Environmental Advocates of New York (EANY)

Clean Up Brownfields

There are as many as 10,000 sites in New York with contamination below the superfund threshold. These brownfields are blighting our industrial cities without hope of cleanup because of owners' fears of liability and costs. New York is one of only a handful of states that does not have a statutory brownfields program. New York desperately needs a program that is adequately funded; has protective and clear cleanup standards; involves an open, transparent and public process; has clear rules as to responsibility for groundwater; attractive financial incentives to encourage urban remediation and redevelopment; and includes strong community participation components including planning money and technical assistance grants. This type of program will help ensure the safe clean-up of brownfields, revitalize urban areas, and alleviate the pressure of sprawling suburban development in greenfields. It is a program long overdue for New York. In 2002, Environmental Advocates supported A.7498-A/S.4788; Lopez/Marcellino, and strongly opposed an unacceptable Superfund/brownfields bill merged with a waste tires measure, (S.7686-A/Marcellino), which passed the Senate.
 

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(From June 2002 Greensheet): http://www.eany.org/publications/green/gsjune02.html

•Urban Decay: New York is home to thousands of brownfield sites ø old industrial properties that are not toxic enough to be superfund sites, but remain abandoned because the owner and potential developers are afraid of dealing with contamination and future liability. New York is the only industrialized state that does not have a program to clean up and reuse the brownfields that blight our communities and cause new development to move ever outward, contributing to both urban decay and suburban sprawl. Tell policymakers in Albany that New York cannot wait any longer. Visit www.eany.org to send a fax to Assembly Speaker Silver, Senate Majority Leader Bruno and Governor Pataki urging them to enact a comprehensive brownfields bill for New York.

Over the last few years there has been an excellent dialogue on the subject of brownfields among representatives of various stakeholder groups and policy makers. Unfortunately, the dialogue has been unusually technical, making it difficult for the public to be informed and involved. Now that the New York State Legislature is seriously considering several brownfield bills, it is important to broaden the discussion to include concerned members of the public. Because of the great environmental consequences of the decisions that will be made, Environmental Advocates has published this primer. We urge all New Yorkers who care about the vitality of our cities and the rapid loss of open space to learn about the issues surrounding brownfields and to make your concerns known.

Frequently Asked Questions

What is a brownfield?
A brownfield is an abandoned or underused industrial or commercial site where reuse is complicated by real or perceived environmental contamination. Brownfields are especially common in New York’s old industrial cities and towns, and in communities where residential, commercial and industrial land uses exist in close proximity.

Brownfields blight communities and pose obstacles to economic redevelopment. Unused urban land is a fiscal burden because it is unproductive in terms of job creation, revenue generation or contribution to the tax base. Although they represent huge revenue losses for municipal governments, local governments are understandably reluctant to take ownership of brownfields because of the possible liabilities associated with contamination.


Source: City of Rochester

How is a brownfield site different from a Superfund site?
Brownfields are usually less contaminated. The state Superfund program covers officially listed “significant threat” sites, which pose an immediate danger to public health or the environment. Brownfields, on the other hand, tend to be smaller and less contaminated, and their former polluting owners tend to be absent or insolvent. Brownfields do not lend themselves to the Superfund-style cleanup approach, which relies on enforcement to recover costs from “responsible parties”.

What is the extent of the brownfield problem?
Because inventories have not been conducted in most cities and towns, the exact number of brownfields is unknown, but the U.S. Environmental Protection Agency estimates that there are at least 450,000 sites in the country. New York City has over 6,500 brownfield sites and Long Island has nearly 7,000. The six cities in the mid-Hudson Valley have identified at least 200 brownfields and there are over 300 sites in the Capital Region (Albany, Troy, and Schenectady). Rochester and Syracuse each has several hundred brownfield sites, and Buffalo reports that about 40 percent of the land in the city is comprised of brownfields. All told, there are tens of thousands of abandoned or underused sites in New York State where actual or suspected contamination impedes reuse.

Why do environmentalists care about brownfields?

• Toxic exposure: While there are usually some toxics present, brownfield sites do not necessarily pose an immediate threat to human health. But since most brownfields have not been subject to investigation, there is always the possibility that a site may present a health risk to those who live, play or work around it. Toxics from contaminated sites can move through the soil, seep into groundwater or volatilize into the air. Contamination can also spread beyond site boundaries when surface soil is stirred up by wind or human activity.
• Urban environmental health: Urban communities, particularly low-income neighborhoods and communities of color, are especially at risk from a barrage of environmental insults, and brownfield sites are disproportionately located in their midst. Failure to address the brownfield problem represents tacit acceptance of the environmental injustices that plague our cities.
• Sprawl and open space: Because brownfields undermine the social and economic vitality of the communities they burden, contributing to blight and depressing property values, they also serve to fuel the residential, commercial and industrial exodus from our cities. For this reason, brownfield redevelopment is a key element of smart growth. Encouraging environmental cleanups and new construction in urban areas relieves development pressure on outlying greenfields - usually farmland and other open space - and reduces sprawl development.

