Wyoming Legislature to Rewrite "Brownfields" Law

by Steff Kessler

This spring, the Wyoming State Legislature’s Joint Interim Minerals Committee began a series of meetings on the topic of "brownfields," contaminated industrial sites in the heart of communities for which no one takes responsibility or for which no cleanup is likely. The Committee is attempting to rewrite a controversial bill that passed during the last legislative session.

Senate File 147, "brownfields-corrective action requirements," allows companies to pollute Wyoming’s air, land and waters and then walk away from their cleanup responsibilities. The bill was severely criticized by the U.S. Environmental Protection Agency (EPA), the state Department of Environmental Quality (DEQ), numerous conservation groups and even Governor Geringer, who allowed it to become law without his signature.

A Bad Law Hurts Everyone
Many states have legislation to provide incentives for new owners to clean up brownfield sites and reuse them for economic development, instead of steering new industrial and commercial building toward suburban or rural "greenfields."
Traditionally, the term brownfields was only applied to sites that were abandoned, lacked responsible parties or that the owners lacked the financial ability to clean them up. Thus, government intervention and incentives were seen as the only way to pursue cleanup and reuse of these properties.

In passing SF 147, the legislature turned this original concept on its head. SF 147 allows some currently operating, financially solvent, polluting companies to be eligible for brownfields incentives such as immunity from liability or waivers from state cleanup standards. The process to pass SF 147 was dominated by industry, and the bill was drafted to help BP-Amoco avoid its hazardous waste cleanup in downtown Casper at its defunct refinery.

The bill was written so broadly that it may affect any operation in the state that has the potential to create pollution. It makes drastic changes in cleanup standards (or creates ways of avoiding cleanup) for hazardous waste facilities, solid and industrial waste operations, industrial hog farms and all kinds of radioactive waste facilities.

Benefits of a Well-Crafted Law
WOC believes that our state needs an effective brownfields law. Wyoming benefits when its resources — its land, air and waters — are clean for future generations, uses and growth. No one benefits — except polluters — if we allow industrial properties to remain contaminated.

A rewritten brownfields law would encourage cleanup of a number of contaminated sites in Wyoming where there are no responsible parties. A good example is North Casper (see page 4), where a fund is needed to help clean up the contaminated groundwater that lies under the community’s homes. In addition, we would support limited incentives for non-culpable parties or new (innocent) owners who want to clean up contaminated properties and redevelop them.

What We Need
WOC has drafted an environmental and public health-protection alternative to SF 147, which also protects the rights of residents living near contaminated sites. Our alternative endorses:

• a state cleanup fund for abandoned properties that will also provide DEQ with the authority and funds it needs to force responsible polluters to reimburse the state for cleanup costs

• a voluntary cleanup program to encourage non-responsible parties or new owners to clean up old properties that fall outside of or pre-date our state and federal permitting processes. Incentives could include low-interest loans for site investigation, technical assistance and a limited liability waiver from the state (such as a "no-further-action letter" assuring owners that the state will not take further enforcement action).

• a very restricted true "brownfields" program that includes the above benefits, but also allows some cleanup standards to be modified, but only under these conditions:

- only for sites where there is no responsible party

- only when new owner makes a commitment for reuse/redevelopment and follows through on this commitment

- only when a change in cleanup standards is approved by local, nearby residents through a public-participation process

Major Problems with DEQ’s Proposal
At the Joint Interim Minerals Committee’s first hearing in May, the DEQ presented its own proposed brownfields law as a starting point for discussion. We applaud DEQ for its proactive effort, but its proposal has serious problems. The DEQ proposal:

1. allows polluters, responsible parties, permitted facilities and even sites contaminated after the effective date of the law to be eligible for lowered cleanup standards and limited liability waivers (no-further-action letter).

Why this is wrong: Permitted facilities go through a design-review process to ensure that they do not leak. The permits prohibit pollution releases or discharges within certain limits. If, however, current operators know that they can have these requirements waived in the future, there will be no incentive to meet pollution prevention requirements. Operators will find it cheaper to allow pollution, knowing they can avoid full cleanup costs in the future. The law will essentially allow the creation of new contaminated sites.

Why else? Responsible parties should not be eligible either, because polluters should not be given immunity from liability. Contaminating Wyoming’s resources violates the Wyoming Environmental Quality Act. Polluters probably reaped significant economic benefits over the years, gaining an unfair competitive advantage over other similar businesses who acted responsibly. We should not reward such bad actors.

2. gives local governments the sole decision-making authority on whether "environmental control zones" with lowered cleanup standards can be instituted.

Why this is wrong: Rather than leaving this decision in the hands of county commissioners and town councils, who often have an economic incentive to encourage development, only actual residents of the local surrounding community, who will be most affected in their daily lives — living, working and playing on or near these sites — should have the ultimate say on whether state cleanup standards are waived. These citizens will have to bear any public health and contamination consequences of lowered standards, and will need to evaluate these in exchange for the benefit of redevelopment or jobs in their community.

Why else? Lowering state cleanup standards can be likened to creating second-class communities that have to live with substandard protections and greater risks than those applied to the rest of the state. North Casper is a classic example. This decision can only be made by those who live in the area and are willing to assume risks in exchange for additional benefits.

3. allows lowered cleanup standards and some immunity for sites currently under an agency- or court-supervised cleanup.

Why this is wrong: This appears to be written expressly for Amoco! If the goal of the law is to get properties cleaned up, why should we let current cleanups grind to a dead halt while they await a possible better deal in this legislation (and use their political clout to lobby for such a deal)?  It will also waste a phenomenal amount of agency time and resources.
 

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