Linda Shaw (Rochester Environmental Attorney)

www.nyenvlaw.com

Re:       COMPARISON OF THREE PENDING BROWNFIELD BILL CLEANUP PROVISIONS

Date:    May 12, 2003

            I.  “BROWNFIELD PROGRAM” Marcellino (S.2935) (passed Senate);

            II.  “BROWNFIELD RESTORATION ACT” DiNapoli (A.7507)

            III. “LAND REUSE OPPORTUNITY ACT AND VOLUNTARY CLEANUP PROGRAM” Schimminger (A.7512) (referred to En Con committee)/Alesi (S. 4996)  

I.  “BROWNFIELD PROGRAM” Marcellino (S.2935): 

In late March 2003, Senator Marcellino (Chair of the Senate Environmental Conservation Committee) passed a Brownfield Bill -- S.2935 -- that is available on the Senate web site (www.senate.state.ny.us).  This Senate bill includes tax incentives and liability relief to would-be developers of brownfield sites, but fails to clarify the cleanup standards issue.  The cleanup provisions are vague, and essentially "pass the buck" to the New York State Department of Environmental Conservation to resolve the “how clean is clean” issue with the assistance of a technical advisory panel after the legislation is passed. 

This bill’s vague treatment of the cleanup issue was intentional.  Senator Marcellino agreed to include vague cleanup provisions instead of clear cleanup standards in an attempt to appease the New York State Assembly, which for years has been unable to accept the establishment of use based cleanup standards in look up tables -- a solution to the how clean is clean issue adopted by many other states in the country.  The Marcellino bill essentially takes the cleanup standards issue off the table in an attempt to compromise with the Assembly, but in the process sacrifices the rest of the bill.  Developers need look up tables in order to develop cleanup cost estimates.  Without a benchmark end goal, they cannot make a decision whether the project has economic viability. 

The Marcellino bill promotes the concept of “pre-approved cleanup strategies”, a concept left undefined in the bill.  Moreover, the real problem is that the pre-approved cleanup strategies must be established after a review of the Superfund remedies that have been implemented in the past at state Superfund sites, rather than innovative brownfield cleanup strategies that are now being utilized at brownfield sites throughout the country.  The key cleanup provisions in sec. 27-1427 of the bill essentially create an eight member academic technical advisory panel that: 

 “shall perform an analysis of the cleanups previously conducted under the department’s statutory hazardous waste remediation program [i.e. State Superfund program], excepting cleanups conducted on landfills, to find sites with similar characteristics” and in “those instances where there are at least two sites with similar characteristics, the panel shall develop pre-approved clean-up strategies for sites with such similar characteristics that reflect the remedies undertaken pursuant to title thirteen of this article [i.e. State Superfund program] and remedial technologies identified by the EPA REACH IT program to the extent such technologies will achieve an equivalent or more permanent remediation”.   

In addition, all “sources of contamination” in groundwater, left undefined in the bill, must be remediated.  Exposed surface soil, also left undefined in the bill, must be remediated on all sites to residential unrestricted Track 1 numeric cleanup standards unless such removal is unfeasible. 

After the pre-approved cleanups strategies are developed by the technical advisory panel, the NYSDEC Commissioner reviews the strategies, and shall set forth “cleanup standards and remedial strategies protective of human health and the environment” under four remedial tracks:

Track 1:           Unrestricted use - Only these soil cleanup levels will be in a table, and will be levels  that will allow the site to be used for any purpose without restriction and without reliance on institutional or engineering controls [NOTE: NYSDEC already has a table of unrestricted /residential cleanup numbers in its TAGM 4046 guidance document.  This provision appears to codify the TAGM 4046 cleanup standards which are met on very few sites];

Track 2:           Pre-approved Remedies - NYSDEC must develop a list of remedial alternatives by which an applicant may remediate a site using a pre-approved remedy based on site-specific considerations [COMMENT: How is this any different than our current site-by-site cleanup decision making process?  We all know there are different methods to cleanup the same kind of contamination.  In other states (and in the Schimminger/Alesi bill, this second track consists of use-based look up tables];

Track 3:           Site-specific remediation - Under this track, the applicant may propose a remedy other than a pre-approved remedy, but must demonstrate that the proposed remedy is protective of human health and the environment over the short and long term, and to the extent that proposed remedy will require the engineering controls and institutional controls, the applicant must demonstrate that a permanent remedy is not feasible [COMMENT: This track is essentially the current Superfund Remedial Investigation/Feasibility process, which takes 8-15 years to complete.  The largest and most wealthy responsible parties will use this track as they do now to delay the day they have to perform the actual cleanup.  Once again, there is a built in assumption the “permanent” remedy Superfund approach actually works]; and

Track 4:           Class 2 Sites - Volunteers interested in cleaning up Class 2 State Superfund sites shall conduct site remediation in conformance with the remedial state Superfund title 13 program.  [COMMENT: The same comment applies here as under Track 3.  Why do you want to punish a volunteer who actually wants to cleanup someone else’s Class 2 Superfund site by forcing them to utilize the cumbersome, time consuming and expensive Superfund process?]