What can be done about brownfields?
Many states have adopted brownfield programs designed to attract developers to contaminated sites by offering government grants, low-interest loans, and other financial incentives for cleaning and redeveloping these properties. But private developers still finance the bulk of the cleanup costs. Site cleanups are also encouraged through the provision of liability relief for non-responsible parties, including private and public property owners and lenders. Remediation is also promoted through use-based standards, which allow cleanup levels to vary depending on the future use of the property.

New York is the only industrialized state that has not passed brownfield legislation.

The Brownfields of New York

Why doesn’t New York have a brownfield law?
Passage of a law in New York has been stymied by differing opinions among politicians and advocates over how to achieve site cleanup and redevelopment. While there is bipartisan agreement that we need a brownfield program, there is disagreement over what a program should look like.


Source: Pratt Institute Center for Community and Environmental Development

With New York’s current policy, there is little, if any, incentive to clean up most brownfields. Usually, cleanups only take place when a site has enough development potential to offsite a builder’s fear of liability and cleanup costs. Where development does take place, the lack of consistent standards mean cleanups take place only to a level determined by the developer or one negotiated on a case-by-case basis with the state Department of Environmental Conservation. It is because of the absence of consistent standards that brownfield redevelopment is such a daunting and unpredictable process for all but the most marketable sites. As a result, most brownfields in New York remain abandoned and contaminated.

Where are our leaders?
Most of our political leaders understand that brownfields are a serious problem and say they want to help solve it. The Governor and both houses of the Legislature have advanced a number of different proposals for brownfield programs. These range from a business-oriented bill that would provide incentives to developers but would do little in the way of community revitalization or environmental protection, to a bill that would require brownfield developers to undergo the same lengthy and unpredictable site-by-site process to which Superfund sites are subjected. Over the years there has been virtually no progress in creating a balanced, comprehensive approach - until recently, with the introduction of the Brownfield Coalition bill.

A New Approach

What is the Brownfield Coalition?
The Brownfield Coalition is an unusual network of over 100 organizations representing environmental groups, community organizations, businesses, lenders, utilities, real estate developers and environmental justice groups. The diverse members of the coalition share a common interest: they want to promote the cleanup and reuse of brownfields. For two years, the Coalition has worked to fashion what is probably the most progressive and environmentally sound brownfield bill in the nation. Through months of negotiations among sometimes wildly differing perspectives, Coalition members have created a blueprint for bipartisan action in the state Legislature, where Assembly Democrats and Senate Republicans have traditionally staked out opposing positions on this issue.

What is in the Brownfield Coalition bill?
The Brownfield Coalition bill is a comprehensive package of environmental and community participation provisions, regulatory reforms and financial incentives designed to promote voluntary cleanup of brownfield sites. It creates protective state regulations governing cleanups, provides state grants and tax incentives for local governments and businesses that volunteer to clean up someone else’s pollution, and it protects these real volunteers from liability. Perhaps most important, it promotes community involvement, with financial assistance, every step of the way. And communities don’t have to wait for a developer to take an interest in their sites: community-based organizations can jump-start redevelopment through grants that allow them to create a neighborhood revitalization plan. Developers are then rewarded for working with the community in implementing the plan.

The bill is highly protective of public health and the environment. It provides for the establishment of clear and rigorous cleanup regulations, including standards for soil contamination and pre-approved remedial technologies that can be used to meet those standards. This will eliminate the time consuming negotiations that delay cleanups, victimize communities, and force citizens to fight for environmental and health protection on a site-by-site basis.

Cleaning Up the Soil

Why does the Coalition bill provide for use-based soil cleanup standards instead of Superfund standards?
Cleanups under the Superfund program are not conducted according to established numerical standards for cleanups. Rather, cleanup requirements are developed through a site-by-site negotiation process that often takes years and results in gross inconsistency among various cleanups, with differences in requirements often based on such subjective factors as the responsible party’s ability to pay. The Brownfield Coalition’s proposal creates standards for cleanups that would employ the same health and safety considerations as the Superfund program, but that would be consistent, readily understood and implemented, and would avoid the damaging delay required in site-specific approaches.


Photo: Kris Qua

What are use-based standards?
Use-based standards mean that different cleanup levels apply depending on the future use of the site - residential, commercial or industrial. But this does not mean that all bills that propose use-based standards are the same. The Coalition bill is especially protective in its assurance that neither today’s users, or future users will be at risk. Financial incentives, liability protection and rules regarding future obligations all reward achievement of the most stringent cleanups. And, in order to apply the commercial or industrial cleanup standards, the use must be consistent with local planning and protective of neighboring residential uses.

