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Summary of Legislation |
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New York State Bar Association A. Establishment of a Statutory Program The bill establishes statutory Brownfield Cleanup Program for hazardous waste and petroleum-contaminated sites. Once a Brownfield Cleanup Program (BCP) application for a brownfield site has been made, that site will not be listed in any spill report or on the Inactive Hazardous Waste Disposal Site Registry (unless previously listed), so long as the applicant is acting in good faith and remains in the BCP. Certain sites are not eligible for the VCP – e.g., Class 1 or 2 sites on Inactive Hazardous Waste Site List, NPL sites, sites and parties already subject to enforcement. However, if a Class 1 or 2 site is owned by a volunteer, it “shall not be deemed ineligible to participate” if enrolled in the program by July 1, 2005. An application can also be rejected during the pendency of an enforcement proceeding, if the applicant has engaged in certain prohibited or illegal acts, or for “public interest” reasons. B. Distinction Between Types of Applicants The bill distinguishes between those applicants that caused or contributed to the contamination and those that did not. A “volunteer” is defined as any person not responsible for the contamination as of the date of the party’s submission of a BCP application, or responsible only by virtue of site ownership subsequent to the disposal of contaminated materials; if the volunteer is the site owner, he/she must use appropriate care in dealing with the contamination in order to remain qualified for preferential treatment. A volunteer must investigate and clean up the site; but with respect to adjacent sites, he/she need only perform a qualitative exposure assessment, evaluating the ways by which an off-site receptor could be exposed to such contamination in order to assess the risk to public health and the environment from any contamination emanating from the property. In certain circumstances, the Department has been given the discretion to require even volunteers to perform a quantitative off-site exposure assessment (i.e., actual off-site investigation). A “participant” is any applicant other than a volunteer (essentially, responsible parties). The work plan for a participant mandates an investigation and characterization of the nature and extent of contamination on and/or emanating from the brownfield site and may also require remediation of contamination migrating off-site. C. Contents of a Brownfields Cleanup Agreement The bill contains specific requirements for terms to be included in a Brownfields Cleanup Agreement with the applicant, including payment of state costs, dispute resolution, a commitment to investigate and (if necessary) remediate the site, and provisions for citizen participation. If the remedy relies on land use controls, the applicant must completely describe them; embody them in an environmental easement; provide a mechanism for their implementation and enforcement; and the site owner must annually certify through a professional engineer their continued viability. D. Establishment of Procedural Mechanisms and Timelines The potential applicant must submit a request for participation to the DEC with information sufficient to determine the potential applicant’s eligibility; the application must also state the reasonably anticipated use of the site in conformance to new land use criteria. The DEC must notify the potential applicant within 10 days of a request that such request is complete or incomplete; if incomplete, the DEC will specify what additional information is needed. Upon receipt of application, the DEC shall notify the administrator of the NY Environmental Protection and Spill Compensation Fund to determine whether such applicant is known to be responsible for cleanup and removal costs; the administrator shall notify the department within 30 days. The DEC shall use best efforts to approve or reject an application to participate within 45 days of receipt of the application. Where a site is deemed to pose a significant threat, contamination is migrating off-site, there is off-site migration, and the applicant is a volunteer, the Department is responsible for the remediation of the off-site plume. In this event, an enforcement action will be brought within six (6) months of the determination against parties known or suspected to be responsible for the off-site contamination. If such action cannot be brought, the DEC shall use its best efforts to commence remediation of off-site contamination within one (1) year of the completion of such an enforcement action or completion of the volunteer’s remediation, whichever is later. If the application is deemed complete, a 30-day comment period begins, and the department will post in Environmental Notice Bulletin and newspaper a notification of receipt of request to participate. The DEC will also notify the chief executive officer and zoning board of each county, city, town, and village in which the site is located, as well as site residents and other affected persons. If a final investigation report describing the investigation’s results is filed with the application, there will be a comment period (variously described as 30 and 45 days), and the commissioner will determine the completeness of the investigation within 60 days. Before the DEC finalizes a proposed remedial work plan, there will be 45-day public comment period and, under certain circumstances, a public hearing. The commissioner shall use best efforts to approve, modify, or reject a proposed work plan within 45 days of receipt or within 15 days after the close of the comment period, whichever is later. E. Certificate of Completion; Release by State After certification by the applicant that the remediation requirements described below in Section II have been achieved, the applicant shall submit to the DEC a final engineering report. Upon determination that the remediation