The Business Council appreciates the sponsors' and the Assembly's interest in developing programs to encourage the reuse of contaminated properties. However, The Business Council opposes this bill, not because it represents a different approach than the one we have advocated, but because it will result in a costly, administratively burdensome process, that will fail to achieve the cleanup and redevelopment of the economically distressed areas targeted by this bill. Moreover, it fails to provide any degree of liability protection or redevelopment incentives for contaminated properties outside of the areas designated by this bill.
The Business Council believes that a more effective, more comprehensive, and equally protective statewide voluntary cleanup program can and should be adopted this session, in conjunction with a superfund refinancing and reform package - a view shared by the Administration, the State Senate, and a number of other business and environmental interests.
While this legislation may represent a useful step in the legislative negotiating process, it fails to provide the comprehensive brownfield/VCP reform needed in New York State. For these reasons, and the more detailed issues discussed below, The Business Council recommends against approval of A.9263.
- Program Scope: The liability protections - and the redevelopment incentives - proposed in this bill only apply to projects in economically distressed areas, defined as having 20 percent "poverty rates," unemployment rates 25 percent above state averages, or that have lost 5 percent of their population. The bill provides no liability protection or redevelopment incentives whatsoever to entities doing voluntary cleanups at sites outside of these designated areas, even thought there is widespread agreement that such statewide reforms make sense. As such, this bill is more restrictive than the state's current, informal, voluntary cleanup program, which has provided liability releases at VCP sites throughout the state.
- Cleanup Goals: The bill establishes cleanup "goals" for voluntary cleanup efforts that are more stringent than those established in the state superfund statute and applied to responsible parties. This bill states that the goal of all brownfield cleanups is to restore sites to "pre-disposal conditions" where "feasible," and to achieve existing state groundwater (e.g., drinking water) standards, irrespective of their feasibility. Neither pre-disposal conditions, nor achievement of water quality standards, is required under the current superfund law. (Note that the state's superfund regulations set a goal of "pre-release" conditions, it only applies "where feasible and authorized by law;" i.e., only at sites contaminated by the illegal management or disposal of hazardous wastes.) As such, under this bill, a non-responsible party could be required to achieve groundwater standards at the site, regardless of area-wide groundwater contamination or the potential impact of such contamination on water supplies or surface waters. Further, the "presumptive remedies" authorized in this bill - described as a means to expedite cleanup projects - are based on the achievement of these more stringent remedial "goals." In contrast to this approach, the Governor's superfund working group, the "Brownfield Coalition," and the Business Council all recommended a cleanup goal of "protection of public health and the environment," and cleanup standards that consider the future use of a site. The Business Council and others have also endorsed the use of very conservative "target risks" for both cancer and non-cancer health effects in setting these cleanup standards. We believe that our approach is as protective of public health and the environment as the "goal" established in this bill, and provides a far more straightforward approach to determining what remedial activity will be required at a brownfield site
- Remedy Selection: On the one hand, the bill offers pre-approved "presumptive remedies" as a way to expedite site cleanup projects. In part, these presumptive remedies are intended to provide an alternative to the detailed "feasibility study" usually required under the superfund program. However, the bill establishes a hierarchy of preferred cleanup approaches (e.g., removal is favored over on-site treatment), and requires that a participant proposing a lower-ranked presumptive remedy justify that decision to the Department. These procedural requirements seem to offer limited relief from the traditional feasibility study approach.
- Gaps in Liability Protection: The bill establishes a liability release reservation, or "reopener," for additional contamination discovered at a site that is inconsistent with the requirements of the site remedial plan. If the remedial plan is based on the bill's goal of "pre-disposal conditions" or the achievement of groundwater standards, this liability reopener will be triggered, even if the additional contamination poses no real threat to public health or environmental receptors. As written, this reopener could also subject the site owner to additional liability due to contamination that has migrated onto the property from off-site sources.
- Citizen Participation: The Business Council agrees that public input is a necessary component of all remedial programs, and have supported statutory "citizen participation" provisions as well as the funding of technical assistance grants. However, this bill establishes an extensive "citizen participation" requirement on all brownfield site projects, regardless of their potential impact on public health and the environment. Additional citizen participation requirements are also required before a site can be made eligible for the economic development incentives provided in the bill. At the same time, the bill also subjects these projects to review under the State Environmental Quality Review Act. These requirements will add significantly to the time and costs required to obtain approval for voluntary cleanup projects, will add to the uncertainty regarding the ultimate approval of proposed development projects. These procedural requirements will be especially burdensome on the less marketable sites that are supposed to be the focus of this legislative program. We urge the Assembly to consider more reasonable timetables and citizen participation requirements.
- ESDC Program Preference - The Business Council supports targeted incentives for the redevelopment of brownfield sites, and we have already endorsed several of the incentives included in this bill. However, we oppose the provision in this bill that requires the Empire State Development Corporation to give funding preference to projects within these targeted brownfield, regardless of the relative merit of such projects in terms of creation or retention of new jobs. We oppose this mandated preference for projects in narrowly defined brownfield areas.
- Site Restrictions - The bill imposes additional restrictions on the availability of redevelopment incentives. For example, it only applies to "abandoned or underutilized" property, precluding the use of this program to facilitate the sale of existing businesses to new owners, where the environmental liabilities of the current owners/operators impose a significant impediment to the transaction. It also excludes any property subject to "any" state or federal environmental enforcement action, regardless of the significance of the alleged violation, again limiting its applicability to market sites where the current owner or operator is failing to meet environmental standards.
- Title 13 Liability - The bill creates new state-level liability for responsible parties that goes beyond existing provisions of the state's superfund laws (ECL Article 27, Title 13). It proposes to make responsible parties - as defined in this bill - responsible for "all costs of removal or remedial actions incurred by the state...not inconsistent with the national contingency plan." Since the existing state superfund provisions - and existing DEC financing mechanisms - only address state cleanup efforts at designated "significant threat" sites, the full purpose of this liability provision is unclear. In part, it would allow the state to recover site investigation costs at sites that end up not being subject to the state's Title 13 enforcement authority. While similar cost-recovery provisions appear in the federal superfund statute (CERCLA), we see no need for such language to be part of a brownfield redevelopment bill.
The Business Council appreciates the Assembly's interest in fashioning effective brownfield/voluntary cleanup legislation. However, far more effective incentives can be offered that still provide high levels of protection for public health and the environment.
For these reasons, The Business Council opposes adoption of A.9265.