Disincentives for BF site owners

1. For at least certain purposes, the bill differentiates between a “Participant” (an applicant who was an owner at the time the site was contaminated or is otherwise a “person responsible”—unless the person’s liability arises solely from its post-contamination status as an owner or operator) and a “Volunteer” (an applicant other than a Participant, including one whose liability arises solely as a result of its post-contamination status as an owner or operator—provided the person exercises “appropriate care” with respect to hazardous waste found at the site). [p. 3]
2. Within 20 days of completion of the final investigation work plan report by the cleanup volunteer or participant, DEC must determine if the site poses a “significant threat” based on title 13 criteria. [p. 10]
3. Within 6 months of determining that a site (where the cleanup applicant is a volunteer) poses a significant threat, DEC must bring an enforcement action against any parties [other than the cleanup volunteer—p. 11, but not p. 29] known or suspected to be responsible for contamination at or emanating from the site according to applicable statutory or common law liability principles.  [pp.11, 29]
4. After DEC has issued a certificate of completion for a brownfield site, the “applicant” shall not be liable to the state upon any statutory or common law cause of action arising out of the presence of hazardous waste in or emanating from the brownfield site that was the subject of the certificate.  This liability limitation covers hazardous waste present at any time before the effective date of the brownfield site cleanup agreement.  However, the liability release received by a Participant will not cover a natural resource damages claim under federal law. [p. 21]
5. The covenant not to sue issued to the cleanup Volunteer or Participant extends to successors or assigns and to a person who develops or otherwise occupies the brownfield site (provided such persons act “with due care and in good faith” to adhere to the terms of the agreement).  However, the covenant does not extend and cannot be transferred to “a person who is responsible for the disposal on such site of hazardous waste or the discharge of petroleum according to applicable principles of statutory or common law liability” as of the effective date of the agreement—unless that person was a party to the brownfield site cleanup agreement.  [p. 22]
6. Nothing in the liability limitation section of title 14 may be construed to affect either (a) the liability of any person for any costs, damages, or investigative or remedial activities that are not included in the voluntary agreement or investigation or remedial work plan, or (b) DEC’s authority to maintain an action or proceeding against any person who is not subject to the voluntary agreement or remedial work plan.  [p. 22]
7. A settlement with one or more liable persons does not discharge any other “persons responsible under law” from their duty to investigate and remediate the hazardous waste unless the settlement’s terms so provide. [p. 22]
8. DEC is directed to conduct investigations of sites listed in the inactive hazardous waste site registry and to investigate areas or sites which it has reason to believe should be included in the registry [this is existing law].  If, at the time of DEC’s annual assessment or reassessment of registry sites a site—other than a “class 1” or “class 2” site—is the subject of negotiations for, or implementation of, a brownfield site cleanup agreement, DEC must defer its assessment or reassessment of the site during the period such person is engaged in good faith negotiations to enter into such an agreement and, following its execution, is in compliance with the terms of such agreement, and must assess or reassess such site upon completion of remediation to DEC’s satisfaction.  [p. 43]  Note: deferral is still possible until July 1, 2005 for Class 1 and 2 sites owned by a volunteer (see item 9, below).
9. Brownfield sites are defined to exclude Class 1 and 2 registry sites—except where sites “owned” by a volunteer are listed prior to July 1, 2005.  [p. 3]
10. DEC is given the authority to direct any applicant who is a “responsible party” to provide a technical assistance grant of up to $50,000 to concerned not-for-profit, tax exempt corporations.  [p. 19]  The cost of such a grant may apparently serve as offset against otherwise reimbursable state costs.  [p. 9]  It is not clear whether such private “grants” are subject to the same qualification as are such grants when issued by DEC—i.e., limited to “significant threat” sites.
11. Even following the completion of an agreed-upon cleanup and the issuance of a liability release and covenant not to sue, the state reserves the right to require additional investigation and remediation where the applicant fails to “make substantial progress toward completion of its proposed development of the site within three years” (or the applicant engages in “unreasonable delay” and fails to complete its proposed development of the site within a “reasonable time,” considering the size, scope and nature of the development).

The state should be encouraging BF site owners to revitalize their sites or to sell them to third parties who will redevelop them.  It should not be encouraging them to “mothball” their properties because of the threat of DEC enforcement action and/or Registry listing if they allow a third-party to enter into a BF cleanup agreement with DEC.

1. This is a significant improvement over the DiNapoli bill (A. 7507), which did not differentiate between Participants and Volunteers.

