Superfund Financing Tied to Lower Standards

By JAMES C. McKINLEY Jr.

January 28, 2001

The lot where the United Plating Corporation plant once stood is a forlorn rectangle of weed-covered, useless ground surrounded by a neighborhood of working-class homes, bars and churches. No children venture past the barbed wire fences adorned with "Danger" signs. Everyone knows the ground is contaminated with heavy metals.

Though the state has spent nearly $4 million to tear down the factory, which once plated metals, and cart away tons of hazardous chemicals, it will take another $3 million to remove contaminated soil and set up a system to clean the groundwater, state officials say. But that is not going to happen unless Gov. George E. Pataki and the Legislature reach an agreement this year on refinancing the state's Superfund program, which was created in 1982 to clean up toxic waste sites when the polluter could not be found or could not pay for the cleanup.

Unless the Legislature acts, the fund will run out of money in March, and 760 cleanup efforts, like the one at the United Plating Corporation site, will come to a halt. Mr. Pataki and the leaders of the Senate and Assembly all agree that the fund has to be replenished. But that is about all they agree on. The row brewing over how to refinance the Superfund promises to be one of the most bruising conflicts in the annual battle over the state budget, lobbyists and lawmakers said.

Mr. Pataki, in a proposed budget bill, does not want to merely provide money to keep the current Superfund program going. He wants to change the cleanup standards and combine the Superfund with two other cleanup programs: a voluntary one for developers and business owners who want to reclaim urban wastelands, known as brown fields, and a program aimed at cleaning up oil spills.

The governor has proposed devoting $138 million to these combined efforts, half of which would come from the state and half from higher fees on industry. He also wants to make the standards for cleaning up toxic sites more flexible. Under his proposal, a site that is to be used as a factory would not have to meet the same standard of purity as one to be used for housing.

John P. Cahill, commissioner of the state's Department of Environmental Conservation, said today that "it's time to consider land use" when deciding how clean is clean. "Now it's a one-size-fits-all standard; the goal is to be pristine," he said. That goal, he added, was "laudable but impossible."

The governor has proposed the same bill in each of the last two years, but it has been condemned by many environmentalists and rejected by the Legislature. But lobbyists and lawmakers predict that this year will be different because the fund is running dry. Indeed, by April, the fund will be $59 million in the red.

"The Legislature is going to have to deal with it this year," said Laura Haight of the New York Public Interest Research Group. "Last year no one wanted to touch it."

Environmentalists and some of their allies in the Legislature complain that the governor's proposal does not provide enough money and would weaken the cleanup standards, which, in essence, would be figured on how much risk the chemicals would pose to the health of people using the site.

If it was a factory, for instance, where no children were allowed or most of the workers were men, a higher level of contamination might be tolerated. Several states, including Massachusetts, Connecticut and New Jersey have gone that route. For environmentalists, the trouble with this approach is that it does not take into account what the pollution is doing to the ground water or the surrounding ecosystem. They say it abandons the Superfund program's longstanding goal, often unattainable, of returning the sites to a natural state.

Chasing that elusive goal leads to much cleaner soil and water in the end, these advocates say. Besides, animals often suffer from poisonous pollution before human beings do, they say. "It ignores the whole canary-in-the-coal-mine concept," said Anne Rabe of the Citizens' Environmental Coalition.

John Stouffer, a lobbyist for the Sierra Club, described the governor's proposal as "a concession to industry based on the desire of industry to pay less to clean up sites."

How much of the cost should be picked up by industry is likely to be a stumbling block. In most cases, the polluter is forced to pay, and the Superfund is used only when the polluter is bankrupt or cannot be found.

Under the federal Superfund program, which is separate from the state's, the industries that use or produce toxic chemicals pay three- quarters of the cost of cleaning up sites. The state, however, passed a $1.1 billion bond act in 1986 to finance its program, which was intended to clean up the scores of sites the federal government would not. Industry and the state are paying the bonds off in equal proportions.

Matthew Maguire, of the Business Council of New York, said that industry already believes it is paying too much and opposes raising fees. He pointed out that polluters were paying to clean up 7 out of 10 of the sites, so it would be unfair, in his view, to penalize business as a class for the sins of a minority. He also said the pristine standards under the current law give developers and manufacturers little incentive to clean up defunct industrial wastelands.

Some environmentalists are backing a bill drafted by Assemblyman Alexander B. Grannis, a Manhattan Democrat, that would double the amount of money for the state's Superfund, to about $160 million annually, and raise the industry contribution to 75 percent. Under Mr. Pataki's proposal, the Superfund would get about $80 million a year, which would mean the sites would not be cleaned up for 21 years. Mr. Grannis's bill would accomplish the same thing in 10 years.

Some Assembly Democrats accuse Mr. Pataki of a bit of financial sleight of hand. They argue that the oil-spill fund used to be paid for entirely by fees from industry. Mr. Pataki's proposal to fold it in with the Superfund, then, would in effect lessen industry's contribution and shift more of the cost to ordinary taxpayers, the Democrats say.

By pushing the same bill three years in a row, Mr. Pataki, a Republican who has proven to be an iron- fisted negotiator over his six years in office, seems to be signaling that he is serious about changing the standards. He has linked those changes to replenishing the fund and to tax breaks that encourage the development of brown fields.

The Republicans who control the State Senate have not taken a side in the fight, but they are likely to follow the governor's lead, Republican aides said. Seeing a brutal fight ahead, some Democratic lawmakers in the Assembly are looking for a third way out. The Democratic leadership may seek to finance the Superfund for this year but put off a decision on changing standards.

"We strongly disagree with his proposal to weaken the cleanup standards and shift the burden to taxpayers," said Richard L. Brodsky, the Westchester County Democrat who chairs the environmental conservation committee. "We would be open to a negotiation about replenishing the Superfund now and continue our work in good faith on the underlying policy issues."

A decision cannot come too soon for the people living along Foster Avenue near the old metal plating factory site in Schenectady. The defunct factory, which used to attract teenagers and homeless people, has been torn down. The drums containing 30,000 gallons of hazardous liquids were carted away. The owner was convicted in 1992 of violations of environmental law and reckless endangerment.

But the ground and ground water remain poisoned with high levels of cadmium, cyanide and chromium, among other pollutants. The next step is to cart away the contaminated soil and install a system to catch and clean the ground water.

"It's scary," said John Zurlo, a 56- year-old retired state employee who lives opposite the lot. "I wish they would do what they are supposed to do and take the soil out."