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Legislative Memo

Darren Suarez
Director of Government Affairs
T 518.465.7511
www.bcnys.org

BILL:

A.2467 (Lifton)

Support

SUBJECT:

An Act to Amend the Environmental Conservation Law in Relation to Liens Against Expenditures

 

DATE:

February 13, 2012

 

The Business Council opposes this legislation that would empower the State to impose liens on the real property and personal property of potentially responsible parties at state superfund sites.

This proposal, in effect, establishes a statutory “joint and several” liability standard, allowing the Department to target a single class of potentially responsible parties (PRPs) at sites – namely, site owners – for the recovery of all state remedial and/or oversight costs.

The legislature should be highly cautious of allowing the State to target blameless landowners resulting in a clouded title that will affects the owner’s ability to transfer the property.  The ninety-day notice provision does not substantially provide the landowner with opportunity to adjudicate the determination of being responsible. 

The procedures provide in this legislation will result in a quick post-deprivation review of the lien.  The State’s interest in seeking reimbursement of taxpayer moneys expended in cleaning up polluted sites should not come about as the results of a substantial dimensioning of landowner’s due process.

This legislation has been before the legislature for more than a decade. It is time that the sponsors of this legislation acknowledge "joint and several" liability has unjustly snared many a landowner and its mere threat has resulted in the significant underutilization of slightly contaminated properties throughout the country.

When the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (CERCLA) commonly known as CERCLA or Federal Superfund, was enacted 25 years ago, it contained few defenses for blameless parties.  In response to innocent parties being captured in a snare of unintended liability, Congress and the President included statutory defenses for “innocent landowners,”  “bona fide prospective purchaser” and “contiguous property owner.”

Imposing “joint and several” liability on landowners, including banks protecting or foreclosing on loans, seems perverse.  Landowner liability does not square with the rhetoric of “making the polluter, not the taxpayer” pay for cleaning up contamination. After all, acquiring title to property does not make one a “polluter.”

Questions of fairness aside, landowner liability had social implications. The threat of liability for pre-existing contamination casts a large shadow over properties which may have been contaminated with hazardous substances by prior uses.

Properties which exist under this shadow have become known as “Brownfields,” regardless of whether they actually have been contaminated to any substantial extent by prior uses. One result of this shadow or stigma has been reduced reuse of Brownfields and increased sprawl.

Additionally, in giving the Department an incentive to target the site owner for all cost recovery, this lien authority would allow the Department to forgo cost-recovery action against other identifiable, financially viable responsible parties – leaving it up to the owner to seek contribution from these third parties.

Authorizations of liens would also reduce the Department's incentives to keep their oversight and/or remedial expenditures to a reasonable level, since the lien – or even the threat of imposition of a lien – would give them significant additional leverage over the site owner. And, again, the owner may be just one of many responsible parties at a site who should be contributing to a cleanup.

At most, the use of a lien should be a measure of last resort, and used only in instances where the site owner actually contributed to the on-site contamination problems, when the site owner has refused to participate in a cleanup or to reimburse the state for its response or oversight costs, and once the state's financial claims have been validated through administrative or judicial review.

For these reasons, The Business Council respectfully opposes approval of A.2467.