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Gov. Paterson Proposes Eliminating New York Participation in Federal Superfund Program

By: Jonathan Kalmuss-Katz

In a radio interview last week, outgoing New York Governor David Paterson announced his plans to eliminate the state’s participation in the federal Superfund cleanup program.  The proposal is one of several cuts designed to reduce the state’s budget deficit and accommodate the proposed layoffs of an additional 898 state employees by the year’s end, including 150 in the Department of Environmental Conservation (“DEC”).

The immediate impact of Paterson’s announcement on ongoing and future site cleanups is unclear, and DEC said that “no final decision has been made” on the issue.  The state and federal governments currently operate their own Superfund programs, created through separate statutes, and it appears that cleanup will continue as planned for sites listed exclusively under the state program.

According to the Albany Times Union, however, there are 114 federal Superfund sites in New York, with the state and federal governments often cooperating on remedial efforts.  For instance, DEC is listed as a support agency in the ongoing, federally-led Hudson River Superfund cleanup, with state officials assisting in the development and oversight of General Electric’s cleanup work.  Under Paterson’s plan, “the state will not be involved” at federally listed sites moving forward.

Because the federal Superfund law is not a formally delegated program like the Clean Air Act or Clean Water Act, Paterson’s plan should not require legislative or administrative action, but could instead be accomplished primarily through a reallocation of funds within DEC.  However, federal law requires that states fund 10% of the Environmental Protection Agency’s remedial costs for federal sites where the potentially responsible parties cannot be identified or held financially responsible.  See 42 U.S.C. § 9604(c)(3).  Those funding obligations, memorialized through State Superfund Contracts (“SSCs”), would continue despite Paterson’s planned withdrawal.  Of course, the ultimate decision on the state’s participation in the federal Superfund program will rest with the new governor-elect Andrew Cuomo.

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