Brownfields: A Comprehensive Guide to Redeveloping Contaminated PropertyThis is a solution-orientated look at the environmental and economic challenges of redeveloping contaminated property. It includes an analysis of the federal brownfields legislation. It should help the reader: find funding sources for redevelopment; and interpret federal and state laws. |
Contents
Defining the Brownfields Problem | 3 |
What Is a Brownfield? | 5 |
Why Are Brownfields Demanding Attention? | 6 |
How Did the Brownfields Issue Evolve to a Crisis State? | 7 |
Barriers to Brownfields Redevelopment | 9 |
Bringing Down the Barriers | 13 |
Overview of Federal and State Law Governing Brownfields Cleanups | 15 |
Cleanup of Brownfields under Federal or Parallel State Laws | 17 |
Conclusion | 573 |
Indiana | 578 |
Participation in the Voluntary Remediation Program | 579 |
Lender and Fiduciary Liability Protection | 580 |
Cleanup Standards | 581 |
The Mechanics of the Voluntary Remediation Program | 582 |
Public Involvement | 583 |
Costs and Cost Recovery | 584 |
Federal and State Reforms for Brownfields Redevelopment | 25 |
Conclusion | 29 |
Federal Brownfields Initiative | 43 |
Government Coordination | 47 |
USEPAs CommunityAssistance and Local Partnership Programs | 50 |
Legal Business Financial and Political Issues Associated with Redeveloping Contaminated Property | 55 |
Doing the Brownfields Deal | 57 |
Evaluating the Environment Surrounding the Deal | 59 |
The Outline of the Deal The Purchase Agreement | 60 |
Environmental LiabilityDefining Exposure | 63 |
Investigating the Target Site | 65 |
Do the Deal | 66 |
Acquisition Considerations for Brownfields Properties | 68 |
Evaluating the Risk of a Brownfields Opportunity | 72 |
Brownfields Investment Strategy | 76 |
To Invest or NOT to Invest | 77 |
Valuing Brownfields | 78 |
Estimating Value of Clean Property | 79 |
Stigma | 85 |
Rent | 90 |
Conclusion | 94 |
Creative Financing of Brownfields Sites | 96 |
Characterizing Brownfield Investment Opportunities | 97 |
Steps in Brownfield Redevelopment | 98 |
Obtaining Funds for Project Development | 100 |
The Real Value of Gap Pluggers | 104 |
Ongoing Cash Flow Issues | 105 |
Timing Is Everything | 106 |
Conclusion | 115 |
Brownfields Sites Removing Lender Concerns as a Barrier to Redevelopment | 116 |
Lender Concerns Regarding Brownfield Sites | 117 |
Federal Initiatives That Limit Lender Liability and Other Concerns | 118 |
Federal Legislative Reform | 120 |
State Approaches to Limiting Lender Liability | 121 |
State Environmental Cleanup Statutes | 122 |
The General Benefits to Lenders of State Voluntary Cleanup Programs | 126 |
Insuring Against Liability | 127 |
Conclusion | 128 |
The Deductibility of Environmental Remediation Costs | 131 |
The Case Law | 132 |
The Services Rulings | 136 |
Observations | 142 |
Tax Incentives | 144 |
Calculation of Actual Tax Savings | 147 |
Building Consensus for the Project | 149 |
The Role of Public Relations | 150 |
The Direct Approach | 151 |
The Media | 153 |
An Ongoing Process | 154 |
Environmental Insurance in the Brownfields Transaction | 155 |
Applicability of Environmental Insurance to Brownfield Projects | 156 |
Insurance Underwriting Risks for Environmentally Impacted Properties | 157 |
The Underwriting Process | 158 |
Appropriate Coverage and the Insurance Contract | 159 |
The Cost and Value of Environmental Insurance | 161 |
Limitations to Available Insurance | 162 |
A Comment on the State of the EnvironmentalInsurance Market | 163 |
Environmental Insurance in Brownfield Transactions Issues and Answers | 165 |
Environmental InsuranceGenerally | 166 |
Types of Coverage | 167 |
The Anatomy of an Environmental Insurance Policy | 168 |
General Issues | 173 |
Conclusion | 174 |
Using Old Insurance Policies as Weapons | 175 |
Making a Claim under Old Commercial General Liability Policies | 176 |
