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Government Affairs Albany Update

March 16, 2003

Regulation of Municipal Lobbying

Both houses have introduce legislation that would delay the state's oversight of municipal-level lobbying until April 1, 2002. This legislation would also push off the reporting date of the yet-to-be appointed Advisory Commission on Municipal Lobbying until October 1, 2001. The proposal – S.3218 (Rules) A.5798 (Grannis) – is likely to receive approval this year.

Under the 1999 Lobbying Act, lobbying at the municipal level fell under state regulation as of January 1, 2001. It applies to entities that will receive more than $2,000 in compensation during 2001 for lobbying activities involving municipalities with populations greater than 50,000. This category includes 45 counties, 13 cities and 20 towns. These lobbyists are required to register with the state, and submit periodic reports on their lobbying expenses and activities.

In response to widespread concern about compliance obligations, the state Commission on Lobbying has already said that, for 2001, it would focus on education regarding the new requirements, and intended to bring enforcement actions only in the most egregious cases. Staff contact: Ken Pokalsky

Superfund Cleanup Standards

The Business Council has sent an open letter to members of the Assembly Environmental Conservation Committee on the issue of superfund cleanup standards. It stressed that existing law requires that cleanups protect public health and the environment, not achievement of "pre-release" conditions. The letter was in response to comments made at an EnCon Committee hearing earlier this week on the State Comptroller's recent superfund program audit, where "pre-release conditions" was repeated cited as the mandated cleanup goal. A copy of the letter is below. Staff contact: Ken Pokalsky

Open letter to members of the Assembly EnCon Committee
March 16, 2001

At this week's Assembly EnCon Committee hearing, it was repeatedly stated that the cleanup goal of the State's Superfund Program is "pre-release conditions."

It is not.

That is not what the Environmental Conservation Law says. That is not what the Department of Environmental Conservation's regulations say.

This misconception arises out of a mis-reading, or a partial reading, of the Department of Environmental Conservation's regulations. In full, that regulation states that:

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. (See 6 NYCRR Part 375-1.10(b), emphasis added.)

This language was the result of a negotiated rulemaking effort in which participated. I assure you that it was no accident that "pre-disposal conditions" was defined as a goal, and not as a required standard or objective. It was also no accident that this goal was the subject of two significant qualifications, in that it is only applicable where achievement of pre-disposal conditions was technically feasible and specifically authorized in statute.

While the qualifier that attainment of the goal must be feasible needs no additional explanation, the second qualifier – that the goal be authorized by law – evidently does.
The State Superfund Program addresses environmental threats that were caused by illegal acts of disposal as well as those that were cause by legally sanctioned (or unregulated) disposal.

With respect to acts of disposal in violation of law, Section 71-2720 of the Environmental Conservation Law authorizes the court to sentence any person convicted of the crime of illegal disposal of a hazardous waste to pay for the cost of "restoring to its original state the area where the substances were released."

In addition, the Department of Environmental Conservation is authorized by section 27-0916 of the Environmental Conservation Law to "clean up or return to its original state any area where hazardous wastes were disposed. . . unlawfully."

Moreover, this provision – which is in the State's RCRA statute and not its Superfund statute – authorizes rather than mandates achievement of pre-disposal conditions, and further provides that, if it is impracticable to determine the original state, "the cleanup or restoration shall be done in a manner to restore the area to a reasonably sound environmental condition." (See ECL section 27-0916(1)).

Importantly, because this authority is applied in response to illegal acts, it is intended to serve a punitive as well as remedial purpose.

Since relatively few State superfund sites are the result of the illegal disposal or illegal management of hazardous waste, the "original state" statutory standard does not apply to most sites.

So what does the Environmental Conservation Law set as the statutory cleanup standard for most State Superfund sites? Basically, the State Superfund law states that the goal is to eliminate or reduce the significant threats to public health and the environment posed by the hazardous waste at such sites:

As demonstrated through this review of statutory and regulatory provisions, neither the Environmental Conservation Law nor the DEC's regulation authorizes or establishes a general "pre-release conditions" goal. Instead, the law is designed to assure that cleanups protect public health and the environment through the application of reasonable remedial measures.

The Business Council looks forward to working with you in fashioning an effective, efficient State Superfund refinancing and reform bill. As a starting point, there needs to be a clearer understanding of the existing statutory framework, and the ongoing implementation of the current program.

I hope that this letter has helped in that regard. I look forward to the opportunity to discuss this issue with you in person.

Sincerely,
Ken Pokalsky