EPA’s Brownfields Program

1. EPA’s Brownfields Program Office of Brownfields Cleanup and Redevelopment (OBCR) September 2005

2. What are Brownfields? • Once productive areas have been abandoned – some are contaminated • Lenders, investors, and developers fear environmental liability and are more attracted to “greenfields” • The result has been blighted properties – brownfields • GAO estimated that there are more than 450,000 brownfields across the country – others estimate that there may be more than a million

3. EPA Brownfields Program History • In the early 1990’s, the U.S. Conference of Mayors pointed to brownfields as one of the most critical problems facing cities • Brownfields pushed down property values and tax revenues • Properties were not getting cleaned up and were worsening community blight • EPA “pilots” provided seed money for helping communities and supporting new ideas

4. Small Business Liability Relief and Brownfields Revitalization Act • Success of Brownfields Initiative led to legislative proposals • Brownfields legislation signed in January 2002 • Expanded funding for brownfields assessment and cleanup competitive grants • Clarified liability protections • Increased supportfor State and tribal programs

5. Expanded Program • The Brownfields Law authorized the brownfields program including assessment, cleanup, revolving loan fund and job training grants • Current funding provides about $75 million per year for grants awarded through an annual competition • Expanded eligible properties to include petroleum contamination, mine scarred lands and abandoned controlled substance sites (meth labs) • Expanded eligible activities to include direct cleanup grants, health monitoring, environmental insurance

6. Brownfields Grants – Eligibility • General purpose units of government • Quasi-government entities operating under supervision of local government • Regional Councils • Redevelopment Agencies • Tribes (other than Alaska) • Alaska Native Regional Corporation, Alaska Native Village Corporation, and the Metlakatla Indian community

7. Brownfields Grants – Eligibility • Non-profit organizations are eligible for cleanup grants for properties owned by the non-profit. • Loans from RLF grants may be made to: • Eligible entities • Developers • Private site owners

8. Eligible Properties • Brownfields are real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. • Brownfields also include: • Petroleum-contaminated properties • Properties w/controlled substances • Mine-scarred lands

9. Eligible Properties • Three types of Properties are not eligible for brownfields grants: • Sites listed on the NPL • Facilities subject to CERCLA orders and consent decrees • Properties owned or under the control of the federal government

10. Eligible Properties • For some types of properties, EPA must make a “property-specific” determination for eligibility: • RCRA-permitted facilities • CERCLA removal sites • Some facilities with PCB contamination • Sites that received UST trust fund monies

11. Clarified Liability • Provided liability protections for innocent landowners, bona fide prospective purchasers and contiguous property owners • Liability protections require that property owners demonstrate due diligence (all appropriate inquiries) prior to acquisition and take reasonable steps after acquisition • Required EPA to issue regulations for all appropriate inquiries

12. Increased Support for State and Tribal Programs • Authorized funding to establish and enhance State and Tribal Response Programs • All Alaskan tribes eligible if they have response program the includes four required elements. • Current funding provides about $50 million per year for grants awarded annually on an allocation basis • States and Tribes use program funds to establish response programs and enhance site activities • Created enforcement bar against federal Superfund action for sites enrolled in State response programs

13. Overall Accomplishments • Leveraged more than $7.1 billion in cleanup and redevelopment and more than 31,000 jobs • Supported assessments at more than 7,000 properties • Helped make more than 2,400 properties ready for reuse • Awarded more than 750 assessment, cleanup and revolving loan fund grants over the last 3 three years • Provided grants to all 50 States and 40 Tribes for their response programs • Every dollar of Federal, State and local government spent on brownfields returns almost $2.50 in private investment (CUED, 1999) • Every acre of brownfields redeveloped saves 4.5 acres of greenspace (GWU, 2001)

14. Small and Rural Communities • 59% of the 295 grants awarded in FY05 went to communities with populations less than 100,000. • Small and Rural Communities had a 43% applicant success rate (large had 46%) • Outreach includes workshops (many with NADO), resource guide, case studies.

15. Recent and Upcoming Events • More than 300 Assessment, Cleanup, Revolving Loan Fund and Job Training grants announced in May 2005 • The next round of applications will be opened in September 2005 • All Appropriate Inquiries Rule - EPA anticipates publishing the final rule by the end of 2005 • Brownfields 2005 Conference – November 2-4 in Denver, CO

16. All Appropriate Inquiries • The Small Business Liability Relief and Brownfields Revitalization Act requires that EPA develop federal standards and practices for “all appropriate inquiries.” • Applicable to new liability protections. • Required of parties receiving Brownfields assessment grants.

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

18. Why Comply with AAI? • Required if seeking protection from CERCLA liability • To understand potential environmental risks associated with a property prior to purchase • Gain information that will help property owner comply with “continuing obligations” after purchase

19. Small Business Liability Relief and Brownfields Revitalization Act • Congress mandated that EPA promulgate regulations establishing federal standards for all appropriate inquiries • Statute lists ten criteria EPA must include in regulations • Statute establishes interim standard

20. Applicability • The All Appropriate Inquiries standards will apply to: • Property owners asserting CERCLA liability protections • Persons receiving brownfields grants for site characterization and assessment under CERCLA 104(k)(2)(B) • AAI may not be applicable to persons seeking liability relief under state law.

21. Applicability (cont.) • Brownfields cleaned up under state response programs may be eligible for federal enforcement bar per CERCLA 128(b) – AAI not required by CERCLA. • Until effective date of final rule, federal standard for AAI is ASTM E1527 (97 or 2000 version)—Interim standard set by Congress.

22. CERCLA Liability Protections • The Brownfields Amendments to CERCLA provide liability protections for landowners who qualify as: • contiguous property owners, • bona fide prospective purchasers, or • innocent landowners.

23. CERCLA Liability (cont.) • To qualify for the liability protections, landowners must: • Meet certain threshold criteria prior to purchase • Satisfy certain continuing obligations after purchase.

24. Threshold Criteria • No affiliation with liable party • Conduct all appropriate inquiries prior to date property is acquired

25. Continuing Obligations • Comply with land use restrictions • Do not impede effectiveness or integrity of institutional controls • Take “reasonable steps” • Provide cooperation, assistance and access • Comply with CERCLA information requests and subpoenas

26. Status of Federal Regulation • Proposed rule published August 26, 2004. • Comment period ended November 30, 2004. • Final rule developed by EPA and undergoing review by OMB. • Anticipate publication of final rule December 2005.

27. Highlights of Proposed Rule • Structured around 10 statutory criteria • Objectives and performance factors • Definition of Environmental Professional • Report of findings • Rule addresses AAI; Not “continuing obligations.”

28. Objectives of AAI • Identify conditions indicative of releases or threatened releases of hazardous substances. • Identify particular information about a property: • Uses and occupancies of property • Uses of hazardous substances • Waste management activities • Corrective actions and response activities • Institutional and engineering controls • Nearby and adjoining properties with environmental conditions

29. Next Steps • EPA is developing final rule – recently submitted to OMB for review and approval • Working with ASTM to update the E1527 Standard. EPA’s intention is to incorporate by reference an updated ASTM standard in regulation, if compliant with final rule. • Outreach and training.

30. More Information • EPA Website: www.epa.gov/brownfields • Email: overmeyer.patricia@epa.gov • Brownfields 2005 – Denver, Colorado November 2 – 4