New York State Assembly

1997 Annual Report

Committee on Environmental Conservation

Sheldon Silver, Speaker
Richard L. Brodsky, Chairman

Richard L. Brodsky Assemblyman 86th District

THE ASSEMBLY STATE OF NEW YORK ALBANY

CHAIRMAN Committee on Environmental Conservation

December 15, 1997 

Honorable Sheldon Silver
Speaker of the Assembly
New York State Assembly
Legislative Office Building
Albany, New York 12248

With pleasure, I submit to you the 1997 Annual Report of the Assembly Standing Committee on Environmental Conservation. Developing a sound, workable environmental policy that promotes environmental protection and encourages economic growth has long been a priority for the New York State Assembly. This year the Committee and the Assembly continued their efforts to protect New York State's invaluable natural resources and safeguard our health and safety through sound, workable legislation. This year, the Committee stepped up its oversight efforts by initiating an investigation into the enforcement efforts and other activities of the Department of Environmental Conservation (DEC) and by examining a variety of issues through public hearings.

Nearly one-fourth of the environmental conservation bills signed into law this year are directed at the conservation of the State's marine resources. Of those, the most important was passage of legislation continuing the moratorium on certain commercial fishing licenses and establishing strict eligibility requirements for a limited number of additional entrants next year. Other fisheries legislation which was enacted this session prohibits the use of trawls in specific areas of Long Island Sound, restricts the taking of blackfish (tautog), and places additional controls over the menhaden fishery in long Island Sound. The conservation measures embodied in these bills are absolutely necessary to protect our swiftly declining fisheries and to ensure the self-sustainability and economic sustainability of our commercial fisheries in the future.

Other significant achievements this year included legislation that will: increase the penalties for illegally taking big game; create a state bird conservation area program; provide guidelines for the selection of projects under the 1996 Clean Water/Clean Air Bond Act; and expand the investment options for the Environmental Facilities Corporation.

The Committee was disappointed in the Senate's failure to support programs enabling private citizens to bring civil suits for violations of the Environmental Conservation Law (ECL), providing for the equitable treatment of communities in the siting of environmental facilities, and providing for review of pollution allowance trades by New York utilities.

Under your leadership and with your continued support of the Committee's efforts, I look forward to the coming year when we will continue the work of preserving and protecting New York's tremendous environmental resources for future generations.

Sincerely,

Richard L. Brodsky, Chairman
Assembly Standing Committee on
Environmental Conservation

1997 Annual Report
of the
Assembly Standing Committee
on
Environmental Conservation

Richard L. Brodsky, Chairman

Staff
Rudy Stegemoeller, Legislative Coordinator
John D. Chirlin, Senior Legislative Analyst
Julia Mallalieu, Committee Counsel
Kristin Magnusen Williams, Committee Assistant
Jacqueline Canabush, Program and Counsel Secretary
Kristin Hodder, Committee Clerk
Jody Endres, Graduate Scholar

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY

BUDGET HIGHLIGHTS

IMPLEMENTATION OF THE CLEAN WATER/CLEAN AIR BOND ACT OF 1996

ENVIRONMENTAL QUALITY

FISHERIES & MARINE RESOURCES

WILDLIFE MANAGEMENT

ENFORCEMENT

SOLID WASTE MANAGEMENT

TOXIC SUBSTANCES AND HAZARDOUS WASTE MANAGEMENT

WATER CONSERVATION, QUALITY, AND MANAGEMENT

LAND AND FOREST MANAGEMENT

RESOLUTIONS

OVERSIGHT AND PUBLIC HEARINGS

OUTLOOK FOR 1998

APPENDIX A--1997 SUMMARY SHEET

APPENDIX B--ENVIRONMENTAL CONSERVATION BILLS WHICH PASSED BOTH HOUSES

APPENDIX C--ENVIRONMENTAL CONSERVATION BILLS WHICH PASSED THE ASSEMBLY

INTRODUCTION AND SUMMARY

The Assembly Standing Committee on Environmental Conservation, now in its 27th year, has jurisdiction over legislation affecting State environmental policy. The Committee considers bills amending the Environmental Conservation Law (ECL), Parks, Recreation and Historic Preservation Law, Canal Law, Executive Law, Soil and Water Conservation Districts Law, and Navigation Law.

The primary concerns of the Committee are pollution prevention and control, resource management, and environmental quality issues. The Committee considered 382 bills, acting favorably on 114 and 31 became law.

In 1997, the Environmental Conservation Committee examined policy issues with the assistance of four subcommittees:

Wildlife Management - Joseph E. Robach, Chair.

This Subcommittee focuses on fishing, hunting, and trapping issues. Included within its jurisdiction are proposals for setting fish and game seasons and limitations.

Long Island Barrier Beaches - Harvey Weisenberg, Chair.

The Subcommittee on Long Island Barrier Beaches addresses the following issues:

hurricane preparedness and the implementation of a comprehensive hurricane evacuation plan;

environmental preservation and restoration of the barrier beaches;

establishment and maintenance of a better relationship between government (on all levels) and the people of Long Island; and

enhancement of the tourism industry for the economic benefit of Long Island and the entire State.

Coastal Zones and Harbors - Ronald C. Tocci, Chair.

This Subcommittee examines issues that affect marine life in New York's harbors and coastal zones.

Open Space - Steve Englebright, Chair.

This Subcommittee considers issues relating to the protection, conservation, management and enhancement of open space and natural, cultural, and recreational resources.

BUDGET HIGHLIGHTS

The Committee was instrumental in securing funding for a variety of environmental programs. The following is a brief summary of budgetary highlights for environmental conservation programs for the 1997-1998 State fiscal year.

