Mass. Law Limiting Liability for Brownfields Transforms Landscape

By | April 22, 2008

Growing up in New Bedford, Massachusetts, Henry Wainer remembers driving past the old Alden Corrugated Container Co. on trips out of the city. Then one day, the single-story cardboard box factory burned.

The city bulldozed what remained and — in the lingo of urban planning — added one more “brownfield” to its landscape, an abandoned, likely polluted empty lot with dim prospects of being redeveloped any time soon.

New Bedford wasn’t alone. As industries left, older cities and mill towns across the state were increasingly dotted with thousands of brownfields — some the size of house lots, others as large as red-brick factories.

Then, in the mid-1990s, the state began a push to speed the redevelopment of the sites, culminating with the 1998 Brownfields Act. As Massachusetts celebrates the 10th anniversary of the law, much has changed.

Polluted lots are being cleaned. Blighted areas are being revitalized. Parks and housing developments are sprouting up on land once thought unrecoverable.

And in New Bedford, the site of the former cardboard box factory now boasts sprawling greenhouses courtesy of Wainer, who expanded his family’s specialty produce company, Sid Wainer and Son, onto the land. The move came after the city received about $80,000 in brownfields funds to remove several 20,000 gallon storage tanks buried on the lot.

“It was a chance to do something creative for the city,” Wainer said. “It’s worked for us. It’s worked for New Bedford. And it’s also worked for future generations.”

It wasn’t always so easy.

Back in the early 1990s, the state was faced with a backlog of up to 9,000 brownfields lost in a morass of regulatory red tape. Developers eager to salvage the sites had few assurances about what chemicals lurked in the soil, and even fewer legal protections.

The roadblocks pushed many developers onto “greenfields” _ undeveloped parcels with none of the headaches of the urban lots. Old farmlands were gobbled up, adding to suburban sprawl.

Early in the 1990s, the state took the first steps to address the problem, partially privatizing the process of identifying contaminants.

In 1998, then-Gov. Paul Cellucci signed the Brownfields Act, by giving developers who made a good faith effort to clean up a parcel protections from future lawsuits.

The new law also created a Brownfields Redevelopment Fund, offering loans and some grants to help spur the testing and rebuilding of sites.

The state was quickly whittling down the backlog.

Abandoned, blighted brownfields were replaced with housing developments, new office buildings, research facilities — even cultural attractions like the Massachusetts Museum of Contemporary Art in North Adams and the Basketball Hall of Fame in Springfield.

One of the key pieces of the law is the so-called “covenant-not-to-sue” program overseen by Attorney General Martha Coakley’s office.

The office steps in typically on larger, more problematic sites, where a new developer needs legal assurances they won’t be sued because of past pollution. Last year Coakley’s office negotiated seven such covenants and hopes to speed up the process.

The office brokered a covenant to aid the redevelopment of the old Frye Shoe Manufacturing Co. in Marlborough into assisted living for seniors.

“I see it as a big recycling project,” Coakley said. “People don’t want to invest in property where they have a large liability.”

Money is critical to the law’s success.

A total of about $7 million in brownfields tax credits have been doled out since the law was signed in 1998. Much more has been spent on direct loans and grants.

When the law was approved, the state poured $30 million into a special Brownfields Fund to provide assistance to see if an area was polluted, and then to aid with cleaning up the land.

In the past decade the state has pumped money into more than 500 sites including old abandoned gas stations, former mills, and so-called “infill sites” or empty lots in urban areas, according to David Bancroft, senior vice president of community development for MassDevelopment, the state’s finance and development authority.

The program proved so popular the state later added another $30 million.

Besides reclaiming abandoned land and slowing sprawl, the program has created up to 6,000 jobs and nearly as many units of housing, Bancroft said.

“It’s a lot easier to go to a green site, but this is getting people to look at urban or dirty sites,” he said. “The program has taken some of the fear out of buying those sites.”

At the center of the clean-up effort is the state Department of Environmental Protection.

Since the year 2000, the DEP has helped bring back 672 sites in 198 cities and towns — offering technical assistance or helping a developer or town navigate through the complex law. Thousands more have been cleaned with minimal DEP involvement.

The first big change came in 1993, when the state semi-privatized the cleanup of sites. Before then, the DEP had to have a role in every cleanup, creating long delays. Ihe process accelerated even more after the 1998 Brownfields Act.

“It’s worked incredibly well,” said Janine Commerford, assistant commissioner for the Bureau of Waste Site Cleanup for DEP. “The pace of cleanup has remained high even given the ups and downs in the economy.”

The experience in New Bedford is typical of other aging, smokestack cities trying to make the leap from an unregulated industrial past to a cleaner future, according to the city’s Mayor Scott Lang.

He said the city has half a dozen other sites in the process of being cleaned with the help of the Brownfields Act— including the abandoned Elco Dress Factory site. The city will receive close to $900,000 to demolish the buildings and clean the asbestos-polluted location, he said.

“Without the brownfields grants to take down the blighted mill, that would just lie fallow,” Lang said.

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On the Net

Brownfield stories: http://mass.gov/dep/cleanup/brsuc.htm
Bureau of Waste Site Cleanup:
http://www.mass.gov/dep/about/organization/bwschome.htm
MassDevelopment: http://www.massdevelopment.com/
Sid Wainer and Son: http://www.sidwainer.com/

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