Recent developments in cleanup technologies

Recent Developments in Cleanup Technologies

Kathleen Gibson Kortney Adams

Brownfields-A Status Report on Recent Developments I I I Katbleen Gi6son i s a project director and Kortney Adams i s a staff engineer at Environmental

In January 1995, Environmental Protection Agency (EPA) Administrator Carol Browner unveiled the Brownfelds

Strategies Corp. Action Agenda. The agenda was touted as a comprehensive approach to contaminated site remediation, empower- ingstates, communities and otherstake- holders to cleanup and redevelop lan- guishing properties. As of June 1996, EPA had declared victory, indicating that 100 percent of the agenda had been accomplished. Indeed, rarely has EPA moved so quickly and decisively with a new program. Brownfelds are a politi- cally hot topic, appearing as one of the few issues that had bipartisan support in the 1996 elections. However, while many pilot programs have been funded, no one is yet sure how well the program is really working.

In the last few years, EPA has committed extraordinary time and effort to brownfields initiatives. The Agency has removed over 27,000 sites from the federal CERCLA inventory and has worked with states, cities, community representatives, and other stakeholders to implement com- mitments made in January 1995, when the Brownfields Action Agenda was unveiled. EPAs efforts in implementing the agenda were focused on four categories:

Brownfields pilots Clarlfying liability and cleanup issues

Partnerships outreach Job development and training

EPA has declared the agenda 100- percent successful. The following is a summary of recent brownfield development and progress.

Brownfield Pilots In 1996, EPA selected 76 loca-

tions to be awarded brownfield pilot cooperative agreements. These locations included states, cities, towns, counties, and tribes. As of March 1997,78 pilots had been awarded: 39 were regional pilots and the remain- der were national pilots.

The regional pilots are intended to test redevelopment models, direct special efforts to removing regulatory barriers without sacrificing environmental protection, and facilitate co- ordinated cleanup efforts at the federal, state, and local levels. The funds provided by EPA are to be used to generate interest in the locations by bringing together community groups, investors, lenders, developers, and other relevant parties to address the issues of remediating sites contaminated with hazardous substances. The ultimate goal is to return these locations to productive use. The pilots are to serve as vehicles to explore models for states and localities struggling with these efforts.

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The national pilots have similar goals and are selected based on the following evaluation criteria:

Problem statement and needs assessment which focus on the negative effects of brownfields on the community and describe the value added by federal support; Community-based planning and involvement, where the applicant identifies the existing local government structure and de- scribes its community involvement and environmental justice plans; Implementation plan, wherein the applicant identifies the existing appropriate authority and government support, the proposed cleanup funding mechanisms, flow of ownership, and environmental site assessment plan; and Long-term benefits a n d sustainability. The applicant must show how its program can be nationally replicated and must provide a method to measure success.

Clarifying Liability and Cleanup Issues

EPA has announced a variety of guidances and initiatives over the last year on issues involving underground tanks, prospective purchasers, and soil screening levels.

The Underground Storage Tank Lender Liability Rule limits the regulatory obligations of financial institu- tions and others that hold security interests in properties with petroleum underground storage tanks. The Pro- spective Purchaser Guidance expands the circumstances in which EPA will enter into agreements not to file a lawsuit against a prospective purchaser

of contaminated property. Owners of Property Containing Contaminated Aquifers assures lenders, owners, and prospective purchasers of property above a contaminated aquifer that EPA does not anticipate suing them to recover costs. Land Use Guidance and Soil Screening Guidance provide information regarding consideration of future land use in remedy selection and a method of determining, rela- tively quickly, whether sites pose risk to human health, respectively.

