S.2008 /A.3008 TED Article VII Budget Bill - Part II
New Remedial Program and Removal of Due Process During Remediation
February 15, 2017
The Business Council of the State of New York opposes Part II because the proposed section contains a number of provisions that will create uncertainty in the real estate market, will deprive parties of due process and will limit public input in the development of remedial design. The Business Council strongly supports additional funding for critical water infrastructure investment in drinking water infrastructure, wastewater infrastructure and drinking water protection.
Part II labeled “the Clean Water Infrastructure Act of 2017” contains a number of new statutory programs and amendments to current remedial programs not directly related to clean water infrastructure. The Business Council recommends that Part II be amended to specifically address matters related to drinking water and wastewater infrastructure and the other sections either be stricken or significantly amended.
The Business Council recommends that this part be amended to specifically address matters related to drinking water and wastewater infrastructure. The Council also recommends that other sections either be stricken or significantly amended because the proposed sections contain a number of 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.
Part II labeled “the Clean Water Infrastructure Act of 2017” contains a number of new statutory programs and amendments to current remedial programs not directly related to clean water infrastructure.
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 liability 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 volunteers and municipalities to address properties where “a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by DEC that are applicable based on the reasonably anticipated use of the property, in accordance with applicable regulations.”
The newly proposed Title 12 will create significant uncertainty as it would allow the DEC to enter any property to investigate and remediate any discarded material. The owner or operator of the site then is required to implement all remedial measures deemed necessary by the DEC. If the owner fails to implement the measures the DEC may implement the remediation and place a lien on the owner or operator’s real property. The DEC could do all this without commencing a hearing or issuing an order. There is no limit to the size or the level of the remediation that the DEC could conduct. The owner or operator would be afforded no statutory defenses to liability like the secured creditor or third-party polluter exemptions. Furthermore, the public is provided no opportunity to provide input on the remedial design. The remedial program contained in Title 12 appoints DEC prosecutor, judge, jury, and executioner.
In addition, Title 12 would allow the Commissioner of Health to require that all reasonable measures are taken to reduce exposure to a contaminant. The provision does not require the contaminant exceed a health-based standard, merely the presence of contaminant is enough to require action. Furthermore, a contaminant can include any physical, chemical, microbiological or radiological substance that the Commissioner of Heath declares may have the potential to be a health hazard.
The required remedial measures may include the installation of a drinking water treatment system and source removal. Municipal drinking water treatment systems can cost $1M or be in excess of $100M. The DEC is required by Title 12 to recover the full amount of the cost of the water treatment system and any associated remediation from any owner, operator or party that contributed to the contamination
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.
Moreover, the innocent landowner cannot conduct meaningful due diligence prior to purchasing the property given the broad latitude that Title 12 provides for the DEC and Department of Health (DOH) to determine what is a containment and to establish remedial action levels based on a declaration that a contaminate may be harmful to human health.
The failings of Title 12 are too many to amend as it would require at minimum the establishment of standards, due process and statutory protections of the innocent. The Business Council instead recommends current laws and programs be amended to increase protections for drinking water in New York State.
- Title 4 of article 56 of the ECL, the landfill closure program, be expanded and fully funded.
- In 2010 the state of New Hampshire found 67 sites contained 1, 4 Dioxane. Thirty of these sites were solid waste landfills, most of which have been closed for years. Amending and funding the landfill closure program would immediately address New York’s 1, 4 Dioxane sites.
- Title 13 (Superfund) should be amended to provide DEC with a similar authorization that EPA has pursuant to CERCLA § 104(a)(1)(B) that allows EPA to respond to the release or substantial threat of release of “any pollutant or contaminant” that may present an “imminent and substantial danger to the public health or welfare.” The phrase “pollutant or contaminant” is defined as any material “which after release into the environment . . . may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions . . . or physiological deformations”.
- Develop a new program that contains a rapidly awardable allocation of money specific for planning and implementation grants for emergency drinking water issues whether they are caused by a chemical or biological condition.
Amendments to the State Superfund
Sections 12, 13 and 15 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. The proposal was drafted in a manner to overturn FMC Corporation v. NYS Department of Environmental Conservation (143 A.D. 3d 11128). The Appellate Division’s decision did not affect the emergency exemption to the hearing requirement currently in the state Superfund program.
Section 2 of the proposals would establish a new land acquisition program dedicated to the protection of state water resources. The newly proposed land acquisition program does not contain the detail, review and planning required under current law for Open Space Land Conservation Projects (ECL Article 54, Title 3) and there is no requirement that projects are related directly to drinking water protection or land acquisition projects that are consistent with plan developed by a public water supplier. This program should be amended to ensure the interests of local governments, and local public water suppliers are being considered and the land acquisitions would protect drinking water.
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. We support the development of a lead service line replacement program but we have concerns with many of the other provisions contained in the Part II. 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. Furthermore, standards do not take into account the presence of multiple chemicals, which may increase or decrease the toxicity of a particular contaminant. More research should be conducted on contaminates and their health effects. This research should be conducted at a national level and should be done quickly, as our current rate of review of these contaminates needs to occur in a timelier manner.