In the Fiscal Year 1997-98 Budget amendments were made to various areas of law to:

facilitate implementation of federal Title V operating permit program for stationary sources;

extend for three years the deposit of revenues from the petroleum bulk storage fees into the Environmental Protection and Oil Spill Compensation Fund; and

eliminate obsolete licenses and create special dog training areas.

authorizes moneys from the solid waste account to be available for the development of the pesticide sales and use data base in conjunction with Cornell University;

authorizes up to $10 million to be available for the Long Beach Shore protection project (Coastal rehabilitation);

increases from $553,000 to $653,000 the funds available for soil and water conservation district activities (Non-point source abatement and control);

authorizes $1.3 million to be available for Finger Lakes-Lake Ontario Watershed Protection Alliance (Non-point source abatement and control);

authorizes up to $6 million to be available for Hudson River Estuary management action plan projects (Land acquisition);

authorizes $4 million to be available for Niagara Falls (Landfill closure);

authorizes $5.775 million to be available for state park infrastructure projects (Parks, recreation and historic preservation);

authorizes $3 million to be available for waterfront revitalization and riverfront development projects within Rensselaer County; $1 million for Brooklyn piers 1-5; and $1 million for Amsterdam (Waterfront revitalization); and

amends the agricultural protection program to provide for up to 75% state assistance payments for the cost of implementing a county agricultural protection plan.

Enhance NYS EFC investment flexibility. This bill enables the New York state Environmental Facilities Corporation to invest construction funds in Guaranteed Investment Contracts (GICs) without having to allocate the GIC's collateral to each separate municipal account. Chapter 523 of the Laws of 1998 (A.8317-A; Rules (Brodsky))

Allows EFC water pollution remediation grants. This bill amends the Public Authorities Law to authorize the Environmental Facilities Corporation (EFC) to make grants for eligible projects under the water pollution control revolving fund program. Chapter 255 of the Laws of 1997 (A.8182; Rules (Gunther))

 IMPLEMENTATION OF THE CLEAN WATER/CLEAN AIR BOND ACT OF 1996

On November 5, 1996 the voters of New York approved the Clean Water/Clean Air Bond Act (Bond Act). The Committee will also monitor the expenditure of Bond Act monies to ensure that the funds are applied in a way that is most beneficial to the environment and that there is a fair and equitable distribution of funds. The Bond Act authorized the spending of $1.75 billion on environmental projects in certain categories including safe drinking water, clean water, solid waste, environmental restoration and clean air.

The projects are being administered by the agencies designated in the Bond Act (Department of Environmental Conservation, Office of Parks, Recreation and Historic Preservation, Department of Agriculture and Markets, Department of Health, Environmental Facilities Corporation, Power Authority of the State of New York, New York State Energy Research and Development Authority and the Office of General Services).

Additionally, other statutory changes were made to:

establish a Drinking water program management and administration fund;

create a Clean Water/Clean Air Implementation Fund;

permit the sub-allocation of $25 million from the DEC air resources - clean water/clean air capital projects fund to the power authority for clean air for schools projects; and

Environmental Bond Act project guidelines. This law will ensure greater public access to information about Bond Act projects by:

establishing annual reporting by agencies implementing the Bond Act, including information on project commitments and expenditures and staff funding;

requiring the publication of all eligible project lists in the Environmental Notice Bulletin (ENB) for a 30 day review and comment period and require publication in the ENB of the final lists of projects to be funded;

requiring the development of project eligibility and project ranking guidelines for certain clean water management plans and other air quality projects;

requiring that proposed guidelines be published in ENB for 30 day review and comment period;

requiring the submittal of eligible clean water project lists to the appropriate management conference, advisory committee or advisory council (create new advisory council where none exists) for a 30 day review and comment period;

requiring the application of the existing project eligibility and evaluation process of the State Land Acquisition Plan to open space projects;

requiring the adoption of project eligibility and project ranking regulations for other water quality projects, municipal landfill projects, municipal recycling projects and environmental restoration remediation projects;

creating committees to review and comment on other water quality and environmental restoration remediation projects lists during a 30 day review and comment period; and

requiring that public meetings be conducted across the state on eligible other water quality projects and environmental restoration remediation lists.
Chapter 1 of the Laws of 1997 (A.8635; (Rules))

While the original Governor's program bill #91 provided much less accountability by State agencies, the final negotiated version represents many of the principles contained in A.4483-B; Brodsky.

Additional Bond Act Historic Preservation Project. This bill would include zoos, botanical gardens and aquaria projects within the definition of "historic preservation projects" under the Clean Air/Clean Water Bond Act. This bill passed the Assembly but died in the Senate. A.6870 (Brodsky)

Examining Clean Air Act Costs. This Governor's program bill postpones by two years the requirement that the DEC implement a centrally fueled fleet program in order to meet federally enforced Clean Air Act requirements. The postponement will allow time for a study which would help determine whether the costs of the program outweigh the environmental benefits. The bill will also allow the DEC to cancel or delay the implementation of the program if they came up with an alternative program that would meet minimum federal standards. Chapter 37 of the Laws of 1997 (A.7529; (Rules))

This bill would require, as part of the environmental impact statements governed by the State Environmental Quality Review Act, a detailed statement on whether or not the action of concern would cause a disproportionate or inequitable burden on a minority community or economically distressed area affected by the action. This bill passed the Assembly, but died in the Senate. A.1621 (Brodsky)

Private Suits for Environmental Law Violations. This bill would enable a private citizen to bring a civil suit for violations of the ECL, thus assisting enforcement. Lawsuits initiated by citizens could relate to the protection of waters and water supply, air pollution, drainage, fresh water and tidal wetlands, solid, infectious and hazardous wastes, and, pesticide and hazardous substances bulk storage. This bill passed the Assembly, but died in the Senate. A.1620 (Brodsky)

Enhanced Environmental Impact Statements. This bill would extend environmental impact statements to include the consideration of cumulative effects of a proposed action for mitigation measures and analysis purposes. This bill passed the Assembly, but died in the Senate Rules Committee. A.3860 (Dinowitz)

Increase DEC's Authority. This bill would require the department of environmental conservation to establish guidelines for disqualification of stand-by contractors based upon past performance, reasonableness of price charged, acts of negligence or malfeasance, and convictions of certain crimes. Current law does not authorize the department to adopt regulations for the disqualification of stand-by contractors. This bill passed the Assembly but died in the Senate. A.1372 (Luster)

 FISHERIES & MARINE RESOURCES

DEC is required to protect, enhance, and provide public access to New York's aquatic and fishery resources. Only three states have more surface water area than New York. The State has a total of four million acres of freshwater, 4000 lakes and ponds; 70,000 miles of rivers and streams, of which 15,000 miles are trout streams, with 4,000 miles stocked. New York is home to 20 species of game-fish, 20 species of panfish, and operates 12 hatcheries which produce one million pounds of fish annually.

