http://newyork.sierraclub.org/conservation/brownfields/brownfields.html

Why We Support This Bill      [KK rebuttal comments are noted in red]

May 5, 2003
Memorandum of Support

In Assembly 7505 [correct bill number is A. 7507] by Assemblyman DiNapoli.  Title: An Act to amend the environmental conservation law, in relation to enacting the brownfields restoration act

Provisions: A.7505 proposes to create a new section of law, title 12 of the New York State Environmental Conservation law, to establish a brownfields remediation program in the New York State Department of Conservation (DEC).

Eligibility: Sites that are ineligible for the program include: state and federal superfund sites; sites that are subject to cleanup orders under the state's solid waste laws, industrial hazardous waste management laws, oil spill law, or bulk storage of petroleum law; sites that are subject to any other on-going state or federal environment enforcement action. Sites that are not subject to orders under the specified laws, or listed on the state superfund registry, or the national superfund priority lists, but that may meet criteria to be listed may be eligible for the program. The DEC has the authority to deny entry to a site if it determines that it is not in the public interest for the site to be admitted to the program.

Liability: The bill establishes a two-part liability scheme that determines whether or not a party is responsible for cleanup of offsite contamination and remediation of ground water beyond the point where remediation activities no longer produce a reduction of concentration of contaminants, or "asymptotic conditions". This liability scheme applies to the brownfield program only. The two categories are "responsible party" and "non-responsible party". In addition the bill provides the affirmative liability defenses currently in CERCLA for both the proposed new brownfields program and the existing state superfund program. [The bill discourages current owners of brownfield sites from selling their properties to prospective redevelopers by treating them as responsible parties--even if they had nothing to do with causing the contamination that may be present.]

Remedial Goal: The goal of the program is 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. [This is a more stringent and aggressive goal than that under the existing state superfund program, which is restoration to pre-disposal conditions to the extent technically feasible.  The DiNapoli bill also sets a goal of restoring all non-saline groundwater to drinking water standards.  Unrealistic cleanup objectives of this kind will only deter those who cannot be compelled to remediate brownfield sites from volunteering to do so.]

Remedy selection: A. 7507 would write into law remedy selection criteria currently found in NYCRR Part 375-1.10 with the addition of land use defined as: the current, intended and reasonably anticipated future use of the site and its surrounding. This use is to be described by the applicant and determined by the DEC based on consideration of 19 factors. Included in these factors are environmental justice, proximity to important natural resources and the vulnerability of groundwater to contamination. [The Part 375 remedy selection criteria were established under the State Superfund program for dealing with high-hazard sites.  They were never intended to be applied to low-risk brownfield sites.  The additional "land use" criterion makes it harder rather than easier to take into account the impact of site use on environmental risk.]  The full list of remedy selection criteria is as follows: conformance with standards and criteria that are directly applicable, relevant or appropriate; overall protectiveness of public health and the environment; short term effectiveness; long-term effectiveness; reduction of toxicity, mobility, and volume with treatment - programs that permanently and significantly reduce volume, mobility and/or volume are preferred over those that do not (there is a hierarchy of technologies: destruction, on site or offsite; solidification/chemical fixation, control and isolation); feasibility defined as suitable to site conditions, technically possible, with a consideration of implementability and cost-effectiveness; community acceptance; and land use. [The bill engrafts all of the red-tape associated with the Superfund program to the brownfields program which requires an accelerated cleanup process to succeed.]  Remedy Selection Tracks: The bill establishes 3 remedy selection tracks (Section 27-1211). Applicants can select from three alternative remedy selection processes. All remedies must be consistent with the criteria discussed above.

Track one - If the remedy proposed will achieve complete and permanent cleanup of the site without reliance on engineering or institutional controls, then the remedy selection process does not need to be consistent with the national oil and hazardous substances pollution contingency plan and the remedial work plan need not document the identification, screening and evaluation of additional remedies. This is a matter of concern because there is often more than one remedy that will achieve a complete and permanent, or unrestricted cleanup. At heavily contaminated sites there may be choices like destruction of the contamination on site through incineration, or removal and disposal in a hazardous waste landfill. Screening alternatives would provide information that would allow comparison of potential impacts from incinerator emissions vs. impacts from dust dispersion during transport. The argument from the bill drafters was that since the program was a voluntary program and that by eliminating the requirement for screening alternative remedies the program would create additional incentives for volunteers to select the unrestricted remedy track. [This rationale is undercut by language in the bill requiring DEC--even where a Track 1 unrestricted cleanup is accomplished-- to consider the feasibility of achieving even more stringent cleanup objectives based on field data and experience.  The bill drafters seem oblivious to the need by cleanup volunteers for clarity, certainty, and finality in the cleanup standards to which they must adhere.]