Coverage under CGL Policies | 177 |
Coverage under Automobile Policies | 178 |
Coverage under PersonalInjury Section of the CGL | 179 |
Accident Versus Occurrence Policies | 180 |
How Much Coverage Can You Get? | 184 |
Good Approaches in Negotiating Settlements with Insurance Companies | 186 |
Institutional Controls | 192 |
Definition of Institutional Controls | 193 |
Examples of Institutional Controls | 194 |
Implementation Considerations | 206 |
Conclusion | 210 |
Hiring the Right Laboratory | 214 |
Selecting the Appropriate Laboratory | 215 |
Selecting the Appropriate Analytical Tests | 217 |
Insurance Contracts and Confidentiality | 218 |
Data Validation Certifications and Prices | 219 |
Comfort Levels and Responsiveness | 220 |
Community Building through Brownfields Redevelopment | 221 |
Rebuilding Communities through Brownfields Redevelopment | 223 |
The Need for a Community Brownfields Strategy | 224 |
Limited Resources | 225 |
Costs and Benefits | 226 |
Educator Broker Facilitator | 227 |
The New Market Frontier Unlocking Community Capitalism through Brownfields Redevelopment | 229 |
Brownfields Redevelopment Promotes Livable Communities | 230 |
Keys to the Process | 232 |
Magnets Communities and Stakeholders | 235 |
Strategy and Branding | 236 |
Role of the Architect | 238 |
Conclusion | 241 |
Community Participation in Brownfields Redevelopment | 243 |
A Historical Grounding | 244 |
Community Concerns | 245 |
Current Methods of Participation | 249 |
Conclusion | 251 |
The Process of Sustainable Brownfields Redevelopment | 254 |
Developing the ASTM Standard Guide | 256 |
Conclusion | 262 |
Scientific Concepts Used to Address Contaminated Property | 263 |
The Science of Brownfields | 265 |
Phases of Contamination | 268 |
Site Investigation Process | 271 |
Determining Remedial Alternatives for the Property | 273 |
Established Protocols in the Ohio VAP | 277 |
The Context of the Cleanup Standards | 278 |
Conclusion | 279 |
The Role of Risk Assessment in Redeveloping Brownfields Sites | 281 |
What Is Risk? | 284 |
The Rise of Environmental Risk Assessment | 286 |
The Risk Assessment Process | 287 |
Risk Assessment and the Creation of Brownfields | 291 |
Risk Assessment and the Elimination of Brownfields | 294 |
Pitfalls and Promises in Risk Assessment for Brownfields | 298 |
Case Studies in Improving Risk Assessments for Brownfields | 318 |
Conclusion | 321 |
RiskBased Decision Making for Corrective Action | 327 |
The Traditional Corrective Action Process | 328 |
The Paradigm Shift | 330 |
Implementing the Paradigm Shift | 331 |
RiskBased Decision Making | 332 |
The ASTM Standard Guide for RiskBased Corrective Action | 334 |
Conclusion | 339 |
Risk Assessment A Physicians Introduction | 343 |
Epidemiology and Study Design | 345 |
Conclusion | 346 |
Remediation Strategies for Brownfields Redevelopment | 348 |
General Remedial Strategy | 349 |
RiskBased Cleanups | 351 |
Soil Remediation | 352 |
Groundwater Remediation | 355 |
Nonaqueous Phase Liquid Removal | 357 |
Conclusion | 358 |
State Voluntary Cleanup Programs | 359 |
Alabama | 361 |
Summary of Major Provisions | 362 |
Participation in the Voluntary Cleanup Program | 363 |
Liability Protection | 365 |
Program Mechanics | 366 |
Cleanup Standards | 367 |
RiskBased Corrective Action | 369 |
Institutional Controls | 370 |
Financial Incentives Under the Voluntary Cleanup Program | 371 |
Alaska | 375 |
Benefits | 376 |
Site Characterization Requirements | 377 |
Further Actions Required | 378 |
Arizona | 382 |
Summary of Major Provisions of the Voluntary Programs | 383 |
Memorandum of Agreement | 386 |
Liability Protection | 387 |
Obtaining and Releasing a Restrictive Covenant on Property with Contamination That Has Been Addressed | 389 |
The Mechanics of Participating in the Voluntary Remediation Program | 390 |
Cost Recovery | 392 |
Conclusion | 393 |
Arkansas | 396 |
