Legislative Commission on Resource Needs of New York State and Long Island |
Fall/Winter 2003 • Thomas P. DiNapoli, Chairman • Volume II |
Dear Reader, This past legislative session was one of the most interesting that I have experienced in Albany. In the final hours of the 2003 legislative session, the Assembly passed legislation that refinances the State’s Superfund Program and establishes New York’s first statutory Brownfield Cleanup Program. This landmark legislation was the result of intense negotiations that ended years of passionate debate. The legislation, which the Senate joined in passing in September, was signed into law by the Governor on October 9th (Chapter 1 of the Laws of 2003). Passage of this law is among one of the most important legislative successes I have experienced. It will protect public health and the environment, as well as stimulate community investment, downtown revitalization and economic development. I am particularly proud of the requirement for a new Groundwater Protection Program, which requires the New York State Department of Environmental Conservation (DEC), in consultation with the Department of Health (DOH) to develop a long-term strategy for remediating groundwater contamination and protecting groundwater from future degradation. In an unprecedented move, the Assembly and Senate working together developed a state budget that restored funding to many critical programs that had been cut in the Executive’s budget and later overrode the Governor’s vetoes. This action allowed continued funding for those programs historically included in the Environmental Protection Fund and provided increases for several water quality related programs. In addition to the Superfund Refinancing and Brownfield Cleanup Act of 2003, we were successful in enacting laws creating an Invasive Species Task Force, providing enforcement of the Long Island Pine Barrens Law and In the next Legislative Session, I expect the continuing concerns of the economy and its impact on the State budget to dominate deliberations. I am hopeful, however, that we will be able to move forward on other initiatives including legislation promoting water conservation and pollution prevention, regulating pesticide use, storing de-icing compounds, providing for septic tank inspections and protecting wetlands. I also will be monitoring the implementation of the new brownfield law to ensure that the regulations are promulgated in a timely manner. As always, I welcome your comments and suggestions. My staff can be contacted at (518) 455-3711 or (516) 829-3368.
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Assemblyman DiNapoli with Governor Pataki at the Brownfields Bill signing ceremony. |
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In the final hours of the 2003 legislative session, the Assembly passed legislation (A.9120) that will refinance New York State’s Superfund Program and establish New York’s first statutory Brownfield Cleanup Program. The Senate passed the measure in September and the Governor signed it into law on October 9th – enacting Chapter 1 of the Laws of 2003. This law refinances the New York State Superfund through $120 million in annual bonding while maintaining the historic 50/50 industry/public contribution to finance such bonds. At this level of funding it is expected that all of the sites listed on the NYS Superfund will be cleaned up in 10 years. New York State established the nation’s first Superfund Program in 1979 in response to the tragedy at Love Canal. The 1986 Environmental Quality Bond Act (EQBA) provided $1.2 billion in funding and resulted in the remediation of more than 800 contaminated sites across New York. By March 31, 2001, however, monies from the EQBA were fully committed, with an estimated 800 Superfund sites still in need of investigation and remediation. The scope of the Superfund Program is expanded to include hazardous substances sites, allowing hundreds of sites that have historically been excluded to now be addressed. Other provisions would establish liability exemptions for municipalities, fiduciaries and lenders; create a Technical Assistance Grant (TAG) program for affected community groups; and strengthen the maintenance and enforcement of institutional and engineering controls used at sites with elevated levels of contamination remaining after remediation. The new Brownfield Cleanup Program strikes a fine balance between the need to encourage redevelopment by creating a program that is predictable and efficient while retaining a preference for cleaner remedies. To encourage participation, innocent owners and "volunteers" (persons not responsible for the contamination) are relieved from responsibility for contamination that has migrated off-site. Predictability is enhanced by providing for the determination of reasonably anticipated future use of the site up-front and allowing such use to be considered in the evaluation and selection of remedial alternatives. A schedule for DEC review is established in statute, and DEC is directed to create three generic tables of soil cleanup standards, one each for unrestricted, commercial, and industrial use. A liability release from the State is provided upon successful completion of the program, and the Superfund liability exemptions described above provide additional incentives for entering the program. Tax credits, valued at an estimated $135 million annually, will be available for remediation and redevelopment of sites, with an increase in the credits for those who cleanup to residential standards without long term maintenance and monitoring, and sites located in environmental zones which are designated by the State based on poverty and unemployment rates. The new law provides the most protective cleanup standards in the nation by requiring all remedies to protect groundwater for its classified use and be protective of sensitive populations, including children. At all sites, highly concentrated sources of contamination must be removed and/or treated to the greatest extent feasible. Volunteers must take all feasible measures on-site to control the migration of contamination off-site, while responsible parties must cleanup both on- and off-site. DEC