NY Governor Proposes Improved State Cleanup Programs

["cpeo@cpeo.org" <cpeo@cpeo.org>]

The Governor's has included some brownfields provisions in his proposal:
tax credits, the creation of a new Brownfield Redevelopment Area Grants
Program, higher penalties, and expanded public participation. These are
mentioned in the second half of the following press release.

Tony C. 

================================
http://www.state.ny.us/governor/press/year99/june16_2_99.htm
FOR IMMEDIATE RELEASE: June 16, 1999 

Governor Proposes To Improve, Finance State Cleanup Programs 
                           
Encourages Private Investment in Waste Sites, Adds Staff, Expands Eligibility 

Governor George E. Pataki today proposed legislation to improve the State's
programs to clean up hazardous waste, petroleum and other contamination,
including proposing a detailed spending plan to pay for the programs. 

"This legislation maintains the most stringent environmental and public
health standards in the nation while making common-sense reforms that will
help us remove more contamination from the environment and return more
sites to productive use quickly and safely," Governor Pataki said. 

"This proposal will help us revitalize urban neighborhoods by bringing jobs
and opportunities back to our cities and get abandoned properties that for
too long have been forgotten back on the tax rolls," the Governor said. 

"It will expand the types of sites eligible for cleanup, encourage private
investment in contaminated sites, provide tax incentives to innocent
parties choosing to clean up and redevelop properties, impose stringent
penalties on polluters, add staff to oversee cleanups and provide greater
information to the public about contaminated sites. 

"New York was the first state to create a Superfund program. Twenty years
later, we've learned valuable lessons about running effective cleanup
programs. These reforms again will return New York to the forefront of the
nation in cleaning up environmental mistakes of the past." 

Paul J. Elston, Board Chair of the New York League of Conservation Voters,
said, "We are convinced the new regimen of clean-up standards will produce
better and more uniform clean-ups across the state and will remove more
contaminants from the environment than the previous programs. The Area-wide
Brownfields Redevelopment program holds great economic opportunities for
inner cities. Finally, we are pleased the Governor put forth a specific
proposal on business fees to meet the 50/50 split in funding between the
General Fund and special revenues." 

Jim Tripp, general counsel to the Environmental Defense Fund, said, "We
strongly support expanded funded for the State Superfund program, inclusion
of hazardous substance sites in the program, clarification of liability
rules, development of clear rules on cleanup standards based on use subject
to certain restrictions and incentives for the remediation and
redevelopment of thousands of acres of brownfields in the State,
principally in its older urban areas. The Governor's proposed bill goes a
long way to address these basic concerns." 

"We strongly support the Governor putting this bill forward at this time,"
Tripp said. "We hope that it will foster a productive dialogue with both
the Assembly and Senate, as well as the public, on these issues and lead to
much-needed legislation and funding." 

The Governor's bill calls for changes to the State's Superfund Program,
which pays for hazardous waste site cleanups, and the Oil Spill and
Voluntary Cleanup programs and is largely based upon the recommendations of
the Superfund Working Group. The 17-member group of government, business
and environmental leaders was formed last year by Governor Pataki to make
recommendations for refinancing and improving the programs. 

The Governor's bill endorses the "polluter pays" principle, calling for
stringent penalties on polluters who refuse to clean up hazardous waste
sites, a 50-50 split between taxpayers and industry to pay for the programs
on a pay-as-you-go basis and provides liability relief for and financial
incentives to parties not responsible for contamination at sites to further
encourage the clean up and revitalization of New York's brownfields. 

Albany Mayor Jerry Jennings said, "The Governor's Superfund Working Group
has provided him with excellent recommendations to accelerate the State's
cleanup of contaminated sites and we applaud his proposal of the necessary
legislation to implement those recommendations. This legislation
aggressively tackles a statewide problem and gives us the ability to
reclaim important land resources for future generations." 

Schenectady Mayor Albert P. Jurczynski said, "I am very excited about
Governor's proposed legislation. It recognizes our need to accelerate
cleanup of contaminated sites to reasonable standards, which is essential
to the revitalization of Schenectady. The provisions of a Dedicated Fund,
Technical Assistance Grants, the acceleration of Brownfields Redevelopment
and Brownfields Area Grants are of particular interest to us in our efforts
to put unused land back on the development rolls. These are just the right
things this city needs." 

The Governor's bill establishes a remedial program fund that will be used
to finance the State Superfund, Voluntary Cleanup, and Oil Spill programs.
The Superfund Working Group projected the total cost to the State for the
three cleanup programs to be an estimated $130 million in state fiscal year
2001-02 and that the costs will rise in future years. These costs include
State-funded cleanups, additional program staff and enhanced community
participation activities. 

The Governor's bill provides that half of the program funds will come from
the State General Fund and half by fees on industry. For State fiscal year
2001-02, the General Fund will provide $69 million with the remaining $69
million funded by: 

* an 8-cent per barrel fee on petroleum and increasing petroleum bulk
storage fees to raise an estimated $26 million; 

* cost recoveries, fines and penalties against polluters to provide an
estimated $11.6 million;
 
* increasing the hazardous waste generator fees to provide an estimated
$18.4 million; and 

* assessments and regulatory program fees currently used to pay the debt
service on the 1986 Environmental Quality Bond Act (EQBA) to provide an
estimated $13 million.

Under the Governor's legislation, the industry fees and the State's General
Fund contribution will be deposited in a new remedial program transfer fund
and dedicated to refinancing the State's remedial programs. The fees will
be reviewed periodically to ensure that adequate funds will be available
for the State's remedial programs. 


