is reasonably anticipated that groundwater will be used as potable supply.

Cleanup Requirements; Remedy Selection Criteria

(10)

Under Title 14:

• owners and RP must investigate and remediate on and off-site contamination.
• NCRPs and volunteers investigate on site contamination and assess off-site exposure pathways; but are not responsible for off-site remediation.
• If offsite contamination poses significant threat, DEC either orders RP to do cleanup or uses state funds. Costs are recoverable by DEC, but not subject to "treble damage" provisions.

Under both Title 13 and Title 14:

• if the site is not actively used for industrial or commercial purpose, and is adjacent to residential property, there is rebuttable presumption to clean site to residential standards.
• There is a preference for remedies that address "hot spots."

• on- or off-site destruction
• on- or off-site treatment
• on- or off-site solidification/chemical fixation
• on- or off-site control, or removal and isolation.

Remedy selection must explicitly consider cost-effectiveness of alternatives and implementability with proven technology.

Preference for remedies that address "source areas."

Defines "source area" to include contaminated media likely to contribute contaminants at a level which poses a significant threat.

"Residential presumption" only applies if contaminated media is immediately adjacent to residential property; presumption can be rebutted if proposed cleanup is protective of adjacent land uses.

Under Title 14, off-site exposure assessment is discretionary for non-responsible party volunteers.

(11)

• allows DEC to implement remediation program after "reasonable attempts" to secure relief from RP.
• If DEC is unable to obtain voluntary commitment from PRP after "reasonable efforts," DEC can implement cleanup and recover all costs plus penalty of 1 to 3 times the state's expenditures. PRP is liable for penalty if it refuses to negotiate with DEC or exhibits "bad faith."

Under Title 14, DEC can order a contributory RP to conduct offsite remediation at sites that pose a significant threat to the environment. Costs are recoverable by DEC, but not subject to "treble damage" provisions.

Extends existing Title 13-related civil and criminal penalties to obligations imposed under Title 14 regarding access to sites by DEC personnel or private persons acting under DEC order.

Deletes "treble damage" proposal and other expanded enforcement authority.

Makes clear that DEC cannot order remedial activities unless an RIFS indicates that remediation is required.

AG is authorized to take unilateral action to compel cleanups at sites that pose "a threat" to human health or the environment

"Any person" is authorized to bring a state-level citizen suit to compel cleanups at any site contaminated by hazardous substances

"Affected persons" can bring suits against RPs to require the prevention, abatement or remediation of actual or threatened releases, and to recover damages. Courts can assess "treble" punitive damages against RPs that fail to perform court-ordered actions.

(12)

• definition of "person" is amended to exempt lenders, public corporations, fiduciaries and IDAs that hold title to property but do not participate in management
• adopt CERCLA defenses (Acts of God, war, and acts/omissions of unrelated third parties.)
• "CERCLA defenses" are lost if site owner transfers site without disclosing known contamination.

Entity claiming a liability exemption or defense under the Navigation Law also must waive any claims against the Oil Spill fund.

• Define "owner" to include site owner immediately preceding municipal taking of a site.
• Place liability on owners and "any person responsible for disposal of hazardous waste at a site"

(13)

• covenant not to sue is issued after completion of remediation project.

• Covenant is issued by DEC, binding on state and addresses all liability to the state (RPs do not receive release for NRD claims.)

• Release is transferable to non-RPs

DEC also issues post remediation "certificates" to NCRPs, which makes them eligible for tax incentives related to the site.

• release granted after successful completion of an RI, FS or IRM,

• release granted after successful completion of required remedy.

Under Title 14, liability releases can be provided to "non-volunteers" that settle their liability with the state (e.g., an RP that conducts an off-site exposure assessment at an VCP site.)

Authorizes DEC to address NRD claims in state-issued releases.

• Parties doing cleanups and financing projects receive covenant not to sue from DEC upon completion of remedial action plan.
• Liability protection is transferable to future site owners (non-RPs)

(14)

• Non-compliance with terms of a DEC order
• Fraud
• New release of hazardous substance
• Change in site use that requires additional remediation in order to be protective.
• New information related to contamination at the site
• DEC determines that cleanup is "not protective"

If site cleaned up to unrestricted use levels, no reopener based on "change of use"

For NCRP or volunteer, the "not protective" reservation does not apply if cleanup is to unrestricted use levels.

Under Title 14, a proposed change in use may require additional cleanup by person proposing the change in use (this provision is similar to existing provision of Title 13.)

• only applies to those "new releases" that are not investigated and addressed as part of the remedial program.
• "New information" reservation only applies if it means the remedy is no longer "protective," based on site use.
• "Not protective" finding can only be based on previously unknown contaminants, and must be based on current, intended or anticipated site use.

At Title 14 sites, the only reservations that apply to non-responsible parties are:

• fraud
• failure to comply with the remedial agreement, and
• change in site use.

DEC has "preponderance of evidence" burden to invoke any reservation.

• It is determined that party is an RP for the site
• new information indicates remediation is not protective
• remedy failure
• discovery of additional contamination
• fraud. Reopeners do not apply to municipalities that involuntarily acquire property.

(15)

• establishes state-level cause of action for NRD claims, including damage to, loss of or loss of use of natural resources.
• •Imposes a 6 year "statute of limitations." On state-level NRD claims from date of completion of remedy.

Allows NRD claims to be settled in state-issued liability release at the state's discretion.

NRD claims included in definition of "recoverable costs."

Recoveries by the state can only be used to restore or replace damaged resources.

State assessments of damages are considered a rebuttable resumption.

