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What are Brownfields?
Brownfields are typically located in urban areas, contributing to urban blight and decay and posing health risks to area residents. Brownfields emerged as a major concern in the 1970s and 1980s as a result of federal regulatory regimes, in particular the so-called “Superfund” law , which mandates strict liability for nearly any party connected with a site that is later found to be contaminated with hazardous materials. Among other reasons, the Superfund law has discouraged many developers from touching these sites for fear of the potentially millions of dollars involved in their cleanup and remediation.
State regulatory regimes modeled after the federal Superfund law aggravated the brownfields problem because they extended strict liability to a wider range of sites. Like Superfund, these state programs involved cleanup criteria that did not take into consideration future uses (e.g. residential versus commercial) and realistic risks associated with those uses, often making redevelopment prohibitively expensive by requiring the highest level cleanup. As a result, developers prefer to build on sites outside of urban centers or in suburbs that have not previously been developed, chiefly because there is less liability risk involved and no need to conduct a potentially costly site cleanup. These sites are often called “greenfields.” The development of greenfields has given rise to urban sprawl and depletion of pristine green spaces. In addition, when greenfields are developed, inner city communities lose the opportunities to create jobs, housing, and other beneficial uses.
New York State Law and Brownfields
State law is a crucial factor influencing efforts to redevelop urban brownfields.
Most states have enacted Voluntary Cleanup Programs (VCPs) as a primary means for effectuating brownfield redevelopment. These programs provide protection from liability for developers who initiate and undertake site cleanup, but with minimal state oversight of the cleanup process. Many states have also enacted legislation that, in addition to providing liability protection, sets flexible standards for cleanup (e.g., a higher level of cleanup for a residential reuse, a lower level of commercial or industrial) and provides financial incentives for development.
In many states these programs have fostered the remediation of hundreds of brownfields. New York, in contrast, has not yet enacted comprehensive brownfields legislation. Developers assert that in New York, the lack of clear cleanup standards set forth in statute—VCP agreements are negotiated on a case-by-case basis and are governed by regulation—as well no law to allay developers liability concerns are the main impediments to brownfield redevelopment. Measured by the numbers of completed VCP sites, New York has enjoyed only modest success in brownfields remediation and redevelopment.
New York’s only brownfields legislation, the Clean Air/Clean Water Bond Act enacted in 1996, provides funds for 75 percent of the brownfield cleanup costs for cleanups undertaken by municipalities, but provides no financial incentives to private parties. A pending bill in Albany promises to usher in a more comprehensive brownfield remediation and redevelopment program for New York. Similar bills sponsored by Senator Marcellino, R-Long Island (S.2935) and Assemblyman DiNapoli, D-Long Island (A.7507) passed the NY State Senate in the Spring of 2003. On the last day of the past legislative session, June 19, Governor George Pataki, Senate Majority Leader Joe Bruno and the Assembly Speaker Sheldon Silver agreed on a compromise bill (A.9120/S.5702) combining elements of the above bills. The Assembly passed the compromise bill the following day, but the Senate adjourned before the bill was passed, meaning none of the bills became law. Passage of S.5702 (the Senate version of the compromise bill) is anticipated when the legislature returns to its regular session in the Fall.
How State Policy Can Promote Brownfields Redevelopment and Urban Revitalization
Because brownfields are predominantly located in urban communities—which tend to be low income or disadvantaged—their redevelopment raises issues of environmental justice. While beneficial redevelopment of these parcels promises to reverse the tide of urban decay, the manner in which such redevelopment is achieved must be sensitive to the health risks and socioeconomic needs of the surrounding communities.
State law must ensure the long-term health and safety of the communities in which brownfield redevelopment projects take place. If a brownfield site lies adjacent to a residential community and an industrial development is being proposed for that site, serious health concerns may arise when cleanup standards are lowered to accommodate that type of reuse. For this reason, meaningful community participation and community based planning is crucial to the success of any brownfield program and should be mandated by state law.
Many of these urban communities are economically distressed due to decades of disinvestment, brought about both by the removal of manufacturing jobs by the private sector and public sector neglect of these communities. Brownfield state laws can structure financial incentives to encourage brownfield redevelopment in low-income “economic opportunity zones.” They can also be structured to involve communities in the remediation and redevelopment process, increasing the likelihood that redevelopment is aligned with the community’s social and economic needs. In this vein, it is crucial that state law provide opportunities for private, municipal, and non-profit collaboration in redevelopment work.
As examples from across the country illustrate, involving surrounding communities throughout the process helps to ensure a smooth redevelopment process contributes to creating environmentally healthy and economically sustainable communities.
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