requirements have been or will be achieved, the commissioner shall issue a Certificate of Completion (“COC”). After receipt of such a certificate, the applicant will not be liable to the state pursuant to the liability limitation provisions for any remaining hazardous waste in, on, or emanating from the brownfield site. The release not to sue extends to an applicant’s successors and assigns through acquisition of the site, or a person who develops or otherwise occupies site. F. Liability Limitation 1. Release. The release extends to an applicant’s successors and assigns through acquisition of the site, or a person who develops or otherwise occupies the site provided they use “due care” and in “good faith” adhere to the requirements of the Brownfield Cleanup Agreement (“BCA”) and certificate of completion. Applicants shall not be liable under statutory or common law arising out of contamination that was present in, on or emanating from a brownfield site on the effective date of the BCA, and that is the subject of the COC. The release shall not be effective until the COC is issued. A participant shall not receive a release for natural resource damages that may be available under federal law. The release doe not apply to persons responsible under statutory or common law unless they were parties to the BCA. The release must be recorded within 30 days of the COC issuance or within 30 days of acquiring title. 2. Re-openers: There are a number of circumstances that “re-open” the release: (1) environmental contamination at, on, or migrating from the site “if in light of such conditions”, the site is no longer protective of public health or the environment; (2) non-compliance with BCA, workplan or COC; (3) fraud in relation to participation in this program; (4) a finding by the Department that a change in standards renders the remedy no longer protective; (5) the use of the site changes subsequent to the issuance of a COC; (6) failure to make “substantial progress” towards completion of proposed development within three years or applicant engages in unreasonably delay. G. Contribution Protection Contribution protection against third party claims is arguably provided for matters addressed in the order (but does not include third party claims for personal injury). Specifically, persons who have received a release under this program shall not be liable for contribution, except persons responsible shall not be released from liability for personal injury or wrongful death arising out of that person’s acts or omissions. II. Cleanup Provisions A. Soil Source Removal. Initially, all applicants must “address sources” pursuant to the following hierarchy of source removal and control measures ranked from most preferable to least preferable: 1. Removal/ and or treatment. All free product, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid in soil and/or grossly contaminated soil shall be removed or treated “to the greatest extent feasible.” 2. Containment. Any source remaining following source removal and/or treatment shall be contained. If full containment is not possible, it shall be contained to the greatest extent feasible. 3. Elimination of Exposure. Exposure to any source remaining following removal, treatment and/or containment shall be eliminated to the greatest extent feasible through additional measures such as alternative water supplies or methods to eliminate volatilization into buildings. 4. Treatment of Source at Point of Exposure. Treatment of the source at the point of exposure, including wellhead treatment or management of volatile contamination within buildings, “shall be considered as a measure of last resort”. 5. Plume Stabilization. “Plume stabilization shall be evaluated for all remedies and the further migration of contamination from the site shall be prevented to the extent feasible”. B. Contaminant-Specific Soil Cleanup Objectives; Multi-Track Remedial Approach. 1. Numeric Look-Up Tables. Regulations shall be developed establishing “three generic tables of contaminant specific remedial action objectives for soil based on a site’s current, intended or reasonably anticipated future land use, including (i) unrestricted, (ii) commercial, and (iii) industrial.” The level of risk associated with the remedial action objectives for each contaminant developed under Track 2 described below shall not exceed an excess cancer risk of one in one million (“1x10-6”) for carcinogenic end points and a hazard index of one (“1 Hazard Index”) for non-cancer end points. Only rural, not urban, background soil concentrations may be used in developing these numbers. In developing these look-up tables, DEC must consider: (i) existing standards, criteria and guidance (i.e. TAGM 4046 guidance document, STARS guidance document, etc); (ii) the behaviors of children; (iii) the protection of adjacent uses; (iv) the toxicologic, synergistic and/or additive effects of certain contaminants; and (v) the feasibility of achieving more stringent remedial action objectives based on experience under existing remedial programs, particularly where toxicological data are lacking. Based on this last criterion, it appears that DEC will be required to analyze historic cleanup levels achieved in the State Superfund, current non-statutory Voluntary Cleanup and Oil Spills programs to develop the new table of numbers. The tables must be updated every five years. 