Commercial and recreational marine fisheries constitute a significant portion of New York's economic base. Recently, however, many marine species have declined due to over-fishing, point and non-point source pollution, and loss of habitat. In order to promote the recovery and ensure the long-term health and abundance of the marine fisheries resources and habitat, significant management measures are needed.

Protecting Menhaden. This law decreases the area of Long Island Sound where menhaden may be taken, shortens the menhaden season, and increases the fees for menhaden vessels; it also places notification and reporting requirements upon menhaden vessel owners and imposes penalties for violations of the provisions. Chapter 60 of the Laws of 1997 (A.7753-A;Rules (Brodsky)). Chapter 156 of the Laws of 1997 (A.8129; Rules (Brodsky)) makes certain technical corrections to Chapter 60.

Protecting scup and black sea bass. This law extends the authority of the Department of Environmental Conservation (DEC) to manage by regulation scup and black sea bass until December 31, 1999. Scup and black sea bass mortality rates are very high, and action is needed as soon as possible to reduce excessive exploitation of these recreational and commercially important stocks and to allow the DEC to maintain compliance with the Fishery Management Plans (FMP's), developed jointly by the Atlantic States Marine Fisheries Commission and the Mid-Atlantic Fishery Management Council. Chapter 81 of the Laws of 1997 (A.8078; Rules (Brodsky))

Protecting Commercial Fisheries. This law was based upon DEC Departmental #228. It extends the moratorium on the issuance of new commercial food fish and lobster licenses until February 28, 1998 and provides that, through June 30, 1999, new licenses may be issued for food fish, lobster and crab if certain eligibility criteria are met, but shall not exceed the number per category that were in effect as of June 30, 1997 unless the commissioner finds that an increase would be in the best interest of the fishery; in that event, the number of licenses could be increased to the number, per category, in effect during 1996. The law also increases many of the annual fishing license fees, creates two new licenses, sets a new maximum commercial vessel length of 70 feet, and establishes new reporting requirements for license holders. Chapter 263 of the Laws of 1997 (A.8525-B; Rules (Brodsky))

Nearly every major commercial finfish species along the eastern seaboard is in a state of decline. These population declines are primarily due to over-fishing and poor recruitment of juveniles into the fishery. Within the State's Marine and Coastal District, finfish are being harvested at their maximum sustainable yield. To prevent a total collapse of our stocks, the state must continue to impose a strict moratorium on any new commercial fishing licenses. This conservation measure is necessary to protect our resources and to insure the self sustainability and economic sustainability of commercial fisheries in the future.

Cutting Unnecessary Shellfish Industry Red Tape. This law eliminates the requirement that transported or relayed shellfish are tagged with tamper evident seals and eliminates the requirement that such transplanted shellfish not be mixed with other shellfish. This legislation will eliminate regulations which are unduly burdensome to the shellfish industry and unnecessary in order to protect public health. The DEC's position is that transplanted shellfish are equivalent in terms of public health to native shellfish in the harvest area once the appropriate cleansing period of 21 days has been completed. With the removal of the tagging requirements for transplanted shellfish, it makes sense to also remove the prohibition on mixing such shellfish with other shellfish because separate identification is not possible and from a public health perspective there is not a difference between the two populations. Chapter 303 of the Laws of 1997 (A.7791-A; Rules (DiNapoli))

Protecting Smithtown Bay Habitat. This law prohibits fishing with trawls within one-half mile of the shore of Smithtown Bay in the Long Island Sound. Smithtown Bay is the only section of Long Island Sound between the New York-Connecticut boundary and the shore intersect of the Riverhead-Brookhaven town line near Wading River not protected from trawling within one-half mile from shore. Currently, there are fishing boats coming within 100 feet of shore creating a hazard to the shallow water habitats of marine life in the Bay. The inclusion of Smithtown Bay in the area where trawling is prohibited is a long-needed step forward toward preserving essential habitat in the already sensitive shallow water marine environments within Long Island Sound. Chapter 309 of the Laws of 1997 (A.6818-A; Englebright)

Protecting Long Island Sound. This law prohibits fishing with trawls within one mile of the shore of Fisher's Island or to the Connecticut-New York boundary where there is less than one mile between the Island and the Connecticut boundary. Chapter 512 of the Laws of 1997 (A.4322-A; Acampora)

Prohibiting Transferable Fishing Rights. This bill would provide that the DEC shall not approve or implement any fishery management plan or regulation which allows for the trade, transfer or assignment of certain permits. This bill would prevent the privatization of New York State's marine resources by prohibiting the use of a management program which uses an individual transferable quota (ITQ) system. Such a program is currently being considered for use in managing the State's surf clam and ocean quahog stocks. The implementation of any new ITQ programs in Federal waters is currently under a moratorium until the next reauthorization of the Magnuson Act in 2000. This bill passed the Assembly but died in the Senate. A.7980 Rules (Brodsky)

Protecting Blackfish. This law restricts the taking of blackfish (tautog) to 25 fish per vessel per day, prohibits the use of gill or trammel nets for the purpose of taking blackfish, and prohibits the return of any fish pot to the water with fish in it. The provisions in this bill are consistent with the strategies outlined by the Atlantic States Marine Fisheries Council (ASMFC) in their April 1996 Fishery Management Plan (FMP) for tautog and with the DEC's proposed actions. The reduction in harvest by commercial fishermen from 50 to 25 per trip, prohibitions against stockpiling fish, and prohibition against the use of non-specific gear like gill nets which have high rates of by-catch mortality are the necessary first steps to reduce the current overfishing of this important stock. Chapter 573 of the Laws of 1997 (A.8319; Rules (Sweeney))

 WILDLIFE MANAGEMENT

The regulation of hunting, fishing, and trapping is funded largely by license fees that are assessed on sportsmen and sportswomen in New York State. These fees are deposited into the Conservation Fund, which finances more than 70% of DEC's fish and wildlife management programs. The following is a description of wildlife bills which the Committee considered and were signed into law.

