Government Affairs Albany Update - June 20, 2003
- Senate Concludes Work; Assembly Still in Session
- Governor / Senate Agree to Superfund / Brownfields Bill
- Executive Order #127
The state Senate concluded work this morning at 5:00 a.m. and Majority Leader Bruno wished fellow Senators a happy Summer. Following is a brief recap of major issues The Business Council has been involved in (more specifics will follow in another mailing next week):
Brownfields - Senate passed S.5694. It is unclear whether the Assembly will pass this bill today. (See below)
Chemical Security - Senate passed S.4156, a bill requiring chemical facilities to undertake a vulnerability assessment. The Assembly has not acted on A.8123.
Smoking Law Amendments - No action in either house on S. 5191 or A.8601.
Preferred Drug List - Senate introduced S.5685, a bill to establish a preferred drug list for the state's Medicaid program. They did not pass the bill. No action in the Assembly.
Mental Health Parity - Assembly passed A.8301. Senate did not pass S.5329.
Medicaid Reimbursement - Both houses passed a bill (S. 5599/A.8950) to create a temporary commission to review Medicaid reimbursement for residential health care facilities.
Attorney General Corporate Accountability Package - None of the six A.G. program bills passed the Senate. One bill appeared likely to pass in the Assembly today -- A.8794 expanding the whistleblower law.
Budget Bills - The Senate passed two bills which were technical clean-ups to the original budget and supplemental spending in a number of areas (S.5689 and S.5692) -- The Business Council is critical of the extra spending. It is unclear whether the Assembly intends to pass these bills today or their own version A.9067.
Vicarious Liability - S.5642 (Johnson) This is the same language passed by the State of Connecticut. Placed on Senate third reading but not passed. No Assembly companion.
Creosote - S.4975-B (Marcellino) / A.5930-B (Brodsky) Provides for the phase-out over six months of the use of creosote as a wood preservative, prohibits its combustion, and regulates its disposal. Parred down version eliminates RRs but still includes utility poles and governs disposal. Senate third reading; Assembly third reading.
Power Plant Security - A.3102-B (Gianaris) / S.667-A (Padavan) Relating to requiring the director of public security to create and implement security measures for power generating and transmitting facilities. Passed both houses.
"Below Cost Sales" - A.8398 (Tonko) / S.4974 (Nozzolio) Enacts the New York motor fuel marketing practices act. Passed both houses.
Petroleum Retail Divorcement - S.4428-A (Lavalle) / A.8589 (Abbate) Establishes the minimum distance in which a refiner may operate a retail service station. Passed Senate; Assembly Rules.
"Outdoor Lighting" - A.6950-B (Grannis) / S.3003-B (Marcellino) Enacts the healthy, safe and energy efficient outdoor lighting act to reduce harmful outdoor lighting. Passed Assembly; Senate Rules.
Article X - S.5673 (Wright) Extends Article X and State Energy Plan. Maintains most of previous law and similar to Governor's program bill. Passed Senate.
Truck Divisible Load Permits - S.2974-A (Kuhl) / A.677-A (Gantt) Regulates permits for certain commercial vehicles which exceed the maximum weight provisions. Passed Senate; Assembly Codes.
S.600 (Hannon) / A.4353 (Klein) - Relating to enacting New York State Internet Privacy Law to which operators of web sites may voluntarily be subject; limits disclosure of personal information to those submitting Passed Senate/Assembly Consumer Protection
S.1680 (Rath) / A.6036 (Schimminger) - Regulates the transmission of unsolicited commercial electronic mail advertising. Passed Senate/Assembly Consumer Protection
S.4511 (Rath) / A.709 (Grannis) - Relates to including persons who wish not to receive unsolicited emails on the telemarketing sales calls statewide registry. Passed Senate/Assembly Consumer Protection
S.5154 (Little) / No Assembly companion - Relates to cyber piracy protections and the unlawful registration of domain names. Passed Senate
S.5155 (Robach) / No Assembly companion - Regulates unsolicited commercial electronic mail. Passed Senate
S.5484 (Fuschillo) / A.8986 (Klein) - Relates to the no telemarketing sales calls statewide registry authorizing the transfer of telephone numbers on the state registry to the national registry. Passed Senate/Assembly Floor Calendar
A.7970 Rules (Rivera, J) / S.5009 (Fuschillo) - Requires that dial-up Internet service providers provide a warning relating to the selection of access telephone numbers Third Reading in Assembly/Senate Consumer Protection
S.5624 (Velella) - Authorizes disclosure of otherwise confidential information regarding the compensability of treatment, reimbursement for such treatment or authorization for services. Passed Senate/no Assembly companion
S.3909 (Robach) / A.3175 (Nolan) - Relating to enacting the "workers' compensation assurance act" which prohibits employers from evading workers' compensation coverage. Passed both houses.
S.896 (Marcellino) / A.4387 (Koon) - Relating to enacting the toxic mold protection act. The Senate passed the bill and then recalled it from the Assembly, reconsidered the vote and restored it to third reading. The bill is currently in the Assembly Health committee.
S.2452 (Ororato) / A.8014 (Nolan) - Requires employers to keep records of which employee handles which toxic substances. Passed Senate/Assembly Rules
S.1570 (Alesi) / A.5441 (Towns) - Relating to raising the maximum monetary jurisdiction of the small claims courts throughout the state from $3,000 to $5,000; raises maximum number of commercial claims per month. Passed both houses.
