Disincentives for BF site owners

“Responsible Party” includes “the owner or operator of a brownfield site.” (p. 10).  Within 3 mos. of executing a BF site cleanup agreement with a non-RP, DEC “shall bring an enforcement action” against known or suspected parties responsible for soil or GW contamination at or emanating from the site.  (p. 25).  This will make site owners very reluctant to sell their property to third parties for redevelopment.  In determining a site’s eligibility to participate in the BF site cleanup program, DEC “shall determine whether the… site constitutes a significant threat to public health or the environment and should be included in the [superfund] registry….”  If the site is eligible for inclusion as a class 1 or 2 site, DEC shall defer including the site in the Registry so long as the applicant continues to comply with the terms of the agreement.  If the applicant withdraws, DEC must include the site in the registry.  (p. 12).  If a site owner believes that DEC might conceivably view his/her site as eligible for Registry listing, he/she will be unwilling to allow the site to enter the brownfield site cleanup program process.

No.  Treats current owners and operators of BF sites who did not cause or contribute to site contamination as a “non-contributory” RP.  Non-contributory RPs (and subsequent owner /operators) need only perform an exposure assessment that evaluates the pathways of potential health and environmental impacts.  (p. 6).  The filing of a VCP application freezes the Registry listing process as long as the volunteer proceeds in good faith.  Entering into the cleanup program does not require DEC to evaluate the site’s eligibility for Registry listing.

No. Treats current owners and operators of BF sites who did not cause or contribute to site contamination as a “non-contributory” RP.  (p. 50).  Non-contributory RPs must focus on onsite contamination and need only investigate the potential for offsite contamination.  If offsite contamination is a problem, DEC must force any identifiable RPs to address it—or it must address the problem itself.

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.

Making a voluntary cleanup program for low-risk sites more stringent than current Superfund coverage of high-risk sites.

Makes the remedial goal for BF cleanups “to achieve a complete and permanent cleanup” including the long-term restoration of all non-saline groundwater to “drinking water quality.”  (pp. 2, 14, 52).  Even where groundwater contamination is pervasive and due to multiple sources and GW is not likely to ever be used as a source of drinking water, remedial work plans must meet the long-term goal of “restoring fresh groundwater to drinking water quality.”  (p. 23).  This goes well beyond the current cleanup goal for State Superfund sites, which is protection of public health and the environment and restoration to pre-disposal conditions to the extent feasible. 

In addition to other requirements, if the applicant at a brownfield site is an RP and the site was remediated on a restricted-use basis, the applicant must certify that the active commercial or industrial use required has been achieved or will be achieved (certification of active use) within 2 years of the issuance of a certificate of completion.  (p. 31).  This must be backed up by financial assurance that, if the specified use is not achieved within two years and maintained, the party must perform a complete and permanent cleanup on an unrestricted-use basis.  (pp. 16-17).

Purpose of the Act is “to enable and encourage” voluntary cleanups of BF sites “for reuse and redevelopment.”

For off-site contamination, a non-contributory RP must include in the work plan “the identity of any known contributory” RP and “the known circumstances of such contributory” RP’s “relationship with the contamination.” 

A contributory RP volunteer may seek to resolve responsibility for remediating off-site groundwater contamination, where contamination is combining with multiple significant off-site sources, by contributing to “an ongoing or planned effort to remediate the contamination.”  All pre-approved cleanup strategies must describe, among others, short- and long-term groundwater remediation strategies.  For all tracks, “exposed surface soils” must be remediated to the numerical standards developed for Track 1 and sources of contamination must be removed unless DEC determines this is infeasible.

Purpose of the Voluntary Cleanup Act is “to encourage cleanup of contaminated BF sites by volunteers without enforcement.”  Objective of the VCP is the protection of public health and the environment through the cleanup and redevelopment of eligible brownfield sites.  (p. 49).

All volunteers must carry out “source removal” to the practical limit of physical removal to avoid cross-media contamination and offsite migration—unless it cannot be economically and feasibly performed because of pervasive, area-wide soil contamination.  (pp. 56-57).

If the volunteer intends to develop the site into an industrial or commercial use, the volunteer must select the additional remedy by comparing the economic and technical feasibility of a Category 1 and a Category 2 cleanup based on the intended use.

