EPA’s Brownfields EPA’s Brownfields ProgramProgram

Office of Brownfields Cleanup Office of Brownfields Cleanup and Redevelopment (OBCR)and Redevelopment (OBCR)September 2005September 2005

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What are Brownfields?What are Brownfields?

Once productive areas have been abandoned – Once productive areas have been abandoned – some are contaminatedsome are contaminated

Lenders, investors, and developers fear Lenders, investors, and developers fear environmental liability and are more attracted environmental liability and are more attracted to “greenfields”to “greenfields”

The result has been blighted properties – The result has been blighted properties – brownfields brownfields

GAO estimated that there are more than GAO estimated that there are more than 450,000 brownfields across the country – others 450,000 brownfields across the country – others estimate that there may be more than a million estimate that there may be more than a million

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EPA Brownfields Program EPA Brownfields Program HistoryHistory In the early 1990’s, the U.S. Conference of In the early 1990’s, the U.S. Conference of

Mayors pointed to brownfields as one of the Mayors pointed to brownfields as one of the most critical problems facing citiesmost critical problems facing cities

Brownfields pushed down property values Brownfields pushed down property values and tax revenuesand tax revenues

Properties were not getting cleaned up and Properties were not getting cleaned up and were worsening community blightwere worsening community blight

EPA “pilots” provided seed money for helping EPA “pilots” provided seed money for helping communities and supporting new ideascommunities and supporting new ideas

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Small Business Liability Small Business Liability Relief and Brownfields Relief and Brownfields Revitalization ActRevitalization Act Success of Brownfields Initiative led to Success of Brownfields Initiative led to

legislative proposalslegislative proposals

Brownfields legislation signed in January 2002Brownfields legislation signed in January 2002

Expanded funding for brownfields assessment Expanded funding for brownfields assessment and cleanup competitive grantsand cleanup competitive grants

Clarified liability protectionsClarified liability protections

Increased supportIncreased support for State and tribal programsfor State and tribal programs

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Expanded ProgramExpanded Program

The Brownfields Law authorized the brownfields The Brownfields Law authorized the brownfields program including assessment, cleanup, revolving program including assessment, cleanup, revolving loan fund and job training grantsloan fund and job training grants

Current funding provides about $75 million per Current funding provides about $75 million per year for grants awarded through an annual year for grants awarded through an annual competitioncompetition

Expanded eligible properties to include petroleum Expanded eligible properties to include petroleum contamination, mine scarred lands and contamination, mine scarred lands and abandoned controlled substance sites (meth labs)abandoned controlled substance sites (meth labs)

Expanded eligible activities to include direct Expanded eligible activities to include direct cleanup grants, health monitoring, environmental cleanup grants, health monitoring, environmental insuranceinsurance

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Brownfields Grants – Brownfields Grants – EligibilityEligibility General purpose units of governmentGeneral purpose units of government Quasi-government entities operating Quasi-government entities operating

under supervision of local governmentunder supervision of local government Regional CouncilsRegional Councils Redevelopment AgenciesRedevelopment Agencies Tribes (other than Alaska)Tribes (other than Alaska) Alaska Native Regional Corporation, Alaska Native Regional Corporation,

Alaska Native Village Corporation, and Alaska Native Village Corporation, and the Metlakatla Indian communitythe Metlakatla Indian community

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Brownfields Grants – Brownfields Grants – EligibilityEligibility Non-profit organizations are Non-profit organizations are

eligible for cleanup grants for eligible for cleanup grants for properties owned by the non-properties owned by the non-profit.profit.

Loans from RLF grants may be Loans from RLF grants may be made to:made to:– Eligible entitiesEligible entities– DevelopersDevelopers– Private site ownersPrivate site owners

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Eligible PropertiesEligible Properties

Brownfields are real property, the Brownfields are real property, the expansion, redevelopment, or reuse of expansion, redevelopment, or reuse of which may be complicated by the which may be complicated by the presence or potential presence of a presence or potential presence of a hazardous substance, pollutant, or hazardous substance, pollutant, or contaminant.contaminant.

Brownfields also include:Brownfields also include:– Petroleum-contaminated propertiesPetroleum-contaminated properties– Properties w/controlled substancesProperties w/controlled substances– Mine-scarred landsMine-scarred lands

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Eligible PropertiesEligible Properties

Three types of Properties are Three types of Properties are not not eligible for brownfields grants:eligible for brownfields grants:– Sites listed on the NPLSites listed on the NPL– Facilities subject to CERCLA orders Facilities subject to CERCLA orders

and consent decreesand consent decrees– Properties owned or under the Properties owned or under the

control of the federal governmentcontrol of the federal government

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Eligible PropertiesEligible Properties

For some types of properties, EPA For some types of properties, EPA must make a “property-specific” must make a “property-specific” determination for eligibility:determination for eligibility:– RCRA-permitted facilitiesRCRA-permitted facilities– CERCLA removal sitesCERCLA removal sites– Some facilities with PCB contaminationSome facilities with PCB contamination– Sites that received UST trust fund Sites that received UST trust fund

moniesmonies

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Clarified LiabilityClarified Liability