2. Multi-Track Program. Regulations shall be developed establishing “a multi-track approach for the remediation of contamination”. Such regulations “shall provide that groundwater use in Tracks 1 (sic, should probably be 2), 3 or 4 can be either restricted or unrestricted”. This last sentence in the bill is significant since it appears to recognize that not all groundwater can or will be a source for drinking water, thus the use of certain groundwater may and can be restricted. a. Track 1: the remedial program shall achieve “a cleanup level that will allow a site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls”, and shall achieve the “unrestricted” contaminant specific soil remedial objectives in the look-up tables. With respect to groundwater, there is a “carve out” provision, which essentially reads as follows: if a volunteer has achieved the “bulk reduction of groundwater contamination to asymptotic levels” and all Track 1 soil cleanup levels have been met, but the long-term employment of engineering or institutional controls is required to restrict groundwater, then the volunteer still qualifies for Track 1. Pursuant to the “Alternatives Analysis” requirement, an applicant electing this Track need only evaluate its own preferred remedial alternative to achieve the Track 1 objectives. b. Track 2: based on the anticipated land use of the site, the remedial program shall achieve the applicable “Unrestricted”, “Commercial” or “Industrial” contaminant specific soil remedial objectives in the look-up tables without reliance on the long-term employment of engineering or institutional controls, but the groundwater remedial program may include reliance on the long-term employment of engineering or institutional controls. It is likely that regulations will clarify the intent and meaning of this provision. Pursuant to the “Alternatives Analysis” requirement, an applicant electing this Track must evaluate its own preferred remedial alternative to achieve the Track 2 objectives, and a second alternative designed to achieve Track 1 objectives. The Department shall have the discretion to require the evaluation of additional remedial alternatives at a site that has been determined to be a significant threat site. c. Track 3: “the remedial program shall achieve contaminant-specific remedial action objectives for soil which conform with the criteria used to develop the generic tables ... but may use site specific data to determine such objectives”. In other words, if a site is eligible to apply the commercial site contaminant specific soil remedial objectives based upon meeting the land use criteria, the same assumptions used to develop the commercial look up table numbers (e.g., human beings accessing a commercial site 8 hours per day for 210 days per year) must be used, but specific scientific information unique to the site (e.g., tight clay soil conditions) can also be utilized to develop site-specific cleanup standards. However, the site-specific cleanup standards developed under Track 3 shall not exceed the 1x10-6 cancer risk and a 1 Hazard Index for non-cancer risk. d. Track 4: “the remedial program shall achieve a cleanup level that will be protective for the current, intended, or reasonably anticipated use with restrictions and with reliance on the long-term employment of institutional or engineering controls”. However, if the 1x10-6 cancer risk and 1 Hazard Index for non-cancer risk are exceeded, institutional and engineering controls cannot be employed to eliminate exposure, and both the DEC and DOH commissioners must make formal written findings that the remedy is protective of public health and the environment. In addition, for this track only, the top two feet of exposed surface soils on residential sites shall be remediated to the unrestricted look-up table numbers, and the top one foot of exposed surface soils on commercial/industrial sites shall be remediated to the applicable commercial or industrial look-up table numbers. C. Institutional and Engineering Controls. Institutional and Engineering controls, if part of an approved remedial program, must be described, evaluated and analyzed in the proposed remedial action plan to determine “long term viability”, and cost to the state to enforce the controls such that “effective implementation” can be “reasonably expected”. A licensed P.E. must annually certify under penalty of perjury “nothing has occurred [in the last year] that would impair the ability of such control to protect public health and the environment”. Every five years, the owners must certify that the “assumptions made in the qualitative exposure assessment remain valid” and resample groundwater monitoring wells at site boundaries. A new database including the sites subject to controls shall be created. In addition, the Final Engineering Report shall certify that any use restrictions, institutional controls, engineering controls and operation, maintenance and monitoring requirements are contained in a self-imposed “environmental easement”, held by the DEC and enforceable by the DEC and certain other affected parties created for such controls. D. Presumptive Remedial Strategies. To meet the requirements of Tracks 1 - 4, applicants may select from a list of presumptive remedial strategies developed by the Department. Such remedies may be developed for specific sites types (e.g., manufactured gas plant sites) or specific contaminants (e.g., trichloroethylene). Previous bills had panels of experts assisting the Department in the development of these strategies and the development of the look-up tables, but outside assistance from private sector experts has been eliminated from this bill. E. Groundwater Protection and Remediation Program. The program must protect groundwater “for its classified use, the highest of which is drinking water”. A Geographic Information System shall track remedial program information in conjunction with groundwater location and use, and within three years use the information to develop a short and long term groundwater remedial strategy. The strategy, once developed, shall govern all groundwater remediation programs. The Department to bring an action against responsible parties for the remediation of off-site groundwater contamination that poses a significant threat if the applicant is a volunteer and a cost recovery action against the responsible parties is unsuccessful; if such an action cannot be brought or is unsuccessful, the DEC must use best efforts to commence remediation within one year of completion of voluntary remediation or the enforcement action. III. Liability Exemptions A. Responsible Parties: The definitions of "persons" is expanded to include limited liability companies and joint ventures. B. Lender, Fiduciary and Municipal Exemptions: The bill adds statutory liability exemptions for lenders and fiduciaries (CERCLA model), and municipalities that involuntarily acquires ownership or control and do not participate in development unless they caused or contributed to the release. Municipalities must provide notice to DEC within 10 days of learning of a release or lose the exemption. C. Act of God, Act of War, Third Party and Innocent Purchaser Defenses: The bill establishes Act of God, act of war, third party and innocent purchaser defenses similar to those in CERCLA. D. Appropriate Inquiry Requirements: The bill imposes CERCLA 2002’s “reasonable steps” requirements as a condition for maintaining the innocent purchaser defense. In addition, the Department must initiate a rulemaking, similar to that required by the CERCLA 2002 Amendments, to determine the standard for “all appropriate inquiry”. IV. Public Information and Participation A. Databases The DEC shall establish a public database for each brownfields site, including complete description of environmental easements. The DEC shall also create or modify the geographic information system (GIS) to incorporate information from its various brownfields programs. Each county must undertake a survey to inventory inactive hazardous waste disposal sites. The DEC must supplement the Inactive Hazardous Waste Site Disposal Registry with additional categories of information. It must update the Registry and make it publicly available on an annual basis. B. Citizen Participation Handbook and Citizen Participation Plans The commissioner shall prepare a Citizen Participation Handbook to guide applicants who are participating in the Brownfield Cleanup Program in the design and implementation of meaningful citizen participation plans. All citizen participation plans shall include the following minimum elements: (1) identification of the interested public and preparation of a brownfield site contact list; (2) identification of major issues of public concern related to brownfield sites; (3) a description and schedule of public participation activities required pursuant to this section; and (4) a description and schedule of any additional public participation activities needed to address public concerns. C. Citizen Participation Requirements The applicant must provide notice of its request to participate in the Brownfield Cleanup Program to a newspaper and to the individuals on the brownfield site contact list. Such notice must provide for a 30-day public comment period. The applicant must also provide notice to the individuals on the contact list at the following times: before DEC finalizes the remedial investigation (“RI”) work-plan (30-day public comment period); before DEC approves a proposed RI report; before DEC finalizes a proposed remedial work plan (or decides no remediation is required) (45-day public comment period, and public meeting if the affected community requests it); before the applicant commences construction at the brownfield site; before DEC approves a proposed final engineering report; and within ten days of the issuance of a certificate of completion at a site which will utilize institutional or engineering controls. In addition to the formal public comment periods set forth above, the public may provide comments at any time during the remedial program. D. Technical Assistance Grants The Commissioner is authorized to provide grants to community groups for any site determined to pose a significant threat and which may be affected by a Brownfield Program. The community group must demonstrate that its membership represents the interests of the community affected by such site. The commissioner is also authorized to direct any applicant who is a responsible party to provide such grants. Technical assistance grants (TAGs) may be used to obtain assistance in interpreting information, to hire health and safety experts, and for the education of interested affected community members. TAGs may not be used for collecting field sampling data, political activity, or lobbying legislative bodies. The amount of any grant awarded may not exceed $50,000 at any one site. No matching contribution from the recipient is required. V. Financial Incentives A. Grants and Financial Assistance 1. Grants for Pre-Nomination Brownfield Opportunity Area Studies: Financial assistance is available to municipalities and community-based organizations (CBOs) for pre-nomination studies for brownfield opportunity area (BOA) designation. Assistance is available for up to 90% of the study cost, which may contain information concerning: · the BOA borders; · number and size of brownfield sites · use/ownership of properties in proposed area; · condition of groundwater in proposed area; and · preliminary descriptions of potential remediation, reuse, and other improvements. 2. Financial assistance to municipalities and CBOs for designation of a BOA. Assistance is available for up to 90% of cost of such nomination, and may be used for identification, preparation, creation, development and assembly of information to be included in a nomination for designation of a BOA. 3. Financial assistance to municipalities and CBOs to conduct Brownfield Site Assessments in designated BOAs. Assistance is up to 90% of the cost of such assessment, and may be used for testing to determine contamination, environmental assessments, identification of proposed remediation strategies, development, and other “appropriate” activities. 4. CBO Requirements: Non-profit CBOs are eligible entities provided they did not cause or contributed to release of hazardous waste or petroleum or generate, dispose, transport same at the brownfield site. A CBO will not be eligible if more than 25% of its members, board or officers are or were employed by a “person responsible” under Title 27 of the ECL, or under the Navigation Law. A municipality that generated, transported or disposed of wastes at the site to receive funds is ineligible for assistance. 