Comfort Letters In December 1996, EPA released

a memorandum and issued guidance encouraging the regions to issue “comfort letters’’ to prospective buyers of brownfield sites. Comfort letters are intended to remove the barriers created by perceived or real concerns related to future EPA or local involvement at a site. The letters, which provide site-specific assessments of EPAs plans for a property, enable buyers to better assess and quantify potential liabilities under Superfund. The letters essentially summarize the information that EPA has about a property and the likelihood that the Agency will initiate federal Superfund action. The letters do not release buyers from future liability or provide any guarantees, but do offer clarifica- tion of EPA’s intent at the site and help buyers gauge risk. Four types of comfort letters are described in the EPA guidance:

“No Previous Federal Superfund Interest Letter”-for cases where the region has no historical Superfund interest at a site and does not anticipate any interest; “ N o Current Federal Super- fund Interest Letter”-for sites that were previously listed on the NPL

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but have been deleted, that have been removed from EPA’s list of potential Superfund sites, or that are in the vicinity of but not part of a CERCLIS site; “Federal Interest Letter”-for cases where the agency has already begun, or plans to initiate, response actions at the site; and “State Action Letter’’-for in- stances where the state has as- sumed the role of lead agency for response action at the site.

The letters will be issued by the regions in response to any direct requests.

Partnerships and Outreach EPA is committed to working with

a variety of stakeholders, including the Department of Labor (DOL), Depart- ment of Housing and Urban Develop- ment (HUD), and the Department of Transportation (DOT), to implement the Brownfields Action Agenda. For example, EPA and the Economic De- velopment Administration are working to link assessment and cleanup activities with economic redevelop ment opportunities through a signed Memorandum of Understanding, and EPA and DOL are coordinating job- training activities in brownfields pilot communities. Other coordination efforts involve working with the HUD Empowerment Zone/Enterprise Com- munity existing funding and housing opportunities and DOT‘S matching of its “Livable Communities Initiative” with brownfields pilot communities. The Department of Defense (DOD) and the Department of Energy (DOE) are discussing ways to link their closure and downsizing operations to the brownfield program. In addition, DOES Argonne National Laboratory is working with EPA on technology transfer and urban restoration issues.

HUD Pilot Program In November 1996, HUD approved

funding for a $50 million brownfield redevelopment program in Chicago, Illinois. The funds serve as a loan guarantee for the cleanup and redevelopment of several Chicago sites. The funds were provided by the Com- munity Development Block Grant (CDBG) program, which provides loan guarantees to communities undertak- ing large-scale economic development projects. The HUD grant greatly ex- ceeds any awards made to date by EPA, which are typically limited to $200,000 for project management support and do not include funds for remediation. The Chicago project is a pilot program for HUD and, if successful, could be the first of many such awards approved by HUD. The significant resources of the CDBG program give HUD the potential to develop a brownfield program which would vastly exceed EPAs.

HUD’s proposed FY 1998 budget includes significant funding for brownfield redevelopments. The budget calls for $25 million to provide direct grants to communities for redevelopment of sites which have been recently cleaned up, and an additional $1.3 billion to use as loan guarantees in the Section 108 program. Municipali- ties currently use Section 108 funds as collateral to secure loans for property redevelopment, and then repay the loan with income from the developed property. HUD plans to rewrite the regulations for Section 108 to specifically encourage the use of the program for brownfield projects.

Job Development and Training EPA is working with the Hazard-

ous Materials Training and Research Institute to expand environmental training and development of curricula

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at community colleges near brownfield pilot communities. In November 1996, the two agencies hosted a workshop to assist community colleges in developing environmental job-training programs. EPA has joined other agencies to develop a registered apprenticeship program to reduce unemployment in low- income and minority communities affected by hazardous waste sites. The National Institute of Environ- mental Health Sciences and EPA are working to ensure that Minority Worker Training grants overlap with brownfield pilot communities.

Legislative Changes Affecting Brownfields

In 1996, attempts by Congress to develop and pass a comprehensive Superfund reform bill were unsuc- cessful. While the issue of brownfield redevelopment garnered bipartisan support, other Superfund issues, including liability reform and funding, prevented sufficient consensus on any one reform bill. As the session progressed and it became clear that a comprehensive bill would not be passed by the 104th Congress, some Democrats focused on the passage of a smaller-scope brownfields bill. In July, Senator Carol Moseley-Braun (D-Illinois) introduced a bill based on President Clinton’s Brownfields Redevelopment Initiative as outlined in his January state-of-the-union address. The tax-incentive program was intended to return 30,000 brownfield properties to productive use and leverage private investments of up to $10 billion. The program would have allowed brownfield investors to de- duct their cleanup expenses immedi- ately, which would have cut the costs of their investments in half. Environ- mental cleanup costs currently must

be expensed over several years. The program targeted areas where the poverty rate is 20 percent or higher. The program was estimated to cost the government $2 billion in tax sub- sidies over the seven-year period.