is directed to make best efforts to undertake the off-site remediation at significant threat sites being remediated by a volunteer concurrently with the on-site remediation. The level of risk associated with the cleanup standard for any individual contaminant listed in the generic tables may not exceed one-in-one-million for cancer or a hazard index of one for non-cancer effects. For the first time, a comprehensive statewide Groundwater Protection and Remediation Program is established that requires DEC, in consultation with DOH, to develop a strategy to address the long-term remediation of groundwater contamination. The program is further enhanced by the establishment of a Geographic Information System (GIS) that will provide a centralized, comprehensive and publicly accessible accounting of contaminated sites across the state. Throughout the cleanup process, opportunities for citizen participation are provided, and Technical Assistance Grants of up to $50,000 are available to affected community groups at significant threat sites. To ensure long-term maintenance and enforcement of institutional and engineering controls, annual certification is required, as is the execution of an environmental easement and a requirement that municipalities notify DEC before approving building permits for a restricted use site. Community organizations have access to grants for neighborhood pre-planning, planning, and site assessment activities under a new Brownfield Opportunity Areas planning program financed out of the $15 million that is provided to support the Brownfields Program. Once Brownfield Opportunity Area Plans are adopted, cleanups and redevelopment in conformance with such plans would be given the highest priority for funding under the 1996 Clean Water/Clean Air Bond Act and the Environmental Protection Fund. Bond Act reforms allow municipalities to receive up to 90% of eligible cleanup costs from the state, and to keep any profit they realize upon the sale of a site following remediation. More than $168 million dollars is still available under this program. By cleaning up brownfield sites and refinancing the State’s Superfund program, not only will environmental threats be removed from communities throughout the State, but local economies will also be revitalized. This momentous agreement will provide tremendous benefits for generations to come. For further information concerning the new law, please contact the Department of Environmental Conservation or the Commission. |
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One of those programs for which funding was restored was the Environmental Protection Fund (EPF). The Governor’s budget recommendations proposed to off-load a number of programs into the EPF, diverting funds intended to improve environmental quality to administrative programs normally paid for out the State’s general fund. The Budget approved by the Legislature, provides $125 million of EPF funding. Of this amount, over $75 million is directed to programs that impact water quality and watershed protection, an increase of approximately $20 million over the Governor’s budget proposal. These appropriations include $10.1 million for non-point source pollution control, $12 million for waterfront revitalization and $30 million for open space preservation. As part of the Superfund Refinancing and Brownfield Cleanup Act of 2003 (see separate article in this newsletter) it is anticipated that $135 million will be provided annually for the cleanup of contaminated sites. Of this, $120 million will be available for the State Superfund Program and $15 million for the new Brownfield Opportunity Areas Grant program, technical assistance grants to community based organizations to participate in the Brownfield Cleanup program, the development of a Geographic Information System on the State’s groundwater resources, and other brownfield program purposes. The new funding will also allow DEC and other state agencies to provide adequate staff to implement these programs. Separately, $33 million for the Oil Spill Program, financed by industry fees, was provided in the State’s Budget. |
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Under the New York State Department of Health’s Source Water Assessment Program (SWAP), required by the federal Safe Drinking Water Act, assessments have been completed for nearly all of the 12,000+ sources of public drinking water in the state. |
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This program identified the sources of public drinking water (wells, streams, lakes, reservoirs) and the surrounding land surface which contributes water to the source, inventoried existing and potential threats to the quality of public drinking water supplies and the susceptibility or likelihood that the source could become contaminated by the identified threats. State Health Department staff assessed the surface water sources, and contracted out assessment of the upstate groundwater wells (URS Corporation) and the Long Island wells (Camp, Dresser and McKee). Now that the information gathering is complete, efforts are underway to communicate the assessments to the public. Summaries will be available to consumers as part of the annual water quality reports sent out by water suppliers to consumers. The SWAP results constitute valuable water resource management tools. When evaluating the needs in a community for source water protection, the assessment from the SWAP can be a useful starting point. Projects are already underway around the State using information compiled under SWAP. On Long Island, the Suffolk County Department of Health Services (SCDHS) plans to make use of the refined groundwater model, assessment methods and databases developed for the Long Island SWAP to update and enhance the County’s Comprehensive Water Resources Management Plan (issued in 1987). The new plan will deal with existing public supply wells and future well sites, private wells and groundwater as it relates to the environment (wetlands and surface water). A request for proposals for this project will be issued shortly. Currently, Suffolk County is using information collected in SWAP to evaluate proposals for the siting of new sewer