Track two - Pre-approved remedies: Using a process that is consistent with the national oil and hazardous substances pollution contingency plan the DEC is directed to select remedies that would achieve complete and permanent cleanups at commonly occurring types of sites, like gas stations, or dry cleaners. DEC is required to rank remedies based on their ability to achieve the remedial goal, satisfy the remedy selection criteria and achieve soil standards. Applicants can select one of these remedies by demonstrating that the site is suitable for its use. If the applicant proposes a lower ranked remedy they must provide a description of each higher ranked remedy and a rationale for why the lower ranked remedy was selected.  [This approach passes the buck to DEC with little legislative guidance.  Both the selection and the ranking of remedies require both substantial technical expertise and extensive real-world experience--which may not exist at DEC in abundance.  It is not clear why these tasks are not given to a balanced panel of scientific and engineering experts.  Also unclear is why it is not sufficient to employ any presumptive remedy that applies in the applicable circumstances.  Why subject the applicant to the need to rank and justify the selection of one applicable remedy over another?]

Track three - restricted use remedies: If the proposed remedy does not achieve a complete and permanent cleanup, the remedy selection process must be consistent with the national oil and hazardous substances pollution contingency plan.  [This uses the red-tape involved in applying the NCP as a weapon.] However at sites that do not meet significant threat criteria only two remedies, one of which would achieve a complete and permanent cleanup, need be compared. Prospective remedies are to be compared based on their ability to achieve the remedial program goal, satisfy the selection criteria and achieve soil standards. [DEC, in administering the current Voluntary Cleanup Program, has recognized the importance of eliminating non-essential procedural steps that cause the Superfund process to stretch on for years.  The Remedial Investigation/Feasibility Study component of the Superfund process falls into this category.  The DiNapoli bill, for no good reason, seeks to reinstate much of this unnecessary process.]  Soil standards: The DEC is directed to develop a set of soil standards that all cleanups must [meet] for unrestricted sites and for surface soils at restricted sites. The soil standards must be protective of public health and the environment and conform with standards, criteria and guidance that are found by the department to be applicable. In addition they must be protective of ground water for its classified use as drinking water; drinking water, surface water and air (including indoor air); sensitive and susceptible populations, including children; ecological resources and their habitats. The standards must be set so that the cumulative risk of residual contamination at site does not exceed a one-in-one million risk of cancer [this is an absurd requirement against a background lifetime cancer risk in Americans of 250,000-in-one-million (1 in 4) risk], a health hazard index of one for non-cancer health risks. The standards must also take into account the synergistic effects of chemicals in causing injuries to health and the environment. All remedies are required to do source removal including the removal of grossly contaminated soil, stabilization of contaminant plumes in groundwater, the elimination of human exposure including the volatilization of contaminants into buildings.  [In addition, regardless of the cleanup track selected, "surface" soils--to a depth of 3 feet--at all sites must be remediated to unrestricted use (Track 1) cleanup levels.]

Groundwater remediation: Non-responsible parties are required to investigate groundwater contamination onsite and offsite. These parties are then required to carryout remediation of groundwater on the site until a point is reached where operation of remedial technologies no long achieve further reductions in concentration of contaminants in groundwater. At these sites, the DEC is responsible for long-term remediation activities (i.e. activities to return groundwater to drinking water standards) and remediation of groundwater off site. Long-term remedial activities start with a feasibility study to determine if it is possible to return groundwater to drinking water standards. [If it is not "feasible" to return groundwater to drinking water quality, or if there is no foreseeable prospect that water at or near the site will ever be used for drinking water purposes--e.g., if the site is served by municipal water derived from a distant surface water source--why should a cleanup volunteer be forced to carry out even short-term onsite groundwater remediation, especially if that contamination cannot be linked to contamination caused by the volunteer or even originating at that site?]   Feasibility is defined in the bill as it is in NYCRR Part 375 as follows: "suitable to geologic or hydrologic site conditions, capable of being successfully carried out with available technology and cost effective". In those instances where it is determined not to be feasible an assessment must be performed to identify the migration and ultimate fate of the contaminated groundwater. Every five years the feasibility of remediation must be revisited. Plume stabilization measures must be employed to ensure against the spread of contamination. In instances where groundwater is contaminated from multiple sources, some of which are not on the site, the DEC can partition liability for groundwater after parties have conducted source removal and allow parties to cash out their liability by contributing to a fund for use by the state for remediation of the groundwater. The state is directed to develop a remedial strategy to address contamination. [This could be a billion-dollar proposition which the state can ill-afford.  How are brownfield real estate deals to move forward while DEC is developing its strategies and designing and implementing area-wide groundwater studies?]