Memorandum of Agreement | 397 |
Liability Protection Lenders Trustees and Fiduciaries | 398 |
Financial Incentives | 399 |
Cleanup Standards | 400 |
The Mechanics of Participating in the Arkansas Brownfields Program | 402 |
Remedy Failure or Ineffectiveness | 404 |
Conclusion | 405 |
California | 409 |
Voluntary Cleanup Program | 410 |
Additional Measures to Facilitate Brownfields Redevelopment | 419 |
Conclusion | 429 |
Brownfield Redevelopment The Canadian Context | 443 |
Benefits to Brownfields Redevelopment | 444 |
Liability | 446 |
Standards for Cleanup | 448 |
Provinces | 450 |
Municipalities | 459 |
Conclusion | 461 |
Table of Statutes | 469 |
Colorado | 472 |
Participation in the Program | 473 |
Memorandum of Agreement | 474 |
Protections Granted by the Colorado Program | 476 |
Cleanup Standards | 477 |
Enforceability of Voluntary Cleanup Plans | 480 |
Conclusion | 481 |
Connecticut | 485 |
Eligibility for Connecticuts Brownfields Programs | 486 |
Memorandum of Agreement | 488 |
Liability Protection for Brownfields Volunteers | 489 |
Financial Incentives | 490 |
Cleanup Standards | 491 |
The Mechanics of Participating in Connecticuts Brownfields Initiatives | 492 |
Liability Protection for Lenders | 495 |
Admission of Liability | 496 |
Conclusion | 497 |
Delaware | 502 |
VCP | 505 |
Cost Recovery and Financial Assistance | 508 |
Conclusion | 510 |
The District of Columbia | 515 |
Conclusion | 520 |
Florida | 522 |
Brownfield Site Rehabilitation Agreement | 523 |
Cleanup Criteria and the Remediation Process | 524 |
Liability Protection | 525 |
Memorandum of Agreement | 526 |
Recent Changes | 527 |
Land Use and Institutional Control Issues | 528 |
Georgia | 534 |
Redevelopment Act | 536 |
Hazardous Site Response Act | 538 |
Conclusion | 539 |
Idaho | 545 |
Key Attraction of the Program Is the Ability to Provide Certainty to a Purchaser or Lender | 546 |
The VRP Requires Applicants to Pay IDEQs Costs | 548 |
The Act Sets Specific Procedures for Project Approval | 549 |
Once the Project Is Completed the Owner Receives Protection from Subsequent Enforcement Actions | 550 |
The VRP Codifies Strong Lender Liability Protections | 551 |
The Tax Commission Component of the VRP Provides a SevenYear FiftyPercent Property Tax Exemption on the Increase in Land Value | 552 |
Website | 554 |
Illinois | 560 |
The Mechanics of Program Participation | 566 |
Memorandum of Understanding | 570 |
Cost Recovery | 571 |
The 1989 Program | 572 |
Conclusion | 585 |
Iowa | 588 |
Participation in the Land Recycling Program | 589 |
Miscellaneous Provisions and Deficiencies | 595 |
Conclusion | 597 |
Kentucky | 601 |
Implementation of Kentuckys Brownfields Legislation | 603 |
NFR Letters | 604 |
Conclusion | 606 |
Maine | 609 |
Cleanup Standards | 612 |
Liability Protection under the Program | 614 |
Financial Incentives under the Program | 617 |
Practical Programming | 619 |
Conclusion | 620 |
Maryland | 625 |
The Voluntary Cleanup Program | 626 |
Lenders Trustees and Fiduciaries | 629 |
The Brownfields Revitalization Incentive Program | 630 |
Memorandum of Agreement with EPA | 631 |
Massachusetts | 634 |
Understanding the Massachusetts Superfund Statute | 635 |
Understanding the Massachusetts Contingency Plan | 639 |
CovenantsNottoSue | 646 |
Conclusion | 648 |
Michigan | 653 |
Brownfields Financial Incentives | 654 |
Liability Reform | 661 |
Change in Liability Structure | 662 |
Special Liability Protection for Lenders and Others | 663 |
Other Special Exemptions | 664 |
Incorporation of Land UseBased Criteria | 665 |
Coordination of Other Legal Requirements | 666 |
Due Care Reasonable Precaution and Exacerbation of Existing Contamination | 667 |
Conclusion | 668 |
Qualified Local Governmental Units under PA 146 of 2000 | 682 |
Minnesota | 683 |
Eligibility for the VIC Program | 685 |
Memorandum of Agreement | 687 |
Financial Incentives | 688 |
Cleanup Standards | 689 |
