Problematic Features of the DiNapoli Bill

Problematic Features of the DiNapoli Bill (A.7507)

Since participation in the Voluntary Cleanup Program (or the Brownfield Site Remediation program in the parlance of the DiNapoli bill) is voluntary and cannot be compelled by DEC, provisions that tend to discourage voluntary participation will be counter-productive to the goals of both brownfield cleanup and brownfield revitalization.  Features of the DiNapoli bill that are likely to discourage participation in the program include provisions:

1. Treating current owners and operators, even though they did not cause or contribute to the contamination, as “responsible parties” (unless they can establish an affirmative defense).  Cleanup obligations imposed on RPs are dramatically more extensive than those placed on non-RPs.  An owner or operator facing RP status will be deterred from selling or redeveloping a brownfield property for fear of attracting DEC’s attention.  Such entities will “hide in the weeds” and “mothball” their properties.
    
2. Requiring DEC to bring an enforcement action against any known RPs at a site within 3 months of executing a cleanup agreement with a non-RP (e.g., a prospective purchaser or redeveloper).  This reinforces the unwillingness of a current owner or operator, who may very well be deemed an RP, to sell to a non-RP who may wish to clean up the site under DEC oversight.
    
3. Requiring an excessively detailed “preliminary environmental assessment” as a prerequisite to entering the Voluntary Cleanup Program (VCP).  If the application procedure is not quick and easy—i.e., limited to establishing eligibility to participate—many fewer persons will take the trouble to participate.
    
4. Setting a cleanup goal of a “complete and permanent cleanup,” and imposing cleanup objectives that are more stringent than those that are currently in place for state Superfund sites.  If the would-be cleanup volunteer is a non-RP who need not worry that DEC can compel it to clean up, the cost of getting involved will usually exceed the benefits—especially in Upstate areas where real estate values are low.  If the would-be “volunteer” is an RP, the costs of coming forward are even higher and there is no advantage to voluntarily submitting to DEC oversight as compared to doing nothing and risking the possibility of discovery by DEC and being compelled to do an involuntary cleanup.
    
5. Designing cleanup objectives to prevent volunteers from getting away with anything and leaving no risk, however remote, unidentified or unaddressed—rather than creating an efficient and expeditious program that will attract volunteers and encourage cleanups.   Prospective purchasers and redevelopers, who will only participate if their return on investment exceeds the anticipated liability and other costs, will look elsewhere to make their investments.
    
6. Requiring, even for a “track 3—site specific restricted use” cleanup, the cleanup of surface soils (to a depth of 3 feet), conformity to ARAR standards, protectiveness of groundwater, drinking water, surface water, air, and ecological resources. 
    
7. Precluding the cumulative risk  of residual contamination at a site from exceeding an excess cancer risk of one in a million (for carcinogenic end points).  This is the most stringent standard applied by any state (and much more stringent than that employed by U.S. EPA and many states).  It is meaningless in relation to the existing lifetime cancer risk among U.S. residents of one in four (= 250,000 in a million).
    
8. Requiring the remedial program for all applicants to include an unrealistic “source removal” requirement that includes stabilization of groundwater contamination plumes, the removal or permanent treatment of non-aqueous phase liquids (DNAPLs and LNAPLs), and preventing the discharge of contaminated ground water to surface water.
    
9. Requiring even a non-RP  to perform “short-term” remediation of groundwater contamination (or to pay an “allocated share” of the cost of implementing an area-wide remedial work plan)—even if the contamination is attributable in whole or in part to offsite sources.  Recently adopted federal brownfield amendments absolve site owners and operators from responsibility for groundwater contaminated by unrelated offsite sources.
    
10. Allowing DEC to require even a non-RP applicant to perform an emergency response action or an interim remedial measure where groundwater used as a drinking water source is contaminated at levels above drinking water standards.
     
11. Establishing cumbersome and time-consuming procedures for applicants to follow (rivaling those applicable under Superfund), with numerous layers of agency and public review, while setting no binding deadlines on DEC for completing its review of applications, work plans, or other submittals.  Time is of the essence in most real estate transactions.  A cleanup program that will take several years to complete, even for low-risk sites, will not attract volunteers except for the very highest-value properties.
     
12. Subjecting liability releases to being re-opened any time there is a change in an environmental standard, factor or criterion upon which the work plan (or NFA determination) was based—without regard to whether the remedial program is still protective of public health and the environment.  (This re-opener applies to “track 2” and “track 3” cleanups.)  This lack of finality, even where the applicant has met all its obligations under the cleanup agreement and work plan, will create an unacceptable risk in many cases, will make insurance more costly if it can be obtained at all, and will deter many volunteers from coming forward.  [Note: this re-opener is a feature of all 3 bills and should be eliminated from all of them.]
     
13. Subjecting liability releases to being re-opened whenever information is received (in whole or in part) after issuance of the certificate of completion or the NFA determination which indicates that the cleanup is or will be no longer protective.  Although lack of protectiveness is a better justification for action than simply a change in a regulatory standard, there is no justification for requiring further action on the part of a non-RP cleanup volunteer that has fulfilled all its obligations under the cleanup agreement and the approved cleanup work plan.  If additional cleanup is needed to protect public health and the environment, DEC should either do it itself or require an RP to do it.
     
14. Subjecting those that get involved in the brownfield cleanup process to the possibility of highly intrusive DEC access to all records relating to the current or past handling of hazardous wastes or petroleum by the applicant or those under the applicant’s control.
     
15. Requiring DEC, prior to entering into a cleanup agreement with an applicant, to determine whether the site constitutes a significant threat and should be included in the inactive (superfund) site registry.  Will deter RPs afraid of registry listing from participating in the brownfields program.
     
16. Requiring DEC, if an applicant withdraws from the cleanup program, to include sites in the registry whose listing was deferred based on VCP participation.  The possibility of being locked into the program with no possibility of withdrawing without punitive registry listing will further deter RPs (including current owners) from participating in the cleanup program.

Prepared by Kenneth S. Kamlet (4/27/2003)