FIVE REGULATORY INCENTIVES TO PROMOTE PRIVATE SECTOR BROWNFIELD REMEDIATION AND REUSE Presented by...

FIVE REGULATORY FIVE REGULATORY INCENTIVESINCENTIVES

TO PROMOTE PRIVATE SECTOR TO PROMOTE PRIVATE SECTOR BROWNFIELD REMEDIATION BROWNFIELD REMEDIATION

AND REUSEAND REUSE

Presented by Tim SwickardSeptember 12, 2007

DONGELL LAWRENCE FINNEY LLPDONGELL LAWRENCE FINNEY LLP

Land Pollution and Contamination is not a New Problem!

“Do not pollute the land where you are.” Nu 35:33

“The land you are entering to possess is a land polluted.” Ezra 9:11

Governments of growing industrial economies are faced with two substantial sources of urban environmental degradation—one from past activities and one from ongoing activities.

The interior of mature urban communities often contain large areas of environmental contamination from past contamination activity

These sites are commonly known as “brownfields” and often sit unmarketable and vacant, allowing the contamination to spread into the surrounding groundwater, land and air environments.

WHAT IS A BROWNFIELD?

Defined by the U.S. Environmental Protection Agency as "[a]bandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination."

Brownfields also create a 2Brownfields also create a 2ndnd Front Front of Environmental Degradationof Environmental Degradation

Urban growth is diverted to envelop “greenfields”—open space agricultural land and wildlife habitat on the borders of the urban area—creating a second front of degradation commonly known as urban or suburban “sprawl.”

DONGELL LAWRENCE FINNEY LLP

Resolution of Historical Contamination and Non-Resolution of Historical Contamination and Non-sustainable Land-use can be achieved by Private sustainable Land-use can be achieved by Private

Sector Redevelopment of BrownfieldsSector Redevelopment of Brownfields..

Well intentioned environmental laws and government policies often, in reality, inhibit or prevent brownfields redevelopment.

The most common are laws assigning legal liability for the past contamination to those willing to undertake remediation projects

The high transaction costs and long delays in these projects due to regulatory requirements.

FIVE GOVERNMENT POLICIES TO FIVE GOVERNMENT POLICIES TO FACILITATE REMEDIATION AND REUSE OF FACILITATE REMEDIATION AND REUSE OF

BROWNFIELDSBROWNFIELDS NECESSITY – Of addressing 2 significant sources

of urban environmental degradation

IMMUNITY – To innocent parties willing to invest in remediating past contamination.

EFFICIENCY – Streamlined regulatory processes to reduce time/cost of each redevelopment project

CERTAINTY – Predictability of Final cleanup required for discrete set of contaminants.

FLEXIBILITY - in Scope and Level of Cleanups through Utilization of Institutional Controls appropriate for varied end uses.

NECESSITYNECESSITY To Stop Proliferation of Urban

Brownfield Contamination Public Health Effects Urban Blight, Social/Economic Decay, Flight to Suburb Huge Social, Governmental and Economic Costs

To Halt Degradation of Greenfield Open Space Agricultural and Wildlife Habitat

1Million acres open space/wildlife habitat converted/Yr 4.5 : 1 Ratio for Greenfield to Brownfield Development Brownfields stocks sufficient for 2 decades of growth From 1970 number of miles driven tripled to 3 Trillion

California has been building a California has been building a city for 600,000 new people each city for 600,000 new people each

year since 1974 and this shows year since 1974 and this shows no signs of slowing.no signs of slowing.

1974 – Population - 20,873,000;1974 – Population - 20,873,000;1984 – Population - 25,530,0001984 – Population - 25,530,0001994 – Population - 31,320,0001994 – Population - 31,320,0002004 – Population - 36,430,0002004 – Population - 36,430,000

WHY CLEANUP BROWNFIELDS?


Many pension and investment funds Many pension and investment funds

have been required to have a portion of have been required to have a portion of

their investments be “green” and their investments be “green” and

brownfields redevelopment is becoming brownfields redevelopment is becoming

a prime target for these entities.a prime target for these entities.

Sarbanes-Oxley requires Public Sarbanes-Oxley requires Public

Companies to Report Environmental Companies to Report Environmental

Liabilities with Criminal Penalties for Liabilities with Criminal Penalties for

non-compliance.non-compliance.

WHY CLEANUP BROWNFIELDS?


Developable Land Stocks shrink Developable Land Stocks shrink each year in the United Stateseach year in the United States

No Growth Initiatives on “open space” or No Growth Initiatives on “open space” or “greenfields” development (Yolo, Napa, “greenfields” development (Yolo, Napa, Marin, Burlingame, etc.)Marin, Burlingame, etc.)