Increased Penalties for Poaching. This law increases the criminal penalties for illegally taking big game. It also establishes the minimum penalty for the illegal taking of game to $250.00 and increases the maximum penalty for the possession, use or discharge of a firearm in violating the game law to $1,000. The purpose of the game laws is to guarantee a healthy game population while also providing for the safety of the hunters. Violations of these laws are serious offenses and should be treated as such. This law establishes penalties for violations of the game law that are more reflective of the severity of the crimes. Chapter 270 of the Laws of 1997 (A.3935; Gunther)

Preventing deer-car collisions. This law prohibits the feeding of deer within 300 feet of a public highway. The purpose of this law is to reduce the number of deer-car collisions. The feeding of deer near public highways is hazardous to both humans and animals. Since deer tend to travel in herds, feeding deer near a public highway substantially increases the likelihood of a deer-car collision. The DEC reports that the number of reported deer-car collisions is approximately 10,000 per year now. The statistics also indicate that over the past ten years there has been an increase of approximately 30% in the number of collisions. Chapter 381 of the Laws of 1997 (A.4627-A; Brodsky)

Managing the State's deer population. This law extends the DEC's authority to adopt management regulations for deer. The authority delegated to DEC has been in effect for many years and provides the legal basis for DEC's efforts to manage deer populations. Continuation of this authority is essential to DEC efforts to maintain healthy deer populations. Chapter 220 of the Laws of 1997 (A.8114; Rules (Brodsky))

Extending muzzle loading season. This law grants the DEC the authority to extend the muzzle-loading firearm big game hunting season to a maximum of sixteen days in the Northern Zone. This legislation also provides DEC with the ability to change the season dates and specify whether antlered and/or antlerless deer are legal to harvest for muzzle-loader hunting. The more flexible season structure should eliminate some of the difficulty in promoting both recreation and herd control where desired. For example, in areas with high deer populations and high potential for conflict with bow hunters, a late muzzle-loading season would be possible to take advantage of abundant deer, while minimizing conflicts.

This law sunsets on October 1, 1999 in order to provide the Legislature with the opportunity to review the impact of these changes on muzzle-loading hunting in the Northern Zone. Additional safeguards include limiting the season length to a total not to exceed 16 days in any one unit and issuing special muzzle-loading permits, as may be necessary, to manage hunter participation and harvest. Chapter 241 of the Laws of 1997 (A.8018-A;Rules (Bragman))

Safeguarding New York's wild birds. This law creates a New York State bird conservation area program which will consist of state-owned lands and waters and create a master inventory list and map of properties in the conservation areas for purposes of research and reference. The legislation was modeled after National Audobon Society's Important bird Areas program and is intended to safeguard and enhance populations of wild birds native to New York. Chapter 544 of the Laws of 1997 (A.7909-C;Englebright))

Protecting wildlife and domestic pets. This bill would add new language and requirements to the existing law in an effort to prevent the killing of dogs chasing wildlife. In addition, this bill inserts a modified notification and recording procedure in situations where any dog has been killed. There is a provision in current law which allows anyone to kill a dog found hunting or killing a deer within the Adirondack or Catskill Parks. Some provisions refer to dogs found hunting deer, whereas other provisions refer to dogs found hunting wildlife. A recent incident on Long Island highlighted the necessity for more restrictive requirements on the killing of dogs and the inadequate notification procedures which exist. This bill passed the Assembly but died in the Senate Rules Committee. A.3482 (Robach)

ENFORCEMENT

Ensuring safe LNG facilities. This law extends the moratorium on the issuance of certificates of environmental safety for the siting of facilities and certification of routes for the transportation routes of liquified natural or petroleum gas (LNG) until June 30, 1997. Chapter 36 of the Laws of 1997 (A.6545; Rules). Chapter 235 of the Laws of 1997 (A.1201-A; Connelly) extends the effectiveness of Chapter 36 until April 1, 1999.

The potential for a large-scale human catastrophe inherent in the storage of highly volatile liquefied natural gas in densely populated areas makes it mandatory that both Federal and state governmental agencies exercise extreme caution in dealing with proposals for activation of LNG facilities. The object of this bill is to ensure a calm, deliberate and reasoned evaluation of such proposals and to assure the application of strict public safety standards. Experiences such as the 1973 explosion in an empty LNG tank on Staten Island in which 40 persons lost their lives underscore the potential for tragedy involved in the operation of such storage facilities.

Enhancing environmental protections on Long Island. This law extends provisions of chapter 901 of 1990 until October 1, 1999 relating to the enforcement authority in Suffolk and Nassau counties. Without this legislation, enforcement authority for the health commissioners of Nassau and Suffolk counties for certain provisions of the environmental conservation law, such as for water pollution control, including general prohibitions against pollution and against pollution of the marine district, and for control of the bulk storage of petroleum would expire. Chapter 88 of the Laws of 1997 (A.6667;Harenberg)

Preventing timber thefts. This law relates to the powers and duties of enforcement officers. The environmental conservation law provides that a landowner may give notice through posting that named activities such as hunting or trapping or "trespass for any purpose whatsoever" is prohibited without permission of the owner. DEC is obligated to enforce the posting law when the trespass consists of hunting, fishing, trapping or disturbing wildlife. DEC is authorized, but not obliged, to enforce trespass on posted lands related to timber theft, which often carries with it substantial adverse environmental and economic consequences. This law will hopefully encourage speedy reporting of timber trespass violations and, hopefully, lead to more convictions and a reduction in timber thefts. Chapter 648 of the Laws of 1997 (A.5410; Parment)

Increase penalties for wetlands violations. This law increases the maximum fee for penalties relating to tidal wetlands and makes each day's continuance of the violation a separate violation for the purpose of assessing penalties. This law increases the civil penalty amount that the Attorney General may seek in a court action to $10,000, and authorizes the assessment of penalties for continuing violations.

