New brownfield proposal called ‘window dressing’

Among the items in Gov. Dannel P. Malloy’s jobs package for next week’s special session is one on brownfields – those polluted properties that have become darlings of the environmental and economic revitalization sectors in recent years.

The package earmarks $20 million to develop and market five to-be-determined state-owned brownfield sites, to review and ultimately consolidate existing programs and to create a more comprehensive brownfields website.

Another look at brownfields (DEEP photo)

“Window dressing,” said Barry Trilling, an environmental and climate change attorney with Wiggin & Dana in Stamford who is versed in the issues pertaining to brownfields here and around the country. “We passed the law we needed this past summer and now we have to implement it.”

Largely unnoticed in the last legislative session’s laser focus on the budget and — for the environmental community — matters related to energy reform and the creation of the Department of Energy and Environmental Protection, were two pieces of legislation on brownfields.

In the view of Trilling and others, they will do more in the long run than the measures in the jobs package.

One provided $50 million for brownfield development low-interest loans over two years. The other — the result of recommendations formulated over the last several years by a brownfields task force — was “An Act Concerning Brownfield Remediation And Development As An Economic Driver.” Among its many programmatic provisions was a major change in liability, which – though somewhat diluted in its final form – all parties point to as the single most important action for wrenching brownfield development into gear.

It set up a pilot program for 32 brownfield sites a year under which their buyers would no longer be liable for pollution that had migrated off the site – a longstanding and huge deal-breaker stymieing brownfield remediation here.

“That’s all you need to know,” said Trilling who along with others called that elimination of some of the economic uncertainty for those willing to take a risk on brownfields key.

The remediation and redevelopment of Connecticut’s thousands of brownfields, the legacy of everything from century-old mills to abandoned gas stations, has staggered under a sometimes impenetrable web of  overlapping programs, outdated and cumbersome statutes, cross-agency jurisdictions, and inadequate funding.

The obstacles have made the state an inhospitable place to take on brownfields, often sending would-be developers to other states.

“If its easier to get a job done on regular basis in New Jersey or New York, you know we have a problem,” said Trilling referring to Connecticut’s system as Byzantine.

“For the longest time, since I’ve been involved, Connecticut needed to do some catching up with respect to its brownfield programs,” said Gary O’Connor an attorney with Pullman & Comley who has co-chaired the task force since it began five years ago.

“I think over the last four or five years we’ve done so,” he said.

O’Connor noted the creation of the Office of Brownfield Remediation and Development under the Department of Economic and Community Development, though not with a deputy commissioner running it or with the level of staffing he would have preferred. The result, he said, has been far more communication among the various departments who figure into brownfield work, making it easier for developers to navigate.

“Are we completely there yet?” he said. “No, I think we have almost all the tools in place.”

New Haven-based attorney Nancy Mendel, part of a group of attorneys who helped craft the liability language – the original version of which had no cap on the number of participants — said she already had one client apply for a liability protection spot – one of eight applications so far in the small window since the legislation’s July 1 effective date. She said she has five clients likely to be ready to apply next year – at least two for whom whether they are accepted will dictate if they buy the brownfield.

“With this program they will take on the more difficult properties,” she said. “I’ll clean up the property; you protect me.”

The problem Mendel and others said, many potential buyers don’t know this or other programs exist.

“I think we need to do more outreach; I think we’ve been fairly silent as to what’s available,” said Ned Moore, the economic development agent with the OBRD. He said the website already is being reworked, and he would like to see better out-of-state marketing now that Connecticut can compete with the regulatory landscape in other states. “We need to be better salesmen.”

Last session’s legislation further loosened the brownfields logjam by expanding eligibility for a program that goes by the initials ABC – Abandoned Brownfield Cleanup. And to the issue of the many overlapping programs, it set in motion a rapid review, spearheaded by DEEP.

Its six working groups looking at existing programs, best practices, assessment of environmental risks, liabilities and other issues, have already filed reports and recommendations.

Public comments will be accepted for another couple of weeks, with a final report due mid December that is likely to form the basis for legislation in the next full session to reorganize and streamline the programs. The review process included in the special session package is a catchall for any programs or funding mechanisms not already under review, said Graham Stevens, the brownfields coordinator at DEEP overseeing the existing review.

“Everybody’s house gets tidied at the same time,” he said.

The idea of brownfield development brings with it potentially troublesome economic realities. The benefits are clear: getting rid of the contamination; putting people to work doing it; creating a business that will employ more people; putting the property back on the tax rolls; and in many cases doing it in an urban area that otherwise faces long term abandonment.

But in the current economic climate with a general glut of available clean properties and new development all-but stalled, there are doubts about how many likely takers there are for brownfields given their difficulty, cost and longer time frames.

“The important thing for state government to do right now in tough economic times is make sure we’re well-poised when we turn the corner,” Stevens said.

But Todd Berman, a senior environmental analyst for Robinson & Cole who was co-chair of the DEEP work group evaluating the existing programs said, “The real problem with brownfields is that the economics are still very, very marginal.”

“If you’re somebody contemplating a brownfield development, you need to be a courageous entrepreneur, maybe willing to spend a little more,” he said.

And while the term “level the playing field” was uttered by just about everyone explaining why legislative reform for brownfields was necessary, Berman didn’t think that was enough. “You have to make them economically competitive,” he said. “Not just leveling the playing field; you’ve got to tilt it.”

Among the recommendations from Berman’s work group: consolidating the remedial programs in one location; sensible milestones for evaluating cleanup so properties aren’t stuck in limbo for long periods of time; better assessing the risk of just how clean a property has to be for it to be usable; and allowing licensed professionals doing remediation to make decisions without constantly waiting for approval from an outside monitoring authority.

Even with the prospect of significant legislative modifications for brownfield development coming next legislative session, the consensus is that moving ahead using the programs in place now, as flawed as some of them may be, along with the potential additional money from the special session jobs package would still be beneficial.

“Every dollar helps; what we need to do is choose priorities,” said Roger Reynolds of the Connecticut Fund for the Environment, who added he was a little disappointed with the watered down result last session.

The priorities Reynolds prefers — tying brownfield remediation to the new transit lines and hubs recently approved for development. “Taking our scarce resources and putting them into those areas and into modern, green, sustainable, livable communities is exactly what we ought to do,” he said.

Anne Peters, an attorney with Carmody and Torrance in Waterbury who co-chaired the DEEP work group looking at liability issues said adding money to the brownfields equation could be done simultaneously with needed additional statutory reform.

“Every brownfield, every abandoned, blighted, under-utilized property that we restore to active use is of value to the state,” she said recognizing they may not produce thousands of jobs, but at least will no longer drag down the rest of the neighborhood. “Even if it’s just 32 properties for the pilot project, in my book, restoring 32 properties is much better than waiting and not restoring any.”