For Class 1 and 2 Registry sites, there is a presumption of surface soil remediation of the top 6 inches of soil to unrestricted use (Track 1) levels—if the applicant is an RP and the site is not in active commercial or industrial use, but is adjacent to residential uses threatened by the contamination.

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.  Insisting on restoring BF sites to Garden of Eden pristineness will result in no cleanups.

Consideration of current and anticipated land uses

Not an element of any of the three cleanup “tracks.” 

“Land use” has been added as an eighth (Part 375) remedy selection factor.  (pp. 14-17).  However, consideration of current and reasonably anticipated land uses is not intended to inject greater flexibility into the remedy-selection process.  Rather, a gauntlet of 19 factors must be documented and surmounted.

Even then, restricted-use cleanups may not be approved if the site is adjacent to residentially-used property or “important federal, state, or local cultural or natural resources; wellhead protection or groundwater recharge areas; or floodplains”—unless the applicant can demonstrate that the proposed remedial program is fully protective and does not allow further off-site migration or dispersion.

Land use only factors into the pre-approved remedies under Track 2—to the extent the remedy is based in part on a particular historical site use.  Restricted-use remedies are possible under Track 3 with a showing of protectiveness over the short- and long-term and a demonstration that a permanent remedy is not feasible.  (pp. 16-17).  

Part 375 Superfund criteria are modified to require compliance with “applicable standards developed” under Article 27 and 6 “balancing criteria”—which do not include “land use.”  (p. 6). 

Work plans must assure protection of public health and the environment, including protection of all current and future uses of the site and adjacent properties.

Among the three allowed cleanup tracks, categories 2 and 3 both are designed to be protective of public health and the environment for the site’s “current, intended, or reasonably anticipated residential, commercial, or industrial use.”  (pp. 59-60). 

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.

Accelerated cleanup process; minimization of red-tape

Requires evaluation and documentation of 8 cumbersome remedy selection factors (intended to be used at high-hazard Superfund sites).  (pp. 14-17).  In numerous other ways makes cleanup procedures more time-consuming and cumbersome (e.g., cumbersome community participation program which requires in all cases mailing of fact sheets at 5 program and 6 remedial milestones; a 2-month delay in local building permit approvals pending DEC inputs; and lengthy delays where there is multi-source, area-wide groundwater contamination, while DEC develops a remediation plan), while not subjecting DEC to any binding time-limits.  Instead, DEC need merely use its “best efforts” to determine a prospective applicant’s eligibility within 60 days (p. 11); and approve, modify, or reject a proposed remedial work plan within 60 days.  (p. 25)

Within 20 days of receipt of a VCP application, DEC must make a completeness determination.  If incomplete, the applicant must revise it within 60 days and DEC must respond within another 20 days.  (p. 5).  DEC and DOH must concurrently review the work plan and either approve or reject it within 60 days.  If incomplete, the applicant has 30 days to respond and DEC will have another 30 days to approve or reject it.  DEC has 45 days to review the final work plan report and reject or approve it.  If rejected, the applicant will have 30 days to address the deficiencies and submit a revised report or invoke dispute resolution procedures.

Voluntary Cleanup Applications must be accepted. rejected. or returned within 20 days of receipt.  (p. 53).

A proposed work plan must be approved, modified, or rejected within 30 days after the end of the public comment period.  (p. 56). And a final report on a remediation work plan must be approved, modified, or rejected within 60 days.  (p. 55).

If DEC fails to comply with the specified timeframes, the volunteer’s responsibility to reimburse DEC for its oversight costs is eliminated. 

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

“How clean is clean” standards

Remediation must meet remedy selection requirements for one of three remedial tracks.  “Track 1” is an unrestricted use cleanup plus more stringent objectives if feasible.  “Track 2” is a cleanup based on presumptive remedies (use of less than most stringent must be justified).  “Track 3” is a restricted use cleanup, which must either meet NCP requirements, or be determined by DEC to not be a “significant threat” plus include an evaluation of at least 2 remedial alternatives (including Track 1).

Restricted use alternatives may not be approved if the site is adjacent to a residential use or to important cultural or natural resources.  Contaminant-specific remedial action objectives for soil must at a minimum be protective of a long list of media and resources.  

