Brownfield Redevelopment Act
June 21, 2001
The Business Council appreciates the sponsors' and the Assembly's interest in developing programs to encourage the reuse of contaminated properties. However, The Business Council opposes this bill, not because it represents a different approach than the one we have advocated, but because it will result in a costly, administratively burdensome process, that will fail to achieve the cleanup and redevelopment of the economically distressed areas targeted by this bill. Moreover, it fails to provide any degree of liability protection or redevelopment incentives for contaminated properties outside of the areas designated by this bill.
The Business Council believes that a more effective, more comprehensive, and equally protective statewide voluntary cleanup program can and should be adopted this session, in conjunction with a superfund refinancing and reform package - a view shared by the Administration, the State Senate, and a number of other business and environmental interests.
While this legislation may represent a useful step in the legislative negotiating process, it fails to provide the comprehensive brownfield/VCP reform needed in New York State. For these reasons, and the more detailed issues discussed below, The Business Council recommends against approval of A.9263.
- Program Scope:
The liability protections - and the redevelopment incentives - proposed
in this bill only apply to projects in economically distressed areas, defined
as having 20 percent "poverty rates," unemployment rates 25 percent above
state averages, or that have lost 5 percent of their population. The
bill provides no liability protection or redevelopment incentives whatsoever
to entities doing voluntary cleanups at sites outside of these designated
areas, even thought there is widespread agreement that such statewide
reforms make sense. As such, this bill is more restrictive than the state's
current, informal, voluntary cleanup program, which has provided liability
releases at VCP sites throughout the state.
- Cleanup Goals:
The bill establishes cleanup "goals" for voluntary cleanup efforts that
are more stringent than those established in the state superfund statute
and applied to responsible parties. This bill states that the goal of
all brownfield cleanups is to restore sites to "pre-disposal conditions"
where "feasible," and to achieve existing state groundwater (e.g., drinking
water) standards, irrespective of their feasibility. Neither pre-disposal
conditions, nor achievement of water quality standards, is required under
the current superfund law. (Note that the state's superfund regulations
set a goal of "pre-release" conditions, it only applies "where feasible
and authorized by law;" i.e., only at sites contaminated by the illegal
management or disposal of hazardous wastes.) As such, under this bill, a
non-responsible party could be required to achieve groundwater standards
at the site, regardless of area-wide groundwater contamination or the potential
impact of such contamination on water supplies or surface waters. Further,
the "presumptive remedies" authorized in this bill - described as a means
to expedite cleanup projects - are based on the achievement of these more
stringent remedial "goals." In contrast to this approach, the Governor's
superfund working group, the "Brownfield Coalition," and the Business Council
all recommended a cleanup goal of "protection of public health and the environment,"
and cleanup standards that consider the future use of a site. The Business
Council and others have also endorsed the use of very conservative "target
risks" for both cancer and non-cancer health effects in setting these cleanup
standards. We believe that our approach is as protective of public health
and the environment as the "goal" established in this bill, and provides
a far more straightforward approach to determining what remedial activity
will be required at a brownfield site.
Selection: On the one hand, the bill offers pre-approved "presumptive
remedies" as a way to expedite site cleanup projects. In part, these presumptive
remedies are intended to provide an alternative to the detailed "feasibility
study" usually required under the superfund program. However, the bill establishes
a hierarchy of preferred cleanup approaches (e.g., removal is favored over
on-site treatment), and requires that a participant proposing a lower-ranked
presumptive remedy justify that decision to the Department. These procedural
requirements seem to offer limited relief from the traditional feasibility
- Gaps in
Liability Protection: The bill establishes a liability release reservation,
or "reopener," for additional contamination discovered at a site that is
inconsistent with the requirements of the site remedial plan. If the remedial
plan is based on the bill's goal of "pre-disposal conditions" or the achievement
of groundwater standards, this liability reopener will be triggered, even
if the additional contamination poses no real threat to public health or
environmental receptors. As written, this reopener could also subject the
site owner to additional liability due to contamination that has migrated
onto the property from off-site sources.
- Citizen Participation:
The Business Council agrees that public input is a necessary component of
all remedial programs, and have supported statutory "citizen participation"
provisions as well as the funding of technical assistance grants. However,
this bill establishes an extensive "citizen participation" requirement on
all brownfield site projects, regardless of their potential impact on public
health and the environment. Additional citizen participation requirements
are also required before a site can be made eligible for the economic development
incentives provided in the bill. At the same time, the bill also subjects
these projects to review under the State Environmental Quality Review Act.
These requirements will add significantly to the time and costs required
to obtain approval for voluntary cleanup projects, will add to the uncertainty
regarding the ultimate approval of proposed development projects. These
procedural requirements will be especially burdensome on the less marketable
sites that are supposed to be the focus of this legislative program. We
urge the Assembly to consider more reasonable timetables and citizen participation
- ESDC Program
Preference - The Business Council supports targeted incentives for the redevelopment
of brownfield sites, and we have already endorsed several of the incentives
included in this bill. However, we oppose the provision in this bill that
requires the Empire State Development Corporation to give funding preference
to projects within these targeted brownfield, regardless of the relative
merit of such projects in terms of creation or retention of new jobs. We
oppose this mandated preference for projects in narrowly defined brownfield
- Site Restrictions
- The bill imposes additional restrictions on the availability of redevelopment
incentives. For example, it only applies to "abandoned or underutilized"
property, precluding the use of this program to facilitate the sale of existing
businesses to new owners, where the environmental liabilities of the current
owners/operators impose a significant impediment to the transaction. It
also excludes any property subject to "any" state or federal environmental
enforcement action, regardless of the significance of the alleged violation,
again limiting its applicability to market sites where the current owner
or operator is failing to meet environmental standards.
- Title 13 Liability - The bill creates new state-level liability for responsible parties that goes beyond existing provisions of the state's superfund laws (ECL Article 27, Title 13). It proposes to make responsible parties - as defined in this bill - responsible for "all costs of removal or remedial actions incurred by the state...not inconsistent with the national contingency plan." Since the existing state superfund provisions - and existing DEC financing mechanisms - only address state cleanup efforts at designated "significant threat" sites, the full purpose of this liability provision is unclear. In part, it would allow the state to recover site investigation costs at sites that end up not being subject to the state's Title 13 enforcement authority. While similar cost-recovery provisions appear in the federal superfund statute (CERCLA), we see no need for such language to be part of a brownfield redevelopment bill.
The Business Council appreciates the Assembly's interest in fashioning effective brownfield/voluntary cleanup legislation. However, far more effective incentives can be offered that still provide high levels of protection for public health and the environment.
For these reasons, The Business Council opposes adoption of A.9265.