Responsible parties are required to do onsite and offsite investigation and remediation of groundwater. Covenant Not to Sue: The bill provides for a covenant from the state not to sue for additional clean up after cleanups are completed. The covenant is conditioned to allow the DEC to take action to require cleanup if remedies are found not to be protective of public health or the environment generally and in conditions where the party doing the cleanup fails to implement the cleanup, or commits fraud. [The bill also calls for reopening the CNTS if, through no fault of the volunteer, the cleanup standard adhered to is found to be less protective than anticipated--even without any showing of an increase in site-specific risk.  This is unfair and runs counter to principles of finality and certainty.]

DEC responsibilities with respect to off-site contamination: At sites being remediated by a non-responsible party the DEC is directed to begin an enforcement action against any responsible parties [includes the current owner, who will never be willing to sell a brownfield site under these circumstances] within three months of signing a brownfields remediation agreement. If there are no responsible parties identifiable the DEC is directed to begin investigation and remediation activities within one year of signing the agreement. DEC is directed to use state superfund money to do this investigation and cleanup if the site in question meets the criteria for significant threat. For other sites the EFC is authorized to issue bonds to pay for investigation and cleanup.  [This will be extremely costly to the state.]

State Groundwater program.: The DEC is directed to assess the quality of the state's groundwater using existing data and then develop and implement a strategy to return contaminated aquifers to drinking water quality to the extent feasible.

Innovative Remedies: The state is directed to issue requests for proposals to develop innovative remedies that will achieve the goals of the program and produce superior results in addressing soil and groundwater contamination problems.

Community participation: The bill would require that every cleanup include a community participation plan. [Not every site requires this level of paperwork.]  The bill provides narrative criteria for the plan, such as it should provide for early and substantial two way dialogue, but does not set minimum standards like allowing for a specified public comment period on remedial investigation and remedial action plans. The bill provides for a 45-day comment period on a draft remedial investigation and a 60-day public comment period on a draft remedial action plan. [This is overkill for low-risk sites especially absent any evidence of a burning public desire to comment.  In such cases, it serves only to draw out the process and discourage prospective investors and redevelopers from pursuing the beneficial reuse of brownfield sites.]

Citizen technical assistance grants: DEC is authorized to provide grants from left over Clean Water Bond Act money. In addition they are give authority to require a responsible party to provide a technical assistance grant. Resources for site acquisition, planning, investigation and remediation: The bill directs the New York State Urban Development Corporation to make grants available for site acquisition, planning, investigation and remediation, for community based organizations and municipalities working in conjunction with community based organizations. The bill would make $ 7.5 million in funding from the Clean Water Bond Act of 1996 available annually for planning, cleanup activities and redevelopment of contaminated sites by community based organizations.

Tax and other incentives: The bill creates the Brownfield business enterprise program implemented by the EFC. In this program parties that are located in designated empire zones or in census tracts that have a poverty rate that is twice the average of the county can apply for the program. If they are designated as a brownfield business enterprise they are eligible for the same property tax breaks that are available to businesses locating in empire zones. Departmental Database and GIS: DEC is directed to create a database and GIS system that lists all brownfields sites and the status of ongoing monitoring efforts.

Hazardous Substances and Superfund refinancing: The bill closes the hazardous substance loop and adopts fees proposed by the Governor in his superfund bill. The bill then authorizes the New York State Environmental Facilities Corporation (EFC) to issue bonds to pay state costs of investigation and remediation of sites on the state superfund list. Through this bonding mechanism, the bill would provide up to $200 million annually for the state superfund program.

Statement of Support:

Sierra Club supports laws and policies that promote the redevelopment of brownfields and that are protective of public health and the environment.  A.7507 contains a finely balanced mix of programmatic measures to expedite and provide incentives for the cleanup of contaminated sites while ensuring that the cleanups do not allow people to be exposed to hazardous chemicals and protect important natural resources.  [The DiNapoli bill strikes a "balance" that is far too heavily skewed in the direction of mandating cost-ineffective over-protection of people from non-existent or low-level risks.  Paradoxically, by discouraging beneficial reuse of brownfield sites on the part of cost-conscious developers, the bill will result in considerably less protection of public health by allowing brownfield sites to continue to leach contaminants and blight the landscape.]

A unique and important feature of this bill is that it would provide community based organizations with funds to purchase, investigate, remediate and redevelop contaminated sites in their neighborhoods. [The funds for this will come at the expense of funds currently earmarked for local governments.] This feature makes this bill empowering to New York's communities that are blighted with brownfields. The measures of the bill that provide for adequate public comment periods on the cleanup process and technical assistance grants to support public participation will help communities make sure that they get the best possible cleanup. [By requiring these approaches in all instances, whether needed or not, the bill will ensure that many communities get no cleanup at all.]  The bill also provides adequate funding for the state superfund program and broadens the applicability of the program by closing the hazardous substances loop hole.