This law restores the parallel enforcement powers of the Attorney General and the Commissioner of the Department of Environmental Conservation, which were analogous until a 1990 amendment altered the penalties available to the Commissioner for violations of Article 25. The corresponding section authorizing the Attorney General to enforce the statute was not, however, amended at that time, resulting in a situation where the penalties assessed for violations of Article 25 vary depending upon which state official seeks such penalties. Thus, this legislation ensures more uniform and consistent enforcement of the law. Chapter 249 of the Laws of 1997 (A.8112; Rules (Brodksy))

Compliance checks for permit applicants. This bill would authorize the DEC to conduct an inquiry into an applicant's record of compliance and background as part of a permit application or review. The DEC would be authorized to revoke or deny permits to unsuitable persons based upon statutory criteria that includes past violations of the applicant or permit holder. This bill would ensure that persons who are unsuitable to carry out responsibilities under DEC permits are not authorized to do so. This bill passed the Assembly but died in the Senate. A.1623;(Brodsky)

Punishing hazardous waste polluters. This bill would redefine offenses of endangering public health, safety or the environment by eliminating an unintended limitation on the statutory elements of the offense of endangering public health, safety or the environment that is created by the words "into the environment" in the ECL sections establishing such offense. These words would be deleted from each relevant section where they appear, thereby clarifying the intent of the Legislature to punish persons in control of hazardous substances who willfully release the same, and, in doing so, endanger public health, safety or the environment. This bill passed the Assembly but died in the Senate. A.1624 (Brodsky)

Bringing settlement process in line with Open Space Plan process. This bill would restrict the DEC's ability to enter natural resource damage settlements where land acquisition is part of the settlement. The department currently has discretion to enter settlements for natural resource damages and, in some cases, may acquire land with the proceeds of the settlements. The Legislature has established a process, through the Environmental Protection Act and the Open Space Plan, for making major land acquisitions for environmental processes. This bill would allow the natural resource damage settlement process to work in a manner consistent with these laws. This bill passed the Assembly but died in the Senate. A.1624 (Brodsky)

Flexible penalty payments. This bill would codify the DEC's authority to allow local governments or small businesses to pay fees or civil penalties over $500 in installments, provided that the payor can post financial assurances in an amount less than or equal to the amount owed. The DEC has in the passed allowed such payment for amounts owed under consent orders, but there is no current statutory language concerning payment of fees or civil penalties to the DEC on an installment basis. The installments would be subject to interest at a rate not to exceed the underpayment rate set by the Department of Taxation & Finance. This bill passed the Assembly but died in the Senate. A.295 (Kaufman)

 SOLID WASTE MANAGEMENT

The Solid Waste Management Act (SWMA) of 1988 establishes New York State's solid waste management system: the reduction, reuse, recycling, and disposal of solid waste. The SWMA encourages municipalities to make significant progress in reducing the amount of solid waste generated. Additional legislation described below was passed by the Committee in order to further these goals.

SOLID WASTE MANAGEMENT FACILITIES

Enhancing solid waste management. This bill would require an applicant for a permit to construct a solid waste management facility to demonstrate that the facility would be consistent with the objectives of the local solid waste management plan, the planning unit in which the proposed facility is to be sited, and the planning units from which solid waste is to be received. In addition, this bill would change the definition of solid waste management facility to include recyclable handling and recovery facilities. This bill passed the Assembly, but died in the Senate. A.4133 (DiNapoli)

Empower localities to manage solid waste. This bill would prohibit a permit for a solid waste management facility in an area contrary to the local zoning in effect at the time of the application. This bill would empower municipalities to control land use within their borders. Under current law, the DEC need not consider local zoning when issuing a permit. In fact, there have been a number of instances where the DEC has issued a permit to operate a solid waste management facility contrary to local zoning. This bill passed the Assembly but died in the Senate. A.331 (John)

Putting local recycling programs first. This bill would add a requirement to permits issued for new landfills or municipal solid waste facilities. Before a permit could be issued, DEC would determine whether a proposed capacity and cost of solid waste disposal would have no adverse impact upon the municipality's source separation and recycling program or the municipality's achievement of statewide solid waste reduction and recycling goals. In order to determine impact, DEC would evaluate the need for any excess capacity and the economic and technical feasibility of recycling those components of solid waste to be disposed at the proposed facility. This bill passed the Assembly but died in the Senate. A.429 (John)

Stopping solid waste scofflaws. This bill would grant the department the authority to withhold for two years issuance of a permit for a solid waste management and resource recovery facility, or for a solid waste transfer station after suspension, revocation, or loss of such permit. This legislation attempts to prevent operators of such facilities who have their permit revoked or suspended from closing their businesses and reopening under the name of a new corporation. This legislation is consistent with what has previously been done by regulatory agencies of other permitted industries. This bill passed the Assembly but died in the Senate. A.15 (Lentol)

Better solid waste planning. This bill would allow local planning units to better track waste disposition in their area by requiring permitted solid waste facilities to copy the local planning unit on annual reports submitted to the department. Currently, if a local planning unit wishes to obtain this information, they must contact the department and request, under the Freedom of Information Law, that the information be made available. Submittal of such reports directly to local planning units should make facility specific information more conveniently accessible and assist localities in preparing compliance reports pursuant to their solid waste management plan. This bill would also expand the definition of "solid waste management facility" to include recyclable handling and recovery facilities. This bill passed the Assembly but died in the Senate. A.1858 (John)

TOXIC SUBSTANCES AND HAZARDOUS WASTE MANAGEMENT

Cutting commercial hazardous waste fees. This law provides for lower fees for commercial hazardous waste landfills operating in the State when their gross receipts decline. This bill was adopted in response to the burden from competition from state's with lower taxes upon the State's only commercial hazardous waste landfill, Chemical Waste Management's Chemical Services landfill in Model City. The law allows for a flexible pay differential based upon the gross receipts reported by such hazardous waste facilities. When the gross receipts tax is below $3.3 million, the facility will pay a fee of $100,000; when the tax is between $3.3 million and $4.4 million, the facility will pay $200,000; and when the tax is above $4.4 million, the fee will be $300,000. Chapter 509 of the Laws of 1997 (A.1802 (Pillittere))

Requiring disclosure of stored hazardous waste. This bill would require an owner of residential real property to disclose, in writing, any known release of hazardous substances, petroleum, and/or methane discharge, or that these materials have been stored on the property. This bill passed the Assembly but died in the Senate. A.2073-B (Brodsky)

Requires disclosure of environmental contamination. This bill would require sellers of commercial real property to notify a buyer, prior to the closing, of any past environmental contamination. The measure is designed to alert purchasers of non-residential real property to the threat or release of hazardous substances or petroleum at the property being purchased. This bill passed the Assembly but died in the Senate. A.418 (John)

