Brownfield Liability and Opportunity for Municipalities

1. Brownfield Liability and Opportunity for Municipalities A federal law and EPA program context Jessica Dominguez Land Revitalization Coordinator & Project Officer EPA Region 1 – Brownfields Program

2. What I Will Cover

3. Municipal Liability Protections under the most current BUILD Act provisions FIRST – CERCLA liability – strict, joint and severable, retroactive THEN – 2002 amendment to CERCLA established the national brownfields program. • added new landowner liability protections (and clarified the existing innocent landowner protection) • Provided funding for grants for the assessment and cleanup of brownfields • Under the above, some municipal liability protections existed, particularly in cases of “involuntary acquisition” where municipalities had met their continuing obligations to properly maintain and restrict use of the site. NOW – BUILD (Brownfields Utilization, Investment, and Local Development) Act - March 2018 • Municipal liability protections were expanded and clarified

4. Municipal Liability Protections under the most current BUILD Act provisions As of 2002, CERCLA provided protection from liability for certain parties, provided they comply with specific criteria. Parties with potential liability protection include: • Innocent landowners, CERCLA Section 101(35)(A). • Contiguous property owners, CERCLA Section 107(q). • Bona fide prospective purchasers, CERCLA Sections 101(40) and 107(r). • Units of state or local government that acquire ownership or control involuntarily through bankruptcy, tax delinquency or abandonment, CERCLA Section 101(20)(D). • Government entities that acquire property through eminent domain, CERCLA Section 101(35)(A)(ii).

5. Municipal Liability Protections under the most current BUILD Act provisions If a state or local unit of government acquired title to a property by any of the circumstances listed belowand did not cause or contribute to any contamination at the property, they are exempt from liability for any previous contamination at that property. • Seizure or in connection with any law enforcement activity • Bankruptcy • Tax delinquency • Abandonment • Other circumstances where title to the property was acquired by virtue of the government’s function as sovereign “Involuntary” acquisition terminology removed. BUILD Act Liability Clarification

6. Municipal Liability Protections under the most current BUILD Act provisions If the property was acquired by a state or local government prior to January 11, 2002 • the state or local government is eligible for a brownfield grant and may use grant funds to address contamination at the property, without having to demonstrate that it meets any of the CERCLA liability defenses, provided the state or local government did not cause or contribute to contamination at the property. BUILD Act Liability Protection Expansion

7. Not the Current Property Owner? Municipalities are often in the best position to identify and help champion the reuse of blighted property. There are a range of property recovery actions for municipalities that do not yet own a site. For more in-depth guidance for those with the interest or opportunity to take on a specific property: PREPARED Workbook - https://www.epa.gov/sites/production/files/2015-04/documents/munimanual.pdf

8. All Appropriate Inquiryevaluating environmental conditions and assessing potential liability When a direct purchase or other non-exempt acquisition is your only or best option, All Appropriate Inquiry (AAI) before ownership can provide some liability protection as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser. • Must not have an “affiliation” with a liable party • Must not have caused or contributed to any contamination on site • Within a year of acquisition there must have been an ASTM/AAI** compliant Phase I report done on the property by a qualified environmental professional. • Key components must be updated if the report is older than 6 months. • Property acquisition includes properties acquired as gifts or through zero-price transactions. • For More Information: https://www.epa.gov/brownfields/brownfields-all-appropriate-inquiries **The AAI Final Rule provides that ASTM International Standard E1527-13 and E2247-16 are consistent with the requirements of the final rule and either can be used to satisfy the statutory requirements for conducting AAI.

9. Congratulations!you have taken ownership of a property(by choice, chance or default) Continuing Obligations throughout the period of ownership: • Complying with land use restrictions and not impeding the effectiveness or integrity of institutional controls; • Exercising appropriate care with respect to hazardous substances found at the property by taking “reasonable steps” to stop any continuing release and to prevent any threatened future release; • Providing cooperation, assistance, and access; • Complying with information requests and administrative subpoenas; and • Providing legally required notices. CERCLA § 101(40). • BFPPs also must not impede the performance of a response action or natural resource restoration. CERCLA § 107(r). Maintain Liability Protections & Grant Eligibility