Introduction: History of Brownfields Regulation

   “Brownfields” are “abandoned, idled, or under-used properties where expansion or redevelopment is complicated by real or perceived environmental contamination.  They typically are former industrial or commercial properties where operations may have resulted in environmental contamination.  Brownfields often pose not only environmental, but legal and financial burdens on communities.  Left vacant, such sites can diminish the property value of surrounding sites and threaten the economic viability of adjoining properties.”[i]

Brownfield sites generally differ in both degree and kind from other contaminated sites.  They differ in degree of contamination because they exclude the most heavily contaminated sites—for example, those on the federal National Priorities List, those subject to RCRA corrective action, those subject to active federal or state enforcement, and those classified in New York State’s Registry of inactive hazardous waste disposal sites (pursuant to ECL §27-1305) as “Class 1”  (presenting an imminent danger of causing irreversible or irreparable damage to public health or the environment)[ii] or “Class 2” (significant threat to public health or the environment – action required).[iii]  They also include sites (often considered to represent the bulk of “brownfield” sites) that are merely “perceived” to be contaminated—where the stigma or fear of contamination operates to discourage beneficial use or reuse of the property.  “The majority of contaminated sites cleaned up under the Voluntary Cleanup Program [do] not present the complexities found at State Superfund sites.”[iv]

Brownfield sites also differ in kind from other contaminated sites.  Not only do they generally not pose significant risks to public health and the environment, but they tend to be associated with urban decay, tending to be located primarily in older cities, often in economically disadvantaged areas.  Ironically, they are both the product of the departure of major industrial employers (i.e., lost jobs result in higher unemployment and reduced productivity) and a cause of a continued decline in property values (i.e., the deteriorated condition of many of these properties reduces the value and desirability of surrounding properties, causing the spread of urban blight). 

While the cleanup of more heavily contaminated properties is driven by the need to abate a hazard to public health and the environment, brownfield sites will generally be cleaned up only if incentives are provided to encourage their reuse and redevelopment.[v]  Failure to provide these incentives will primarily hurt the economically disadvantaged and racial minorities who cannot afford to move to the suburbs or chase after higher-paying jobs.  It will also hurt the State’s older cities, towns, and villages which are already straining to maintain aging infrastructure and more costly community services in the face of a rapidly declining tax-base.

If the right incentives are not provided to stimulate the cleanup and reuse of brownfields, it will not hurt the wealthy or land developers.  They will simply go to the suburbs or to “greenfield" areas not yet marred by urban decay or pollution.  This will require more public resources to be spent on costly infrastructure (new roads, public water, and public sewer) and new community services—leaving even less for older urban areas.[vi]

The “Brownfields Coalition” in New York[vii] likewise recognized that eliminating the barriers to the cleanup and redevelopment of brownfield sites is important for reasons going beyond eliminating threats to public health and the environment.  It acknowledged (Coalition Report, supra, n. 5, pp. 24-25) the importance of the following additional goals:

• “Preserving the maximum number of greenfield sites in New York State, preventing continued sprawl[viii] and environmental degradation and supporting sustainable development and smart growth for the state’s cities, suburbs and rural areas; [and]

• “Promoting the physical, economic and social revitalization of communities affected by brownfields….”

 It took 15 years of experience using the rigid and punitive “strict, joint and several, and retroactive” liability approach of CERCLA[ix] and parallel State Superfund laws for it to dawn on government regulators that this was a no-win, counterproductive situation.  The Superfund “atomic bomb” approach was preventing, rather than stimulating, the cleanup of lesser-contaminated brownfield sites and was contributing to the economic decay of urban centers throughout the country.  Owners and operators of such properties were keeping them off the market to avoid calling them to the attention of regulators—so that the risk of being forced to carry out an expensive cleanup would not materialize.

Beginning in 1995, and continuing thereafter, the U.S. Environmental Protection Agency ('EPA") launched a series of brownfields initiatives designed to stimulate voluntary site cleanups and promote economic revitalization.  What had been a trickle of similar state programs (beginning with Minnesota in 1988) became a torrent of state brownfield reforms.  By early 1997, there were at least 39 state brownfield programs.  Today, virtually every U.S. state and territory has a brownfields program.

Unfortunately, New York State remains one of the small handful of states lacking a statutory voluntary cleanup program for brownfields--although it does have a separate, legislatively authorized program for funding the cleanup of municipally-owned brownfield sites.  Indeed, the New York program is not even grounded in formal regulations or published guidance.  Although this unhappy circumstance may be remedied in the near future, there are significant underlying problems with the structure and philosophy of the New York program that show no signs of changing for the better.[x]

This analysis will outline and illustrate some of the problems with New York’s brownfields / voluntary cleanup program and with pending reform proposals.  It will point the way toward some possible improvements.  I wrote it from the vantage point of a native New Yorker (CCNY, B.S. 1966) who returned to New York State in 1998 after spending 26 years in the Maryland suburbs of D.C. observing how things are done in the rest of the country.