In the October edition of this column
we reported a significant legislative accomplishment; after a decade of
failed attempts the Legislature has enacted an environmental bill,
which reforms the State Superfund and creates a statutory program to
spur the redevelopment of brownfields. Hailed by the Governor and
others as the most significant environmental legislation in New York in
more than twenty years, the new law expands reforms and replenishes the
State's Superfund program, codifies a brownfields redevelopment
program, grants tax credits for redevelopment and reforms the
Environmental Restoration fund to aid in the redevelopment of
municipally-owned brownfield sites.
The
Department of Environmental Conservation has initiated a commendable
outreach effort to educate the business community, public officials and
the general public about the new programs. In November that effort
included a day-long videoconference simulcast in multiple locations
around the State. DEC also plans to conduct informal, interactive
workshops around the State in the Spring and Fall of 2004 to report on
the process of implementing the legislation, and to present information
about the legislation at events throughout the State. The best way to
track these events and DEC's progress is by monitoring DEC's website,
which already contains a wealth of source material and interpretive
information about the new legislation, including a link to the full
text of the new law, which checks in at more than 100 pages. For those
not needing a cure for insomnia, short but detailed summaries of the
law organized in a very readable form are also available.
Critical
summaries of the new law have also begun to appear in the environmental
press. Analyses of the law recent appeared in the BNA Environmental
Reporter (Nov. 14, 2003) and the December edition of Environmental Law
in New York. Our brief space does not permit a detailed evaluation of
the law, so interested readers should refer to these sources for a more
thorough review. However, the new programs will take several years to
take shape as new regulations are proposed and promulgated, so it is
clear these are topics we will return to in future columns.
In
October we addressed the new Title 14 to Article 27 of the
Environmental Conservation Law, which provides for the first time a
basis in statute for a voluntary brownfields cleanup program. In
addition, the law replenishes the State Superfund by authorizing
funding up to $135 million annually, supported in part by new fees on
generators of hazardous waste and a doubling of fees on petroleum bulk
storage facilities. Up to $120 million annually is allocated to the
Superfund program with the remainder allocated to grant programs and
State oversight of the Brownfield Cleanup Program. The Superfund
program is reformed to add authority to address a broader range of
contaminated sites (several hundred new sites may be added to the
program), but new defenses and exemptions have been added to afford
some long overdue protection to lenders and innocent purchasers.
The
law also authorizes Technical Assistance Grants of up to $50,000 each
to assist community involvement in remediation, creates income and real
property tax credits (beginning after April 1, 2005) to offset costs of
brownfields redevelopment, amends the 1996 Clean Water/Clean Air Bond
Act to increase reimbursement to municipalities from 75% to 90%, and in
some cases 100%, of response costs, establishes a Brownfield
Opportunity Area program to encourage brownfield redevelopment planning
and requires DEC to establish a statewide groundwater protection
program. Over the coming months we will explore these programs in more
detail as they begin to take shape.
The
amendments to the 1996 Clean Water/Clean Air Bond Act should have an
immediate and beneficial impact on local governments and industrial
development agencies. Under the Bond Act's Environmental Restoration
Program, municipalities have been able to obtain State Assistance
Contracts to reimburse some of the costs of investigating and
remediating contaminated properties. However, in order to participate
the municipality had to own the site and absorb 25 percent of the costs
of environmental restoration out of local resources. In addition,
local governments have been required to share any profit form the sale
of remediated properties to subsequent purchasers with the State.
As
a consequence of the many strings attached to the grants, only a
fraction of the money available through the program has been spent.
The new legislation modifies the eligibility requirements for funding,
increases the amount of the grants and allows the municipality to
retain all the profits if the property can be sold. The reimbursement
rate is increased from 75% to 90% for on-site contamination and 100%
for off-site contamination, and municipalities may now use other state
and federal funds for their 10 percent share. Additionally,
municipalities may begin tax foreclosure proceedings and be considered
"temporary owners" for purposes of meeting eligibility requirements for
conducting an environmental investigation reimbursed by the State. DEC
promises also to streamline the application process. Finally, the
eligibility requirements have been broadened to include qualifying
community-based organizations that partner with a local government.
The
changes to the Environmental Restoration Program may be the first to
produce tangible results as financially-stopped local governments
become aware of the enhancements which make this program much more
attractive.
Reprinted with permission of The Daily Record, @2003