2. Assessing a site’s “significant threat” status after completion of the investigation work plan report is also an improvement over the DiNapoli bill, which would have required such a determination before entering into a cleanup agreement.  (Because a “significant threat” finding would require listing of the site in the state superfund registry and enforcement action by DEC, the DiNapoli approach would have deterred current brownfield site owners from selling the property and risking both registry listing and DEC enforcement.)  The compromise bill, although it allows deferral of registry listing as long as investigation and/or cleanup efforts are proceeding in good faith under a brownfield cleanup agreement, will have a lesser deterrent effect than the DiNapoli bill.  However, it may still have a chilling effect on owners and/or induce them to participate as parties to cleanup agreements because DEC will be required to list “significant risk” sites and pursue enforcement action any time a cleanup volunteer elects to withdraw from a cleanup agreement.

3. The status of current owners as potentially responsible parties under statutory and common law principles appears to be unaffected by the compromise bill’s differentiation between “participants” and “volunteers”—unless the owner is itself a cleanup program volunteer under title 14 [but not under title 31—Groundwater Protection and Remediation Program].

4. The current owner (who is not a cleanup volunteer) would appear to be unprotected by a certificate of completion provided to a prospective purchaser/volunteer.  Current owners who are not completely deterred from putting brownfield sites on the market would be well-advised to join in any brownfield cleanup agreement as a co-applicant.

5. The current owner, unless a party to a cleanup agreement, will not benefit from a covenant not to sue issued to a cleanup volunteer.

6. The current owner, unless “subject to” a cleanup agreement, will not benefit from a liability release issued to a cleanup volunteer.

7. Reinforces that a current owner does not benefit from a brownfields cleanup agreement or settlement, unless the owner was a party to it.

8. This requirement of deferring registry listing while a brownfield cleanup is proceeding may encourage participation in the brownfields program of sites on DEC’s “radar screen” that have not yet been listed in the registry.  However, particularly when coupled with DEC’s new duty to make “significant threat” determinations for all sites in the brownfields cleanup program (item 2), it may have the opposite effect on sites that have not yet been focused on by DEC—especially where the extent of contamination is not known by the owner.  Fear of state superfund liability may cause many brownfield site owners to “mothball” these sites rather than risking registry listing if the sites are allowed to enter the brownfield cleanup program.

9. This is another inducement for innocent current owners to participate in brownfield cleanup agreements as applicants or co-applicants and to get their sites in the program prior to July 2005—at least for class 1 and 2 registry sites and sites likely to be classified as such by DEC.  (However, for sites that DEC has not yet focused on which may or may not rise to class 1 or 2 status, owners may feel it is in their best interest to “hide in the weeds” and mothball their sites.  After July 1, 2005, this is likely to be the case for most unclassified sites with more than de minimus contamination.

10. If an innocent current owner is considered a “responsible party” for these purposes, potential liability for providing $50,000 grants could operate as a significant deterrent to the owner’s willingness to participate in a brownfield deal.  Even if it can be offset against otherwise reimbursable state costs, it may exceed the amount of such reimbursements.

11. If the brownfield site owner knows that the continued viability of any liability release will depend on the ability and willingness of a prospective purchaser or redeveloper to make substantial progress toward completing a proposed development within three years, this could make him/her reluctant to participate in a brownfields deal.

