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Legislative Memo

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

BILL:

S.2007-A, Senate Budget Bill Parts M, N & X

Support

SUBJECT:

Drinking Water Standards and Remedial Programs

 

DATE:

March 24, 2017

 

The Business Council of the State of New York opposes Parts M, N, and X of the Senate Budget proposal because the proposed parts collectively contain provisions that will provide a new right of action for the State, depart from the scientific development of drinking water standards, could lead to significant unwarranted cost for drinking water providers, create uncertainty in the real estate market, deprive parties of due process and limit public input in the development of remedial design. The Business Council strongly supports additional funding for critical water infrastructure investment but all of the following highlighted sections are not needed to provide that infrastructure investment.

 

Part M

Part M establishes the "Emerging Contaminant Monitoring Act" and the Drinking Water Quality Institute.  The members of the Business Council support the adoption of drinking water quality standards that reflect scientific understanding and reasoning.  It should be noted that under current law the Department of Health can already establish drinking water standards for substances not set by the EPA and at a standard more stringent than EPA.

Specifically, EPA has set federally enforceable drinking water standards for over 90 contaminants. States can, and often, do, adopt their own drinking water standards; but if a contaminant is one for which EPA has set a federal drinking water standard, the state standard cannot be less stringent. The New York State Health Department has adopted approximately 40 state level drinking water standards for substances for which there is no federal drinking water standard, and has also set about 11 state standards that are more stringent than the corresponding federal standard.

While much of the proposal duplicates DOHs current powers, most concerning is the proposal that would allow the Commissioner of Health through a declaration to establish a notification level for any substance.  The Business Council believes that given the potential costs and other adverse outcomes that will arise through the establishment of a notification level of a contaminant that the Commissioner should instead establish emergency regulations.  The Assembly One House Budget has proposed to remove this specific provision.

 

Part N

Part N establishes the Drinking Water Quality Institute (DWQI).  This proposal would have ten members of the DWQI establish a list of emerging contaminates and for each a maximum contaminant level.  The Business Council supports rigorous, science-based standards to address drinking water quality standards, because this leads to greater public understanding and acceptance of revisions in either direction of stringency. 

The proposed Part N should be amended to concentrate the DWQI’s focus upon contaminants which have been accepted to have an adverse effect on human health, occur in drinking water at a frequency and at levels of public health concern, and present a meaningful opportunity for health risk reduction.

If DWQI is established, we urge the legislature to establish the following recommendations:

Part N establishes the Drinking Water Quality Institute (DWQI).  This proposal would have ten members of the DWQI establish a list of emerging contaminates and for each a maximum contaminant level.  The Business Council supports rigorous, science-based standards to address drinking water quality standards, because this leads to greater public understanding and acceptance of revisions in either direction of stringency. 
The proposed Part N should be amended to concentrate the DWQI’s focus upon contaminants which have been accepted to have an adverse effect on human health, occur in drinking water at a frequency and at levels of public health concern, and present a meaningful opportunity for health risk reduction.

 

Part X

Part X represents a significant improvement from TED (S2007) Part II labeled “the Clean Water Infrastructure Act of 2017”, but the proposed part contains provisions that will create uncertainty in the real estate market, deprive parties of due process, and limit public input in the development of remedial design.

Title 12

Section 4 includes a new Title 12 to Article 27 of Environmental Conservation Law (ECL) that would grant the Department of Environmental Conservation (DEC) the power to compel the cleanup and abatement of solid waste sites and drinking water contamination. New York already has a number of remedial programs; including the state Superfund Program, Oil Spill Program, and the Waste Tire Program, to mandate the remediation of different types of pollutants. Those programs have not only resulted in thousands of cleanups, but also the abandonment of thousands of properties throughout the state because of the fear of the State’s right of recovery associated with sites and/or outstanding property leans. Decades after New York developed and implemented its remedial programs, the state developed the Brownfield Program, and the Environmental Restoration Program, to allow municipalities and volunteers to remediate the sites.

The Business Council is opposed to the proposed right of recovery, because past experience has demonstrated that in many cases, particularly where the contamination may involve multiple sources or substances and multiple Potential Responsible Parties (PRPs), liability for the disposal may not be traceable to a particular source. Consequently, remedial enforcement targets for liability the party who may be most readily identifiable—typically the current owner or operator—or who may have the deepest pockets.

The net effect is that a party with only a slight relationship to the site, or to the hazardous substance disposed there, may be held responsible for a disproportionate share or even all of the response costs of the cleanup. 

An essential tenet of the American justice system is that a person should not be held responsible and compelled to pay for injuries which that person did not cause. Because the proposed liability framework in Title 12 is grounded not on causation, but on the status of the party as an owner or operator, many innocent landowners could face strict liability even though they may have done nothing to contribute to the contaminate of concern.

The proposal to limit required remedial measures to $4M or twenty-four months is a positive step and will help reduce the uncertainty associated with requiring the DEC to recover the full amount of the cost of the water treatment system and any associated remediation from any responsible party.

Amendments to the State Superfund

The Business Council supports Part X's rejections of Sections 12, 13 and 15 from TED (S2007) Part II collectively would alter the state Superfund program by providing the DEC with the authority to design and implement site cleanups without providing an opportunity for a hearing regarding the design.

 

Conclusion

The Business Council strongly supports efforts to provide additional funding for critical water infrastructure investment in drinking water infrastructure, wastewater infrastructure and drinking water protection. 

The Business Council believes that decisions regarding drinking water, waste water treatment, remediation, and enforcement should be guided by scientific understanding. Currently, significant data gaps exist regarding the human health effects of detectable levels of contaminates in drinking water, and scientists have difficulty predicting the effects of drinking small amounts of contaminates for many years.