Want to be in the Brownfield's Cleanup Program? Be careful what you wish for

Once seen as the white knight for those blighted old abandoned gas stations on the busy corners of Long Island the Brownfield's Cleanup Program (BCP) has not delivered what we had hoped. After a decade of debate and being one of the last states to adopt a BCP, New York finally did so in 2003. Since then, the program has been mired with obstacles to say the least. To begin with, an application can take anywhere from 14 months to 2 years to be approved. This equates to 3 lifetimes in the real estate world. Although the savings from tax credits and other incentives can be as much as 22%, the journey will be long and potential purchasers of these types of properties should weigh their options. The first step is the phase I environmental site assessment (ESA) which should identify that the former usage was a gas station, drycleaner or other type of industrial property that may have impacted the sub-surface soil/groundwater. These historical operations are referred to as a Recognized Environmental Condition (REC). From there, the consultant should advise on the need for additional investigation (phase II). During the phase II soil and groundwater sampling is the most common scope of work to determine if contamination is present. Upon discovering the contaminants, reporting the event to the NYSDEC will be required. It is at this stage that the possibility of the site becoming a Brownfield's site can be determined (almost). A phase II should be designed with the objective of providing the best information possible that a phase I report cannot. Phase II testing will be significantly more money and take from 3-4 weeks possibly longer to complete so discussing the scope with the consultant it important. Upon reaching this decision with the consultant, (how many samples and where to drill) the results should give the potential purchaser valuable information on making a business decision. The phase II can help establish benchmarks of how impacted the site is. A potential outcome of the phase II is that localized contamination is present (perhaps adjacent to a buried oil tank that has been out of service for many years). Enough data may be available from the phase II to provide a budget estimate to address that issue. This situation would not warrant a BCP application. For example a $20,000 estimate to remove and old buried tank and some impacted soil would not meet the definition of what the BCP was established for. Nor should a purchaser want to wait the required time to recognize a cost savings that will surely not be a savings after carrying the property for the prolonged period of time required for a response with no development, rental income, etc. The next benchmark may determine that the contamination is significant enough in which additional testing on and off-site may be required to determine how far the contaminants have migrated. More sampling will better define if a plume exists as well as identify that much of the site's subsurface soil/groundwater are impacted which can lead to hundreds of thousands of dollars for remediation. In addition if the plume has migrated off-site with the groundwater, adjacent properties may be impacted. This is the scenario where a perspective purchaser may decide (with assistance from his consultant) to visit the program. The idea of the BCP was to entice developers to purchase abandoned properties and pay for the required cleanup. Which would be a known amount agreed upon by all parties of the BCP before the work began. Prior to the BCP, the purchaser of a contaminated property was on the hook for all cleanup costs to the satisfaction of the regulators (Typically NYSDEC) no matter how much or how long it took. Many sites have not been redeveloped because of this obstacle. The final hurdle in our journey is the fact that Albany has place a 3 month moratorium on applications. In addition, the senate is proposing to cut 10 million of the $12.75 million allocated. Add this to already slow process and the conclusion is that most people end up not applying. This is not to say that those new bank branches on the corner's of busy intersections or gourmet coffee shops are cutting any environmental corners, they just decided to remediate the contamination with their own money and get the buildings open for business. Chuck Merritt is the director of environmental operations for Merritt Engineering, Bayside, N.Y.