S.2935 (Marcellino)




S.2935 (Marcellino)


Brownfield Incentives & Superfund Refinancing



The Business Council opposes S.2935 in its current form, and urges the Senate to consider key amendments before it is approved.

On the positive side, S.2935 focuses on the creation of a statutory brownfield program, and includes few changes to the state "superfund" program and avoids significant modifications to the state's oil spill program. The Business Council supports this focused approach.

On the "superfund" side of the bill, our most significant concerns are as follows:

  • It broadens the scope of superfund to include so-called "hazardous substance sites," with no countervailing reforms that make the program more fair or more efficient (e.g., apportioned liability, post-cleanup liability releases, use-based standards.)
  • It imposes $18 million in new hazardous waste program fees – fees that will largely impact the state's manufacturing sector. Since there is no relationship between most of businesses who will be paying these fees and most of the sites on which DEC will spend these funds, this can hardly be considered a "polluter pay" approach to superfund refinancing.
  • It would impose a new, but largely undefined, permitting program on businesses that have already signed consent orders with the state to cleanup sites for which they are responsible, and where ongoing institutional or engineering controls are part of the site remedy. Since DEC oversight and enforcement of these future obligations are already addressed through consent orders and DEC's existing enforcement authority, this new permitting program is an unnecessary additional mandate.

On the "brownfield" side of the bill, we believe that S.2935 fails to effectively address the two most crucial components of an effective voluntary cleanup program – reasonable cleanup standards and clear post-cleanup liability protection.

  • The bill fails to authorize adoption of cleanup standards based on the intended use of brownfield sites. Instead, the bill directs DEC to adopt presumptive remedies based on the past use of contaminated sites (e.g., gas stations, dry cleaners, chemical storage facility, etc.). Furthermore, the bill states that such cleanup standards need to be between 10 and 30 times more stringent than required under federal CERCLA – or even more stringent if "additional protection" is considered "feasible."
  • While the bill authorizes post-remediation liability releases for brownfield program participants, it also authorized DEC to revoke that protection – and the participant's eligibility for redevelopment tax incentives – based on environmental factors beyond the controls of the volunteer (e.g., DEC modifying an environmental standard on which the cleanup is based.) Under this bill, DEC reserves the right to require a volunteer program participant – or a successor in title – to do additional investigation and cleanups in order to address previously unknown or undiscovered environmental conditions.

The Business Council has a number of other concerns regarding the liability, remedy selection, oversight costs and other provisions of this bill as well, but the above-cited issues are the most significant.

The Business Council looks forward to working with the Senate to address these concerns, and to fashion a brownfield bill that will result in more cleanups, faster cleanups, and economic development projects on sites which today remain non-productive and potentially harmful to public health and the environment. However, we believe that S.2935 in its current form would fail to produce an efficient, effective brownfield cleanup and redevelopment program. For these reasons, The Business Council recommends against adoption of S.2935.