treatment facilities. The New York State Rural Water Association received an EPA grant for a source water protection program based on SWAP. The program was designed to test the effectiveness of various methods of reaching out to water suppliers and local communities to help them use SWAP data for local source water assessment programs. The project includes Albany, Fulton, Montgomery, Rensselaer, Sche-nectady and Schoharie counties and should be completed in the Fall of 2004. The results of this project will be used to provide rural communities around the state with better access to SWAP information. Source water protection is also a component of the Community Environment Management (CEM) Program. CEM is a suite of educational, assessment, technical assistance and planning tools that can be used to address environmental issues in a community. Local agencies such as Soil and Water Conservation Districts, Cooperative Extension, County Planning, Health Department, Environmental Management Councils and County Water Quality Committees can assist communities in addressing water quality and natural resource concerns at the watershed and town level using CEM worksheets. CEM worksheets are currently being piloted in the twelve upstate counties comprising the Upper Susquehanna Coalition (Broome, Tioga, Tompkins, Chenango, Cortland, Chemung, Delaware, Madison, Otsego, Schuyler, Steuben, and Onondaga counties), as well as Duchess and Erie counties. More information on CEM can be obtained from the New York State Soil and Water Conservation Committee; the contact person is Ron Kaplewicz (518) 457-3738. While the Source Water Assessment Program itself is nearly complete, it is encouraging to see that use is being made of the valuable information collected under this program. Commission staff will continue to follow this issue, with high hopes for continued activity. |
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The New York State Department of Health (DOH) has proposed a drinking water standard of 10 parts per billion (ppb) for MtBE. |
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As there is currently no maximum contaminant level for MtBE in drinking water, DOH uses the unspecified organic contaminant standard of 50 ppb. This new rule would apply to the 10,000+ public water systems that serve 25 or more persons or have 15 or more service connections. If approved, MtBE will be added to the list of contaminants for which such water systems routinely monitor. Using data from county health departments, DOH estimates that about 17 public water supply systems in NYS will need to install treatment as a result of this proposal. It is not clear if this estimate includes those municipalities who would have to upgrade or expand wellhead treatment already in place to meet the new standard. The exact location of these systems was not readily available from DOH, but 16 of the 17 are in southern New York State (Dutchess, Orange, Putnam, Nassau and Suffolk Counties). The remaining one is located in Montgomery County. Because gas stations in the upstate and northern region are supplied with conventional gasoline, there is less MtBE impact in most of upstate New York. In contrast, gas stations in the southern regions have been supplied with reformulated gasoline (RFG) which contains fuel oxygenates in all grades. While the proposed MCL does not apply to private wells, it would be used as a basis for spill cleanup where private wells are contaminated. It is estimated that between 0.6 and 3.0 percent of the approximately 800,000 active private supply wells in New York State will be impacted by MtBE levels exceeding 10 ppb. This translates into approximately 4,000 – 23,000 private wells affected by the proposed standard of 10 ppb. Testing of private wells is not required, however, so many of those using private wells that have been impacted by MtBE may not be aware of the problem. Treatment for a private well is estimated to cost $10,000, including installation and operation and maintenance of a granular activated carbon treatment system for approximately five years. Commission staff will continue to follow this issue and will report significant developments in future newsletters. |
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MS4s
According to DEC, nearly 100% of the local governments in New York required to have a Phase II permit by March 2003 have obtained the necessary permits. The federal Clean Water Act which established this program regulates all MS4s located within the boundaries of a Bureau of Census delineated urbanized area (minimum population of 50,000 and average density of 1,000 people per square mile). MS4 is defined as "a conveyance or system of conveyances including roads with drainage systems, municipal streets, catch basins, curbs, gutters, man made channels or storm drains".
Construction Permits
While planning is underway for an outreach strategy to construction site operators and municipal zoning officials, DEC is relying heavily on the regulated MS4s as a primary means to accomplish construction site runoff controls. The minimum requirements for the construction site control component of a MS4 program include: a sediment and erosion control ordinance - with requirements for implementation and sanctions to ensure compliance; procedures for site plan review, inspection and enforcement; and educational and training programs for construction site operators. The Phase II permit program allows municipalities five years to accomplish this task. For the Phase II construction permit program to be successful and effective, extensive support and training on sediment and erosion control issues must be provided to regulated MS4s and construction site operators. When required, such construction permits can be filed electronically. DEC’s website address is http://www.dec.state.ny.us/website/dow/mainpage.htm, click on either MS4 toolbox or construction toolbox. Additional information, technical standards, and links to other useful sites are provided, as is the ability to submit questions electronically. |
Newsletter Contributors Erica Heintz — Editor • Rosemary Konatich • Rick Morse |
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