Brownfield Reuse Program

1. Matt Chapman Vermont Agency of Natural Resources June 23, 2011 Brownfield Reuse Program

2. Purpose of the Brownfield reuse program Reduce and eliminate threats to human health and the environment presented by hazardous material contamination. Establish risk‑based restrictions on future use of property when setting cleanup goals for a contaminated property. Reuse historically productive properties that will revitalize communities and help address issues raised by economic shifts while maintaining and enhancing existing public infrastructure. Utilize public investment and technical assistance to promote successful redevelopment projects. Reduce state legal liability risks associated with a brownfields site for parties who assume responsibility for property remediation.

3. Three points on brownfield transactions • Understand the environmental conditions prior to purchasing the property and incorporate the uncertainty into the transaction. • Understand the future development potential of the property and have a redevelopment in mind. • Understand the client’s risk tolerance.

4. Elements of the Brownfields Program Application Eligibility Determination Site Investigation Corrective Action Plan Remediation Certificate of Completion Liability Protection

5. What is a Brownfield? The old requirement that a brownfield site be “vacant, abandoned or substantially underutilized” has been eliminated. Brownfield sites now include “real property, the expansion, redevelopment, or reuse of which may be complicated by the release or threatened release of a hazardous material.” 10 V.S.A. 6642(2).

6. Is my client eligible to participate in the program? Must be either a prospective purchaser or “innocent current owner.” Must disclose all information on all releases at the property. Must certify that persons benefiting from liability protection are liable solely from their status as a landowner (6615(a)(1) liability)

7. What is an innocent current owner? • “Innocent current owner” means a person that owns real property where a release or threatened release of a hazardous material exists but the person did none of the following: • Never held an ownership interest, except for a security interest, at the time the release occurred. • Directly or indirectly caused or contributed to any releases or threatened releases of hazardous materials at the property. • Operate or control disposal activities at the property or run a facility for disposal. • Disposed of or arranged for the disposal of hazardous materials at the property. • Generated the hazardous materials that were disposed of at the property.

8. Benefits of entering the program as a prospective purchaser. Applicant is eligible for a cost cap on implementation of the corrective action. Applicant is eligible to have full liability protection upon substantial completion of the remediation.

9. Forbearance from enforcement The state may not bring an action against an applicant based on liability pursuant to subdivision 6615(a)(1) of this title, provided that the applicant has been determined to be eligible for the program and is working in good faith toward meeting the obligations required by this subchapter.

10. Corrective action plan and implementation Based on exposure risks Based on prospective use Land use controls are used as part of corrective actions

11. Withdrawal from the program Can happen at any time. No liability protection. Must stabilize the site. Must continue to allow site access and technical information regarding site conditions.

12. Withdrawal from the program with personal liability protection Must have completed a corrective action plan. Must meet the general withdrawal requirements. Must place land use restrictions on the property limiting its uses. Does not engage in activity inconsistent with the corrective action plan.

13. Certificate of Completion Describes the corrective action and its implementation. Defines land use restrictions and other conditions. Vests liability protection. Recorded in the land records.

14. Liability protection for completed corrective actions • Releases applicant from: • All materials identified and cleaned up under the CAP. • Third party contribution claims. • All materials not subject to the CAP that were not detectable under standard methods at the time of the COC issuance. • All materials not subject to the CAP that were not considered hazardous materials at the time of COC issuance. • All materials subject to the CAP where the clean up standard became more stringent after COC issuance.