Provided liability protections for innocent Provided liability protections for innocent landowners, bona fide prospective landowners, bona fide prospective purchasers and contiguous property ownerspurchasers and contiguous property owners

Liability protections require that property Liability protections require that property owners demonstrate due diligence (all owners demonstrate due diligence (all appropriate inquiries) prior to acquisition and appropriate inquiries) prior to acquisition and take reasonable steps after acquisitiontake reasonable steps after acquisition

Required EPA to issue regulations for all Required EPA to issue regulations for all appropriate inquiriesappropriate inquiries

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Increased Support for Increased Support for State and Tribal ProgramsState and Tribal Programs

Authorized funding to establish and enhance State Authorized funding to establish and enhance State and Tribal Response Programsand Tribal Response Programs– All Alaskan tribes eligible if they have response program All Alaskan tribes eligible if they have response program

the includes four required elements.the includes four required elements.

Current funding provides about $50 million per Current funding provides about $50 million per year for grants awarded annually on an allocation year for grants awarded annually on an allocation basisbasis

States and Tribes use program funds to establish States and Tribes use program funds to establish response programs and enhance site activitiesresponse programs and enhance site activities

Created enforcement bar against federal Created enforcement bar against federal Superfund action for sites enrolled in State Superfund action for sites enrolled in State response programsresponse programs

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Overall Overall AccomplishmentsAccomplishments

Leveraged more than $7.1 billion in cleanup and redevelopment and Leveraged more than $7.1 billion in cleanup and redevelopment and more than 31,000 jobsmore than 31,000 jobs

Supported assessments at more than 7,000 propertiesSupported assessments at more than 7,000 properties

Helped make more than 2,400 properties ready for reuseHelped make more than 2,400 properties ready for reuse

Awarded more than 750 assessment, cleanup and revolving loan Awarded more than 750 assessment, cleanup and revolving loan fund grants over the last 3 three yearsfund grants over the last 3 three years

Provided grants to all 50 States and 40 Tribes for their response Provided grants to all 50 States and 40 Tribes for their response programsprograms

Every dollar of Federal, State and local government spent on Every dollar of Federal, State and local government spent on brownfields returns almost $2.50 in private investment (CUED, 1999)brownfields returns almost $2.50 in private investment (CUED, 1999)

Every acre of brownfields redeveloped saves 4.5 acres of greenspace Every acre of brownfields redeveloped saves 4.5 acres of greenspace (GWU, 2001)(GWU, 2001)

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Small and Rural Small and Rural CommunitiesCommunities 59% of the 295 grants awarded in 59% of the 295 grants awarded in

FY05 went to communities with FY05 went to communities with populations less than 100,000.populations less than 100,000.

Small and Rural Communities had Small and Rural Communities had a 43% applicant success rate a 43% applicant success rate (large had 46%)(large had 46%)

Outreach includes workshops Outreach includes workshops (many with NADO), resource (many with NADO), resource guide, case studies.guide, case studies.

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Recent and Upcoming Recent and Upcoming EventsEvents More than 300 Assessment, Cleanup, Revolving More than 300 Assessment, Cleanup, Revolving

Loan Fund and Job Training grants announced in Loan Fund and Job Training grants announced in May 2005May 2005

The next round of applications will be opened in The next round of applications will be opened in September 2005September 2005

All Appropriate Inquiries Rule - EPA anticipates All Appropriate Inquiries Rule - EPA anticipates publishing the final rule by the end of 2005publishing the final rule by the end of 2005

Brownfields 2005 Conference – November 2-4 in Brownfields 2005 Conference – November 2-4 in Denver, CODenver, CO

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All Appropriate All Appropriate InquiriesInquiries The Small Business Liability Relief The Small Business Liability Relief

and Brownfields Revitalization Act and Brownfields Revitalization Act requires that EPA develop federal requires that EPA develop federal standards and practices for “all standards and practices for “all appropriate inquiries.”appropriate inquiries.”

Applicable to new liability Applicable to new liability protections.protections.

Required of parties receiving Required of parties receiving Brownfields assessment grants.Brownfields assessment grants.

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What is “All Appropriate What is “All Appropriate Inquiries?”Inquiries?”

““All Appropriate Inquiries,” (AAI) All Appropriate Inquiries,” (AAI) or due diligence, is the process of or due diligence, is the process of evaluating a property for evaluating a property for potential environmental potential environmental contamination and assessing contamination and assessing potential liability for any potential liability for any contamination present at the contamination present at the property.property.

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Why Comply with AAI?Why Comply with AAI?

