A.449 (Brodsky)

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This legislation - entitled the "Comprehensive Environmental Cleanup Act" - would enact a series of one-sided "reforms" to the state's superfund program, resulting in significant additional costs for both the state and responsible parties. It would create four separate, overlapping and largely uncoordinated enforcement mechanisms for dealing with contaminated sites. It does nothing to address uncertainty regarding cleanup standards from brownfield sites. Most important, it would not produce meaningful improvements in the protection of public health or the environment.

For these reasons, and because of the specific issues detailed below, The Business Council opposes adoption of A.449.

• The proposed cleanup standard would impose significant additional costs on both the private sector and on state-financed cleanup projects. This new standard of "complete cleanup of the site to original conditions" would be imposed at most sites regardless of the public health or environmental benefits (or lack thereof), technical practicability or cost. In doing so, this bill would abandon the approach currently used under both the state and federal remediation programs whereby remedy selection is based on environmental and public health protection, technical feasibility and other factors
• This more costly cleanup standard would be imposed on any entity that owned a site after contamination occurred, regardless of whether that entity had any actual involvement in the generation or disposal of the contamination. This bill remains silent on the issue of liability reform for municipalities and lenders that foreclose on property, and for innocent landowners whose properties have been contaminated by third parties.
• Under the provisions of A.449, site owners could be subject to four separate enforcement mechanisms, each working independent of one another. In addition to the DEC's authority under Title 13, the Attorney General acting on his or her own initiative would be authorized to force site cleanups - even at sites that would fall below the threshold for DEC enforcement action. Further, private citizens could seek judicial orders to compel cleanups - regardless of whether such person in any way has been adversely affected by the site. Under a separate provision, individuals who experienced any effect related to the actual or substantial threat of a release of hazardous substances could initiate a civil action seeking the implementation of "appropriate measures to abate and remediate any release or to prevent such release." The bill makes no provisions for the coordination of the DEC's and the Attorney General's enforcement actions, and no provisions baring additional state enforcement once a consent order is entered into by the DEC. Likewise, citizen suits could be commenced even if a site cleanup agreement is under negotiation between a responsible party and the DEC.
• The bill would result in the application of at least four different thresholds for enforcement action. In most instances, cleanups would be triggered by the DEC's finding that a site poses an "imminent and substantial danger to the public health, welfare or environment" - a new standard that is left undefined in A.449. However, any level of threat to public health and the environment would be sufficient for the Department of Law to exercise its new, independent authority to order cleanups. In the section of Title 13 which authorizes the DEC to conduct site cleanups without first seeking participation by responsible parties, this bill would retain the existing "significant threat" threshold. Finally, private lawsuits could be launched by any individual that has experienced any effect related to the actual or threatened release of hazardous substances.
• The bill would simply add natural resource damage claims to the list of "recoverable expense" to which the DEC would be entitled. Under current law, these recoverable expenses include actual state disbursements for site investigation and cleanup work, as well as oversight costs. In doing so, it seems that the bill sponsors are trying to create a new state-level statutory cause of action for natural resource damage claims, even though the bill provides absolutely no guidance as to how such damages are to be assessed.
• The bill would give the DEC the right to take unilateral action related to the threat of release of hazardous substances, including the removal of hazardous substances (i.e., materials and products) from a site. This is an unwarranted and unnecessary expansion of the DEC's existing authority under the state's chemical bulk storage program. For example, 6 NYCRR Part 596.6 gives the DEC authority to order the inspection of tanks when a release has occurred, is suspected or appears probable. Tank owners are obligated by law to take any necessary corrective actions.
• The bill contains provisions that authorize the DEC to order a party to conduct site cleanups, and override that party's right to a hearing, even when such party has made a prima facia demonstration to the DEC that it is not a responsible party for the site.
• The bill imposes a new statutory standard of joint and several liability. The Business Council opposes this provision, and strongly recommends that any effort to craft a statutory liability scheme needs to address issues of equity in instances where property owners did not contribute to contamination, and where there are multiple responsible parties at a site.
• While The Business Council has supported the state superfund program's existing citizen participation requirements - even though they have no basis in Title 13 - we oppose provisions in A.449 that authorize "impacted citizens" to attain party status in remedial plan negotiations, and provisions granting broad authority to the DEC to compel responsible parties to finance "technical assistance grants" to interested citizens.

Rather than promoting a balanced reform package, A.449 presents a series of onerous proposals designed to impose additional obligations and costs on responsible partes, regardless of whether such provisions result in any increased protection of public health and the environment, and regardless of whether such provisions will divert public or private remediation dollars away from more productive uses.

For these reasons, The Business Council respectfully recommends that the Assembly vote against adoption of A.449.