Other provisions of the bill include: 

     Brownfield Redevelopment: The Governor's legislation seeks to
accelerate the redevelopment of brownfields, which are abandoned, idled, or
under-used properties where expansion or redevelopment is complicated by
real or perceived environmental contamination. 

It recommends tax credits to innocent parties that voluntarily clean up
sites. A brownfield redevelopment tax credit for remediation and any
improvements to the site and property will be allowable under the five
major tax articles of the State: franchise taxes on transportation and
transmission companies, agricultural cooperatives and utilities; general
business corporations; personal income tax; banking corporations; and
insurance corporations. The base credit is 10 percent (corporate) and 8
percent (personal income), with each increased 2 percent if a site is
cleaned up to the most stringent soil levels. 

The Governor's bill also would establish a new Brownfield Redevelopment
Area Grants Program to be administered by the Department of State to help
local governments or community groups develop comprehensive plans for
addressing large, contiguous areas containing several brownfields. The
program would provide grants to municipalities and community-based
organizations to identify brownfield areas, assess contamination and plan
for redevelopment. 

Higher Penalties: The Governor's bill would impose treble damages on a
responsible party that refuses to remediate a property, requiring the State
to do so. For example, if the State is forced to spend $1 million to clean
up a site because the responsible party refused, the responsible party
could be forced to pay up to $4 million to the State -- $1 million for the
clean up and $3 million in penalties. Currently, no such penalties are
authorized. This will provide greater leverage to compel recalcitrant
parties to pay for their pollution. 

Expanded Eligibility: The Governor's bill would give DEC the authority
under the State Superfund Program to clean up hazardous substance sites,
which are contaminated with byproducts of obsolete manufacturing processes.
DEC estimates that 118 to 161 hazardous substance sites may pose a
significant threat to public health and the environment and that the
State's share of the cleanup costs for these sites is $252 to $326 million.
To encourage remediation of hazardous substance sites with private funds,
responsible parties would have -more-one year to commit to address
hazardous subs tance sites under the Voluntary Cleanup Program. 

Expanded Public Participation: The Governor's legislation establishes a
Technical Assistance Grants program to provide grants of up to $50,000 per
eligible site to help municipalities and community groups evaluate and
provide comments on site information developed by the State and the
responsible party. 

The Governor's bill also recommends new and expanded public participation
and public notification requirements for sites cleaned up under the
Voluntary Cleanup and Oil Spill programs, including requiring, for the
first time, public notification and comment on long- term oil spill cleanup
plans.

Cleanup Standards: To provide certainty, predictability and consistency
among the State's many cleanup programs, the Governor's legislation
establishes the same cleanup objective for the Superfund Program, the
Voluntary Cleanup Program, and long-term remediations under the Oil Spill
Program. 

The bill provides that the cleanup goal will be "protection of public
health and the environment and, at a minimum, elimination or mitigation of
all significant threats to public health and the environment." 

The bill provides that the current, future or reasonably anticipated land
uses of a site and surrounding properties will be one of nine criteria used
when proposing, selecting or approving a cleanup plan. Consideration of
land uses is consistent with U.S. Environmental Protection Agency practices
at federal Superfund sites. 

The bill also establishes a technical advisory panel to recommend soil
cleanup levels and methodologies that would be protective of public health
and the environment. The panel has 18 months to provide its recommendations
to the State Department of Environmental Conservation (DEC) and the State
Department of Health (DOH), which would then promulgate soil cleanup
standards in three categories: Category 1 would allow a site's use to be
unrestricted; Category 2 would allow a site's current, intended or
reasonably anticipated use (e.g. industrial, commercial and residential) to
occur; and Category 3, would be a process to establish standards on a
site-by-site basis using site-specific data that would assure standards are
protective for the site's current, intended or reasonably anticipated use.
The bill provides financial and legal incentives for parties to clean up
sites to Category 1 levels. 

All soil cleanup levels would use an excess cancer risk of "1 in 1
million," meaning if the public was exposed to a specific level of
chemicals that were left in the soil after the cleanup, one person in one
million would face an elevated risk of cancer. This is the most
conservative risk level used in the country. For comparison, EPA uses a
risk range for carcinogens of 1 in 10,000 to 1 in 1 million at the most
highly contaminated sites in nation -- Federal Superfund sites. 

Residential Presumption: The bill provides a presumption that any soil
contamination will be cleaned up to residential soil cleanup levels at
"Class 1" and "Class 2" -- the most contaminated Superfund sites -- that
are not presently in active use, being remediated by responsible parties,
and are adjacent to residential areas. This presumption may be overcome by
a written finding of the DEC Commissioner after adequate citizen
participation. 

Liability Reforms: The bill calls for common-sense reforms used under
federal Superfund and existing DEC practices to focus liability on true
polluters, free innocent purchasers from liability and create strong
incentives for thorough site investigations and voluntary cleanups. The
reforms would not relieve polluters of any financial or legal
responsibilities. 

The bill retains the "polluter pays" principle: The party responsible for
contamination should pay for cleanup. It adopts liability limitations and
exemptions contained in the federal Superfund that have proven to be fair
and feasible in an attempt to maintain
liability for polluters and relieve innocent owners of some liability,
including a liability exemption for municipalities, lenders, fiduciaries
and IDAs that take title to properties they had no role in polluting. 

The bill also provides that DEC, on behalf of the State, will grant a
covenant not to sue parties that have conducted cleanups. The State would
reserve its right to pursue these parties for cleanup costs if the cleanup
was not done appropriately or in cases
of fraud.