While many Republicans sup- ported the tenets of the bill, most were reluctant to support passage of a separate brownfields bill outside of comprehensive reform legislation. Republicans feared that if a stand- alone bill were passed, Democrats would have less incentive to work toward comprehensive Superfund reform. The bill, introduced only one month before the end of the session, did not come to a vote before Congress adjourned for the season.

Congress did, however, pass the “Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996,” which amended provisions of CERCLA related to lender and fidu- ciary liability requirements and provisions of RCRA concerning the secured creditor exemption. This is expected to make funding easier to obtain.

In 1997, efforts are being made by the 105th Congress to pass a comprehensive Superfund reform package or at least specific legislation concerning brownfields. Bills proposed this year include the following:

“The Superfund Cleanup Accel- eration Act of 1997,” introduced by Senators John Chafee (R-Rhode Is- land) and Robert Smith (R-New Hamp- shire), is a comprehensive Superfund reform bill which would provide $60 million of new funding each year to help states and communities clean up and redevelop contaminated industrial sites. Among other reforms, the bill would also remove small businesses and other small parties from potential liability at Superfund sites, cap municipal liability, and


RECENT DEVELOPMENTS IN CLEANUP TECHNOLOGIES

increase the states’ role in Superfund cleanups. The legislation was included as part of the “Republican Agenda for the 105th Congress,” a package spon- sored by Senators Trent Lott (R-Mis- sissippi) and Don Nickles (R-Okla- homa), and does not have bipartisan support. Several Democrats oppose the reform bill because it was introduced without consultation with any Democrats. The Environmental De- fense Fund also opposes the bill, charging that it was introduced without the consultation of the environmental community.

“The Brownfields and Environ- mental Cleanup Act of 1997,” introduced by Senator Frank Lautenberg (D-New Jersey), would provide grants to state and local governments to assess brownfield sites and to establish low-interest loan programs for their remediation and redevelopment. The bill would also establish a standard for the determination of innocent purchasers, and limit the potential liability of such buyers.

“The Community Empowerment Act of 1997,” introduced by Senator Carol Moseley-Braun (D-Illinois), would provide tax incentives for brownfield redevelopment. The bill would create 80 new enterprise communities and 20 new empowerment zones nationally where developers could write off remediation and redevelopment costs in the year incurred. The $2 billion tax incentive would leverage $10 billion of private investment to pay for the redevelopment of 30,000 brownfield sites. The bill is essentially an updated version of the 1996 bill introduced by Moseley- Braun, but stands a greater chance of passage this year due to greater bipartisan support and introduction earlier in the year. GOP cosponsors include Senators Spencer Abraham

(R-Michigan) and Alfonse D’Amato (R-New York). The corresponding bill in the House, “The Brownfields Redevelopment Act of 1997” (HR 5 2 3 , was introduced by Representa- tives Charles Range1 (D-New York) and William Coyne (D-Pennsylvania) of the House Ways and Means Commit tee.

Status of Brownfield Pilots As reported in this column in Fall

1995, EPA began its Brownfields Eco- nomic Redevelopment Initiative in November 1993 with grants to the cities of Cleveland, Ohio; Richmond, Virginia; and Bridgeport, Connecticut. The following is a progress report for those initial sites.

EPA awarded Cleveland a grant in 1993 to support a two-year brownfield redevelopment program. Since that time, $3.2 million has been leveraged in environmental cleanup and property improvements at the bankrupt and abandoned Sunar- Hauserman site, which is now home to several businesses and 171 new workers. Payroll tax improvements alone have netted over $1 million for the local economy. In addition, the EPA is helping Cuyahoga Comrnu- nity College in Cleveland improve local workforce development through environmental education, outreach, and training.

Richmond, awarded its grant in 1995, has focused on brownfield economic redevelopment for several years and has already generated business interest in using or developing sites in targeted areas of the city. The city is initiating its brownfield pilot project through the “comprehensive community and human development plan” espoused by the Federal Em- powerment Zone/Enterprise Commu- nity program.