Can the public and the environment really be protected with separate standards for different kinds of uses?
Yes, in at least three distinct ways:

1. Even the industrial standards have to meet the most strict health goal in the entire country, a cancer target risk level of 1 x 10-6, or one in a million (some states allow a risk level as low as one in ten thousand) and must also be protective of groundwater;
2. Sites that are restricted by use will be carefully monitored through a publicly accessible Geographic Information System; and
3. Owners of sites with restrictions will have to certify its use every year. For example, a factory owner could not open a day care center or playing field if the brownfield cleanup did not meet residential standards, and liability relief would be lost if restrictions were not followed.

Cleaning Up the Groundwater

What are the current cleanup standards for groundwater contaminated by Superfund sites or brownfields?
Unlike soil, for which there are no standards in New York, there is a single classification for New York’s groundwater (with minor exceptions having to do with salinity in some parts of the state). The standard requires that all groundwater maintain drinking water quality. In theory then, all environmental cleanups, whether at Superfund sites or at currently unregulated brownfields, must bring the groundwater back to drinking water standards if contaminants at the site have leaked. In practice, this is not the case. The state frequently allows groundwater contamination to go unaddressed, particularly in areas where the water is currently not used for drinking, such as in most of New York City.

Would the Brownfield Coalition proposal create new groundwater standards?
No. Instead it would explicitly end the ad hoc practice whereby the state allows contamination in the groundwater to remain in some cases and not in others, based on a number of factors including the money available for the cleanup. The bill would first require the state to conduct a complete study of New York’s groundwater to create a clear picture of groundwater quality, identify major sources of contamination, and evaluate the impacts on surface water and air where the groundwater is contaminated. From there, the state would have to produce a plan, updated at regular intervals, for the cleanup and management of our groundwater resources, maintaining the goal that all groundwater should eventually meet applicable standards. Acknowledging that this is not always possible in the short term, the plan would set out both long and short term goals, prioritizing remedial action based on a set of criteria that would be subject to public hearings.

Who would have to clean up groundwater?
Responsibility for groundwater depends on who the brownfield developer is. For those who actually contributed to the contamination (known as “responsible parties”), the responsibility for both onsite and offsite cleanup remains. Innocent “volunteers” would be responsible only for onsite contamination, with the state taking responsibility for the offsite contamination pursuant to the plan described above. In any case, groundwater would no longer be written-off based on arbitrary site-by-site decision-making.

Environmental Advocates’ Position on Brownfields

What is Environmental Advocates’ role in the brownfields debate?
Environmental Advocates has been involved in the creation of the Coalition and the Coalition bill from the start of the effort in the fall of 1998. We were at the table to help assure that environmental considerations were at the forefront in the deliberations. Brownfields pose a number of environmental issues: toxic exposure, groundwater contamination, urban decay, environmental injustice, loss of open space and sprawl among them. As New York’s only statewide advocacy group that addresses the full range of issues confronting our environment, EA has a wealth of expertise and experience in these areas, as well as a 30-year history of shaping New York’s environmental policy. EA spent a great deal of time researching issues as they came up in the policy discussions and building on its understanding of the issues. With New York coming late to the brownfields debate, we are learning a great deal from the mistakes and successes of other states.

Does Environmental Advocates support the Brownfield Coalition bill?
Yes. We believe it is the best bill we have seen from an environmental perspective. It includes protective cleanup standards and methods based on proven science and actual field experience under the Superfund program. It involves the community from the day a site enters the program - a key element in every successful program we have seen. It makes brownfield redevelopment a viable alternative to greenfield development and sprawl, through financial incentives, liability protection and a clear, predictable process. In short, the Coalition has found an answer to the fundamental conundrum that has stood in the way of brownfields development in New York: the Coalition bill will get brownfield sites cleaned up without sacrificing environmental standards.

The 2000 census shows that New York’s old industrial cities are continuing to lose jobs and population to the suburbs. We cannot afford to sit by and watch this destructive trend. Each fallow brownfield is a lost opportunity for economic and community development. And each new suburban construction project is another deathblow to the cities. As one of the last remaining states without brownfield legislation, New York cannot, in good conscience, ignore this problem any longer.

What You Can Do

Call or write Assembly Speaker Sheldon Silver, Senate Majority Leader Joe Bruno, Governor George Pataki, and your own Legislators to let them know that:

New York needs a brownfield program that truly protects the environment and is responsive to community needs;

and that you support the Brownfield Coalition bill:

• A.7498a in the Assembly (sponsored by Assemblymember Vito Lopez), and
• S.4788 in the Senate (sponsored by Senator Carl Marcellino).

To Contact Elected Officials:
Governor George E. Pataki
Executive Chamber
State Capitol
Albany, NY 12224
518.474.8390
gov.pataki@chamber.state.ny.us

New York State Senate
Albany, NY 12247
518.455.2800
bruno@senate.state.ny.us

New York State Assembly
Albany, NY 12248
518.455.4100
speaker@assembly.state.ny.us

To find your representative, visit the Assembly's web site.

For more information, e-mail Val Washington at Environmental Advocates.