Stringency of voluntary cleanup program relative to state superfund

1. The policy of the new Brownfields Cleanup Program is “to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment by establishing…a statutory program to encourage cleanup and redevelopment of brownfield sites.”  All remedies must be “fully protective of public health and the environment, including, but not limited to, groundwater….”  Remedies that achieve “a permanent cleanup of a contaminated site” are to be preferred over those that do not.  [pp. 2-3]  In new title 36 (“Environmental Easements”) refers to “the state’s policy of restoring and revitalizing real property located throughout New York State.”  [p. 25]
2. Establishes four cleanup “tracks,” including an unrestricted use track (“track 1”) and a track that achieves a cleanup level that is protective for the site’s current, intended or reasonably anticipated residential, commercial or industrial use with restrictions and with reliance on long-term institutional or engineering controls (“track 4”). [p.14]
3. Requires sites, other than those on “track 1,” to do an alternatives analysis evaluating at least two remedial alternatives, including an unrestricted use (track 1) cleanup.  DEC may require “significant threat” sites to evaluate additional alternatives and then select the remedy to be implemented.  [p. 11]  For non-significant threat sites, DEC is given the discretion to require consideration of a “track 2” cleanup option and then to require (as a condition of continuing under the voluntary cleanup program) implementation of this option.  [pp. 11-12]
4. For all remedies, sets a “target risk” of residual contamination not to exceed an excess cancer risk of one in one million for carcinogenic end points. [p. 12]
5. Adopts a set of remedy selection factors that differs from that under Part 375 for state superfund sites in three respects.  First, it replaces the “Standards, Criteria, and Guidance” (SCG) criterion under state superfund with the federal ARAR approach (“conformance to standards and criteria that are generally applicable, consistently applied, and officially promulgated, that are either directly applicable, or that are not directly applicable but are relevant and appropriate” unless there is “good cause” to dispense with such conformity.  Second, it requires consideration of “the current, intended, and reasonably anticipated future land uses of the site and its surroundings,” but only if there is “reasonable certainty associated with such use” and the use conforms with applicable zoning laws or maps (or the reasonably anticipated future use determined by DEC).  Third, it adds 16 additional criteria (not required to be addressed under state or federal Superfund), including environmental justice concerns and proximity to important cultural resources, natural resources, floodplains, and potentially vulnerable groundwater.  [pp. 12-14]
6. Where a use-based cleanup (track 4) is performed, “exposed surface soil” must be remediated to track 2 (or 1?) levels to a depth of two feet (for sites used for residential use) or one foot (for sites used for commercial or industrial use).  [p. 16]
7. Requires a state-licensed P.E. to submit a “final engineering report” before DEC will issue a certificate of completion.  [p. 20]
8. Adds a reservation / reopener to the liability release where the applicant fails to make “substantial progress toward completion of its proposed development of the site within three years” or fails to complete its proposed development “within a reasonable time, considering the size, scope and nature of the development.”  [p. 22]
9. Requires at least 60 days advance written notice to DEC of any proposed “change in use” of the site (defined to include mere transfers of title), even if there is no physical alteration or construction at the site.  DEC has 45 days to decide whether the proposed change is “authorized.”  (A change in use is also grounds for reopening a liability release “unless additional remediation is undertaken.”)  [pp. 22-23].
10. Gives DEC extraordinary authority to gain access to any property that may have been the site of hazardous waste and/or petroleum disposal to inspect and take samples and to implement an investigation and/or remediation.  It also requires any person to furnish DEC any “information relating to the current and past hazardous waste and/or petroleum handling activities” and to provide access to and to copy all books, papers, documents and records relating to such handling in the possession of such person or any other person now or formerly under such person’s control.  It also gives DEC extensive powers to subpoena the production of books, papers, documents and other records, and the rendition of testimony relating to current and past hazardous waste and petroleum handling practices.  [pp. 24-25, 27]
11. Requires deeds for the conveyance of brownfield sites (that are cleaned to other than unrestricted use, track 1, levels) to state that they are subject to an environmental easement held by DEC. [p. 26]  Also requires responsible parties at inactive hazardous waste disposal sites where institutional and engineering controls are required to execute an environmental easement.  [p.49] Requires all environmental easements to be included in a searchable DEC database.  [p. 26]
12. Prohibits local governments from approving “a building permit or any other application affecting land use or development” of land subject to an environmental easement (and that “may relate to or impact such easement”) without notifying and referring the application to DEC, and waiting “until it receives approval from the department” (which will be provided in a “timely fashion”).  [p. 27]
13. Expresses the intent of the legislature that “groundwater be protected for its classified use, the highest of which is drinking water,” and that DEC “develop a strategy to address contaminated groundwater and implement a program to remediate and manage groundwater resources in a manner that will ensure long-term sustainability.”  [p.28]
14. Directs DEC to develop and publish within 3 years “a strategy to address the long-term remediation of groundwater contamination” including protection against future degradation from contaminated sites.  This strategy is to “govern all programs within the department responsible for groundwater protection and remediation.”  [pp. 28-29]
15. DEC is responsible for the remediation of off-site groundwater contamination emanating from sites being cleaned up by a volunteer where the site has been determined to be a significant threat.  In such circumstances DEC is directed to bring an enforcement action against any parties “known or suspected to be responsible for contamination at or emanating from the site ….”  [p. 29]
16. The definition of “hazardous waste” is expanded to include “hazardous substances” on the list promulgated pursuant to ECL § 37-103 and to automatically amend DEC’s existing rules and regulations to incorporate the new definition.  [pp. 40, 48]
17. Amends the state superfund law to provide for deferral of registry listing of sites (not yet placed in classification 1 or 2), which at the time of their assessment or reassessment are the subject of negotiations for, or implementation of, a brownfield site cleanup agreement.  The deferral continues during the period the applicant is engaged in good faith negotiations or is in compliance with the terms of a cleanup agreement.  Upon completion of remediation to DEC’s satisfaction, DEC is directed to assess or reassess the site’s eligibility for registry listing.  [p. 43]
18. Authorizes DEC to provide, or to order a person acting under order or on consent, technical assistance grants of up to $50,000 to qualified non-profit community groups that may be affected by an inactive hazardous waste disposal site remedial program.  Such grants, which require no matching share from the recipient, may not be used for collection of field samples, political activity, or legislative lobbying.  [pp. 48-49]  In the brownfields program, DEC may provide technical assistance grants of up to $50,000 to any tax-exempt non-profit corporation at any “significant threat” site which may be affected by a brownfield site remedial program.  Alternatively, the commissioner is authorized to direct any applicant who is a “responsible party” to provide such grants.  [pp. 19-20]
19. Creates liability exemptions under state superfund for (a) lenders and other secured creditors; and (b) municipalities and other public corporations.  It also places a cap on the liability of fiduciaries.  It also modifies the third-party defense under Superfund to conform more closely to federal law.  [pp. 50-56]
20. Amendments to the Environmental Restoration Program (Part D) retain the language of existing law requiring that “the remediation objective of an environmental restoration project shall meet the same standard for protection of public health and the environment that applies to remedial actions undertaken pursuant to section 27-1313”—except that the word “remediation is inserted between “restoration” and “project” to make clear that this requirement is not applicable to investigation projects.  [p. 34]
21. The Navigation Law is amended to allow the owner of an oil spill site to escape strict liability when it is demonstrated by a preponderance of the evidence that “a discharge and the resulting cleanup and removal costs were caused solely by an act or omission of one or more [unrelated] third parties” to whom the liability shifts.  [p. 72]