In sum, these provisions boil down to a new law requiring the same caliber cleanup remedies that have been implemented by responsible parties in the State Superfund/Hazardous Waste Remediation Program under Environmental Conservation Law (“ECL”) Title Thirteen.  The only way out of Marcellino’s Track 2 pre-approved remedies (which are essentially Superfund cleanup remedies), is to go into Track 3, and hire expensive consultants to demonstrate that the pre-approved cleanup strategies cannot be achieved.  Proponents of this bill will argue that critics should review the other provisions of the bill.  However, no liability relief or financial incentives overcome the vague/ Superfund-like cleanup provisions in this bill.  How can volunteers, some of whom may have no former liability for contamination at a brownfield site, be expected to implement permanent Superfund remedies at brownfield sites, or in the alternative hire expensive consultants to demonstrate that the pre-approved cleanup strategies (i.e. Superfund strategies) cannot be achieved.  Effectively, this bill requires money to be spent on consultants instead of cleanups. 

Despite its Superfund-like cleanup provisions, the Assembly did not adopt the Marcellino approach and developed its own bill.  Therefore, the Marcellino bill is a one-house Senate bill that has not been adopted in the Assembly.  

II.  “BROWNFIELD RESTORATION ACT” DiNapoli (A.7507):

The cleanup provisions in the new Assemblyman DiNapoli bill appear at first glance to be similar to Senator Marcellino's bill.  However, a close review of the cleanup provisions reveal that the new remedial goal of the so-called Brownfield Restoration Program may be more stringent than the current remedial goal in the state Superfund Program.  The new remedial cleanup goal language from the bill [see secs. 27-1203 and 27-1209(1)] reads as follows:

"The goal of the remedial program for a brownfield site shall be to achieve a complete and permanent cleanup  of  the  site that would allow the site to be used for any purpose without restriction and  without  reliance  on  the long-term employment of institutional or engineering controls. All remedies shall be protective of groundwater according to its classification pursuant to section 17-0301 of this chapter." 

The first page of the bill clarifies that last sentence of the remedial goal means “groundwater shall be restored to drinking water quality standards”.

Compare this new brownfield cleanup goal to the current state Superfund cleanup goal, which appears not in the ECL but in the Superfund regulations at 6 NYCRR 375-1.10 (b): 

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.  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 at the site through the proper application of scientific and engineering principles.” 

This bill attempts to provide an “out” from its onerous drinking water cleaning goal by mandating that at such sites where active measures are not being taken to achieve ground water restoration to drinking water standards, a reevaluation must be conducted every 5 years in perpetuity to determine if new technology has evolved that will feasibly achieve restoration.  See 27-1211(6)(e)(3), pg 22 line 1.  In urban areas with area-wide contamination, NYSDEC must prepare and implement a "multi-source contaminated groundwater area" remedial work plan to restore fresh ground waters to drinking water quality (27-1211[6][f][4][iii], pg 23 line13) with allocation of costs among responsible parties, non-responsible parties, and the state.  Why would anyone enter a program for a piece of contaminated real estate that includes in perpetuity requirements?  People want to be able to buy and sell real estate, not be permanently encumbered with eternal responsibility for the real estate. 

More importantly, this new Brownfield Restoration program does not seem to recognize the existing, considerable body of statutory and regulatory provisions that have successfully protected public health, and assured the safety of the drinking water delivered to the public even given the current contaminated condition of some segments of the state’s fresh ground waters.  It is simply not necessary to restore all the state’s fresh ground waters in order to protect public health.  Where drinking water has been impacted by contamination, and is not being addressed, we want to entice people to do what is necessary to remove the source of the contamination, and achieve applicable cleanup standards, not scare them away from doing what is necessary by setting the cleanup goal so high no one will enter the program.

The authors of the DiNapoli bill appear to be under the delusion that their brownfield cleanup goal (“complete permanent cleanup ...without restriction and without reliance on the long-term employment of institutional or engineering controls” and restoration of groundwater to section 17-0301 drinking water standards) is more lenient that the Superfund remedial goal of cleanup to pre-release condition where feasible to do so.  To the contrary, it is more stringent.  Neither the current Superfund statute nor regulations specifically require restoration of groundwater to drinking water standards.  NYSDEC has attempted in practice under its enforcement authority to use the state’s drinking water quality standards as cleanup standards.  However, even in the Superfund Program, there is practical consideration for the fact that not all groundwater is being used, or ever will be used for drinking water.  A brief review of the Superfund Registry reveals that NYSDEC factors into its remedial decision making process every day whether groundwater under a site is a source for drinking water or not. 

