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Defining "Underutilized" (Or Not)

12 Apr 2016 8:54 PM | Anonymous member (Administrator)

by Sue Boyle
BCONE Executive Director & Sr. Practice Leader: Environment at GEI Consultants

What BCONE does really well is bring together experts from throughout the northeastern United States to share experiences about brownfield remediation and redevelopment laws, regulations, policies, successes, and obstacles.  You see this on display at the annual Northeast Sustainable Communities Workshop (NSWC) which consists of panels with participants from at least 3 states in the region comparing and contrasting programs and policies in their individual states.

Earlier this week, BCONE Board members from CT, DE, NJ, NY and PA had a robust conversation over the course of less than 3 hours about the definition of brownfields in their states and what the term "underutilized" means.  The exchange, which was fascinating, was prompted by the public comment period on the regulations defining "underutilized" being re-proposed by the New York State (NYS) Department of Environmental Conservation (DEC).  If you attended this year's NSCW Panel on Hot Topics in the States, you heard Jane O'Connell of NYSDEC discuss the definition.

The representative from DE on the BCONE Board shared that NYS is not the only state struggling with the term. The State of Delaware has been struggling with the inclusion and meaning of "underutilized" as one of the conditions necessary to certify the site as a Delaware Brownfield, which will allow prospective purchasers liability relief for existing contamination and provide them with grant funds for investigation and potential remediation. 

New Jersey informed the group that a brownfields is defined under NJ Brownfield and Contaminated Site Remediation Act (N.J.S.A. 58:10B-23.d) as:  "any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant."  This allows the local municipality, if it chooses, to define underutilized via its Master Plan, although he wasn't aware of any municipality that has defined "underutilized" (some  have defined vacant).  

CT joined the discussion with information from Section 32-760 of Connecticut's General Statutes, which  defines a brownfield as "any abandoned or underutilized site where redevelopment, reuse or expansion has not occurred due to the presence or potential presence of pollution in the buildings, soil or groundwater that requires investigation or remediation before or in conjunction with the redevelopment, reuse or expansion of the property." CT does not link the definition to future plans and  interprets "underutilized" fairly broadly.

PA then let us know that the Commonwealth has not defined "brownfields" by statute or regulation.  PA generally assumes that any property which is (or may be) contaminated is a brownfield regardless of its current or prior use land use (industrial, commercial or residential) or current operational status (active, underutilized or abandoned).   

After this healthy exchange of information, one of NYS's representatives on the BCONE Board summed  things up by saying: "And therein lies the problem. Most state brownfield programs do not define underutilized."  The term's meaning is often borrowed from other statutes and programs. The proposed NYSDEC definition can be viewed as trying to adopt an unnaturally narrow definition that is not really linked to current conditions at a site but future use.

If this exchange and the topic interests you, go to  http://brownfieldcoalitionne.org/news/3941330 for a copy of the comments on the NYSDEC definition submitted by BCONE.

Do YOU have a topic for which you'd like to get a multi-state perspective in real time?  If you do, send it to BCONE via sboyle@geiconsultants.com and we'll circulate it among the Board members and eblast out the answers provided. 

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