Council testimony urges broad Superfund refinancing and reform


Director of Communications

The Business Council has urged the state Legislature to enact broad reforms to the state's Superfund program, including dedicated General-Fund financing, use-based cleanup standards, and liability relief for parties that complete state-approved site cleanups.

Ken Pokalsky, director of environmental and regulatory affairs, testified Wednesday before a legislative hearing on environmental issues in the Executive Budget.

The Council's recommendations for Superfund refinancing and reform include:

General-fund financing: Pokalsky noted that responsible parties, most of which are businesses, already pay more than 90 percent of the costs of cleaning industrial contamination, considering both responsible parties' cleanup costs and various industry fees. The other 10 percent comes from the state Superfund and is spent on abandoned properties.

To refinance Superfund, The Council supports a permanent approach using a dedicated stream of funds that would come entirely from the state's General Fund. These funds would be used to clean abandoned sites for which a responsible party cannot be found or identified. Parties that actually cause pollution would remain financially responsible for cleaning any contamination they create; other cleanups would be financed by all taxpayers, including business, through taxes paid into the General Fund, Pokalsky said.

The Council opposes proposals to create new taxes or fees on business to fund Superfund, he added. Some advocates have proposed new business taxes or fees. This so-called "polluter pays" notion is really just a "tax business" approach, because businesses would pay regardless of whether they were responsible for toxic pollution. This would unfairly penalize all businesses for contamination, Pokalsky said.

Use-based cleanup standards: New cleanup standards for soil, and a new process for dealing with groundwater, should both reflect the intended use of the site being cleaned, Pokalsky said.

"This approach provides high levels of protection for residential property and drinking water supplies, and requires that cleanup standards reflect potential impact on 'sensitive populations,' including children," Pokalsky said.

Liability relief: "Innocent" land owners and parties that complete DEC-approved cleanups should receive broad relief from future liability associated with cleanup issues, with limited opportunities to reopen these cases, Pokalsky said.

"Parties that are willing to cleanup and redevelop a contaminated property should be released from future liability for contamination they did not cause," Pokalsky testified.

Incentives: Pokalsky urged creation of targeted economic incentives to encourage nonresponsible parties to remediate and redevelopment contaminated property.

Expanded Superfund program: Pokalsky said The Council supports expanding the scope of the state's existing Superfund program to include "hazardous substance sites" that pose a significant threat to the environment, as part of a comprehensive reform and refinancing bill.

Advantages of this approach: The Council's approach would offer a number of benefits, Pokalsky said:

  • It would clean more sites, more quickly.
  • It would make sites safe for the general public and site users, and ensure that they are protective of environmental resources.
  • It would use more private dollars, and less tax dollars.
  • It would help return contaminated sites into beneficial use.

The Governor's proposal: Governor Pataki's proposal contains a number of provisions that The Business Council supports, Pokalsky testified. These include the proposal's approach to soil cleanups and its provisions for liability reform for "innocent landowners."

However, he added, reforms enacted should be even broader.

For example, he noted that the Executive Budget proposal makes no provisions on groundwater remediation, provides only a limited liability release for non-responsible parties conducting voluntary cleanups, imposes significant new fees on manufacturers, and creates "onerous - and unnecessary - new enforcement provisions."