Requiring petroleum spill notice. This bill would require DEC to notify all adjacent landowners and tenants of petroleum spills. Current law is inadequate because DEC is not required to notify neighbors of a release, even if it adversely impacts them. This bill passed the Assembly but died in the Senate. A.6459 (Englebright)

Ensuring hazardous waste cleanup. This bill would expand the definition of inactive hazardous waste site in order to ensure that hazardous substance sites in New York State qualify for State cleanup via the State's Inactive Hazardous Waste Site Remedial Program. The definition would include: any site where hazardous waste has been deposited, stored, disposed of, placed or otherwise come to be located; any site listed on the USEPA's National Priorities List; and any area where the commissioner has found hazardous substances which constitute a significant threat to the environment. This bill passed the Assembly but died in the Senate. A.3609 (DiNapoli)

Environmental Opportunity Zone Act. This bill would authorize municipalities to designate, by resolution, one or more parcels of real property within its jurisdiction as environmental opportunity zones. An environmental opportunity zone would contain a parcel or contiguous parcels of qualified real property -- land which is vacant or underutilized and in need of environmental remediation due to a release or threatened release of a contaminant. Sites listed in the State Superfund program or which are subject to an environmental enforcement action would be ineligible. This bill passed the Assembly but died in the Senate. A.4375 (Destito)

Empowering citizens. This bill would require DEC to provide opportunities for citizen involvement in the decision-making process associated with the remediation of inactive hazardous waste sites. This bill passed the Assembly but died in the Senate. A.1657-A (Colman)

Pesticides are used in virtually every facet of people's lives, e.g., mosquito control at resorts; pest control in schools and restaurants; killing undesirable tree species that block power lines; and, eradicating dandelions and other weeds on lawns. Despite the health risks posed by exposure to many pesticides, widespread and deliberate distribution of these toxic compounds continues with minimal regulation.

Clarifies pesticide violation enforcement. This law clarifies the scope of the privilege conferred by ECL S33-1205 so that the new reports (established by Title 12 in 1996) that are filed by persons who sell restricted use pesticides to private applicators cannot be used by DEC for enforcement purposes. The law reaffirms DEC's ability to employ pesticide use information for the proper investigation and prosecution of pesticide violations. Chapter 260 of the Laws of 1997 (A.8111; Rules (Mazzarelli)

Allows local pesticide laws. This bill would amend Title 10 of Article 33 of the ECL to give local governments more broader authority to regulate the commercial lawn application of pesticides. Public concerns such as the timing of pesticide application and appropriate measures needed to protect particularly sensitive individuals, public water supplies, and wildlife are not adequately addressed under state and Federal law. This bill recognizes that local governments, particularly those relying on sole source aquifers, may often be the parties in the best position to recognize and then implement further protections against exposure to pesticides. This bill passed the Assembly but died in the Senate. A.3573 (Luster)

Requires government to reduce pesticides. This bill would provide for the reduction in the amount of pesticides used by each State agency, public authority, public benefit corporation, local government, and school district. It would require these entities to implement integrated pest management policies, which encourage the use of safe and environmentally friendly alternatives, thus reducing the amount of unnecessary pesticides. This bill passed the Assembly but died in the Senate. A.4505 (Brodsky)

Bans highly concentrated DEET products. This bill would ban the sale or distribution of products intended for use on humans which contain concentrations of the insect repellant N,N-diethyl-m-touamide (trade name-"DEET") which are greater than 30 percent. The bill does permit products with controlled release formulations containing up to 33.33% DEET. Numerous studies have shown that products containing high concentrations of DEET to be harmful to humans. With the 1995 repeal of the department's regulations restricting the sale of high concentration DEET, it is necessary for the health and well-being of the citizens of New York State to statutorily restrict access to high concentrations of this chemical. This legislation does not ban the sale of DEET completely, only in more dangerous, and not necessarily more effective, high concentrations formulas. This bill attempts to protect consumers while recognizing the validity of concerns about pest-related diseases, as well as health concerns about the toxicity of DEET. This bill passed the Assembly but died in the Senate. A.4652 (Brodsky)

Requires landowner notice of pesticide applications. This bill would require commercial pesticide applicators to provide prior notice to neighboring properties. The bill establishes uniform standards for a consumer pesticide use information sign and establishes minimum boundary requirements for forty-eight hour advance notice of application to certain adjacent land owners. This bill passed the Assembly but died in the Senate. A.6459-C (DiNapoli)

 WATER CONSERVATION, QUALITY, AND MANAGEMENT

New York State has vast water resources, including the Great Lakes, the Finger Lakes, the Adirondack's lakes, and the Hudson, Mohawk, and Allegheny Rivers as well as major underground aquifers located on Long Island.

Seven million people living in New York City and upstate depend on the City's reservoir system. The City's water supply comes from three reservoir systems: the Croton reservoir system located in Westchester, Dutchess, and Putnam Counties and the Catskill and Delaware reservoir systems located in Ulster, Greene, Schoharie, Delaware, and Sullivan Counties. The quality of the City's drinking water is precarious because droughts are frequent, the infrastructure of the delivery system is aging, and pollution threatens many of the City's drinking water supplies.

It is important that every effort be made to maintain the purity of lake waters for recreational and other public uses. The protection and preservation of water quality is essential to the environment and economy of the State. The discharge of untreated and partially treated sewage from watercraft can be a significant problem in particular bodies of water including increasing the level of fecal coliform bacteria and viruses.

Oswego River Basin Protection. This bill would establish the Oswego River Basin Water Level Management Commission (the Commission). The Commission would be composed of representatives from a variety of entities with interests in the many uses and the enjoyment of the Oswego River Basin and would seek to balance those interests. The Oswego River Basin consists of the Seneca River, Oswego River, Finger Lakes, and Barge Canal System. The Commission would be charged with designing, implementing, and monitoring a water level management plan. This bill passed the Assembly but died in the Senate. A.4170-A (Luster)

LAND AND FORESTRY MANAGEMENT

New York's Forest Preserve is well-established as a unique and time-honored asset of state wide environmental importance. Since 1894, this State has decreed in its Constitution that the Forest Preserve shall be forever kept as wild forest lands. The vast land and forest resources of the state are overseen by a variety of groups, such as the Hudson River Valley Greenway. Pressures to develop private and public forest and open land will grow in years to come as populations increase and as suburbs move further and further away from metropolitan areas, necessitating more thoughtful zoning and planning and the preservation of critical wildlife habitats.

