New Brownfields Bill Introduced in Both Houses

May 28, 2003
In an effort to secure a two-house agreement on workable legislation that would facilitate the redevelopment of former industrial properties in cities across New York State, the chairmen of the economic development committees in both houses of the State Legislature have joined in introducing a new “brownfields” bill (A.7512/S.4996). Assemblyman Robin Schimminger, chair of the Assembly Committee on Economic Development, Job Creation, Commerce and Industry, and Senator Jim Alesi, chair of the Senate Committee on Commerce, Economic Development and Small Business, said that that they drew on the experience of other states and the federal 2002 Brownfield Revitalization Act in designing a statute that will effectively work to encourage the cleanup and redevelopment of contaminated sites that all too often linger as unproductive eyesores.

Previous attempts to address the problem over a number of years have resulted only in one-house bills or one-house passage despite the requirement for approval by both houses to enact legislation, and this has left New York State as the last of the Northeast industrial states without a brownfields statute.

Assemblyman Schimminger explained, “The experience of other states has made it clear that the economic revitalization of brownfields only occurs when a state adopts an economic development, liability relief and expedited process incentive program, and abandons its ‘cleanup-only’ or Superfund enforcement model. Economic development incentives, including financial incentives and liability relief, are needed to entice developers to take on projects that carry environmental cleanup responsibilities and transform them into businesses that create jobs and grow the economy.”

Senator Alesi said, "As Chairman of the Senate Committee on Commerce, Economic Development and Small Business, I recognize the importance of an environmental focus on the redevelopment of brownfields, but more importantly I see thousands of opportunities to put valuable land back into productive use being lost because there is a lack of focus on economic development. In my view, the most sensible approach to reclaim brownfields is to recognize their intended use and then determine the degree of remediation necessary to allow development and create jobs. I applaud the efforts of Assemblyman Schimminger, who understands as I do the value of a use-based approach to brownfield remediation, and I thank him for his energetic and cooperative efforts."

The lawmakers said that their approach, which was presented at this year’s New York Conference of Mayors annual meeting, is winning support not only from mayors and other local officials, but also from developers and real estate representatives who understand what it takes to redevelop brownfield properties throughout the state, including economically drained upstate cities. “Municipalities, instead of polluters, have been left holding the bag on our state’s contaminated sites. If the private sector is going to help us remedy this problem, they need consistent and rational cleanup standards,” said Edward Farrell, Executive Director of the New York Conference of Mayors. He added, “We all know that the current brownfield program in the Environmental Bond Act is a failure, and it’s time to move on.”

The legislators said their legislation makes the cleanup process “transparent and clear, allowing limited resources to be spent on actually cleaning up the contamination rather than on attorneys and consultants and endless analysis and negotiation.”

The Schimminger/Alesi bill is unlike any previously introduced brownfield bills because it statutorily defines and mandates “source removal” (physical removal of the source of the contamination to the practical limit) before use-based cleanup standards for any remaining residual contamination can be applied. Use-based cleanup standards for residual contamination are to be developed principally as end points for the remediation process, after which time a liability release will be issued. The bill is also unique because it provides additional financial and liability relief incentives to encourage developers to strive to achieve, but does not mandate, residential instead of industrial- or commercial-level cleanups on all sites.

Environmental attorney Linda Shaw, of the environmental law firm Knauf Shaw LLP, who helped develop the legislation, said the bill includes “the correct mix of financial incentives, liability relief and clearly defined cleanup provisions to set the stage for large and small-scale projects on New York brownfield sites.”

Rochester Mayor William A. Johnson, Jr., said, “What we need in brownfield legislation is a balance between environmental protection and economic development. The Schimminger/Alesi bills give us the best avenue to induce redevelopment while respecting the spirit of environmental cleanup. Municipalities and former owners need the kind of latitude these bills provide and I offer them my full support.”

“Other states have shown that the strategy for identifying, remediating, and redeveloping brownfields needs to be a comprehensive one. This legislation will greatly assist in the redevelopment of several of New York State’s most unwanted sites by reducing the restrictions on developers and focusing efforts on the heart of the problem,” said Syracuse Mayor Matthew J. Driscoll.

“Many communities throughout the state are at an economic crossroads,” Mayor Richard Bucci of Binghamton stated. “It is imperative that comprehensive brownfields legislation be adopted this session to facilitate the redevelopment of stagnant industrial sites, the majority of which are found in our urban centers. The implications of inaction will severely impact our communities’ economic viability for the foreseeable future. This legislation offers a potent tool for urban reinvestment.”

Olean Mayor William Quinlan said, “Short of brownfield sites, the City of Olean has very little commercial or industrial land for development. Unless a brownfields bill setting cleanup standards as well as liability relief is in place, it is impossible for our City to maintain, let alone increase, our current tax base and improve or even maintain, our levels of employment and overall financial position. The proposed brownfields bill sponsored by Assemblyman Schimminger and Senator Alesi, if approved, would provide all the tools to make our City financially competitive.”

“Brownfield projects are first and foremost economic development projects with an environmental component -- if the dollars do not add up, the project will not move forward,” said commercial real estate attorney Gerard DiMarco of DiMarco & Riley LLP.

Dr. Andrew Rudnick, President and CEO of the Buffalo Niagara Partnership, stated, “The Buffalo Niagara Partnership believes that brownfields reform is one of the top issues for revitalizing the upstate New York economy, and we believe the Schimminger/Alesi legislation is our best chance this year to move towards that goal.”

Kenneth S. Kamlet, an environmental and land use attorney for a major upstate development group who spent more than 12 years as a senior official of the National Wildlife Federation and served on the gubernatorial task force that designed Maryland’s brownfields program, has published a number of scholarly articles on the subject. He said, “As someone who has studied, written about, and participated in brownfields projects throughout the United States, I can say categorically that the only way to encourage developers and investors to clean up and beneficially re-use sites they were not involved in polluting is through an accelerated cleanup program that does not penalize innocent volunteers by requiring them to do more cleanup than necessary to protect public health and the environment. Only the Schimminger/Alesi bill strikes the right balance to spark the urgently needed revitalization of New York’s more than 10,000 festering and growth-depressing brownfield sites.”

In addition to the legislation’s main sponsors, Schimminger and Alesi, the measure has 22 Assembly and 10 Senate co-sponsors.