Labor/ Human Resources
S.772 (Marcellino) / A.8231(John) - Prohibits permanently replacing strikers. Passed Senate, Assembly Codes Committee
S.848 (Balboni) / A.148 (Christensen) - Would permit class action suits in discrimination cases. Passed Assembly, Senate Rules Committee
S.1227 (Spano) / A.8017 (Nolan) - Pharmacy whistleblower. Passed both houses
S.4813-A (Velella) / A.8794 (John) - Attorney General's whistleblower. Senate Labor Committee, Assembly-laid aside
A.8107 (John) Defines Independent Contractors. Assembly Calendar
S.5645 (Velella) / A.9104 (John) - Whistleblower expansion – Expands New York's whistleblower statute (different from the Attorney General's program bill). Senate Rules / Assembly Labor
A.9064 (John) / No Senate companion. Bonds out New York's U.I. debt to the federal government
We are forwarding to you the text of tonight's brownfield/superfund bill. The Governor and Senate are in agreement on this legislation (S.5694), but is unclear whether the Assembly will pass the bill today.
To view the text of this bill, go to the Senate Home Page, click on Bills and Laws, enter in s5694, and hit the status button.
It's a 102 page bill, and having gone through it quickly, it has some disappointing provisions (in addition to the $20 million fee package):
- for brownfield projects, it states that "all remedies shall be protective of public health and the environment including but not limited to groundwater according to its classification pursuant to section 17-0301 of this chapter (page 12, line 32). While the Gov's office says this merely means they will consider impacts on groundwater, consistent with the current VCP program, I believe that most environmental groups will read it as saying that VCP projects will achieve groundwater standards.
- it applies the Part 375 remedy selection criteria to brownfield projects, including SCG provisions, although it does add reference to land use.
- all VCP project not intending to meet unrestricted use standards will have to develop at least two remedial alternatives, one of which will be the unrestricted use cleanup. (11/52)
- for brownfield sites, exposed surface soils must be achieve unrestricted use levels, which would be applicable to the top two feet of soil for residential sites, and the top one foot of soil for commercial/industrial sites (unless deemed infeasible.) (16/37)
- it creates a statewide groundwater protection and remediation program "to address the long-term remediation of groundwater contamination" that will "govern all programs within the department." While the strategy will consider the actual use of groundwater as a water supply, "such use shall not exclude the need for remediation." (page 30, line 9)
- under this groundwater strategy section, it states that at VCP sites determined to pose a significant threat to the environment, the DEC will bring enforcement action against "known or suspected" RPs at VCP sites within six months of such determination.
- under Title 13, the DEC can order an RP to finance technical assistance grants of up to $50,000 per site.
- it creates a $120 million per year superfund program budget, to be financed by a combination of current revenues (including new and existing fee revenues) and EFC borrowing.
Looking at the big picture:
- it has negative components for existing businesses and superfund RPs, with new fees, new TAG grants, new liability for hazardous substance sites, (potentially) new liability under the groundwater strategy provisions. CERCLA defenses are added, but as a practical matter, we already had access to them since cost recovery is always done under CERCLA. At least some of the worst of the Governor's original demands (treble damages, state-level cost recovery and NRD claims) are out, as are state-level contribution claims.
- for brownfields, it creates "timetables" for VCP project reviews of around 100 days (although not binding on the DEC), use-based cleanup tables for soil (but the groundwater language is of real concern), several tax incentives, liability releases (that are applicable to oil spill sites), and probably some other provisions. However, it imposes new alternative remedy assessment language and new citizen participation language.
Governor Pataki has issued the executive order addressing efforts to influence procurement contracts with state agencies, authorities and other entities.
Key provisions include the following:
- It applies to contracts for goods, services and real estate valued at more than $15,000, and involving any state agency (including SUNY and CUNY), or any public benefit corporation, authority or commission with at least one member appointed by the Governor. It is applicable to solicitations for bids made 60 days or more after effective date of the Order (which would be August 15, 2003.)
- All bids or proposal documents submitted to affected agencies by contractors must list every person or organization retained or authorized by the contractor to attempt to influence the procurement process on the contractor's behalf, and whether those entities have a financial interest in the proposal.
- Covered agencies must make a "determination of responsibility" before awarding a contract; violations will preclude bidders from securing state contracts for a five-year period, unless it is determined that it is in the "best interest of the state" to do so notwithstanding prior violations.
- Agencies must record any contacts that reasonably appear to be an attempt to influence the procurement process by persons other than those specified by a contractor in their bid or proposal documents.
- All contracts will include a certification by the awardee that it has fully complied with the Executive Order. Agencies can terminate contracts if such certification is found to be intentionally false or incomplete.
- Agency employees are subject to unspecified disciplinary action if they fail to comply with the requirements of this Order.
- The Office of General Services is directed to issue written guidance within 45 days regarding implementation of this Order.
Our initial review of this Executive Order has raised a number of questions as to its applicability. These include: applicability to economic development incentive programs, impact on bidders' pre-qualification processes used by certain agencies, the need to identify specific employees of firms that engage in "procurement lobbying," the process for challenging findings of violation, and others.