If innocent third-parties (prospective purchasers and would-be redevelopers) are to be attracted to revitalize BF sites and carry out voluntary cleanups, regulatory burdens must be reduced not increased—relative to the Superfund program.  Insisting on restoring BF sites to Garden of Eden pristineness will result in no cleanups.

1. This new policy formulation is vastly preferable to that of the DiNapoli bill which set a remedial goal of “complete and permanent cleanup,” including the long-term restoration of all non-saline groundwater to “drinking water quality.”  Not only does this new goal not formalize an unrealistic and unworkable objective of complete cleanup, but it recognizes the important value of voluntary cleanups to promote reuse and redevelopment.

2. Permitting use-based cleanups (albeit subject to multiple qualifications and restrictions) greatly enhances the viability of the program and the willingness of prospective cleanup volunteers to participate.

3. Although requiring an alternatives analysis will add time, expense, and red tape to a voluntary cleanup (reducing its attractiveness to site redevelopers), this is offset by the added flexibility provided in available cleanup options.  (It is also appropriate to require more evaluation in the case of “significant threat” sites—but not for non-significant threat sites.)

4. This is the most stringent “target risk” level for carcinogens of any state in the country—especially since it appears to address the cumulative risks of all residual contamination.  Its stringency is evident when compared to the background lifetime cancer risk of Americans, which is one in four (= 250,000 in a million).  It is not clear to what extent the “target risk” may take into account “the route, intensity, frequency, and duration of actual or potential exposures of humans, fish and wildlife” to carcinogens (i.e., are carcinogens 10 feet below paved soil evaluated the same.

5.  The substitution of ARAR standards for SCGs is an improvement, but why either of these is necessary given the establishment of four brownfield-specific cleanup tracks is unclear.  The addition of a criterion that considers current and anticipated land uses is an even stronger positive.  The addition of 16 new criteria beyond what Superfund requires is an unjustified regulatory burden.  (It is unjustified and unnecessary because if (a) a site-specific cleanup remedy is chosen, all relevant site-related circumstances will need to be addressed under the remediation work plan and implementing reports, and (b) a cleanup remedy is chosen that is not site-specific—i.e., under track 1 or 2—it should not be necessary to elucidate site-specific circumstances.  In any case (c) all relevant information will have to be evaluated as part of the “qualitative exposure assessment” (p. 12).  So, addition of the new criteria amounts to added red tape and expense with no discernible benefit.)

6. This “surface soil” cleanup requirement is preferable to that of the DiNapoli bill, which required three feet of soil to be remediated to track 1 levels.

7. No other state limits consultant sign-offs or reports to engineers (much less P.E.s).  This requirement restricts the applicant’s ability to utilize the qualified environmental consultant of its choosing, and deprives the applicant and DEC of relevant expertise in such disciplines as toxicology, biochemistry, hydrogeology, etc.

8.  Purchase and sale agreements often have lengthy due diligence and option periods—particularly for complex redevelopment projects (e.g., where site rezoning is necessary and/or tenant commitments need to be secured).  Depending on how this provision is interpreted and implemented, requiring substantial progress toward completion of development (not including pre-development preliminaries) within 3 years could impede or preclude many otherwise viable brownfield deals.