Confidentiality Consultants and Fees | 690 |
Mechanics of Participating in the VIC Program | 691 |
Cost Recovery | 692 |
Conclusion | 694 |
Mississippi | 698 |
Memorandum of Agreement | 699 |
Financial Incentives | 702 |
Certified Professionals and Laboratories | 703 |
Fees | 704 |
Conclusion | 705 |
Missouri | 708 |
Eligibility for Programs | 709 |
Memorandum of Agreement | 710 |
Financial Incentives | 712 |
Cleanup Standards | 713 |
Conclusion | 715 |
Montana | 718 |
Memorandum of Agreement | 719 |
Financial Incentives | 720 |
Cleanup Standards | 721 |
Cost Recovery and Contribution under CECRA | 722 |
Nebraska | 725 |
Participation in the Program | 726 |
Sites Ineligible for the Program | 727 |
Financial Incentives under the Program | 728 |
Cost Recovery | 729 |
New Hampshire | 733 |
Participation in the Program | 734 |
Liability Protection | 735 |
Financial Incentives under the Brownfields Program | 736 |
Certified Professionals and Laboratories | 738 |
Withdrawal from Program | 740 |
DefensesExemptions from Liability | 741 |
New Jersey | 746 |
Eligibility | 747 |
Confidentiality | 748 |
Financial Incentives | 750 |
Technical Regulations | 753 |
Cleanup Standards | 754 |
NoFurtherAction Letters and CovenantsNottoSue | 755 |
Developer Incentives | 756 |
Recovery from Third Parties | 757 |
Recommendations for Brownfields Redevelopment in New Jersey | 758 |
New Mexico | 765 |
Participation in the Voluntary Remediation Program | 766 |
Financial Incentives under the Voluntary Remediation Program | 768 |
Participating in the New Mexico Voluntary Remediation Program | 771 |
Status of Program | 773 |
New York | 775 |
Summary of Major Provisions of the NYVCP | 776 |
Liability Protection | 777 |
Financial Incentives | 778 |
Cleanup Standards | 779 |
Mechanics of Participating in the NYVCP | 780 |
Institutional Controls Disclosure of Audit Information and Penalties | 781 |
Other New York State Programs Promoting Brownfield Remediation | 782 |
Conclusion | 783 |
North Carolina | 787 |
Summary of Major Provisions | 788 |
Participation in the Brownfields Program | 789 |
Brownfields Agreement | 790 |
Notice of Intent to Develop a Brownfield Property and Summary of the Notice of Intent | 792 |
LandUse Restrictions | 793 |
Liability Protection | 795 |
Financial Incentives | 797 |
Remediation Standards | 798 |
Fees and the North Carolina Brownfields Property | 799 |
Other North Carolina Programs Available for Brownfield Sites | 800 |
North Dakota | 807 |
Ohio | 808 |
Participation in the Voluntary Action Program | 809 |
Memorandum of Agreement | 810 |
Liability Protection | 811 |
Cleanup Standards | 812 |
Certified Professionals and Laboratories | 814 |
Recording of the NFA Letter and Covenant | 816 |
Civil and Criminal Penalties | 817 |
Conclusion | 819 |
Oklahoma | 824 |
Memorandum of Agreement | 825 |
Financial Incentives | 826 |
The Mechanics of Participating in the Oklahoma Brownfields Program | 827 |
Conclusion | 831 |
Oregon | 835 |
Summary of Major Provisions | 836 |
Participation in Oregon Brownfields Programs | 837 |
Prospective Purchaser Agreements | 840 |
Financial Incentives | 843 |
Cost Recovery | 844 |
Conclusion | 846 |
Pennsylvania | 850 |
Summary of Major Provisions | 851 |
Eligible Persons | 853 |
Procedures for Performing Act 2 Cleanups | 855 |
Liability Protection | 856 |
Financial Assistance | 857 |
Guidance and RegulationsBuyerSeller Agreements | 858 |
Recent Brownfields Initiatives | 860 |
Practical Program Experience | 863 |
Rhode Island | 872 |
Major Provisions of the Rhode Island Brownfields Program | 873 |
Private Cost Recovery | 877 |
Lender Liability Protections | 880 |
Conclusion | 881 |
South Carolina | 887 |
Participation in the Voluntary Cleanup Program | 888 |
The Voluntary Cleanup Contract | 889 |
Liability Protection | 890 |
Memorandum of Agreement | 891 |
Termination of the Contract | 893 |
