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 this Issue

Superfund Refinanced Brownfields Program Established

Great Neck Pollution Prevention Initiative

2003 Legislative Update

Environmental Funding Continues under Difficult Circumstances

Source Water Assessments Nearly Complete

Health Department Proposes MtBE Standard

Phase II Compliance

lowering the threshold for operating a boat while intoxicated. There were other important water quality initiatives that passed the Assembly, but were not acted on by the Senate.

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.


Thomas P. DiNapoli, Chair

Assemblyman DiNapoli with Governor Pataki at the Brownfields Bill signing ceremony.

Superfund Refinanced/Brownfields Program Established

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.

Great Neck
Pollution Prevention Initiative

An exciting new initiative is underway in the commercial area along Great Neck Road and Watermill Lane in the Village of Great Neck on Long Island. This area has been affected by several Superfund sites as well as a gasoline spill. Area residents were concerned that environmental and health impacts from industrial and commercial discharges and practices were not being expeditiously or appropriately addressed. Assemblyman DiNapoli sponsored a meeting that brought federal, state and local government agencies involved in environmental regulation together with concerned citizens.

As a result of this first meeting, realizing that no single governmental entity is responsible for enforcing the numerous environmental laws and regulations affecting this area, the Town of North Hempstead is spearheading efforts to develop a long-term strategy to foster compliance with environmental laws, promote pollution prevention practices, tackle parking and traffic congestion and encourage cleanup and revitalization of vacant properties and the surrounding area.

On Long Island, where residents live and work directly above the drinking water supply, pollution prevention is particularly appropriate. The pollution prevention component of the Great Neck Pollution Prevention Initiative is a imed at assisting businesses to better understand and improve their compliance with environmental regulations. A variety of activities are planned to encourage pollution prevention, including outreach and educational programs explaining the importance of pollution prevention, workshops for specific types of businesses, voluntary and confidential environmental audits to identify compliance requirements and linking pollution prevention with local regulatory approvals.

The problems being experienced in this commercial area of Great Neck are similar to those faced by many other communities in the State, and it is hoped that this pollution prevention initiative will serve as a pilot for other areas. The Commission will continue to work to make the necessary technical and financial assistance available to individuals, businesses, and government agencies to pursue these types of initiatives.

2003 Legislative Update
Enacted into Law

A.9120 – Brownfield Cleanup Program
(Chapter 1 of the Laws of 2003)
Enacts the first statutory brownfields cleanup program in NYS, with cleanup standards that prefer cleaner sites and provides incentives to reach residential cleanup levels. Refinances the State Superfund and creates a new Groundwater Remediation Program in the DEC.

A.6988-A – Invasive Species Task Force
(Chapter 324 of the Laws of 2003)
Creates the seventeen member New York State invasive species task force to assess the nature, scope and magnitude of the environmental, ecological, agricultural, economic, recreational and social impacts caused by invasive species in this state; provides for a report to the Governor and Legislature.

Assemblyman DiNapoli, Chairman of the Environmental Conservation Committee listened to testimony at budget hearing earlier this year.
A.8074-A – Long Island Pine Barrens Enforcement
(Chapter 434 of the Laws of 2003)
Provides penalties and enforcement for violations of provisions of law relating to the Long Island Pine Barrens Maritime Reserve.

A.6279-B – Boating While Intoxicated
(Chapter 458 of the Laws of 2003)
Lowers the threshold for operating a vessel while intoxicated from .10 to .08 of one per centum by weight of alcohol.

Passed the Assembly

A.4106-A –Environmental Facilities Corporation Loans for Watershed Protection
Would authorize the Environmental Facilities Corporation to provide loans at zero percent interest to municipalities from the water pollution control revolving fund for open space and watershed protection.

A.4081 – Wastewater Re-use
Would promote the reuse of reclaimed wastewater for industrial, commercial, residential, agricultural, landscape irrigation, and wetland maintenance purposes. Under this initiative, DEC would promulgate rules and regulations specifying the permitted uses of reclaimed water and required levels of treatment for water being reused.

