[Individual or Organizational Letterhead]

LEGISLATIVE                                          SUPPORT

MEMO

BILL:                   A. 7512 (Schimminger)/S.4996 (Alesi)

SUBJECT:          Voluntary Cleanup Act (Brownfields)

DATE:                 May 8, 2003

The _______________ supports A.7512/S.4996, and urges the Assembly to substitute provisions in this bill—especially as they relate to defining non-contributory responsible parties, specifying reasonable cleanup standards, and setting realistic cleanup goals—for corresponding provisions in the DiNapoli bill (A. 7507).  Because the brownfields issue has major implications for economic development, the DiNapoli bill should be referred for review to the Committee on Economic Development, Job Creation, Commerce & Industry before being reported to the full Assembly.  In any case, the positive features of the Schimminger bill (now contained in the counterpart Alesi bill, S.4996, in the Senate) should be taken into account in any Assembly-Senate conference committee that is convened, following full Assembly action, to reconcile the differing bills adopted by the two bodies.  The Senate approved the Marcellino brownfields bill (S.2935) on March 19, 2003. 

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.  The Schimminger bill, while not ideal in all respects, substantially advances all of these necessary objectives.

The positive features of the Schimminger bill include all of the following:

• It sets the positive and appropriate goal of encouraging cleanup of contaminated brownfield sites by volunteers without enforcement, in a way that protects public health and the environment, by expanding eligibility, expediting the administrative process, defining necessary cleanup levels after mandatory source removal, providing a state liability release upon achievement of applicable cleanup levels, and making available financial incentives to further encourage cleanup and redevelopment.   It recognizes that no cleanups will occur unless innocent current owners, prospective purchasers, and would-be redevelopers can be encouraged to carry out voluntary cleanups.
• It treats current owners and operators of brownfield sites, who played no role in contributing to the contamination at such sites, as “non-contributory responsible parties” who will not be pursued by DEC or suffer any other sanctions if they attempt to sell to third-parties willing to clean up and redevelop these sites.  This will encourage the sale of brownfield sites to willing purchasers and redevelopers who are ready to return them to productive us and help to revitalize the local economy.
• It does not deter brownfield owners from selling the property to prospective redevelopers by threatening to list such sites on the state “superfund” registry, or by using the threat of such listing to prevent cleanup volunteers from withdrawing from the program in cases where DEC doesn’t live up to its end of the cleanup agreement.  Strong-arm tactics are not an effective way to encourage voluntary cleanups.
• It ensures an expedited review process by requiring DEC to: act on requests to participate in the cleanup program within 20 days; to accept, reject or modify proposed cleanup work plans within 30 days; and to accept, reject or modify final work plan reports within 60 days.  Time is of the essence in many real estate transactions.  A.7512 ensures that the program will not bog down in red tape and will be attractive to real-world businesspeople.
• It provides essential improvements to the municipal brownfields program beyond merely increasing the state share of environmental restoration program funding from 75% to 90% (similar to other bills).  In addition, it fixes several other problems, by providing:
  • 100% state funding for any remediation required by DEC outside the property boundary;
  • Monthly reimbursement of local costs;
  • That moneys recouped from responsible parties need to be refunded to the state only if they exceed the municipality’s 10% matching share;
  • That the proceeds from the sale of the restored property that exceed the state’s outlay is divided equally between the state and the locality—rather than being largely turned over to the state;
  • That approved project costs (serving as the basis for the state share) need not be reduced by any other state or federal funding received for the project;
  • Broader site eligibility, by including not only sites owned by localities, but also those for which the locality may acquire fee title; and
  • That the property being restored may continue to be used for its previous purpose as long as the risk posed doesn’t make such prohibitive—and as long as it doesn’t interfere with the environmental restoration;

The existing municipal brownfields program has attracted little interest by local governments because of costly and excessive investigation and cleanup requirements.  The changes provided by A.7512 will make the program much more attractive to local governments.

• It sets realistic cleanup goals for the voluntary cleanup program (that avoid the spread of contamination and protect human health and the environment), but allows the cleanup objectives to be tailored to the uses and risks actually associated with the site.  Specifically, it:
  • Requires all volunteers to carry out “source removal” to the practical limit of physical removal to avoid cross-media contamination and offsite migration—unless this is not economically feasible because of pervasive area-wide soil contamination;
  • Requires no further action if residual contamination meets applicable cleanup levels—or if residual contamination is limited but slightly above applicable cleanup levels and additional remediation cannot be justified (provided institutional controls are implemented and follow-up monitoring is performed at 5 year intervals).
  • Requires further cleanup to at least “Category 2” levels (use-based standards) for industrial or commercial end-uses, where residual contamination exceeds numerical cleanup standards, but the volunteer must first choose between a “Category 1” (unrestricted use) and a “Category 2” cleanup by comparing the economic and technical feasibility of the two.  If the volunteer opts to do a “Category 1” cleanup, it will receive priority consideration for certain economic development incentives.
  • Presumptively requires “Class 2” registry sites that are eligible to participate in the VCP during an initial 6-month time window to remediate the top 6 inches of soil and meet “Category 1” (unrestricted use) cleanup standards.