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June 3, 2003

Council monitors discussions of Superfund/ brownfield bills; prospects for a resolution are uncertain at best

Legislative leaders and the Pataki administration have been discussing options for refinancing the state Superfund and adopting a statewide brownfield program, but prospects for a resolution are uncertain, according to Ken Pokalsky, The Council's director of environmental and economic development programs.

Governor Pataki, the Senate, and the Assembly have been promoting three separate bills with many significant differences, Pokalsky said. While the bills contain some positive provisions, The Council has formally opposed each. All three would impose new fees on businesses, and each has additional features that would impede the recovery of brownfield sites, he added.

The Business Council has long supported a comprehensive reform package for Superfund refinancing and brownfield redevelopment that:

The Governor's executive-budget proposal (S.1409-A/A.2109-A) includes a use-based approach to cleanup standards, which The Council supports. It also offers broad liability relief, and it would extend that to encompass the state's oil-spill program. But the Governor's bill fails to provide a clear process for project approvals, and it does not effectively deal with issues related to groundwater cleanup, Pokalsky said.

The Senate bill (S.2935-Marcellino), which the Senate has approved but which has no Assembly counterpart, has one especially attractive feature: It would spell out a timetable under which the state would be obliged to approve or reject cleanup plans. "That would give businesses certainty and predictability that they don't now have in deciding whether to invest in the risk of redeveloping brownfields," Pokalsky said.

But the Senate plan would also abandon cleanup standards based on intended use and instead impose "presumptive remedies" based on the historic use of the site, not its intended use.

The Assembly bill (A.7507-DiNapoli), which has no Senate counterpart, also would impose presumptive remedies that would take cleanup standards far beyond the other proposals and the state's current, informal, voluntary cleanup program, Pokalsky said.

Both legislative bills would impose cleanup requirements that are more convoluted and more stringent than current practices, and both would undercut the current ability of the state Department of Environmental Conservation (DEC) to negotiate cleanup agreements, Pokalsky said.

"In fact, they would impose standards that could be even harder to reach than those that affect responsible parties cleaning Superfund sites," Pokalsky said. "In a state where policies already make it unattractive to risk redeveloping brownfields in far too many cases, these bills would move our policy in exactly the wrong direction," he said.