South Dakota | 897 |
IncentivesAssurances | 898 |
Tennessee | 900 |
Summary of Major Provisions | 901 |
Eligibility for the Voluntary Action Program | 902 |
LenderLiability Protection | 903 |
Benefits for Participants in the Program | 904 |
Participating in the Voluntary Action Program | 905 |
Conclusion | 906 |
Texas | 909 |
Protection from Enforcement | 910 |
Liability Protection | 911 |
Participation in the Voluntary Cleanup Program | 912 |
Fees | 913 |
Innocent Landowner Protection | 914 |
Cost Recovery | 915 |
Practical Program Experience | 917 |
Utah | 922 |
Eligibility for the Utah Voluntary Cleanup Program | 923 |
Voluntary Cleanup Agreement | 924 |
Permits | 925 |
Cleanup Standards | 926 |
Release from Liability | 927 |
Coordination with EPA | 928 |
Conclusion | 929 |
Vermont | 933 |
Application and Eligibility Determination | 935 |
Site Investigation and Site Remediation | 936 |
Corrective Action Plan Cap | 938 |
Liability Protection | 939 |
Additional Obligations of the Program Participant | 941 |
Practical Experience with the Program | 942 |
Conclusion | 943 |
Virginia | 948 |
Eligibility for the VRP | 949 |
Memorandum of Agreement | 950 |
Cleanup Standards | 951 |
Mechanics of Participating in the VRP | 952 |
Practical Program Experience | 955 |
Washington | 959 |
Independent Cleanups under the VCP | 960 |
Memorandum of Agreement | 961 |
Financial Incentives | 963 |
Risk Assessments | 966 |
Institutional Controls | 967 |
Mechanics of Participating in Washingtons ProspectivePurchaser Program | 968 |
Cost Recovery | 969 |
Conclusion | 970 |
West Virginia | 974 |
Eligibility for the Voluntary Action Program | 975 |
Liability Protection | 976 |
Criminal Penalties | 978 |
Mechanics of Participating in the West Virginia Voluntary Action Program | 979 |
Special Provisions under the Act Applicable to Brownfield Sites | 980 |
Practical Experience with Program | 981 |
Conclusion | 982 |
Wisconsin | 985 |
Cleanup LiabilityThe Wisconsin Spill Statute | 986 |
Liability Protection | 988 |
Soil Cleanup Standards | 995 |
New Funding Sources for Contaminated Property | 998 |
Memorandum of Agreement | 999 |
Conclusion | 1000 |
Wyoming | 1006 |
Applicability and Eligible Sites | 1007 |
Application and Initial Public Participation Requirement | 1008 |
Cleanup Standards and Remedy Selection | 1009 |
The Remedy Agreement with WDEQ | 1011 |
CovenantNottoSue Certificate of Completion and NoFurtherAction Letters | 1013 |
Taking Advantage of the New Program | 1017 |
Conclusion | 1018 |
ABOUT THE EDITOR | 1023 |
ABOUT THE CONTRIBUTORS | 1025 |
| 1059 | |
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Common terms and phrases
activities addition ADMIN agency amended applicant approval asbestos ASTM brownfield agreement brownfield sites brownfields program brownfields property brownfields redevelopment CERCLA certificate of completion clean cleanup costs cleanup plan cleanup standards CODE ANN COMP consent order contaminated property contaminated sites corrective action covenant-not-to-sue coverage determine DHEC DTSC eligible enforcement environment ENVTL evaluation exposure facility federal funds groundwater hazardous substances hazardous waste human health implementation incentives institutional controls investigation issues land legislation levels liability protection limited loan ment MPCA Ohio participant person petroleum pollution potential property owner prospective purchaser pursuant RCRA real estate regulations regulatory release remedial action response actions responsible party restrictions risk assessment risk-based site-specific soil specific STAT statute submit Superfund Supp supra note tamination tion U.S. EPA underground storage tanks USEPA Voluntary Cleanup Program Voluntary Remediation
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Page xlvii - ... all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability.