A streamlined "superfund" program and a statutory brownfield program can result in more sites being cleaned up, more quickly, using private sector rather than public sector funds. These reforms can maintain high levels of protection of public health and the environment, while reducing barriers to the continued use and/or redevelopment of once-contaminated sites.
While S.6257/A.9759 includes several positive provisions, it will fail to provide the comprehensive reforms needed in New York State.
Moreover, a number of provisions in this proposal would make the state's current remediation program more onerous with respect to responsible parties that are attempting to negotiate cleanup agreements with the state, and less attractive to "volunteers" that want to remediate and redevelop contaminated sites.
For these reasons, The Business Council respectfully opposes adoption of S.6257/A.9759 in its current form.
Our most significant concerns regarding can S.6257/A.9759 be summarized as follows:
- The Business Council supports the adoption of a statutory "voluntary cleanup program" that through changes in site investigation, remedy selection and environmental liability provisions, and through targeted financial incentives will encourage the cleanup and reuse of contaminated sites. However, the brownfield program proposed in this bill would be more lengthy, more costly, and less competitive than those adopted by other states. We question how effective it would be in promoting the cleanup and reuse of contaminated property.
- The Business Council strongly supports the use of a risk-based approach to site remediation, with risk assessments based on the future use of a site and other generally accepted risk factors. However, this bill would fail to achieve necessary reforms related to soil cleanup standards and groundwater remediation.
- The Business Council supports the adoption of a "pay as you go" approach to funding the state's remedial programs, but we oppose the excessive business fees included in this bill. Since state-financed cleanups result in broad public health and economic benefits, these expenditures should be financed through broadly-based general revenues, not narrowly targeted business fees.
- The Business Council believes that appropriate enforcement mechanisms are a key component of the state's environmental regulatory programs. However, this bill would unfairly punish responsible parties that have legitimate disagreement with the Department about the scope of a cleanup or their liability for a site. The proposal to authorize cost recovery plus penalties of up to three times the state's expenditures at a site are clearly unnecessary considering the state's existing enforcement authority and the "superfund" program's record on securing cleanup agreements with responsible parties.
- The Business Council believes that the state's environmental liability standards should be made more fair. To achieve this goal, we support the adoption of recent federal liability reforms related to lenders and developers, as well as the federal "innocent landowner" defense. However, these reforms are not fully established in the proposed bill.
- The Business Council supports expanding the state's existing remediation program to include "hazardous substance sites" that pose a significant threat to the environment, but we have always conditioned this support on the adoption of meaningful reforms that make the program more cost-effective, affordable and fair. This bill does not provide sufficient reforms to warrant expansion of the existing state superfund program to include additional sites.
- The Business Council supports giving responsible parties a release from future liability with limited reservations or reopeners once they have successfully completed a state-approved cleanup. Further, true "volunteers" should be released from future liability at a site for contamination they did not cause. However, the program bill gives inadequate liability protection for non-responsible party "volunteers," and gives the Department extremely broad discretion to reopen both consent orders and voluntary agreements.
The Business Council can provide a more detailed discussion of these and other issues of concern upon request.
In closing, The Business Council looks forward to working with the Administration, and the Senate and Assembly on a superfund/brownfield package that addresses the concerns listed above. These types of reforms will promote the timely, protective and cost-effective remediation of sites by responsible parties and "volunteers." These reforms also would leave the state with significant financial resources and enforcement mechanisms that would allow it to address abandoned sites and true "recalcitrant" responsible parties.
However, we respectfully recommend against approval of S.6257/A.9759, as currently proposed.
To view any Business Council Legislative memo, or the bill text, click on the "Legislative Memo Page" link below.