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[Individual or organizational Letterhead]
LEGISLATIVE
OPPOSE
MEMO
BILL: A. 7507 (DiNapoli)
SUBJECT: Brownfields Restoration Act
DATE: May 8, 2003
The _______________
opposes A.7507 in its current form, and urges the Assembly to consider key
amendments before it is approved. In most respects, A.7512 (Schimminger--proposed
Voluntary Cleanup Act) is preferable and its provisions—especially as they
relate to defining non-contributory responsible parties, specifying
reasonable cleanup standards, and setting realistic cleanup goals—should be
substituted for corresponding DiNapoli bill provisions.
A streamlined statutory
brownfields program can result in more sites being cleaned up more quickly,
using private sector rather than public sector resources. By reducing
barriers to the continued use, expansion, and/or redevelopment of
potentially contaminated sites, such a program can stimulate economic
development, create new jobs and tax revenues, revitalize communities, and
reduce urban sprawl and blight—while maintaining high levels of protection
for public health and the environment.
The _______________
supports the adoption of a statutory “voluntary cleanup program” that will
encourage the cleanup and reuse of contaminated sites. Such encouragement
must be provided through changes in site investigation, remedy selection,
cleanup standard, and environmental liability provisions to make the program
more streamlined, cost-effective, and predictable. However, the brownfield
program in this bill—which even discards any reference to the term
“voluntary”—would be dramatically more time-consuming, costly, onerous, and
unattractive to the current owners, prospective purchasers, and would-be
redevelopers of brownfield sites than either the current DEC program or the
competing programs of the other states. In short, A.7507 will not promote
the cleanup and beneficial reuse of New York’s 10,000+ brownfield sites. It
will cause potential volunteers to run the other way.
On the positive side,
A.7507 focuses on the creation of a statutory brownfields program, and
includes relatively few changes to the state “superfund” and oil spill
programs. We support this focused approach. A.7507 also would provide
useful new authority for taxing districts (local governments) to temporarily
stay foreclosure proceedings to allow site assessment studies to be
performed before the foreclosure is finalized--so that the extent of
contamination can be determined before a locality decides whether or not to
foreclose on a tax-delinquent property. Unfortunately, the bill calls
for adding the legal and assessment costs to the delinquent tax bill—which
may make it harder to find a willing purchaser.
These positives are
outweighed by the bill’s many negative and counter-productive features,
which include:
- It sets a highly unrealistic
goal of “complete and permanent cleanup” for low-risk brownfield sites and
imposes cleanup objectives that are stricter than those currently in place
for state “superfund” sites. Cleanup volunteers will never come
forward if they are confronted with inflexible, one-size-fits-all
investigation and cleanup requirements that are out of all proportion to
the risk posed to public health and the environment.
- It treats current owners and
operators of brownfield sites, who played no role in contributing to the
contamination at such sites, as “responsible parties” who must be
pursued by DEC if they attempt to sell to third-parties willing to clean
up and redevelop these sites. This will serve only to preserve the
status quo of festering sites that blight the landscape and impede
economic revitalization.
- It requires DEC, prior to
allowing entry of a site into the brownfield cleanup program, to determine
whether the site constitutes a “significant threat” and should be included
on the “superfund” registry. If this doesn’t suffice to make a site
owner think twice about allowing the property to enter the program,
the bill would force DEC to list on the registry any site whose listing
was deferred due to participation in the cleanup program, if the cleanup
“volunteer” ever chooses to withdraw from the program.
This provides
additional reasons for brownfield site owners to keep their sites out of
the brownfields cleanup program.
- While it adds onerous new
procedural requirements and much broader and stricter cleanup standards,
it sets no binding deadlines on DEC for completing its review of
applications, work plans, or other submittals.
Time is of the essence
in many real estate transactions. If the brownfields cleanup program does
not provide streamlined procedures and accelerated review, it will not be
attractive to prospective purchasers and would-be redevelopers.
- While it increases the state
share of environmental restoration program funding for municipally-owned
brownfield sites from 75% to 90% (similar to other bills), it makes it
harder for sites to qualify for the program, it adds new costs to already
excessive cleanup requirements, and it fails to provide needed
improvements included in A.7512 and S. 2935. The existing municipal
brownfields program has attracted little interest by local governments
because of costly and excessive investigation and cleanup requirements.
Although A.7507 (like other bills) increases the state funding share, it
adds additional red-tape and cleanup obligations, while failing to make
other changes desired by local governments.
- It sets onerous and overly
rigid cleanup objectives and procedures for low-risk brownfields sites
that, in some cases, surpass those currently in place for high-hazard
“superfund” sites. Specifically, it:
- Requires remedies to
conform to one of three remedial tracks—each of which is more onerous
than corresponding requirements in other proposals. Specifically:
- “Track 1” not only
requires cleanup to allow unrestricted site use without reliance on
institutional or engineering controls, but requires DEC to consider
the feasibility of imposing even more stringent objectives with
built-in safety factors.
- “Track 2” allows a
volunteer to clean up in accordance with DEC-specified “presumptive
remedies” for similar types of contamination, but only after
justifying not selecting other, more costly presumptive remedies.
- “Track 3” allows a
volunteer to select a site-specific remedy that requires institutional
and/or engineering controls, but only if: (a) onerous “National
Contingency Plan” procedures are followed; or (b) DEC makes a finding
that the site does not constitute a “significant threat” and
the volunteer evaluates at least 2 remedial alternatives, including
an unrestricted use alternative.
- For all tracks, requires
“surface soils” down to 3 feet to be remediated to “Track 1”
(unrestricted use) standards;
- Requires “source removal”
for all volunteers, which is defined to include plume stabilization,
removal or permanent treatment of very-difficult-to-remove-or-treat
non-aqueous phase liquids, elimination of all potential human
exposure, and prevention of the discharge of contaminated ground water
to surface water.
- Requires “responsible
parties” (including innocent current owners) to perform a remedial
investigation of both on-site and off-site groundwater contamination,
followed by both the short- and long-term remediation of all ground
water contamination at and from the brownfield site, including offsite
contamination.
- Requires non-responsible
parties, even in multi-source contaminated ground water areas, to
perform a remedial investigation and do on-site source removal in
coordination with a DEC multi-source contaminated ground water remedial
work plan. (This, and the new legislative intent that all non-saline
ground water be maintained and/or restored to its pristine natural
condition, will result in enormous new public and private sector costs.
It will also cause additional lengthy delays in the completion of
brownfield remediation projects while cleanup volunteers wait for DEC to
develop multi-source contaminated ground water remedial work plans for
hundreds of sites throughout the state.)
- Allows a remedial program
to be selected for a brownfield site only after consideration of 8
criteria—which differ from those currently used for “superfund” sites in
only 2 respects (it calls for compliance with “applicable or appropriate
and relevant” standards [the federal “ARAR” criterion, instead of the
current state “standards, criteria, and guidance”—“SCG” criterion], and
considers current and anticipated “land use”);
- Makes it more difficult
for a volunteer to obtain DEC approval for a remedy that requires
restrictions on site use by precluding such approval if the site is
adjacent to important cultural or natural resources, etc.
- Requires
contaminant-specific remedial action objectives for soil, at a minimum,
to conform to ARAR standards and be protective of ground water, drinking
water, surface water, air, sensitive and susceptible populations and
ecological resources;
- Requires an emergency
response action or an interim remedial measure to be implemented where
ground water used as a drinking water source is contaminated at levels
above drinking water standards.
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