Required if seeking protection from Required if seeking protection from CERCLA liabilityCERCLA liability

To understand potential To understand potential environmental risks associated with a environmental risks associated with a property prior to purchaseproperty prior to purchase

Gain information that will help Gain information that will help property owner comply with property owner comply with “continuing obligations” after “continuing obligations” after purchasepurchase

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Small Business Liability Relief Small Business Liability Relief and Brownfields and Brownfields Revitalization ActRevitalization Act Congress mandated that EPA Congress mandated that EPA

promulgate regulations promulgate regulations establishing federal standards establishing federal standards for all appropriate inquiriesfor all appropriate inquiries

Statute lists ten criteria EPA Statute lists ten criteria EPA must include in regulationsmust include in regulations

Statute establishes interim Statute establishes interim standardstandard

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ApplicabilityApplicability

The All Appropriate Inquiries standards The All Appropriate Inquiries standards will apply to:will apply to:– Property owners asserting CERCLA Property owners asserting CERCLA

liability protectionsliability protections– Persons receiving brownfields grants for Persons receiving brownfields grants for

site characterization and assessment site characterization and assessment under CERCLA 104(k)(2)(B)under CERCLA 104(k)(2)(B)

AAI may not be applicable to persons AAI may not be applicable to persons seeking liability relief under state law.seeking liability relief under state law.

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ApplicabilityApplicability (cont.) (cont.)

Brownfields cleaned up under state Brownfields cleaned up under state response programs may be eligible for response programs may be eligible for federal enforcement bar per CERCLA federal enforcement bar per CERCLA 128(b) – AAI not required by CERCLA.128(b) – AAI not required by CERCLA.

Until effective date of final rule, Until effective date of final rule, federal standard for AAI is ASTM federal standard for AAI is ASTM E1527 (97 or 2000 version)—Interim E1527 (97 or 2000 version)—Interim standard set by Congress. standard set by Congress.

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CERCLA Liability ProtectionsCERCLA Liability Protections

The Brownfields Amendments to The Brownfields Amendments to CERCLA provide liability CERCLA provide liability protections for landowners who protections for landowners who qualify as:qualify as:– contiguous property owners, contiguous property owners, – bona fide prospective purchasers, bona fide prospective purchasers,

oror– innocent landowners.innocent landowners.

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CERCLA Liability (cont.)CERCLA Liability (cont.)

To qualify for the liability To qualify for the liability protections, landowners must:protections, landowners must:

– Meet certain threshold criteria Meet certain threshold criteria prior to purchaseprior to purchase

– Satisfy certain continuing Satisfy certain continuing obligations after purchase.obligations after purchase.

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Threshold CriteriaThreshold Criteria

No affiliation with liable partyNo affiliation with liable party

Conduct all appropriate Conduct all appropriate inquiries prior to date inquiries prior to date property is acquiredproperty is acquired

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Continuing ObligationsContinuing Obligations

Comply with land use restrictionsComply with land use restrictions Do not impede effectiveness or Do not impede effectiveness or

integrity of institutional controlsintegrity of institutional controls Take “reasonable steps”Take “reasonable steps” Provide cooperation, assistance Provide cooperation, assistance

and accessand access Comply with CERCLA information Comply with CERCLA information

requests and subpoenasrequests and subpoenas

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Status of Federal Status of Federal RegulationRegulation

Proposed rule published August 26, 2004.Proposed rule published August 26, 2004.

Comment period ended November 30, Comment period ended November 30, 2004.2004.

Final rule developed by EPA and Final rule developed by EPA and undergoing review by OMB.undergoing review by OMB.

Anticipate publication of final rule Anticipate publication of final rule December 2005.December 2005.

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Highlights of Proposed Highlights of Proposed RuleRule

Structured around 10 statutory Structured around 10 statutory criteriacriteria

Objectives and performance factorsObjectives and performance factors Definition of Environmental Definition of Environmental

ProfessionalProfessional Report of findingsReport of findings Rule addresses AAI; Not “continuing Rule addresses AAI; Not “continuing

obligations.”obligations.”

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Objectives of AAIObjectives of AAI Identify conditions indicative of Identify conditions indicative of

releases or threatened releases of releases or threatened releases of hazardous substances.hazardous substances.

Identify particular information Identify particular information about a property:about a property:– Uses and occupancies of propertyUses and occupancies of property– Uses of hazardous substancesUses of hazardous substances– Waste management activitiesWaste management activities– Corrective actions and response activitiesCorrective actions and response activities– Institutional and engineering controlsInstitutional and engineering controls– Nearby and adjoining properties with environmental Nearby and adjoining properties with environmental

conditionsconditions

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Next StepsNext Steps

EPA is developing final rule – recently EPA is developing final rule – recently submitted to OMB for review and approvalsubmitted to OMB for review and approval

Working with ASTM to update the E1527 Working with ASTM to update the E1527 Standard. EPA’s intention is to incorporate Standard. EPA’s intention is to incorporate by reference an updated ASTM standard in by reference an updated ASTM standard in regulation, if compliant with final rule.regulation, if compliant with final rule.

Outreach and training.Outreach and training.

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More InformationMore Information

EPA Website: EPA Website: www.epa.gov/brownfieldswww.epa.gov/brownfields

Email: Email: overmeyer.patricia@epa.govovermeyer.patricia@epa.gov

Brownfields 2005 – Denver, Colorado Brownfields 2005 – Denver, Colorado November 2 – 4November 2 – 4