9. There is no justification for having to provide DEC with advance notification of (and to seek DEC authorization of) a mere transfer of title or a change in use that involves no physical alteration or change in the category of use.  These requirements could have a chilling effect on brownfield real estate transactions.

10. This authority seems excessively broad—especially since it is not limited to “significant threat” sites.  It is not clear why this provision is included in the Brownfields title, since it appears to extend to all present or former hazardous waste and petroleum handling sites.

11. This could stigmatize these sites and make them more difficult to sell.

12. Although it is appropriate to keep local officials informed of contamination-related restrictions on site use, this provision gives DEC unprecedented veto power over routine land use decisions by local governments—even at sites never determined to pose a significant threat.  Potential delays in receiving local government development and construction approvals may further deter otherwise interested parties from entering deals involving sites subject to environmental easements.

13. This is a more moderate and workable objective than an across-the-board goal (as in the DiNapoli bill) of restoring all non-saline groundwater to drinking water standards.

14. This approach is more realistic than that in the DiNapoli bill which would have required both RPs and non-RPs to do remedial investigations of both onsite and offsite groundwater contamination.  In multi-source contaminated groundwater areas, it would have required applicants to also await completion by DEC of a multi-source contaminated groundwater remedial work plan—which would have resulted in lengthy delays in the ability to proceed with brownfield real estate deals.

15. Unlike the similar title 14 provision [p. 11], the enforcement action required by this provision does not expressly exclude the current site owner or  other volunteers who might legally be considered to be “responsible parties.”

16. Although this change conforms New York State law in this respect to federal law, it will have the effect of greatly expanding the universe of state-regulated inactive hazardous waste sites.

17. This deferral provision provides an inducement for owners of sites facing imminent registry listing to enter the brownfield site cleanup program.

18. Technical assistance grants are intended to be used “to obtain technical assistance in interpreting information with regard to the nature of the hazard posed by hazardous waste located at or emanating from an inactive waste disposal site” and the development and implementation of a disposal site remedial program.  They may also be used to advise affected residents and for educational training.  Although use for lobbying is specifically excluded, use for litigation is not.

19. These changes are beneficial and long overdue.  Unfortunately, they do not fully incorporate into New York law the liberalizing changes adopted federally in the Small Business Liability Relief and Brownfields Revitalization Act of 2002—such as the protection of owners of “contiguous properties” from liability for contamination that originated at another property.

20. It is unfortunate that the language was not changed to make municipal brownfield projects subject to the same standards as private brownfield projects under the new brownfield site cleanup program (new title 14).  The excessive stringency under current law of subjecting municipal brownfield sites to superfund cleanup standards has made investigations and cleanups under the environmental restoration program inordinately expensive and has discouraged municipalities from participating in the program.

21.  This is a positive change which makes the liability scheme of the oil spill program conform more closely to that of the state superfund program.

Consideration of current and anticipated land uses

Land use is addressed in several ways:

1. “Track 4” allows for use-based cleanup standards where the cleanup level achieved will be protective for the site’s current, intended or reasonably anticipated residential, commercial or industrial use with restrictions and with reliance on the long-term employment of institutional or engineering controls to achieve such level.  [p. 14]
2. The multi-track regulations must include three generic tables of contaminant-specific remedial action objectives for soil based on a site’s current, intended or reasonably anticipated future use, including unrestricted, commercial and industrial.  [p. 15]
3. The “qualitative exposure assessment” required for brownfield site cleanup remedial investigations implicitly considers site use in determining the “route, intensity, frequency, and duration of actual or potential exposures of humans, fish and wildlife to contaminants.” [p. 12]
4. Brownfield site remedy selection requires due consideration of numerous factors, including “land use” and related factors (such as “current use and historical and/or recent development patterns”, “applicable zoning laws and maps”, “applicable comprehensive community master plans…, or any other applicable formal land use plan…”, and “proximity to real property currently used for residential use, and to urban, commercial, industrial, agricultural, and recreational areas”).  [p. 13]
5. Any change in use of a restricted-use site, including any proposed transfer of title must be reported to and authorized by DEC in advance.  [p. 23]  After DEC has issued a certificate of completion or made a no action determination, any change in the brownfield’s subsequent use, it reserves the right to prohibit any change in use without additional remediation being undertaken.  [p. 22]
6. Local governments are prohibited from granting a building permit “or any other application affecting land use or development of land” that is subject to an environmental easement “until it receives approval” from DEC.  [p. 27]

It is extremely costly and counter-productive to require paved-over commercial and industrial sites to receive the same unrestricted use cleanups as day-care centers where toddlers crawl around in exposed soils.