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Bridgeport was awarded its grant in 1994. Bridgeport sought to encourage property reuse by empowering community-based groups to be part of the decision-making process. To further this goal, the city held an environmental education and job training summit in June 1995 to share information and ideas o n the brownfield initiative. Using the EPA grant to generate specific technical information, the city of Bridgeport conducted a series of field studies to identify potential properties. After further refining, the study identified 23 sites that could be remediated. A database was generated, which included environmental inventory data, as well as physical characteristics and marketing indices. The sites were then scored, ranked, and evaluated. The top three sites have been selected for potential redevelopment by the business community. The next step is redevelopment, which will be handled by a Groundworks Trust-a group of stockholders initiating the redevelopment.

Recent Activity in the States To promote redevelopment of con-

taminated sites, many states have at- tempted to lift the barriers to redevelopment by enacting legislation intended to limit prospective purchaser liability. In addition, legislation allowing voluntary cleanup combined with no further action letters are common incentives to site remediation, which in turn allows a property to be “recycled or returned to productive use. In general, the regulated community views these efforts as a first step in removing roadblocks to development. Most of the legislation is too recent to determine its effect. Penn- sylvania has reported on its frrst year’s success, and the results appear to be encouraging.

State Legisslation Limiting Prospective Purchaser Liability

In July 1995, Oregon Governor John Kitzhaber signed a bill amend- ing the state’s Superfund law to facilitate the development of brownfields. Under the amended law, state environmental regulators must give equal consideration to cleanup options involving containment as an alternative to treatment, except where a site is considered to be a “hot spot.” State regulators must also consider cost effectiveness as a major factor in selecting cleanup remedies. The amended law changes the level of acceptable risk from background or the lowest feasible concentration, to an acceptable risk for humans of one case of cancer per one million people based on a lifetime of exposure. Last, the state would release purchasers of brownfields from future liability if they agree to perform remedial mea- sures at the site.

In July 1995, Delaware Governor Thomas R. Carper signed two bills which provide businesses with incentives to locate commercial or industrial facilities in brownfields rather than on new suburban or rural sites (often referred to as greenfields). The first bill amends Delaware’s Hazard- ous Substance Cleanup Act (HSCA) to encourage businesses to enter into brownfield site redevelopment agreements with the state Department of Natural Resources and Environmen- tal Control (DNREC). The DNREC would release a business participat- ing in such an agreement from future HSCA liability associated with past practices at the site. The bill also provides for more streamlined cleanup agreements to reduce transaction costs, ensures that businesses will receive sign-off letters from state environmental regulators at the end of

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cleanups, and ensures that the DNREC will consider all requests for voluntary cleanups. In addition, the bill amends the HSCA to expedite remedies for contaminated sites, improve the state’s ability to get information necessary for site cleanups, and give the DNREC more flexibility in crest- ing an appropriate cleanup agreement. The second bill offers Dela- ware businesses tax credits if they locate their facilities in brownfields. The amount of credit is linked to the amount of the investment, the number of jobs created, and whether the employer provides health benefits for workers.

Wisconsin has enacted legislation to remove barriers to redevelopment and ease concerns over potential liability associated with brownfield redevelopment. An amendment to Wisconsin’s environmental liability statute limits the liability of prospective purchasers of contaminated property. The prospective purchaser must first show that the release of hazardous substances took place before the purchaser acquired the property and then conduct a state-approved environmental investigation. The purchaser must then clean up the property or minimize the harmful effects from any contamination in accor- dance with state regulations or any agreement between the state and the purchaser describing the level of remediation required. Once remediation has been satisfactorily concluded, the state will provide a certificate indicating that the purchaser has restored the property and minimized the harmful effects from the release. The purchaser must still maintain and monitor the property according to state regulations and cannot engage in any activities incon- sistent with maintaining the property

in its restored condition. If the purchaser complies with all of the condi- tions, it is exempt from any liability or remediation obligations that new stat- utes, rules, or regulations might im- pose. Interestingly, should the cleanup fail to restore the environment or the extent of the contamination is greater than originally anticipated, as long as the purchaser fully complies with the cleanup contract or rules, the exemption from liability continues. The prospective purchaser exemption also applies to all successors and assigns who comply with the maintenance and activity limitations. When a purchaser buys from a municipality under specified circumstances, the exemption also limits the purchaser’s responsibility for cleanup costs. In such cases, the purchaser’s liability is limited to 125 percent of the anticipated cleanup costs at the time parties agreed on the remediation plan.

