July 20, 2000

House Chairman Petersen
Senate Chairman Pacheco
Joint Committee on Natural Resources and Agriculture
State House
Boston MA 02133

RE: Brownfields Act Oversight Hearing

Dear Chairmen,

The Environmental League of Massachusetts worked hard to help pass the Brownfields Act, and consider it one of the environmental community’s more important legislative victories of the past few years. We thank you for sponsoring an oversight hearing on this Act. Many times, we all push to get important legislation passed, then breath a sigh of relief and move on to the next piece of legislation. We often forget the follow-up, assessment, and evaluation needed to ensure implementation that meets the spirit and letter of the law.

All through the drafting, collaboration, and implementation phases of the Brownfields Act, ELM’s concerns about the Act have been three-fold. First, how quickly has the Administration moved to implement the Act? As you pointed out at the hearing on July 18, staffing appointments have been slow. That James Farrell only recently (in October) joined the Attorney General’s office is especially unfortunate. Now that staffs are in place, however, we will not dwell on the late appointments – except to point out that this should not become a pattern. We prefer to focus on what the staff has accomplished to date.

ELM’s second concern is that the Act causes contaminated properties to be cleaned up. As Dierdre Menoyo of DEP pointed out, it is difficult to determine under the current accounting system which are regular cleanups under the 21E program, and which are brownfield redevelopments. Are we seeing more cleanups because of the Act, or not?

This is a key question, one that was raised repeatedly by you, and which leads to our third concern:

Is the Brownfields Act facilitating cleanups that would not be redeveloped otherwise? This is an important test for legislation that contributes public dollars to private efforts. Only projects that require some greater incentive than market forces alone should fall under this Act. Indeed, this is a central point in the definition of a brownfield: a property that, because of perceived or real contamination, has not and will not be purchased and redeveloped under normal market conditions. Funding and other incentives provided under the Act should be used as a last resort to push redevelopment of real brownfields. For example, Mr. Fernandez, Director of the Governor’s Office of Brownfields Revitalization (GOBR), described successes that could be attributed solely to the additional technical and legal assistance provided to the municipalities in attracting developers and "selling" the brownfield sites. This type of assistance should be offered prior to the offer of funds.

We are not convinced that all of the projects listed as Key Brownfields Projects present a need for this added incentives offered under the Act. You also pointed out that the priority list should be based on some environmental criteria, in line with ongoing Community Preservation efforts by EOEA. We agree that the list of target properties should most definitely be prioritized, based on market analyses that identify less-desirable sites. This will make the agencies’ jobs more difficult, but we will gain better returns for our public investment.

Finally, we do not agree that all communities need the added incentives included in the Brownfields Act. We will oppose GOBR’s proposed legislation that would expand the program beyond the Economically Distressed Areas.

Thank you again for sponsoring the oversight hearing and offering the opportunity to comment on the Act’s implementation to date. Please do not hesitate to call me at 742-2553 if you have any questions about our comments.

Sincerely,

Pamela DiBona
Legislative Director