The Business Council opposes this legislation that would allow the state to impose liens on the real property and personal property of responsible parties at state superfund sites, in instances when state funds have been spent on site remediation.
This proposal, in effect, establishes a statutory “joint and several” liability standard, in that it would allow the Department to target a single class of potentially responsible parties (PRPs) at sites – namely, site owners – for the recovery of all state remedial and/or oversight costs. This approach is especially inappropriate when the current property owner was not responsible for the generation or disposal of hazardous wastes at a site.
In giving the Department an incentive to target the site owner for all cost recovery, this lien authority would allow the Department to forgo cost-recovery action against other identifiable, financially viable responsible parties – leaving it up to the owner to seek contribution from these third parties.
Authorizations of liens would also reduce the Department's incentives to keep their oversight and/or remedial expenditures to a reasonable level, since the lien – or even the threat of imposition of a lien – would give them significant additional leverage over the site owner. And, again, the owner may be just one of many responsible parties at a site who should be contributing to a cleanup.
At most, the use of a lien should be a measure of last resort, and used only in instances where the site owner actually contributed to the on-site contamination problems, when the site owner has refused to participate in a cleanup or to reimburse the state for its response or oversight costs, and once the state's financial claims have been validated through administrative or judicial review.
For these reasons, The Business Council respectfully opposes approval of S.4952/A.1975.