Illinois has enacted several initiatives intended to simplify the sale of brownfields and other contaminated property. The recently amended Illi- nois Environmental Protection Act is intended to provide an “innocent purchaser defense” for purchasers of contaminated property that, before purchase, conduct “all appropriate inquiry” into a property’s prior owners and uses and fail to discover contamination. The amendment de- fines “all appropriate inquiry” as the performance of a Phase I environmental assessment. The Phase I must be conducted either before acquiring title or concurrent with financing. Because the innocent purchaser defense is not available if contamination is discovered before the purchase, Illinois has amended the Act to allow the Illinois Environmental Pro- tection Agency (IEPA) to release a prospective purchaser from liability if

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the purchaser enters into a review and evaluation-services agreement with the IEPA and then performs an agency-approved response action under the agreement.

Chicago has developed its own brownfield redevelopment program. Under the program, which began in June 1994, Chicago has set aside a $2 million for purchasing and cleaning contaminated industrial sites in the city. Once the sites are clean, Chicago will sell them for redevelopment. Chicago initially selected five sites for participation in the redevelopment program. The program also includes a public outreach component under which the redeveloper of a site must take steps to inform the public of the cleanup effort and answer any ques- tions that the cleanup and redevelopment might present.

State Voluntary Cleanup Programs and Brownfields

To complement EPAs and the states’ efforts to clean up brownfields, EPA received funding in FY 1997 to assist states with their voluntary cleanup programs. The result is a memorandum entitled “Interim Approaches for Regional Relations with State Volun- tary Programs.” The memorandum outlines the baseline criteria that EPA will use to evaluate the adequacy of the state voluntary cleanup programs. The baseline criteria should be addressed by the states in their applications for voluntary cleanup program funding or as part of their efforts to build a voluntary cleanup program. The baseline criteria include:

Providing opportunities for mean- ingful community involvement; Ensuring that voluntary response actions are protective of human health and the environment;

Having adequate resources to ensure that voluntary response actions are conducted in an appropriate and timely manner, and that both technical and streamlined procedures, where appropriate, are available from the state agency; Providing mechanisms for writ- ten approval of response action plans and a certification or similar documentation indicating that the response actions are complete; Providing adequate oversight to ensure that voluntary response actions are conducted in a manner that protects human health and the environment; Showing the capability, through enforcement or other authorities, of ensuring completion of response actions if the volunteer- ing party conducting the response action fails or refuses to complete the necessary response actions, including operations and maintenance or long-term monitoring activities.

A state’s compliance with these criteria will be reviewed in the con- text of negotiating a Memorandum of Agreement (MOA) which can consti- tute a planning mechanism for divi- sion of labor at sites between EPA and the states. The following is the model language for inclusion in a state voluntary cleanup program MOA: “Although nothing in this MOA constitutes a release from liability under applicable law, generally EPA does not anticipate taking removal or remedial action at sites involved in this Voluntary Cleanup Program unless EPA determines that there may be an imminent and substantial en- dangerment to public health, welfare, or the environment.”


RECENT DEVELOPMENTS IN CLEANUP TECHNOL~GIES

A number of states have some type of voluntary action program in place. The following is a summary of some recently enacted or revised state voluntary action programs:

The Ohio Voluntary Action Pro- gram (VAP) was signed into law in June 1996. Established to promote redevelopment and reuse of contaminated property and to simplify the cleanup process, the VAP is ad- ministered by the Ohio EPA and relies on property owners to volun- tarily investigate and remediate affected properties. Eligibility is limited to properties not regulated under any other programs. Qualified profession- als are certified by the Ohio EPA to determine the effectiveness of the site remediation and evaluate the collected site data. If appropriate, a certified professional may issue a N o Further Action letter for the property. Once a No Further Action letter is issued and submitted to the Ohio EPA, the Ohio EPA can grant a covenant not to sue for the remediation at the property. The Ohio EPA may choose to audit the remediation before it issues a covenant not to sue.

