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BizTalk: A lifetime cleaning up environmental pollution

When it comes to pollution and environmental cleanups, Martin Doster has seen it all.

Over the course of a 33-year career with the state Department of Environmental Conservation, the former remediation engineer has observed some of the best and worst in corporate behavior.

He's been involved with addressing some of the worst environmental disasters in the region – including the notorious Love Canal in Niagara Falls – as well as efforts to go after the polluters responsible for the damage.

But he's also witnessed the creation of two of the most successful state environmental initiatives designed to clean up properties and get them back to productive use – the state and federal Superfund programs and the state Brownfield Cleanup Program.

And he's watched companies and developers not only take responsibility for remediating many sites in the region, but also embrace the opportunities they now have to do so with lucrative government incentives and a release from future liability.

Now he's on the other side of the fence. The 59-year-old Buffalo native and University at Buffalo graduate joined law firm Lippes Mathias Wexler Friedman in 2015, both to continue his environmental work as an adviser to the firm's clients, but also as the firm's new chief operating officer. He's also spent 10 years as an adjunct professor of environmental engineering at UB, helping to train the next generation in understanding how to clean up the land.

The Buffalo News: Tell us about your career.

Martin Doster: My degree was in chemical engineering and right out of school, the DEC was looking for somebody with that kind of background to monitor the chemical industries up in Niagara County. I came on board back in 1982 at the DEC.

Very quickly, after just about six years, a new program was coming around called Superfund. We called it "hazardous waste remediation." That was a direct result of some of the Love Canal issues in Western New York. And so New York State created this program, and I just happened to be in the right place at the right time.

I was the manager of that program in Western New York and held that title of remediation engineer for almost 27 years, and got to see the creation of the Brownfield Cleanup Program, and helped create some of the manuals that we use in New York State regarding the brownfield program.

And then an opportunity came along to come to this law firm, and not only did they allow me to continue my environmental work, which I really enjoy, but they asked me to take on the operations group for this law firm, so I’ve been wearing that hat as well.

BNWhat is the Superfund program?

MD: It started out as a federal program. New York State quickly adopted their own Superfund program, as New York State does. New York State has a very robust Superfund program, unlike most other states. They passed a bond act in 1986 to fund it, and then they re-upped that bond act in later years to replenish the funds.

The common person calls it Superfund, because it gave the government for the first time money to take on responsibility of cleanups and then be able to go back and sue the responsible parties. Up until that time, all we could do was ask people to clean up your mess. And they would say, yeah, OK, maybe, gimme some time.

Now all of a sudden, this pot of money comes along that says I’ll give you 90 days to get started. Otherwise, the government has the right to step in, do the cleanup, do what’s necessary to protect the public health and the environment, and then we’ll come back and seek our costs. And not only will we seek our costs, we’ll seek treble damages. That really got people’s attention.

Western New York is unfortunately been the home of many, many Superfund sites. We had over 450 at last count, starting in 1980. The vast majority of them have been cleaned up, and taken off the registries, so we don’t have that today, thanks to the good work of the DEC.

BN: How about the Brownfield Cleanup Program?

MD: Superfund, it's a very onerous law. The law basically says that even though you disposed of this in 1962 when it was OK to do so, it’s no longer acceptable to do that. And we’re going to call it illegal back then. We’re going to hold you responsible.

What that did in the real estate market was put a chill on all the property transfers. Now you started looking at that corner gas station or that kind of defunct small industrial building with trees growing up on the outside and a drum sitting in the back, and said I’m not taking on that liability because the government will hold me responsible.

So the 1980s and early 1990s saw the abandonment of industrial urban properties. From that came the genesis of the Brownfield Cleanup Program, to put incentives in place to get developers, companies, and entities to come back in and recycle this urban industrial land.

There are three incentives. If I want to take on a corner gas station that’s been abandoned and put a new Pizza Hut or Tim Hortons there, I can do the same thing in West Seneca on a greenfield. So we had to put money in place to level the playing field on the cost.

Second, timing is everything. [Developers] need to know the government can go as fast as they want to go for development of that property. Then there’s liability releases. If you do it according to approved plans, the state of New York will no longer hold you liable. Those three things became the Brownfield Cleanup Program.

BN: Were developers comfortable with the liability release, given what happened with Superfund?

MD: The language of the release was tightened up so it would give comfort, not only to the developer doing this, but to the banks, because the banks were the ones that had to loan on the property. So it’s a release from the State of New York, not just one agency. It's all-encompassing.

It doesn’t prevent anything from the federal side, but the federal side has memorandums of understanding with various states, adopting or adhering to their program. I’m not aware of anywhere the feds have come in and upended a brownfield cleanup.

BN: So what is the relationship between Superfund and the Brownfield Cleanup Program?

MD: You’re the ABC Company that perhaps goes bankrupt and abandons a piece of property. If a developer or another industry or a local municipality wanted to attract somebody to come to that site, they would offer these tax incentives under the Brownfield Cleanup Program to come in and do that.

But if a period of time goes by, and the contamination rises to the level of what we call a significant threat, that site would go then into Superfund, and the government would then take over the cleanup. At that point, the local township, the county, would kind of lose control. Now it’s at the whim of the budget of the state or the priorities of the state or the feds or whatever the case may be.

The person on the street really doesn’t care too much what the program is. They want it cleaned up to a very safe level, and both programs use the same criteria for cleanup. They’re all in our regulations that lay out the cleanups.

BN: How does liability work in Superfund?

MD: Superfund is an interesting law. It is the polluter that is responsible. It’s also anybody that owns the property during the lifetime of the pollution taking place.

If ABC Company operated in the 1960s, sold it to XYZ Company in the 1970s and they go bankrupt, we can go back to that earlier one. And it doesn’t matter how much you are responsible for. There's a lot of liability to share in that program.

BN: Can the responsible party, who did the polluting, clean it up under the Brownfield Cleanup Program?

MD: They can.

That’s a great thing for us as citizens, because it really accelerates the cleanup, even though the taxpayer is giving tax credits. It takes away the need for lawsuits for years and years, and can accelerate the result. A lot of these projects can really go very quickly in terms of coming up with a good cleanup plan and how to reuse that property.

BN: Has the Brownfield Cleanup Program gotten the kind of widespread acceptance that was sought?

MD: I believe it has. As soon as you get that certificate of completion, that’s as good as gold to banks. All the developers are comfortable using the program now, and use it well in Western New York.

There are parts of the state that you don’t see any brownfield development going on, and it’s simply because that community hasn’t had the experience of someone guiding that.

DEC certifies five brownfield cleanups as completed

BN: Is there a point at which a property is just too far gone to be cleaned up? Is there anything from Love Canal that is still not developable?

MD: Let’s face it, Niagara Falls was ground zero for industry, big industry, chemical industry. So for anyone to say with a straight face that you could go down Buffalo Avenue where all the industry was and say it was cleaned up, no, there will always be this residual that we as a community will always have to be aware of and deal with.

But Love Canal itself has been cleaned up and it’s monitored and maintained, and that is secluded.

Love Canal set key precedents for Superfund cleanups, says EPA regional chief

BN: Have you been surprised by how much activity there’s been in redevelopment of brownfields?

MD: I'm pleasantly surprised by the redevelopment and the resurgence of the waterfront, in a way that works for everyone.

We can have a thriving industry and yet have people in kayaks, at Canalside, at the Outer Harbor. These are great things, and some of the leadership in Western New York have really taken advantage of that and put us on the map, so that when people are looking, like our children, they can see that Buffalo is really happening.

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