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April 13, 2000

Council voices opposition to new 'brownfield' legislation

The Business Council has told state legislators that it opposes a new brownfield package proposed by the "Brownfield Coalition."

The bill "contains a number of innovative provisions that could be part of a final legislative package" on brownfield reform, Ken Pokalsky, The Council's director of environmental and regulatory programs said in an April 7 memorandum to the state Legislature. These include the idea of refundable tax incentives for cleanups.

Nonetheless, the bill (S.7296 Marcellino/A.10408 Lopez) raises too many concerns, Pokalsky said.

"We look forward to working with members of the state Legislature, and with members of the Brownfield Coalition, to address these crucial issues and work toward passage of comprehensive brownfield/Superfund legislation," he wrote.

The Business Council's concerns with the bill include:

Clean up standards: The bill fails to provide essential reforms to cleanup standards.

The Business Council supports adoption of risk-based standards for remediation of both soil and groundwater, Pokalsky said. Standards should vary according to the intended use of the site, with different standards for residential, commercial, and industrial uses.

"Under this approach, residential sites would be cleaned up to highly protective levels regardless of where they were located," he wrote. "Nonresidential site standards would be based on different exposure assumptions, but would also assure the safety of public health and the environment."

He noted that the brownfield coalition bill does not adopt straightforward risk- and use-based standards, and that it bases its entire groundwater remediation program on the goal of meeting drinking-water standards, regardless of the likelihood or feasibility of using groundwater for drinking water. That, said Pokalsky, is "an approach that is more rigid than current state law.

"Contribution claim": The bill includes an excessively broad "contribution claim" provisions that could increase both program costs and litigation. Specifically, the bill would permit any party conducting cleanup to sue in state court for a "contribution" to that effort. Volunteers can elect to remove all traces of contamination from the site, regardless of cost or practicality, and can recover its costs from so-called "responsible parties," a category that includes previous site owners that caused none of the contamination.

"This provision could significantly increase costs associated with brownfield projects, and result in a considerable increase in litigation over cleanup liability," Pokalsky noted.

New enforcement powers: The bill gives the state Department of Environmental Conservation (DEC) new enforcement powers that are both onerous and unnecessary. Specifically, the bill would create a new enforcement mechanism that puts a potential responsible party at risk of "treble damages" before the state has even determined who is liable for contamination at the site.

The Department already has authority to issue remediation orders after an administrative hearing, and can impose substantial civil penalties against entities that fail to comply with such orders. "There is no need or justification for the additional enforcement mechanism proposed," Pokalsky said.

Financing: Because the bill does not provide for general-fund financing to meet its $2.5 billion pricetag, pressure for significant new taxes and fees targeting business is likely.

The brownfield coalition has projected a $240 million annual pricetag for its proposal, which is roughly three times the state's current annual cash outlay for the Superfund program, Pokalsky noted. Neither the bill nor the coalition's supporting documents have said how this program would be financed. The Business Council is concerned that the bill would require onerous new fees on the private sector, especially manufacturers.

Impact on economic development programs: The bill would also dramatically alter the effect of many of the state's economic development programs by giving brownfield projects priority regardless of their effect on job creation or other economic results.

The bill would require the state give priority to projects within "land reuse opportunity areas" in allocating all state assistance under the state's programs for infrastructure development, capital development, human resource development, business assistance, job training, and job-placement, Pokalsky noted.