Time, Money are Running out for Toxic Sites

The state’s Brownfield Cleanup Program is running out of time.

The state’s Superfund program is running out of money.

Environmentalists say it’ll be a dirty shame if the Legislature doesn’t act soon on legislation for both programs, which clean up toxic waste sites around the state.

Key provisions of the state’s brownfield program will expire this year unless it’s extended, but some red flags have been raised. Gov. Andrew Cuomo and others are concerned that the state has been hemorrhaging hundreds of millions of dollars for development projects that don’t need the lucrative tax credits to survive. Last session the governor proposed several reforms that didn’t pass muster in the Legislature. So when it came time to sign a bill to extend the legislation through 2017, Cuomo opted to take out his veto pen.

Judith Enck, the Environmental Protection Agency’s Region 2 administrator, thinks the veto was the right idea. “I think the governor wisely is taking a close look as to whether the brownfield program is getting the biggest bang for the buck,” she said.

The governor is banking on the fact that developers and business interests are so enamored of the rich tax credits that they will opt to keep the program with changes rather than scrap it.

But not everyone was thrilled with Cuomo’s veto decision.

“To me, it’s inappropriate to defund a program like this without having an alternative in place,” said state Sen. Joseph Griffo, a Republican. “The governor has vetoed the bill and indicated he has that alternative plan, which I anticipate we’ll hear more about during the budget proposal.”

He’s right. According to the state Department of Environmental Conservation, Cuomo will once again propose extending the Brownfield Cleanup Program “with appropriate reforms” in his joint State of the State and budget address on Wednesday.

There is a notable twist to this story.

While many environmental groups supported the governor’s veto of the brownfield extender bill, the New York Public Interest Research Group did not. NYPIRG and the Assembly had managed to attach $300 million dollars to the extender for the state’s Superfund program, which would have allowed negotiations over Superfund to take place without fear of the program running out of money.

“The Superfund program is very different from the brownfield program, but they are linked in a couple of key ways,” explained Laura Haight, a longtime environmental activist. “On the surface, from the public’s perspective, obviously they both clean up contaminated sites. But more than anything, the linkage has become political.”

Paraphrasing one activist, brownfields are “sexy” because they come with a tax credit. The only way to get many lawmakers to pay attention to Superfund is to link it to “sexy.”

According to the DEC, the governor is expected to propose “funding Superfund consistent with his prior proposal to continue his commitment to the program and its goals.” What this means isn’t clear.

Up until last year, funding for the program had come from long-term bonding. The initial $1.6 billion dollars in funding for Superfund came from the 1986 Environmental Quality Bond Act. That funding expired in 2001. “Clean-ups at the time virtually ground to a halt,” Haight said. Finally, in 2003 the Legislature refinanced the program for 10 years.

But in 2013, it happened again: the state’s bonding authority for the state Superfund program expired. Last year, instead of refinancing the program. 

through long-term bonding, Cuomo proposed a single year bonding of $90 million dollars. At the time, Haight, who was formerly with NYPIRG, testified at a legislative budget hearing that the reduced funding (down 25 percent from previous authorizations of $120 million a year) was too little. Additionally, she said, providing only a single year of funding was “a radical shift from how Superfund has been financed in the past.”

The question now is whether Cuomo will again propose just one year of financing for the Superfund or make a long-term commitment to the program. Haight and other environmentalists are pushing for big money and a longer time frame because Superfund cleanups take years to complete and communities need the assurance that these sites will be remediated.

“It’s absolutely imperative that the state’s Superfund be refinanced because New York has a toxic legacy that needs to be addressed at a much faster pace than has been happening,” Enck said. “There are 886 state level Superfund sites and the cleanup process can be daunting.”

Whatever the governor decides has to be decided soon. The state Superfund “will have approximately $56 million in funds that are not obligated at the end of FY 2014-15,” DEC said in an email. “This funding is sufficient to cover at least the first six months of FY 2015- 16.”

But that only takes the fund through September 2015.

“It means this budget is a make or break budget for the Superfund,” Haight said. “We’re perilously close to the brink of running out of money for cleaning up the state’s most contaminated sites.”

Because Superfund is used to reclaim former toxic sites upstate, Griffo is also eager to see the program funded. “It’s my hope that state’s Superfund program can be replenished as soon as possible so that these projects can resume and upstate can benefit,” he said.

But there are two other concerns surrounding the state’s Superfund program.

The first is the state’s debt ceiling, which according to figures from the Division of the Budget could be reached relatively soon. The number is a moving target, with some state-supported debt retiring and some being accumulated, but it safe to say the state’s capacity to borrow is projected to decline.

Whatever the number, the state’s enormous debt could be used as a political reason to continue funding Superfund on a year-to-year basis, rather than borrowing.

The other issue, according to Anne Rabe, is staffing levels at the DEC.

“They (DEC) don’t have the resources to get out there and investigate sites and do enforcement actions and hold polluters’ feet to the fire,” said Rabe, who founded the Center for Health, Environment and Justice.

Rabe, who is now a community leader working to clean up two Albany-area federal Superfund sites, NL Industries and General Electric’s Dewey Loeffel landfill, works hand- in-glove with Barbara Warren, the executive director of the Citizens’ Environmental Coalition. Warren agrees with Rabe’s assessment of DEC.

“What’s disturbing to me is that everything is largely turned over to the responsible parties to do their own work and then the DEC ends up accepting a lot of stuff they shouldn’t accept. It’s like the fox guarding the chicken coop,” Warren said. “Would people accept this from the police? This all relates to health. It’s appalling. This is like the environmental police— we’re shortchanging the environmental police.”

In spite of these worries, the DEC reports no slowdown in cleanups, and insists it has the necessary staff to manage Superfund projects in progress as well as the incoming applications.

Their numbers indicate that 26 state Superfund projects were completed last year, compared with 27 in 2013; 29 in 2012; 25 in 2011 and 33 in 2010.

But there is no question that New York is at a crossroads when it comes to cleaning up toxic waste sites.

“At both the state and federal level there is not enough money to go around. That is fundamentally the problem,” said the EPA’s Enck.

Region 2, which includes New York State, is home to 85 federal Superfund sites, the most in the nation.

“So it’s not like we’re sitting on our hands looking for more sites,” Enck said. “State policy makers should not think that by not funding state Superfund that EPA can just step in and take over some of these sites, because that is definitely not the case.”