The bill’s provision for use-based cleanups is very beneficial.  However, many of the other requirements enumerated here add to the “red tape” associated with the sale and redevelopment of brownfield sites and could inhibit brownfield deals.

Accelerated cleanup process; minimization of red-tape

1. DEC must notify an applicant who wishes to participate in the brownfield site cleanup program within 10 days after receiving the request whether the application is complete or incomplete.  [p. 7]
2. A 30-day comment period follows DEC’s completeness determination.  [p. 7]
3. DEC is to use “all best efforts to expeditiously notify” the applicant within 45 days after receiving their request to participate that the request is either accepted or rejected.  [p. 7]
4. If a final investigation report was submitted with the application, the applicant must provide for a 30-day public comment period.  Within 60 days after receiving the application, DEC must inform the applicant in writing that the investigation is either complete or incomplete.  [p. 7]
5. Within 20 days of the completion of the final remedial investigation report, DEC must determine if the site poses a “significant threat” based on title 13 criteria.  [p. 10]
6. DEC is to use “all best efforts to expeditiously” approve, modify, or reject a proposed work plan within 45 days from its receipt or within 15 days of the close of the (30-day) public comment period, whichever is later.  [pp. 11,18]
7. If the applicant is a volunteer, DEC must bring an enforcement action against any parties known or suspected to be responsible for contamination (other than the volunteer) within 6 months of the determination that a site poses a “significant threat.”  [p. 11]  If this is not feasible, DEC must use “best efforts” to perform the remediation of off-site contamination within 1 year of the completion of such enforcement action, or the completion of the volunteer’s remedial program, whichever is later.  [p. 11]
8. Before DEC finalizes a proposed remedial work plan (or determines that site conditions meet title 14 requirements without the need for remediation), DEC must issue a public notice to persons on the contact list and provide a 45-day public comment period.  DEC must also hold a public hearing if requested by “the affected community” and the site has been found to be a “significant threat.”  [p. 19]  If the site is determined NOT to pose a “significant threat” that determination is subject to a 30-day comment period.  [p. 19] 
9. Within 10 days of the issuance of a certificate of completion at a restricted-use site, the applicant must provide notice to the brownfield site contact list describing the institutional and/or engineering controls to be used.  [p. 19]
10. Any entity proposing to make a “change of use” (including transfer of title) at a restricted-use brownfield site, whether or not the change of use involves a physical alteration or construction, must provide at least 60 days advance notification to DEC.  If the DEC commissioner determines that the proposed change of use is prohibited, he/she must provide written notification to the notifier within 45 days after receipt of the complete notice that such change of use “will not be authorized.”  [p.23]

Time is of the essence in commercial real estate transactions.  If deals cannot be done quickly, most will not go forward.

The legislation imposes numerous, time-consuming procedural steps.  Although it subjects DEC to several firm time-limits, most of the key time “deadlines” require only “best efforts” to act “expeditiously” within a set period of time.   

The addition of the word “expeditiously” does not substantially improve the unadorned “best efforts” language in the DiNapoli bill.