Encouraging land protection along the Hudson River. This law extends the expiration date of provisions granting indemnity to communities acquiring land for the Hudson River Valley Greenway. Communities that buy land or change or adopt land use controls pursuant to the Greenway Compact will be indemnified by the state against law suits brought as a result of those actions. The adoption of this law is meant to give comfort to local governments who are hesitant to adopt innovative zoning and other land use protection techniques because of lawsuits. Chapter 342 of the Laws of 1997 (A.8562; (Rules))

Protecting the Central Pine Barrens. This law amends the definition of "public body" to include the Central Pine Barrens Joint Planning and Policy Commission. By doing so, the conservation easements accepted by the Commission under the transfer of development rights program will be enforceable by the Commission and more secure. Chapter 45 of the Laws of 1997 (A.5299; (DiNapoli))

William B. Hoyt River Access Fund. This bill would create a fund for the acquisition of river access, easements and land adjacent to rivers and would dedicate the fund under the name of the late Williams B. Hoyt. The bill provides for river access and land acquisition accounts to be set up within the forest preserve expansion fund. Assemblyman William B. Hoyt was an out-spoken advocate of the public's right to access to navigable waters of the State and it is the purpose of this bill to honor his memory and goals. This bill passed the Assembly but died in the Senate. A.4616 (Brodsky)

Toughens tree theft penalties. This law makes clear the illegality of removing any species of tree from private land without consent of the owner. This section of law was enacted in 1911, when evergreen trees such as pine, spruce and hemlock were thought to need special protection and, relatively speaking, were more valuable for many purposes than the deciduous hardwoods such as maple, oak and birch. This law also protects Christmas tree operations from theft. Today, however, the unique quality of northeast hardwoods is recognized throughout the world and prices have risen to the point where it is not unusual to have a single tree worth $1,000 or more before it is cut. The increased value of hardwoods, and the relatively low risk of being apprehended and convicted, have led to the increase in the number of timber thefts. Chapter 301 of the Laws of 1997 (A.5411; Parment)

Enhances forest preserve protection. This bill would create a mechanism by which to enforce section 1 of Article XIV of the New York State Constitution, which mandates that Forest Preserve land be kept forever wild. The bill would clarify and strengthen the ability of the DEC to administer properly the Forest Preserve as well as other State landholdings. In addition it would enhance the effectiveness of the Department of Law and DEC in bringing enforcement actions. This bill passed the Assembly but died in the Senate. A.4611-A (Brodsky)

Reimbursement for firefighting costs. This bill would relieve counties of the responsibility of paying for response costs incurred by the state while extinguishing fires on state-owned land. The bill would also provide reimbursement for municipal fire and ambulance companies' emergency response costs incurred on any road under the jurisdiction of the New York State Thruway Authority or New York State Department of Transportation. This bill passed the Assembly but died in the Senate. (A.6903-A (Brodsky)

 RESOLUTIONS

Calling for an increase in Federal support for land and water protection. This resolution calls upon the New York State Congressional Delegation to support increased appropriations for the Federal Land and Water Conservation Fund (LWCF), particularly for state and local projects commensurate with the needs exhibited by federal, state and local governments. Despite and annual funding authorization of $900 million, declining appropriations have resulted in an $11 billion backlog of land and water projects. Adoption of resolution K.815 was intended to help convince Congress to fully and fairly distribute LWCF revenues to meet the ever-growing demand for outdoor recreation and open space protection. K.815 Rules (DiNapoli)

Constitutional amendment for a clean environment. This resolution memorializes Congress to pass an amendment to the United States Constitution calling for every person to have the right to clean and healthful air and water. The Congressional threat to our environmental laws has been compounded by recent Supreme Court decisions. The Court has quietly but radically undermined the constitutional foundation on which thirty years of federal law is based. In Seminole v. Florida, the Court declared unconstitutional lawsuits by private individuals to compel states to carry out environmental responsibilities. This was an essential element of the original congressional decision to delegate day-to-day environmental responsibility to the states. In New York v. U.S. the Supreme Court eliminated Congress' authority to require states to adopt policies essential for achievement of national environmental standards. These decisions and others will have devastating and permanent consequences for national environmental protections that could not be eroded by the courts. K.1018 Rules (Brodsky)

 OVERSIGHT AND PUBLIC HEARINGS

The Committee increased its role of oversight during the 1997 Legislative Session and held seven public hearings. The Committee also co-sponsored a hearing held by the Legislative Commission on Water Resources Needs of New York State and Long Island. These hearings allowed concerned citizens to address: the future of the Indian Point Three Nuclear Power Plant; air quality issues facing the state, forestry practices in the state, and enforcement of the environmental law by the Department of Environmental Conservation.

In recent years the Committee has been involved with the oversight of issues such as: the elimination of regulations concerning DEET in consumer products, the GE Waterford consent order, and DEC's lack of enforcement of the environmental conservation law. The Committee has seen the deterioration of environmental compliance in recent years, which has led to this new and invigorated emphasis on oversight.

Federal Clean Air Standards in New York State

On February 12th and continuing on February 26th, the Committee held a public hearing in Albany on the impacts of New Federal Clean Air Standards on New York State. The purpose of the hearing was to explore those impacts in light of the United States Environmental Protection Agency's (USEPA's) proposed new ambient air quality standards for ozone and particulate matter.

In 1997, the USEPA proposed more stringent air quality standards for two pollutants, ozone and particulate matter (PM). The Clean Air Act (CAA) requires EPA to review its ambient air quality standards every five years to determine if revisions to the standards are necessary to adequately protect public health and the environment.

Particulate pollution has been linked to increased mortality and to the aggravation of respiratory ailments such as bronchitis, asthma and emphysema. Recent studies suggest that adverse public health effects such as premature deaths and increased morbidity in children have been associated with exposure to particulate levels well below the existing standard.

The current standard for ozone was last revised in 1979. Since then thousands of new studies on the health and ecological effects of ozone have been published. These studies suggest that adverse effects, such as bronchitis, asthma, emphysema, chest pain and reduced lung function, occur at levels lower than he current standard. Several regions of the state currently exceed the federal standard for ground level ozone pollution.