Many states have adopted brownfields programs that compromise protection of public health and the environment in the name of promoting redevelopment of brownfields. [While there may be occasional "horror stories," most state programs function very well and benefit both the economy and the environment.]  Sierra Club believes that this approach is unnecessary and counter-productive. Brownfields programs allow for partial cleanups of sites can only be justified if the long term costs of protecting the public from remaining contamination and the value of contaminated resources are ignored. [Wrong.  What is unnecessary and counter-productive is asking innocent cleanup volunteers to restore low-risk sites at great expense to Garden of Eden pristineness.  This will only discourage volunteers from coming forward and result in less rather than more brownfield cleanups.]

In order to be protective of public health, cleanups that leave significant amounts of contamination behind have to restrict uses of the site and monitor contamination to see if it spreads. It is difficult and costly to do this even when cleanups are done to high standards. [It is far less difficult and costly to do this than to subject cleanup volunteers to needless and excessive investigation and cleanup costs.]  Experience with New York's Superfund proves this case.

An audit by the New York State Comptroller released in 2001 reviewed cleanups at a sample of state superfund sites. In the sample, the remedies for six sites required deed restrictions to limit future uses of the site. The audit found that deed restrictions were properly filed at only two out of the six sites.  [In the current Voluntary Cleanup Program, DEC will not issue a liability release without proof that necessary deed restrictions have been properly filed and recorded.]

In a recent DEC memo, Robert Marino, Director of the DEC's Bureau of Hazardous Site Control, relates how an unremediated plume of chlorinated solvents at a site in Mahopack, New York contaminated wells servicing apartment buildings. Another example of how residual contamination at toxic waste sites can harm the public comes from Long Island. A 2003 report by Attorney General Elliot Spitzer, Daycare Centers and Superfund: A Parent's Right to Know, documents an incident in which perchloroethylene migrating from Jackson Steel, a federal superfund site, infiltrated Tutor Time Daycare Center producing unsafe levels of this chemical in the air inside the Center.

These examples demonstrate the importance of cleaning sites up as thoroughly as possible. [No.  What they demonstrate is (a) the importance of thorough cleanups at high-hazard sites, and/or (b) the need for more extensive monitoring and follow-up in some instances.  Sites of the sort described in the above example fall outside federal and state "brownfield" definitions and should not be part of a voluntary cleanup program in the first place.]

Cleanup programs that leave significant contamination behind also, of necessity, write-off natural resources, like groundwater. Groundwater is important for drinking water as-well-as for commercial and industrial purposes. Even in communities that have public water supplies, use of groundwater for non-potable, water intensive operations like car washes, is fairly common. Allowing contaminated sites to continue to pollute resources, like groundwater, that are needed by some businesses in the name of redevelopment is clearly counter-productive.  [What is counter-productive is to require limited resources that could be used to clean groundwater that is actually used for drinking water purposes to be wasted on restoring groundwater that will never be used for this purpose to drinking water standards.]

A.7507 contains measures to ensure that problems like those that developed in Mahopack, or in the case of the Tutor Time Daycare Center are less likely to develop. While the bill would not force volunteer developers to bear the expense of remediation of contaminants that have migrated off-site, or long term monitoring and remediation of groundwater, the bill spells out [highly costly and unrealistic] measures to be taken by the DEC to ensure that these problems are addressed.

One of the troubling provisions of the bill for Sierra Club is that it would allow current, intended and reasonably anticipated future uses of a site to be considered in developing the remedy for sites in the new brownfields program. [This shouldn't trouble the Sierra Club because it also requires 18 other things to be considered that will ensure that the site will never be developed and will remain a brownfield site forever.]  This is troubling, because consideration of [land] use is one way that some state brownfields programs have justified leaving significant amounts of contamination behind after a cleanup. [That's like banning knives because they are sometimes used to commit murder.]  In the program defined in A.7507, other remedy selection criteria, such as the preference for permanence and conformance with standards as well as the overall goal of the program mitigate against the use of land use in this way. [The whole bill mitigates against the beneficial reuse of any brownfield site!]  The bill also specifically prevents the DEC from approving remedies that require restrictions on the use of a site if: the site is next to residences; the proposed use of the site would cause or increase a disproportionate and/or inequitable burden on the community in which the site is located; if the site is adjacent to important cultural or natural resources, well head protection areas, groundwater recharge areas, or flood plains. In these circumstances restricted remedies would only be allowed if the applicant demonstrates that the remedy is fully protective of adjacent uses and resources and will not allow for further contribution to off-site migration or dispersion of contaminants. Restricted uses would also be prohibited in instances where the long term viability of institutional or engineering controls are in doubt due to the financial viability of the applicant [few applicants will be financially viable if they are forced to meet the draconian requirements of the DiNapoli bill], or due to a record of violations of environmental, or health laws. These mitigating measures as well as the measures requiring the state to do a better job of monitoring sites and cleaning up groundwater allow, Sierra Club to strongly support this bill.