Conservation EasementsConservation Easements

Water entitlement RequirementsWater entitlement Requirements

ESA Critical Habitat, Wetlands etc.ESA Critical Habitat, Wetlands etc.

Increasing State Regulation of Local land Increasing State Regulation of Local land use planninguse planning


Greenfield development Greenfield development consumes 4.5 to 6 consumes 4.5 to 6 acres of open space acres of open space land per acre of land per acre of brownfield brownfield redevelopment due to redevelopment due to infrastructure infrastructure requirements, etc.requirements, etc.

There are over 100,000 There are over 100,000 sites estimated in sites estimated in California and over a California and over a million nationwide.million nationwide.


IMMUNITY IMMUNITY The Key Obstacle in redeveloping brownfields

is assumption of liability for the historical contamination by every new brownfield property purchaser

Diverts cleanup funds to Allocation Litigation Immunity to Innocent Parties Willing to Invest

in Remediating Past Contamination CERCLA – 2002 Brownfields R.A. STATE LAWS – AB 389 etc.


Environmental Environmental Liability 101 Liability 101

CERCLA “Superfund” liability scheme extends to: Current property owner or operator Owner/operator at the time of disposal Arrangers and transporters

Strict, joint and several Liability Liability concerns inhibit property

transactions

Comprehensive Environmental Response, Compensation, and Liability Act of 1980


Federal Brownfields ProgramFederal Brownfields ProgramSmall Business Liability Relief and Brownfields Small Business Liability Relief and Brownfields

Revitalization Act of 2002Revitalization Act of 2002 Codified aspects of federal PPA policy Amendments provided liability

clarification Prospective Purchaser/ Windfall Liens

CERCLA (101(40)) and( 107(r)) Contiguous properties CERCLA (107(q)) Innocent Landowner CERCLA 101(35))


The California Land Reuse and The California Land Reuse and Revitalization Act of 2004 (AB 389)Revitalization Act of 2004 (AB 389)

Provides immunity from liability to qualifying property owners or purchasers of brownfields

Incorporates process relief provisions Requires DTSC or RWQCB oversight for

immunities to take effect Effective when agreement

is signed with agency Applies to urban infill areas


California Liability Relief Options California Liability Relief Options

Polanco Redevelopment Act California Land Reuse and Revitalization

Act (CLRRA, AB 389) Site Designation Process Prospective Purchaser Agreements No Further Action Letters/Comfort Letters UPA Corrective Action Regulations for

Local Agency RCRA Permit CleanupsDONGELL LAWRENCE FINNEY LLP

EFFICIENCYEFFICIENCY Streamlined regulatory

process efficiencies to reduce time/cost of each redevelopment project

Amend NCP – Worst Sites – Inappropriate for smaller sites. Recognized in B.R.A

STATE LAWS – Process Efficiencies - California’s AB 389 etc.


Steps Chapter 6.5 (Traditional)

Chapter 6.8 Porter-Cologne AB 389 (CLRRA)

Initiation Permit Application1 or Discovery of Release

Notification or Discovery Report of Discharge or Discovery

ApplicationAll Appropriate Inquiries

Agreement1

Short-TermAction

Interim Measures Assessment

Interim Measures1

Removal Site EvaluationRemoval Action1

Early Cleanup and Abatement Actions2

Actions to Prevent Unreasonable Risk

Site Character-ization

RCRA Facility Assessment1

RCRA Facility Investigation[1]

(optional risk assessment)

Corrective Measures Study2

Preliminary EndangermentAssessment1

Remedial Investigation/Feasibility

Study1

(integral baseline risk assessment)

Request for Technical or Monitoring Program

ReportsPreliminary Site

AssessmentSoil and Water Investigations(optional risk assessment)

Site Assessment Plan1

(optional risk assessment)

Remedy Selection

Selection of Corrective Measure1

Permit Modification or Order1

Draft RAP1

Final RAP2

Evaluation of Feasible and Effective Cleanup and Abatement ActionsConcurrence with Cleanup or Abatement Proposal by Discharger2

Response Plan1

Final Action Design and Implement Corrective Measure1

Final PermitModification/Completion

Determination1

Remedial Design1

Remedial Action1

Certification

Implementation of WorkplanWaste Discharge Requirements1

ImplementationCertificate of Completion

Follow up Operation and Maintenance Operation and MaintenanceFive-Year Reviews2

Monitoring and ReportingRescission of Order2

Operation and Maintenance

Application submitted,eligibility

determined

SelectLead Agency

NegotiateOversight Agreement

Enter into OversightAgreement

Immunity attaches

Site Assessment Plan

Conduct SiteAssessment

Site Assessment Report

Lead Agency approves Response Plan

Implement Response Plan

Response Plan

ImplementInstitutional Controls

andLong-term O&M,

as necessary

Certificate of Completionissued by

Lead Agency

CERTAINTYCERTAINTY Predictability of Final cleanup required for

any discrete set of contaminants lowers risk!