5. Municipality Requirements: A municipality receiving assistance, and its successors, lenders, and lessees shall not be liable under statutory or common law arising out of the presence of hazardous substance existing at the time of the state assistance grant, and will be indemnified by the state provided that they did not generate, transport or dispose of hazardous materials at the site. The liability exemption does not apply to a party if the municipality fails to implement the workplan, fraudulently show cleanup levels were achieved, causes a release, or uses the property in violation of any applicable land use restrictions. B. Tax Credits All of the tax credits are available to parties who have participated in the new Title 14 program and received a Certificate of Completion. 1. Brownfield redevelopment tax credits: These credits are available in the taxable year in which the certificate of completion is obtained beginning in the year 2005, even if obtained in 2004. The credits are applicable to costs for remediation individual site preparation, tangible property and on-site groundwater remediation. The percentage of the tax credit varies depending on whether the party is an individual or corporate taxpayer and whether the site is or is not in a BOA. If a site is in a BOA, credits up to 22 percent of these costs are available. If a site is not in a BOA, the credits drop to 12 percent for a corporate taxpayer and 10 percent for a non-corporate taxpayer. 2. Real Property Credits for Jobs: Developers of qualified sites may receive credits against eligible real property taxes imposed on the site based on employment numbers and taxes paid and the number of jobs added to a brownfield site. This benefit is currently provided in Empire Zones. 3. Environmental Insurance Credits: Taxpayers may also be eligible for environmental remediation insurance credits, equal to the lesser of $30,000 or 50% of the premium paid after the date of a Brownfield Agreement covering a qualified site. VI. Environmental Easements Title Owners of a brownfield site must convey an environmental easement to the state within 60 days of commencement of a remedial design that uses land use controls. The easement may be enforced in law or equity by the grantor, state or local government against the owner of the burdened property, lessee or any person using the land. DEC may revoke the Certificate of Completion for any person who intentionally violates an environmental easement. For sites subject to environment easements, a local government that receives an application for building permit or that affects land use or development is required to notify DEC. The local government shall not approve the application until it receives approval from DEC. VII. 1996 Bond Act Brownfield Restoration Program Amendments A. Eligibility: Adds community-based organizations (CBOs) defined in the amendments as IRS Section 501(c)(3) non-profit corporations, as eligible entities for participation in the grant program, provided they did not cause or contributed to a release of hazardous waste or petroleum, or generate, dispose, transport same at the brownfield site. A CBO will not be eligible if more than 25% of members, board or officers are or were employed by a person responsible under Title 27 or the Navigation Law. A municipality that generated, transported or disposed of wastes at the site to receive funds is not eligible for such assistance. B. Eligible Costs: State assistance payments are increased to 90% from 75% for on-site contamination and 100% for off-site contamination. State assistance share will be re-calculated if municipality receives any payments from PRPs. Proceeds from sale of property that exceed municipality’s costs of property including taxes shall be equally shared with state. Sites in designated Brownfield Opportunity Areas pursuant to General Municipal Law Section 970-4 shall receive a funding priority and preference over other sites. C. Use of Property: After completing the cleanup, the municipality may use the property for a public purpose or dispose of it. If sold to a PRP, the PRP must pay the amount of the State Assistance Contract (”SAC”) plus interest in addition to any consideration received by municipality. D. Recovery of Assistance: The state is required to use reasonable efforts to pursue responsible parties (“RPs”) for the full amount of SAC but not parties who are RPs solely because of ownership. E. Tax Foreclosure: Taxing districts other than one foreclosing the tax lien may petition on 20 days notice for an order granting the taxing district temporary incidents of ownership to conduct environmental restoration projects, and relief shall be granted unless parcel has been redeemed by party having the right of redemption. The order shall stay the foreclosure proceeding until investigation is completed. The taxing district shall be eligible for SAC to perform the environmental investigation. The report is to be delivered to the court, which shall then lift its stay of the foreclosure. F. Liability Exemption: A municipality receiving assistance, successor, lender, lessee not liable under statutory or common law arising out of presence of hazardous substance (did not refer to waste or petroleum) existing at time of SAC shall be indemnified by state provided that they did not generate, transport or dispose at site. The liability exemption does not apply if these parties fail to implement workplan (including LUCs per 56-0503.2h), fraudulently show cleanup levels were achieved, cause a release, change the property’s use, or use the property in violation of 56-0511. VIII. Public Health Law Amendments The bill amends Section 1389-e of the Public Health Law to add the same defenses as are included in amended Title 13 of the Environmental Conservation Law. IX. Navigation Law Amendments The bill provides for a third-party defense for liability arising from discharges of petroleum under the Navigation Law. |