FROGG Comments to NYS DEC on Brownfield Law Changes

FROGG submitted the following statement to the NYS DEC Aug 2015 during the open comment period on amendments to the NYS Brownfield Law

FROGG is a non profit community based group which has actively engaged numerous state brownfield cleanup projects within our area. The Gowanus district in Brooklyn New York has more DEC Brownfield applications than any other district in the state. While Gowanus is an old industrial district, like many other throughout our state, the numerous brownfield applications in our area are being driven by a vibrant real-estate market where high profits are to be made. In its inception, the Brownfield program was intended to stimulate redevelopment of land hampered by contamination. But in our community, where property values go up daily, this incentive program is supporting displacement and gentrification while destroying the historical character of our community— and it is doing this at the expense of the NY State taxpayers.

We applaud the intent of this amendment to temper the use of this program and reduce the amount of tangible property tax credits available to applicants for brownfield sites in high-value real estate markets. We ask that these modifications go further to ensure that state taxpayer support goes to areas and communities where the program strengthens a whole community rather than enhancing a specific developer.

In a vibrant market, the indication of the presence of contamination in a site, should not be construed as “complicating redevelopment” given that the typical brownfield remedy is little more than building a solid concrete foundation for the new development to keep contaminated materials at bay. A concrete foundation is a normal part of a redevelopment and does not present such hardship to justify current levels of taxpayer aid, particularly when building in a hot real-estate market.

In vibrant markets, where development would take place without any state incentive program, other polices should be used to ensure that contaminated land is properly addressed.

And the part of this program, where NY State takes on the developer’s liability for the work they did under the Brownfield Program, is not being properly valued as a significant incentive given to applicants. The program should place a reasonable value on the assumption of liability which should be included in the financial accounting of such projects.

Additional Modifications criteria for eligibility:

We ask that section 45(f) of this proposal modify the definition an affordable housing project as a site which is not located in an area subject to rise in sea-level or in a costal flood zone as defined by FEMA.

We respectfully request that the program be modified to better ensure that these tax  are not used to create additional risk to the public and natural resources, while also creating additional financial risks to the New York Taxpayers. The program currently makes no distinction between redevelopment properties on high-dry land, and those located in coastal flood areas subject to changes in sea-level.

Given that the proposed changes include a new subdivision which addressing “Affordable House”, we believe that subdivision must specifically exclude all sites which are located in a FEMA flood district subject to changes in sea level. The state taxpayer should not be subsidizing affordable housing developments where residents face short-term and permanent displacement due to coastal storms and changes in sea level. It is not acceptable that the NYS taxpayer be asked to take on the additional liability for new housing developments in known FEMA flood districts, given the information available on sea-level change in the NY coastal area.

Building codes that call for additional elevation of building base height in such flood zones, address intermittent storm flooding but not the projected changes to actual sea level. It is irresponsible to use taxpayer funding to  affordable housing development in coastal areas subject to sea level rise. We therefor ask that this amendment be modified to ensure that taxpayer funds are not used to support additional housing development in coastal flood areas. We suggest that this action alone may bring the sought-after balance between Upstate and Downstate Brownfield Applications which this amendment intends to address.

Sites not targeted for affordable housing redevelopment, but other uses which may include housing, should also be reviewed by a DEC sea-level task force to determine if a state funded brownfield cleanup is in the best longterm interest of NY State and state taxpayers.

In addition we ask that, prior to any coastal site being accepted into the brownfield program, the NYSDEC DOS, guided by their Ocean Action Plan, be tasked with a review of the coastal flood areas to assess if inclusion in this brownfield program is in the best interest of the State and the natural ocean habitats which New York State is the stewart of.

Community Participation:

As presently practiced, the BCA Community Participation component of this program is anything but robust as some DEC agents may think. As a taxpayer funded program the DEC has its first obligation to the citizens; where as in practice the DEC agents often aline themselves with the economic wellbeing of the applicant, siding with the applicant when there are conflicts between the community and the actions of the applicant.

When it comes to community outreach and having a receptive government ear, we have found our encounters with the DEC Brownfield devision markedly different than our engagement with the federal EPA acting under the Gowanus Superfund designation.

For example, when the EPA called for public comments on their proposed remediation plan, there was a part of the proposal which made a portion of the community uncomfortable. The plan proposed a confided-containment-facility in the industrial district. This CDF would have met all health and safety requirements and it would have reduced costs of the work, but because a segment of the community felt uncomfortable having such a facility within blocks of their local park, they stated their objections to the EPA, and after consideration, the EPA dropped that CDF from the remedy.

In contrast, under a local brownfield cleanup action, when the community objected to the very real concerns of dusty trucks dispersing their brownfield dirt as they drove directly through dense residential streets, and suggested alternate travel routes, the DEC dismissed the community request because it would hamper the developers work. And given community concerns raised due to increase of headaches and breathing difficulties for inhaling air saturated with oil fumes emanating from a brownfield cleanup operation, the DOH response to the community was to provide data on dismiss community concerns.

In the initial unrolling of this program the applicant was required to have a community participation program. In practice there is no such think taking place in the Gowanus area. Placing a binder of documents in a public repository is not a community participation program.

We ask that the DEC take measures to better balance community input and concerns with applicants goals, to better prevent taxpayer-funded brownfield cleanups from being a hardship on the local community. DEC agents should not allow this program to be primarily be about the economic welfare of a developer, as it has been in practice. We wish to remind that the DEC is charged with the following goals:

ECL § 27-1403 states the objectives of the BCP, to advance "the policy of the state of New York to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being,”

We ask that oversight of this program be properly balance around all goals of the program and not grant higher priority to economic well being of large developers. And while DEC and DOH personnel have much information to share with communities, they should not assume that they know what is in the best interest of a communities health, safety, and welfare without taking the time to actually listen to community issues and suggestions.

Historic Resources:

In 2014, an agent working for a developer who is currently participating in the Brownfield Program, actively misrepresented the the nature of the review which the NY SHOPO carries out as part of a Brownfield application procedures. This misrepresentation was used to directly impacted the SHOPO office proposal to list the Gowanus District on the National Registry of Historic Places. Any developer who has the means and resources to actively and aggressively oppose a community-driven proposal, such as a listing  to the National Registry, is not a developer in need of brownfield funding coming out of the NYS taxpayer’s pockets. A developer receiving state brownfield funding should not be permitted to actively lobby against any NYS agency action which is being carrying out under the normal responsibilities of an agency. Funding the means to act in this manner, can be attributed in part to the financial-aid taxpayers are extending to such developers under the Brownfield Program.

This NY State program was never intended to add to the imbalance of power over our state government between a large-scale out-of-state developer and a local community.


We thank you for this opportunity to review and comment on the Proposed Part 375 revisions to our NY State Brownfield incentive program and look forward to your responsible handling of matters raised here.