Moreover, this bill is supposed to be the bill that establishes a voluntary brownfield program, not a new program to provide more drinking water resources.  The State of New York is replete with adequate drinking water resources.  This bill reads more like an enforcement program against developers.

There would be little argument if the bill contained special provisions requiring achievement of drinking water standards if people in the vicinity of a brownfield site with impacted groundwater were in fact drinking the water.  However, if groundwater is impacted under an urban site otherwise being serviced by a public water system and storm water system, what is the public benefit in requiring complete restoration of groundwater under that site when no use for that groundwater is foreseeable?  When will Assemblyman DiNapoli and the Assembly staff get used to the reality that urban environments are not clean, and that is why no one does in fact drink groundwater under these sites?  

The program established by the Assemblyman DiNapoli bill simplistically assumes that all discharges to ground waters have ceased or are controlled.  In fact, unmanaged and uncontrolled discharges to the state’s ground waters continue from individual sanitary systems, roadway storm water drains and recharge basins, and the application of fertilizer, insecticide, fungicide, and pesticide to agricultural and landscaped lands.  How can a volunteer attempting to cleanup an urban brownfield site also be responsible for restoring all fresh ground water under and migrating off that site when the storm water sewer under that site (which is designed to slightly leak) continues to discharge small amount of petroleum and other contaminants from the streets every day?  As an environmentalist, Assemblyman DiNapoli also ignores the fact that more energy is often consumed by remediation technologies than is recovered when such systems are required to be run past the time when source removal has been achieved in an unrealistic attempt to meet drinking water quality standards.

The new proposed Title 31, entitled “Groundwater Protection and Remediation Program,” requires the preservation of "the future integrity of the water resources of New York State" [sec. 15-3102(3)], through the development of a "groundwater assessment study" to establish current conditions (sec.15-3113), and a data base to be periodically updated (sec. 15-3115) based on a statewide ground water quality monitoring program (sec. 15-3117).   We should know where people in the state are drinking groundwater.  Therefore, the idea of performing a study is not bad, even though such a study is already in the process of being performed by the State Department of Health.  The problem is that the bill pre-determines that the study will conclude all groundwater must be restored drinking water quality [secs. 15-3101(5); 15-3103, 15-3119].  This pre-determined conclusion that it is necessary to protect all of the state’s groundwater for drinking water purposes has been drawn before the study data has been collected!   

Since 1972, ECL section17-0301 has recognized that not all of the state’s groundwater is of equal quality.  The present condition of the state’s waters through the impact of man on the water quality is a consideration in the State’s program to classify the waters.  Since 1972, ECL section 17-0303(5)(h) has required the department to establish a water quality surveillance network, and to publish the results periodically.  These provisions are still valid despite the fact that the department has not implemented either requirement in conformance with the applicable statutory provisions.  

The program also fails to recognize that some groundwater is simply not suitable for use as a drinking water source due to natural conditions (e.g., minimum yield, minimal total capacity, metals content, contaminants from natural sources), or the target segment of groundwater is otherwise unfit for a potable water supply.  Natural sources of petroleum also exist in New York State.  There are natural oil seeps in Allegany, Ontario, Cattaraugus, and Yates counties, New York.   Natural gas is also present.  Does the program really intend to restore groundwater to better than original conditions in some places?    

Finally, this new Brownfield Restoration program does not consider the more than 15 years of practical experience of USEPA, NYSDEC, other states, and private parties across the country, which have attempted through the old enforcement programs to implement active remedial measures to restore groundwater, but have failed despite being forced to try on most sites.  The unrealistically lofty and impossible goal of total restoration of brownfield sites (which ignores science and common sense) casts realistic and acceptable solutions in a negative light, and dooms our brownfield sites to further decay.  Implementation of the bill is bound to disappoint, because the bill’s remedial goal raises expectations to unrealistic levels that cannot and will not be met on a voluntary basis by the private sector.

The title of the DiNapoli bill (Brownfield Restoration) confuses an unrealistic desire (complete restoration) for a remedial goal.   Complete restoration of Superfund sites by responsible parties has not been achieved, yet Assemblyman DiNapoli expects innocent developers to go beyond or at least meet the same requirements imposed on polluters under an enforcement program.  What innocent developer will walk through the door into this program? 

With a new cleanup goal more stringent than the current Superfund program, and no cleanup standards to enable an interested party to develop accurate cost estimate ranges for a cleanup, this brownfield legislation will fail in the real world even though it contains some liability relief and some economic development incentives.  As with the Marcellino bill, the liability and financial incentives alone without a good cleanup program will not be enough to entice innocent people into buying and cleaning up someone else’s contaminated site. 