The New York State Voluntary Cleanup Program (VCP) was created in 1996 and covers all sites over which the New York State Depart- ment of Environmental Conservation (NYSDEC) exercises enforcement ju- risdiction. The program is open to all volunteers, unless the property is subject to cleanup as a treatment, storage, and disposal facility or is under enforcement action. A volunteer is required to enter into a legally enforceable document, either as an agreement or a consent order. In the majority of cases, the program allows for a phased approach that allows volunteers to commit to undertake specific actions set forth in the

agreement, which allows volunteers to commit only to an investigation and then, if they choose, to the remediation. Public participation is sought during the decision-making process, and a 30-day comment period is provided for by the program. Once a cleanup level is met, NYSDEC will issue a letter declaring, with some qualifiers, that no further action will be sought. The volunteer also receives a release that covers natural resource damages.

The Texas Natural Resources Con- servation Commission (TNRCC) adopted a Voluntary Cleanup Pro- gram in April 1996 to provide an incentive to remediate property by removing liability to future landown- ers and provide a process by which voluntary response actions can be completed in a timely and efficient manner. An application must be submitted to the TNRCC, and a voluntary cleanup agreement must be signed by the applicant and the TNRCC before the initiation of any response activities. Reports detailing the response actions are to be submitted to the TNRCC. If the reports are acceptable and demonstrate that no further action is required to protect human health and the environment, the TNRCC will issue a final certificate of completion.

Pennsylvania’s Land Recycling initiative, known as “Act 2,” provides a mechanism to secure statutory contri- bution protection and a Pennsylvania Department of Environmental Protec- tion (PADEP) covenant not to sue. The Act 2 program was proposed in Au- gust 1996, amid some controversy. The recently initiated Act 2 buyer/ seller program allows buyers to enter into an Administrative Consent Order and Agreement, which provides limited protection from PADEP before closing, while providing the seller



protection upon completion of remediation. PADEP’s First Year Progress Report documents the significant resources that have been allo- cated to the Act 2 program. The report claims the program is the most successful and comprehensive industrial site reuse program in the country. According to the report, 35 sites have been remediated and 100 sites are going through the program. The majority of the remediated sites are sites where no actual cleanup took place. Rather, the sites were able to secure Act 2 approval without any remediation by selecting, singularly or in combina- tion, a background, statewide health, or specific standard, or by quallfying as a special industrial area.

EPA Activities in 1997 In February 1997, EPA awarded

two regional pilot programs, and plans to announce 25 national awards in April. In addition, the Agency plans to award a total of $30,000 in cleanup funds to 30 of the 103 cities to be used for direct remediation costs. This will be the first time EPA has awarded money specifically designated for site cleanup and not program administration. The Agency hopes there will be a new Superfund Law in 1997, clarifying remediation issues and expand- ing support for brownfields. In the meantime, EPA plans to continue implementing the Brownfields

Action Agenda, announce a new 1997 agenda, and expand cooperation with other agencies.

To date, the EPA’s brownfield program has been a success. With knowledge gained from pilot programs, interagency cooperation, federal legislative support, and expan- sion of state cleanup programs, the frequency and success of brownfield redevelopments should increase greatly in the coming years. Indeed, as one of the few programs that provides benefits for business communities and the environment alike, the brownfield program is assured a long life.

However, the effects of the brownfield program on redevelopment have yet to be quantified and fully assessed. Certainly, the Agency and other stakeholders are enthusias- tic, and many pilots have been awarded and are being implemented. However, it may be time to look back over the last few years to determine the success of the agenda. Data concerning the number of properties being cleaned up and returned to productive use, the level of comfort prospective purchasers have about investing in and redeveloping contaminated sites, and whether the training initiatives of the Brownfields Ac- tion Agenda have increased job opportunities for minority individuals should be collected and analyzed.

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Recent developments in cleanup technologies

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