Regulatory agencies should provide set of standard remedies (Presumptive Remedies) for discrete sets of contaminants/property conditions

Regulatory agencies should make accessible Past Approved Remedies Database

Prospective Purchaser Agreements Prospective Purchaser Agreements

An administrative tool to limit liability Contains a covenant not to sue PPAs used by US EPA, SWRCB and DTSC Agency policy and guidance provides criteria

for participation Model agreement and

guidance on DTSC’s website


FLEXIBILITYFLEXIBILITY In Scope and Level of

Cleanups through Utilization of Institutional Controls appropriate for varied end uses.

Any Cleanup is better than No Cleanup!

Achievement of Source Control is Key

Provides Phased Cleanups as Real Estate Market Changes

FLEXIBILITYFLEXIBILITY An “all or nothing” regulatory approach to the

cleanup of brownfields sites is financially infeasible and practically unworkable for many sites effectively precluding their cleanup and redevelopment.

Use of INSTITUTIONAL CONTROLS can protect public health and the environment while providing for a staged cleanup.

An Institutional Control is a non-remedial measure (usually legal) that restrict activities and access occurring on the site.

FLEXIBILITYFLEXIBILITY

There are 4 general types of IC’s: Legal Proprietary Controls – Easements, Deed

Restrictions and CovenantsGovt Controls such as zoning, land use

designation and permitsEnforcement tools – Consent DecreesNotice Requirements


Consultative Services AgreementConsultative Services Agreement

DTSC feedback on Site Assessment, Response Plans etc., outside and prior to AB 389 Agreement Execution

Pays DTSC Costs


Site Designation, Prospective Purchaser Site Designation, Prospective Purchaser AgreementAgreement

Mission Bay – San FranciscoMission Bay – San Francisco

Residential developments Part of UCSF

Research Campus


Dean Di Carli Plaza Dean Di Carli Plaza Stockton, California Stockton, California

Before

After


Oakland, CA Petroleum Brownfield Site Oakland, CA Petroleum Brownfield Site Converted to Affordable HousingConverted to Affordable Housing

From This…

…To This!

Community workshops:Summer 2001

Planning Department Review: Fall 2001

Family Selection: began November 2002

Construction with volunteers: January - October 2003

Completion: October 2003

Community workshops:Summer 2001

Planning Department Review: Fall 2001

Family Selection: began November 2002

Construction with volunteers: January - October 2003

Completion: October 2003

2004 Phoenix Award

Community Impact

2004 Phoenix Award

Community Impact


Community Housing Richmond, CACommunity Housing Richmond, CA

3 Affordable Housing Units Planned at former UST site.

EPA Brownfields Grant. Collaboration between EPA

Region 9, Community Housing Dev. Corp. and City of Richmond.

WHY BROWNFIELDS?WHY BROWNFIELDS?GOOD GOVERNMENT POLICY GOOD GOVERNMENT POLICY GOOD FOR THE GOOD FOR THE ENVIRONMENT GOOD FOR THE ENVIRONMENT GOOD FOR THE SOULSOUL1.1. Stops the Environmental Degradation Stops the Environmental Degradation of Suburban Sprawlof Suburban Sprawl

2.2. Stops the Environmental Degradation Stops the Environmental Degradation of Spreading Contaminationof Spreading Contamination

3.3. Preserves Open Space, Agriculture and Wildlife HabitatPreserves Open Space, Agriculture and Wildlife Habitat

4.4. Stops Social Degradation of Urban BlightStops Social Degradation of Urban Blight

5.5. Creates Urban Community Social RevitalizationCreates Urban Community Social Revitalization

6.6. Creates Urban Community Economic RevitalizationCreates Urban Community Economic Revitalization

CONTACT INFORMATIONCONTACT INFORMATION

TIM SWICKARDTIM SWICKARD DONGELL LAWRENCE FINNEY LLPDONGELL LAWRENCE FINNEY LLP

[email protected]

916-449-3999916-449-3999

DONGELL LAWRENCE FINNEY LLPDONGELL LAWRENCE FINNEY LLP

mailto:[email protected]

FIVE REGULATORY INCENTIVES TO PROMOTE PRIVATE SECTOR BROWNFIELD REMEDIATION AND REUSE Presented by...

Documents

Transcript of FIVE REGULATORY INCENTIVES TO PROMOTE PRIVATE SECTOR BROWNFIELD REMEDIATION AND REUSE Presented by...