(16)

Under all three programs:

• • owners and RP must pay all project oversight costs, and all previous state expenditures at site.
• Non-RPs must pay all oversight costs.
• State cost recovery subject to 6 year statute of limitations from date of initiation of on-site construction of remedy.

Cost of technical assistance grants are not recoverable from RPs or volunteers.

Deletes "treble damage" recovery.

DEC can only recover "reasonable expenses."

Under Title 14, non-responsible parties are required to pay a $2000 application fee in lieu of state oversight costs.

Make explicit that cost of TAGs are not recoverable from RPs.

Cost recovery is done by the AG in state court; the court can impose penalty of up to three times the state's expenses.

by RPs and Volunteers

(17)

• RPs reaching settlement with DEC receive protection from contribution claims by other RPs.
• Two or more RPs that have reached settlement with state can seek contribution from other RPs in state court.
• Owner or RP can recover 3 times the "equitable share" from other RPs that refuse to participate in the settlement, if they give 1/3 of such recovery to the state.

Under Title 13 and Title 14:

• any party conducting cleanup can seek contribution from RPs in state court.
• Courts can use equitable factors in awarding claims.
• 6 year statute of limitations on claims from date of judgment, DEC order or agreement regarding the costs which are subject to the claim

• Only applies to significant threat sites
• recovery is limited to reasonable expenses, and cannot exceed costs of achieving an "unrestricted" site cleanup.

Claims are not limited to "equitable shares," but the court may take into account equity issues is approving claims.

Courts may allocate response costs among RPs using "appropriate equitable factors"

(18)

DEC to establish database of sites with institutional or engineering controls.

Allows annual certifications to identify upsets, interruptions and/or terminations and steps taken to respond to such occurrences.

• Use restrictions must be recorded as deed restrictions
• DEC approved plans needed for oversight of engineering controls

(19)

Credits not available for housing other than "commercial housing."

(20)

Includes a "takeback provision" for property taken out of service, revocation of a remediation completeness certification, and the triggering of a remediation "reopener"

Adds:

• authorizes municipal revolving loan funds for brownfield projects, with initial state funding.
• expands purpose of IDAs to include IHWS and brownfield projects.

Projects within EOZs are given "preference" within all UDC financing programs.

(21)

• only applies outside the "metropolitan [NY] commuter transportation district.
• provides tiered credits for sites between 10 and 100 acres, and for sites >100 acres.

Authorizes municipalities (by legislative resolution) to cancel back taxes on properties remediated by persons not responsible for the release or disposal of contaminants at such site (i.e., "non-contributory RPs.)

Municipality is relieved from school tax liability for sites which it owns and is conducting brownfield cleanups.

Municipalities can opt out of the program.

If site obtains additional RPT abatement, the certificate of completion and covenant not to sue are voided.

(22)

• public notice and/or ENB notice required for program applications, completion of site investigations and finalization of workplans.
• Public notice and 45 day comment period on final workplans.
• Requires public hearing on significant threat sites.

Under Title 13, DEC can provide technical assistance grants to municipalities, community groups, or combination thereof, of up to $50,000, for the review of remediation programs conducted under Title 13.

Under Navigation Law, for projects other than immediate response actions:

• requires public notice at initiation and completion of investigations,
• requires notice and 45 comment period on submission of proposed remedy.

Volunteer may pay TAG grants at non-listed significant threat sites in order to expedite project; costs are deducted from DEC oversight costs.

Provision regarding first-instance financing of TAG grants is clarified to make such financing at the volunteer's discretion only.

• Establishes statutory CP requirements under Title 13
• "Impacted citizens" can be made party to remedial plan negotiations
• DEC must establish and update a formal CP plan
• Site-specific CP plans required prior to start of preliminary site investigations
• RPs are liable for the cost of CP activities at their sites
• RPs at Class 2 sites can be ordered to provide technical assistance grants to impacted citizens; caps of $50,000 per site, or 2% of cleanup costs, can be waived by DEC

AT EOZA SITES
 

• Citizen participation plans required for EOZ designations
• Site specific CP plans must address remediation and "long-term changes in property use"
• 60 day comment period on draft zone designations
• 60 day comment period on draft remediation action plans.

(23)

Municipal share is limited to 10%.

Grants to be paid directly to municipalities, rather than through reimbursements.

TAG grants of $100,000 or 50% of costs to municipalities to identify potential zones, and to market EOZ sites.

(24)

Modifies Navigation Law/oil spill cleanup program to define "non-immediate response cleanups." This new class of cleanups will be subject to cleanup standards, enforcement provisions, liability standards and exemptions discussed above.

Title 14 agreements are to include unspecified "dispute resolution" provisions.

Exempts activities authorized under Title 14 and Navigation Law cleanup agreements from environmental permit requirements.

Mandates that counties submit a survey of sites within one year of adoption of statute, and provide annual updates thereafter.

Deletes all references in Title 13 to the State Superfund Management Board.

Regarding postponement of IHWS listing, the Governor's proposed criteria is made more specific.

Eliminates mandate that counties annually submit reports to DEC on inactive sites within their jurisdiction.

Establishes dispute resolution process under Title 14 using DEC administrative law judges.

Authorizes DEC to undertake and/or order removal actions in response to actual or threatened releases that pose imminent and substantial dangers.

DEC, DOH and DOL are authorized to compel disclosure of information about possibly contaminated sites, inspect such properties, and collect samples at such sites

Reinstates and makes permanent the State Superfund Management Board

DOH is authorized to conduct health monitoring at all Class 2 sites.