The hearing explored a variety of issues relating to the new standards, including proposed measures for meeting the new standards, and the effects of the new standards on public health and businesses.

Additionally, on April 16th, Chairman Brodsky testified before the Congressional Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs of the Committee on Government Reform and Oversight on EPA's Particulate Matter and Ozone Rulemaking. The thrust of the Chairman's testimony was that while EPA's regulatory impact assessment overstated the costs and understated the benefits of lower ozone and PM emissions, this should not be used as an excuse not to move forward with the proposed standards.

On May 2nd the Committee held a hearing in Lake Placid on the issue of shelterwood cutting in the Adirondacks and the issue of local reimbursement of state expenses related to fire fighting on state-owned land. The hearing was continued in Albany on May 14th. The purpose of the hearing was to discuss the potential impacts of eliminating the permit requirement for shelterwood cutting by the Adirondack Park Agency and to discuss the impacts on local governments from the current requirements that they reimburse the state for their assistance in fighting fires in the Adirondacks.

Under present regulations, individuals must get a permit to clearcut more than twenty-five acres and cannot re-cut the area for ten years without a permit. The proposed regulations would have impacted between one and two million acres of the Park. Until the Committee convened a hearing on May 2, 1997, there had been limited public discussion of this issue. After the Committee exposed this issue to the light of day, these proposed regulations have died on the vine.

On May 13th, the Committee held a public hearing in Albany on enforcement of the Environmental Conservation Law (ECL) in New York State. The purpose of the hearing was to examine the Department of Environmental Conservation's (DEC's) alleged breakdown of enforcement efforts and the consequences of the reduction in enforcement of the ECL to the state.

On May 27th, Chairman Brodsky and Assemblyman Genovesi, Chairman of the Committee on Oversight, Analysis and Investigation, made a formal announcement of an investigation into the DEC's implementation of environmental policy in the state. The investigation focuses on four major areas: mission/organization and structure; permitting; regulatory policy; and enforcement. This investigation was prompted because of the recurring problems within the agency and with their lax enforcement and patronizing of special interests in the state. The patterns observed point to a real breakdown in the agency's effectiveness that Chairmen Brodsky and Genovesi are determined to examine. Records have been requested from Commissioner Cahill's office, other agencies, as well as gathering the input from citizens and community groups.

On May 29th, the Committee held a public hearing in Albany on pollution emission reduction credits. The purpose of the hearing was to explore the policies and practices governing the issuance of emission reduction credits in the state, especially as they were implemented in a recent deal between the DEC and a new glass manufacturing plant proposed for the city of Geneva.

Emissions reductions credits (ERC's) were promoted by the Federal Clean Air Act Amendments of 1990 as a way to provide incentives for the private sector to reduce air emissions. ERC's are earned by reducing emissions of certain air contaminants below prior legal emission levels. Combined with offset requirements, ERC's can be a useful tool for improving air quality. However, many important questions about the ERC program remain unresolved, including the issue of whether ERC's should be retired or traded. In addition, the issuance of Executive Order #40, authorizing the Department of Economic Development to give away ERC's earned by state agencies, raises a number of legal, policy and economic concerns. On May 29, 1997 the Committee held a hearing to examine the issuance of ERC's to the Guardian Glass Company in Geneva, New York.

Additionally, the Committee discovered that the DEC was permitting Guardian to emit 9.25lbs/ton of Nitrogen Oxide (NOx), when the lowest achievable emission rate (LAER) was 6.5 lbs/ton, a level that Guardian ultimately agreed to meet.

On July 9th, the Committee held a public hearing in Albany on the implementation of the down-state enhanced automobile emissions inspection and maintenance (I/M) testing program. The purpose of the hearing was to examine the way the state plans to meet the requirements of the Federal Clean Air Act Amendments of 1990 regarding air quality standards. The purpose of the hearing was to examine the Department's progress in meeting these important air quality goals, specifically in regard to motor vehicle emissions.

The New York State Clean Air Compliance Act of 1993 and the Federal Clean Air Act Amendments of 1990 impose requirements on the State regarding regulation of mobile sources, air toxics and permits programs. Failure to comply with these mandates may result in the loss of federal funding. The Department of Environmental Conservation is responsible for developing programs to implement the federal and state mandates. On February 16, 1996 the New York State Department of Environmental Conservation proposed amendments to Parts 200 and 217 of 6NYCRR, on an emergency basis, to establish a State motor vehicle Inspection and Maintenance (I/M) program. The motor vehicle I/M program was scheduled to take effect in the Fall of 1997, and is now expected to proceed in January of 1998.

The Committee will continue working toward developing a sound, workable environmental policy in the upcoming 1998 Legislative Session, as well as continue its oversight activities. The Committee will work to maintain the EPF’s current funding levels and to ensure that the EPF continues to be utilized for useful environmental projects.

The Committee will once again introduce legislation that would allow any private citizen who has suffered or may suffer an injury to commence civil actions to remedy environmental violations. Ensuring the long-term health and abundance of New York State's aquatic resources and habitat is a priority for the Committee and will be addressed in the upcoming session. Legislation will be introduced to continue to protect the declining populations of many marine species of fish. Also the Committee will look into the most effective ways to utilize the Conservation Fund.

Acid rain continues to represent a major source of air pollution in the State, particularly in the Adirondacks. Legislation will again be introduced that would provide for review criteria of pollution allowance trades by New York utilities for potential adverse impacts on acid sensitive receptor areas, thereby advancing the State's clean air goals.

Legislation will be introduced that would reduce solid waste disposal and expand markets for materials collected in municipal recycling programs by requiring that only "environmentally sound" packaging be sold in New York State. "Environmentally sound" packaging would be defined as packaging that is reusable, recycled, or recyclable.

Other initiatives to be addressed during the 1998 Legislative Session include: protecting the Adirondack Park's natural resources; environmental equity; pesticide notification and reduction; low-level radioactive waste reduction; coastal zone management; solid waste penalties; citizen participation and technical assistance funding; Safe Drinking Water Act; waste reduction audits; and watershed protection.

APPENDIX A
1997 SUMMARY SHEET

Summary of Action on All Bills
Referred to the Committee on

ENVIRONMENTAL CONSERVATION

APPENDIX B

APPENDIX C

New York State Assembly
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