For all tracks, “surface soils” down to 3 feet must be remediated to Track 1 levels, and “source removal” must be accomplished, which is defined to include plume stabilization, the removal or permanent treatment of DNAPLs and LNAPLs, elimation of all potential human exposure, and prevention of the discharge of contaminated ground water to surface water. 

Both RPs and non-RPs must do remedial investigations of onsite and offsite groundwater contamination, with non-RPs being responsible for short- and long-term on-site remediation (even if contamination originated off-site), and RPs being responsible for both on- and offsite remediation.  In multi-source contaminated groundwater areas, the applicants, in addition to investigation and remediation requirements, must await completion by DEC of a multi-source contaminated groundwater remedial work plan, and may be required to perform an emergency response action or an interim remedial measure (where the groundwater is used as a drinking water source and is contaminated above drinking water standards).

Remediation work plan must demonstrate compliance with applicable Article 27 standards and how the selected remedies will address 6 balancing criteria.  (p. 6). 

Cleanup standards for BF sites must be protective of human health and the environment and must be developed in accordance with four remedial tracks.  “Track 1” is an unrestricted use cleanup (will include a look-up table of soil cleanup standards and a description of pre-approved technologies for achieving the standards based on site-specific conditions).  (p. 16).  “Track 2” are pre-approved remedies based on a set of site-specific considerations.  (pp. 16-17).  “Track 3” consists of site-specific remediation where the applicant demonstrates that the remedy is protective over the short- and long-term.  If use-restrictions are required, the applicant must demonstrate that a permanent remedy is not feasible.  (p. 17).  “Track 4” is for Class 2 Registry sites, where remediation must be conducted in conformance with title 13.  (p. 17).  For all tracks, “exposed surface soils” must be remediated to unrestricted-use Track 1 levels, and sources of contamination must be removed unless determined by DEC to be infeasible.  )p. 17).  Except in the cases of contributory RPs, DEC is required to take responsibility for the remediation of off-site groundwater contamination from brownfield sites.  (p. 18).

All volunteers must carry out “source removal” to the practical limits of physical recovery unless infeasible due to pervasive, area-wide soil contamination.

If residual contamination exceeds applicable cleanup levels, additional cleanup must be done to satisfy the categorical standards—except that, if no further investigation or remediation can be implemented or is justified because contamination levels are too low, the volunteer may receive a liability release—subject to the requirement that the site must be monitored every 5 years and appropriate use-restrictions must be implemented. 

If the volunteer intends to develop the site for a non-residential use, additional cleanup to protect public health and the environment must be selected by comparing the economic and technical feasibility of a Category 1 and Category 2 cleanup based on the intended use.

“Category 1” = unrestricted use.  “Category 2” = cleanup to protect health and the environment for the site’s current, intended, or reasonably anticipated use.  May require use restrictions.  “Category 3” = cleanup using site-specific data (in accordance with pre-set formulas and models) based on the site’s contemplated use and considering use restrictions. 

For Class 1 and 2 Registry sites, there is a presumption of surface soil remediation of the top 6 inches of soil to “Soil Category 1” where the remediation is carried out by an RP at a site that is not in active industrial or commercial use, and is adjacent to a residential use that  is threatened by the contamination.

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.

Standard-setting process

The development and promulgation of all cleanup standards and objectives is left to DEC—except that certain activities related to dealing with multi-source groundwater contamination areas must be dealt with in consultation with DOH (p. 23).

An 8-member Technical Advisory Panel is created within DEC to develop (and recommend to the Commissioner) pre-approved cleanup strategies, and a definition of “source of contamination.”  (pp. 14-16).  Within 6 mos. of receiving the Panel’s recommendations, the DEC commissioner  (after due consideration of the Panel’s recommended pre-approved cleanup strategies)  shall promulgate regulations that set forth cleanup standards and remedial strategies that are protective of health and the environment in accordance with 4 remedial tracks.  (p. 16).