It is important for municipalities to be aware that although the New York State Bond Act amendments were included in this bill (90% grant -10% municipal share), not-for-profits are allowed to access up to $75 million of the remaining $170 million.  In addition, the cleanup goal in this program is still the Superfund goal of cleanup to pre-release conditions

III.       “LAND REUSE OPPORTUNITY ACT AND VOLUNTARY CLEANUP PROGRAM” Schimminger (A.7512)/Alesi (S. 4996) 

The Schimminger/Alesi bill is the only bill in the current debate that is sponsored in both houses.  The Schimminger bill contains all of the tools municipalities and developers need to begin to turn these sites around - cleanup standards, liability relief, an expedited process, new centralized brownfield office at ESDC, and financial incentives.

Section 27-1409 in this bill entitled “Cleanup levels” begins:

The minimum required scope of remediation at a brownfield site is source removal, which is complete when the practical limit of physical removal of the source of the contamination is accomplished, that is, the mass of contamination recovered from or destroyed at the site is exceeded by the mass of natural resources, such as petroleum, natural gas, propane, and coal, consumed in the effort.  The source of contamination is any free phase liquid contaminants and the soils that currently are or previously were saturated with free phase liquid contaminants, which are the most significant potential sources of the transfer of constituent compounds mass to other environmental media.  Source removal shall be performed in order to prevent or mitigate impacts to other environmental media, such as shorelines and wetlands in the cases of discharges to surface waters or ground waters in the cases of discharges to land.  Nearby existing public and private wells, if any, shall be identified, sampled, and tested if found to be impacted, and an alternative water supply provided until the engineering control of wellhead treatment, well replacement, or connection to the public water system, as appropriate, is implemented.  In addition, any health risks associated with contaminant vapors in the vicinity of the release must be addressed pursuant to paragraph (q) of subdivision one of section two hundred six of the public health law. 

This provision contains clear technical definitions of “source”, “source removal” and what is necessary to meet the minimum level of remediation at all sites.  This provision was designed to overcome any concern by environmentalists that cleanups under this program would be anything other than real cleanups and would not be achieved through the application of an asphalt parking lot (i.e. the pave and wave approach). 

In the event the residual contamination remaining after the source removal action meets the applicable cleanup levels promulgated pursuant to this section, no further action is required and the party performing the cleanup and removal work shall receive the liability release and covenant not to sue pursuant to section 27-1413 of this title.  In the event completion of source removal does not result in satisfaction of any of the applicable cleanup levels pursuant to this section, additional remediation is required to address remaining residual contamination dissolved in groundwater or existing in soil for protection of public health and the environment in accordance with the requirements of this title and through proper application of scientific and engineering principles.

A 40-person technical advisory panel (half with experience  in  risk  assessment  methodologies and site remediation technologies, and  the remaining half with experience in other appropriate scientific, technical, or other relevant  expertise  in  regard  to  the  remediation of contaminated sites and/or toxicology) appointed by a wide ranges of interested groups shall be appointed by the NYSDEC Commissioner to develop the following cleanup level categories:

Category 1:      Cleanup levels that will be protective of public health and the environment that would allow any use on the site for any purpose without restriction and without reliance on institutional controls or engineering controls.  Category 1 cleanup levels do not apply to sites that either are naturally unsuitable for all uses regardless of contamination levels or are subject to existing engineering controls or institutional controls which limit resource or land use.

Category 2:      Cleanup levels that will be protective of public health and the environment for the site's current, intended, or  reasonably  anticipated  residential,  commercial,  or industrial use, and with consideration of use of institutional or engineering controls  to  reach such levels.

Category 3:      A process to determine cleanup levels that will be protective of public health and the environment using site specific data for the site's current, intended, or reasonably anticipated residential, commercial, or industrial use and with consideration of use of institutional or engineering controls  to  reach  such levels.

Adoption of numeric cleanup levels as advocated by this bill is the approach that has successfully been applied in other states.  This bill has now been reviewed by the Business Council of the State of New York, which stated in a memo to Assemblyman Schimminger: “This bill certainly takes the general approach we support with regard to cleanup standards and liability releases.”  The Business Council goes even further to state: “this bill is probably the best proposal currently before the legislature”.  In other words, the Business Council likes this bill more than the Governor’s bill.

Municipalities are beginning to send in memos in support of this bill based on its favorable cleanup provisions, broad municipal liability exemption and its more aggressive changes to the New York State Bond Act.  It is important for municipalities to be aware that not only does this bill amend the 90% grant -10% municipal share, it changes the cleanup goal in this program from the current Superfund goal of cleanup to pre-release conditions to the new cleanup levels in the brownfield program noted above.