A.3884 – Oil Spill Prevention Enhancement Act
Would regulate the operation of petroleum bearing vessels on navigable waters of the state; expand the Public Service Commission’s authority to regulate liquid petroleum pipeline safety; and require the filing of a habitat protection plan for every major facility as a condition for a license.

A.4078-A – Invasive Species
Would require the posting of notice to boaters concerning the presence of harmful exotic aquatic species and the existence of non-infested areas.

Other Legislation of Interest

A.4080 – Septic Siting and Inspection
Relates to the regulation of residential on-site wastewater treatment systems; would direct the DEC Commissioner to prepare a report on the impact of on-site sewage treatment systems on the waters of the state and on public health.

A.4079 – De-Icing Compounds
Relates to the storage and application of de-icing compounds; would require all de-icing compounds to be stored in a shed or other suitable structure in such a manner as to prevent contact with precipitation; would provide for DEC to be given the power to enter and inspect facilities where de-icing compounds are stored.

A.6098-A – Irrigation Contractor Certification
The Landscape Irrigation Contractor Certification Act would require that landscape irrigation contractors pass a certification exam, ensuring that irrigation systems will be installed by appropriately trained professionals.

A.6106 – Drought Notification
The "Water Efficiency and Reuse Act" would require DEC to provide notice to water suppliers and electric corporations in the affected region when a drought is declared. Water suppliers and electric corporations would then be required to provide notice of drought events to their customers at the time of their next regularly scheduled communication (e.g. with billings).

A.7905 – Wetlands Protection
Would provide the Department of Environmental Conservation with regulatory authority over freshwater wetlands of one acre or more in size and other wetlands of significant local importance.

A.8479 – Pesticide Free Drinking Water
This legislation would prohibit the application of pesticides in bodies of water that are used as a source of drinking water.

Environmental Funding Continues under Difficult Circumstances

While the State continues to face revenue shortfalls due to the national economic situation, the Assembly will continue to ensure that the protection of the public health and the environment continue to be a priority in the State’s Budget.

The Legislature approved this year’s State Budget under an unusual circumstance, that is, without the Governor’s cooperation and approval. In his proposed Budget for 2003-2004, Governor Pataki recommended reducing funding in many areas including education, public health and the environment. In response, the Assembly and the Senate negotiated the Budget without the Governor, restoring funding to several critical programs. While the Governor vetoed much of the Budget, in a rare move, the Legislature overrode all of his vetoes.

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.

Source Water Assessments Nearly Complete

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.

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.

Health Department Proposes MtBE Standard
The New York State Department of Health (DOH) has proposed a drinking water standard of
10 parts per billion (ppb) for MtBE.

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.

Phase II Compliance

Storm water discharges have adversely impacted a significant percentage of the waters of the United States. The Phase II Stormwater Permit Program is designed to address this problem by requiring regulated municipal separate storm sewer systems (MS4s) to prepare a storm water management program and fully implement it within five years. The program must include six components: public education and outreach; public participation and involvement; illicit discharge detection and elimination; construction site runoff control; post-construction runoff control and pollution prevention/good housekeeping.

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".

Picture courtesy of Sea Grant New York
DEC is mobilizing partnerships with regional staff, Department of State, Soil and Water Conservation Districts and Sea Grant to design and provide technical assistance to the regulated community. An "MS4 implementation tool box" is on DEC’s webpage. Over three million dollars from last year’s appropriations for the Environmental Protection Fund is available to assist communities in implementing their stormwater management programs. DEC issued a grant solicitation this summer, with extra consideration being given to intermunicipal projects. September 30, 2003 was the deadline to submit applications for funding. Additional funding for MS4s may be available from the Long Island Sound Restoration Act, current or future EPF appropriations, and the Peconic and South Shore Estuary categories of the Clean Water/Clean Air Bond Act.

Construction Permits

Assemblyman DiNapoli addressed members of the New York Water Environment Association at their annual legislative conference to apprise them of environmental initiatives pending in the Assembly.
Construction activities which disturb as little as one contiguous acre are also required to have a Phase II permit. DEC has estimated that as many as 10,000 construction sites in New York fall into this category, but compliance with this portion of the program has been very low to date. Fines may be imposed for construction site operators failing to implement the required stormwater controls.

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

New York State Assembly
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