BROWNFIELDS FACT SHEET

The current language would give tens of millions of dollars in tax breaks to polluters to help them defray the cost of cleaning up the contamination they caused. It would require the taxpayers -- all of us -- to kick in one quarter to one half the cost of removing hazardous wastes companies had dumped or spilled.

The bill would allow polluters who have done the minimum to clean a site to be relieved of liability from future third party claims. For example, person A -- a polluter -- may cap an area where toxics are present and thus obtain a deed restriction, known as an AUL (Activity and Use Limitation), that only allows certain types of activities to take place on the property. A manufacturing plant may be able to locate on the property, but a playground would not be allowed. If person A sells the property to person B with the AUL in place and then person B violates the AUL i.e. doesn’t maintain the cap, then person A is relieved of liability from third party claims related to the violation even though person A placed the contamination on the property and made the decision not to clean it up fully.

The House bill cut funding from the $60 million in the Natural Resources Committee Bill (H.5013) to only $15 million. We can look to the case of the Modern Electroplating site in Roxbury as a reference point for what can be done with the limited level of funding. This brownfield which measures less than an acre required $3 million for site assessment and remediation. At $15 million of funding, we are looking at cleaning up only 5 sites of its type in the whole Commonwealth. Hardly a meaningful amount for such landmark legislation. Increased funding is critical to help redevelop the economically marginal areas that were the impetus for the legislation.

State dollars to encourage cleanups and redevelopment should only go to sites that need this additional incentive. The House bill broadens the term "economically distressed" to include roughly 50% of all municipalities in the state. The present definition runs the risk of providing funding to areas which the market will likely clean up and redevelop anyway because of being well-situated near infrastructure or vibrant economic activity. With such limited resources and a broad target area, the funding will not go far in helping the redevelopment of areas most in need.

The current language in the House bill requires that personal injury claims against an eligible person be reviewed by a newly-created Tribunal. Failing approval from the Tribunal, the plaintiff must post a $10,000 bond in order to proceed to court. The idea behind this provision is to prevent an onslaught of toxic tort cases. In reality, such claims are so rare and difficult to prove that there is little concern that parties will be swamped with claims. The legislature should not make it unnecessarily difficult for people who have been harmed to go to court against parties that caused the harm.