A 20+-member Technical Advisory Panel, is chosen by the DEC and DOH Commissioners and co-chaired by them, but is to consist exclusively of non-state employees.  (pp. 58-59).  The Panel will provide advice on the development of, and recommend cleanup levels which provide a multi-category approach to remediation.  The Panel is to submit its recommendations within 18 mos. of the date of its first meeting.  After the close of the public comment period on these recommendations, the DEC and/or DOH commissioners, as appropriate, are to promulgate regulations setting forth cleanup levels—taking into consideration the Panel’s recommendations , public comments, and other relevant information.  (p. 60).

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

(pp. 55-58):

• State share increased from 75% to 90%.
• Limited to property “held in title” by a municipality or subject to a priority cleanup project by a CBO.
• $75M diverted to priority BF cleanup projects by CBOs—which are not subject to repayment.
• Eligibility criteria are expanded to include environmental justice factors and community approval, etc.
• The remediation objective is expanded, to include BF sites cleaned up to Track 1 unrestricted use (as an alternative to meeting the same standard for protection of public health and the environment that applies to remedial actions under State Superfund).  (p. 58).
• DEC must “make every effort to expedite” its review of such projects and “shall” finalize its workplan review (for an approved project) within 90 days.
• Establishes a mechanism allowing a taxing district to obtain a stay on a tax foreclosure to allow an environmental investigation to proceed.  This is a good provision—except that the costs of the investigation are added to the taxes owed, which will add to the cost of someone else buying the property.
• Municipal liability exemption is limited to involuntary acquisitions—where the public corporation retained the site without participating in its development.  (p. 46).

·         State share increased from 75% to 90%.

·         Provides for 100% state share for any remediation directed by DEC to be performed outside the property boundaries.

·         Moneys recouped from RPs must be refunded to the state only if they exceed the locality’s 10% share.

·         If the proceeds from the sale of the restored property exceed the state’s outlay, any excess is divided equally between the state and the locality.

·         Eligibility is expanded to include property in state empire zones, federal empowerment zones, and BF redevelopment areas.

·         Allows compliance with pre-approved remedies under Title 13 as an alternative to meeting the same standard for protection of public health and the environment that applies to remedial actions under State Superfund.  (Clarifies that the Superfund standard applies only to remediation projects.)

·         Allows the property to continue to be used for its previous purpose as long as the risk posed doesn’t interfere with environmental restoration.

·         “Contractual relationship” that continues the liability link does not include a governmental entity that acquired the site by involuntary transfer.

·         No mechanism for stay of foreclosure proceedings to allow site investigations.

·   State share increased from 75% to 90%.

·   Provides for 100% state share for any remediation directed by DEC to be performed outside the property boundaries.

·   Also provides 100% share for public participation plan.

·   Provides for monthly reimbursement of local costs.

·   Moneys recouped from RPs must be refunded to the state only if they exceed the locality’s 10% share.

·   If the proceeds from the sale of the restored property exceed the state’s outlay, any excess is divided equally between the state and the locality.

·   Approved project costs need not be reduced by any other federal or state funds received for the project.

·   Eligible sites are expanded to include not only those owned by localities but also those for which fee title may be accepted.

·   Allows the property to continue to be used for its previous purpose as long as the risk posed doesn’t interfere with environmental restoration—and as long as the risk posed doesn’t make the use prohibitive.

·   Sites in an Empire zone are given top priority regarding review timeframes and other procedural requirements.

·   Liability release protects each of the following (against state and third parties): the municipality, a successor in title, any lessee, and any lender—provided they did not cause or contribute to the contamination and subject to 4 re-openers.

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. 

Organizational changes in DEC program

Makes no changes to the existing DEC organizational framework in which the municipal brownfields and voluntary cleanup programs  are housed within the Division of Environmental Remediation—along with the State Superfund and Oil Spill programs—where the emphasis is on remediation and enforcement, rather than on land recycling and revitalization.

Establishes a 14-member Brownfield Advisory Board within DEC to monitor and review implementation of the BF program and to generate an annual report to the Governor and Legislature.  Also establishes a high-level, 7-member State Brownfield Redevelopment Council to advise and make recommendations regarding BF redevelopment goals and priorities to ensure statewide and regional balance.

Establishes a new Office of Smart Development and Brownfields Revitalization to coordinate State efforts to encourage economic development on BF sites and to serve as a central ombudsman within DEC.  (p. 3).

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.