“How clean is clean” standards

1. All remedies must be “fully protective of public health and the environment including, but not limited to groundwater according to its classification….  A remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is to be preferred over a remedial program that does not do so.”  [pp. 2-3]
2. In order for a site to be determined to meet the requirements of title 14 based on a completed remedial investigation without the need for remediation, an alternatives analysis must support such determination for all sites which do not meet “track 1” unrestricted use requirements.  [p. 10]
3. For all sites proposed to be remediated other than under “track 1” (unrestricted use cleanup), an alternatives analysis must be performed, which evaluates at least two remedial alternatives—including one which would achieve a “track 1” cleanup.  [p. 11]  For sites determined to pose a “significant threat,” DEC has the discretion to require the evaluation of additional alternatives.  The remedy will then be selected by DEC.  [p. 11]  For non-“significant threat” sites, DEC may require the applicant to evaluate a “track 2” cleanup (may include long-term use restrictions and institutional and engineering controls but must achieve contaminant-specific unrestricted-use remedial action objectives for soil).  DEC will then have the discretion to require the applicant to implement this alternative.  [pp. 11-12]
4. Within 20 days of the completion of a remedial investigation report, DEC must determine if the site poses a “significant threat” based on title 13 criteria.  [p. 10]
5. For all applicants, a remedial work plan must provide for a remedial program addressing contamination within the boundaries of the brownfield site.  A “participant” is also required to provide for a remedial program to address contamination that has migrated from the site.  [10]
6. Requires “all remedies to be protective of public health and the environment including but not limited to groundwater according to its classification…; drinking water, surface water and air (including indoor air); sensitive populations, including children; and ecological resources….”  In all cases, the “target risk” of residual contamination may not exceed an excess cancer risk of one in a million for carcinogens and a hazard index of one for non-carcinogens.  [p. 12]
7. A remedial investigation must “fully characterize” the nature and extent of contamination at and/or emanating from a brownfield site and include a “qualitative exposure assessment.”  The latter may need to be supported by “some off-site field investigation.”  [p. 12]
8. The remedial program for a site must be selected upon “due consideration” of 25 evaluation factors, including conformance to “ARAR” standards and criteria (unless there is “good cause” to dispense with them), overall protectiveness, short- and long-term effectiveness (and permanence), reduction in contamination toxicity, mobility and/or volume with treatment, and potential vulnerability of groundwater that might migrate from the site.  [pp. 12-14]
9. DEC regulations, proposed in consultation with DOH, will create four cleanup tracks: “Track 1”—which achieves contaminant-specific soil cleanup objectives that allow the site to be used for any purpose without restriction and without reliance on long-term institutional or engineering controls (however, volunteers may rely on long-term institutional or engineering controls after achieving “bulk reduction of groundwater contamination to asymptotic levels”); “Track 2”—which achieves the same contaminant-specific soil cleanup objectives as for Track 1, but with restrictions on the use of the site or reliance on long-term engineering and/or institutional controls; “Track 3”—which may use site-specific data to determine soil cleanup objectives, but which conform with the criteria used to develop the soil cleanup look-up tables utilized for Tracks 1 and 2; and “Track 4”—which achieves a cleanup level protective for “the site’s current, intended or reasonably anticipated residential, commercial, or industrial use with restrictions and with reliance on the long-term employment of institutional or engineering controls” to achieve this level.  In any case where the cleanup level for a specific contaminant at a specific site (in the absence of institutional or engineering controls) poses a cancer risk in excess of one in a million and a hazard index in excess of one, there must be a “site specific finding” by the DEC commissioner, in consultation with the commissioner of health, that this level will be protective of public health and environment.  [pp. 14-15]
10. The multi-track regulations must include three generic tables of contaminant-specific remedial action objectives for soil based on a site’s current, intended or reasonably anticipated future use, including unrestricted, commercial and industrial.  [p. 15]
11. Soil cleanup objectives for all levels of use must be protective of public health and the environment, and the level of risk associated with objectives for individual contaminants may not exceed an excess cancer risk (for carcinogens) of one in a million and a hazard index (for non-carcinogens) of one.  If, however, the “background soil concentration” for a contaminant “in rural soils in New York state” exceeds this risk level, the contaminant specific objectives may be established “equal to” this background concentration.  [p. 15]  In setting the cleanup objectives, DEC must consider the feasibility of “achieving more stringent remedial action objectives,” based on experience with existing state remedial programs.  [p. 16]
12. For track 4, exposed “surface soils” must be remediated to the generic contaminant-specific remedial action objectives for soil which conforms to the site’s current, intended, or reasonably anticipated future use.  For residential uses, this depth must be two feet.  For commercial or industrial uses, this depth must be one foot.  [p. 16]
13. DEC is given the power to develop a list of presumptive remedial strategies the applicant may use to meet the requirements associated with tracks 1 through 4.  These remedies may be developed for specific site types and/or contaminants based upon historical patterns of remedy selection and DEC’s scientific and engineering evaluation of performance data on technology implementation.  [p. 17]
14. Establishes a “hierarchy” of source removal and control measures ranked from most preferable to least preferable: removal and/or treatment > containment > elimination of exposure > treatment of source at the point of exposure.  [p. 15]
15. For all applicants, the following removal and/or treatment must be implemented: all free product, concentrated solid or semi-solid hazardous substances, DNAPL, LNAPL and/or grossly contaminated soil must be removed and/or treated.  However, if it is not “feasible” to remove and/or treat all such contamination, the contamination must be removed or treated to “the greatest extent feasible.”  [p. 15]  “Feasible” means “suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective.”  [p. 5]
16.  Any source remaining following removal and/or treatment must be contained to the greates extent feasible.  [p. 15]
17. Any exposure remaining following the above must be eliminated through additional measures to the greatest extent feasible.  [p. 15]
18. Treatment of the source at the point of exposure is to be considered as a measure of last resort.  [p. 15]
19. For all remedies, plume stabilization must be evaluated and further migration of contamination from the site must be prevented to the extent feasible.  At a site being remediated by a participant, the further migration of plumes must also be prevented to the extent feasible.  [p. 15]
20. At non-significant threat sites, where groundwater contaminants at the site boundary contravene drinking water standards, the owner of a restricted-use brownfield site must provide an annual certification to DEC that inter alia certifies that no new information has come to the owner’s attention, including groundwater monitoring data, to indicate that the assumptions made in the qualitative exposure assessment of offsite contamination are no longer valid.  There must also be an affirmative certification every five years that the assumptions made in the qualitative exposure assessment remain valid.  [p. 17]
21. Even after the completion of remedial action to the satisfaction of DEC, the state reserves the right to require further investigation and/or remediation, inter alia,  where environmental contamination—or a change in the standard, factor, or criterion upon which the remedial work plan was based—makes the site remediation no longer protective of public health or the environment.  [pp. 21-22]

