Memo in Opposition to the DiNapoli Bill

Sample

              MEMO IN OPPOSITION TO A.7507

To:             Assemblyman Thomas DiNapoli

                New York State Assembly

                625 LOB
                Albany, NY 12248

From:        

Re:           Brownfield Restoration Act
                A. 7507

Date:        May __, 2003

The Brownfield Restoration Act would, unfortunately, continue—and, indeed, considerably expand—the inflexible and punitive approach of current brownfield programs, both for municipalities and for private owners.  These existing programs are in need of reform because they provide little or no incentive to innocent owners, prospective purchasers, and would-be redevelopers (who did not cause or contribute to existing contamination problems) to step forward and voluntarily undertake a cleanup and redevelopment project. 

A. 7507 would make matters worse and further reduce the interest in brownfield revitalization because it dramatically increases cleanup costs and liability exposure with few compensating benefits. 

Examples:

• Treating current owners as “responsible parties” subject to mandatory enforcement action (if a cleanup agreement is executed with a non-RP), will greatly increase the tendency of brownfield site owners to refuse to sell and simply “mothball” their properties.
• Forcing DEC to assess whether a site constitutes a “significant threat” before allowing it into the cleanup program and then using mandatory Registry listing as a threat to compel adherence to DEC cleanup demands and preclude withdrawal, will further discourage brownfield property owners from participating (and from allowing prospective purchasers or redevelopers from participating) in the brownfield cleanup program.
• Setting a cleanup goal (“complete and permanent cleanup”) and cleanup objectives (extreme “source removal” plus remediation of “surface soils” to a depth of 3 feet plus protection of groundwater, drinking water, surface water, air, sensitive and receptive populations, and ecological resources) more stringent than those now in place for state superfund sites (i.e., being protective of human health and the environment and conforming to ARAR/SCG standards) will further discourage cleanup “volunteers” from coming forward.
• Setting the most stringent excess cancer risk standard of any state in the country—when the background cancer risk among U.S. residents is 250,000 times greater.
• Making cleanup procedures more time-consuming and cumbersome, while not subjecting DEC to any binding time-limits—ignoring the reality that “time is of the essence” in real estate transactions.

Brownfield site owners, prospective purchasers and redevelopers who did not cause or contribute to site contamination must be given incentives (i.e., reduced costs and liability exposure) to voluntarily clean up and beneficially reuse these sites.  Doing so must be attractive from a land use and cost-benefit standpoint.  When redevelopment is encouraged, cleanups will necessarily follow.  When redevelopment is discouraged as is the case in A. 7507, cleanups will not occur (unless RPs can be compelled to carry them out in cases where sites meet criteria for Registry listing).  This is the worst of all possible worlds and would be a disaster for both New York’s economy and its environmental quality.

We understand that a bill sponsored by Assemblyman Schimminger (A. 7512) has been referred to your Committee.  We urge you (and Speaker Silver) to allow the members of the Environmental Conservation Committee an opportunity to fully review and evaluate the strengths and weaknesses of both A. 7507 and A. 7512—so that the best possible product can be reported to the full Assembly for action this year.

cc:    Hon. Sheldon Silver, Speaker of the
           Assembly

        932 LOB, Albany, NY 12248