Cleaner is not always better, if excessive cleanup burdens deter volunteers from coming forward, or if all available resources are spent completing a few “complete and permanent” cleanups instead of a much larger number of protective cleanups.

This legislation is considerably more flexible than the DiNapoli bill—in terms of allowing use-based cleanups, not requiring more cleanup than is “feasible,” and not requiring soil contamination to be cleaned up to below (rural) background levels.  Nevertheless, it imposes some of the most—if not the most—stringent and rigid brownfield cleanup requirements of any state in the country.

Standard-setting process

The multi-track approach for the remediation of contamination is to be proposed by the DEC commissioner, “in consultation with the commissioner of health,” within 12 months, and thereafter promulgated by regulation.  There is no provision for use of an outside (or inside) expert task force or advisory panel.

Cleanup standards need to have real-world relevance and credibility.  An outside advisory panel of technical experts (whether made up of academics or of a mix of private sector scientists and engineers) is critical to the development of accepted and workable standards.

Changes to municipal BF (environmental restoration) program

1. Gives a preference and priority to projects in a “brownfield opportunity area.” [pp. 30, 34]
2. Allows “Community Based Organizations” to share in environmental restoration program grants when acting “in partnership with” a municipality.
3. Although it remains limited in applicability to real property “held in title by a municipality” [p. 31], new authority allowing taxing districts to acquire “incidents of ownership” by court order in the context of a foreclosure proceeding to permit the conduct of a site investigation enables state funding to be received for this purpose. [p. 35]
4. Increases the state funding share from 75% to 90%.  [p. 31]
5. Provides for 100% state funding of eligible remediation costs required by DEC to be undertaken outside the boundaries of the site that is the subject of the approved remediation project.  [p. 31].
6. Allows participating municipalities to retain any excess revenues resulting from the disposition of an environmental restoration program site, after reimbursing the state for the amount of its assistance.  [p. 32]
7. Requires participating municipalities to adhere to expanded public participation requirements.  [p. 32]
8. Substitutes environmental easement requirements for existing deed restriction language.  [p. 32]
9. Requires the taxing district that undertook an environmental restoration investigation project on a property pending foreclosure to add “all costs” associated with such project to “the taxes owed to, and the tax lien of, the taxing district that undertook” the project.  [p. 36]
10. Adds to DEC’s authority to access and inspect municipal brownfield sites under this program and to DEC’s authority when there is a change in site use (at a restricted-use site) for notification and access for investigation as well as remediation projects.  [pp. 37-38]

There are serious problems with the current Environmental Restoration program that deter local governments from participating.  One of the major problems is the insistence that brownfield cleanups meet Superfund standards.  This has made for very costly cleanups and a high local cost-share.  

Most of these changes are either positive (##3,4,5,6) or neutral (##1,2,8). 

No. 9 could impede the ability to resell a site that has been investigated (or remediated?) under the environmental restoration program where delinquent taxes are owed by inflating the size of the tax bill to cover these costs.  There is no provision explicitly authorizing municipalities to forgive such tax indebtedness to make these properties more attractive to a prospective purchaser or redeveloper.

Organizational changes in DEC program

None.  The voluntary cleanup program (brownfield site cleanup program) and the environmental restoration program are allowed to remain where they are at DEC—within the Division of Environmental Remediation—which also oversees the state superfund and oil spill programs.

Brownfields revitalization will never attract the enthusiasm and achieve the success in New York State that it has in most other states unless and until the emphasis shifts from mandated remediation to incentivized redevelopment.  As long as the municipal brownfields and voluntary cleanup programs are administered by the same DEC office(s) responsible for contaminated site remediation and enforcement, the necessary emphasis on brownfields reuse and economic revitalization will be lacking.