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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?
DONGELL LAWRENCE FINNEY LLP
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?
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
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.
DONGELL LAWRENCE FINNEY LLP
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.
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
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))
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
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.
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
Consultative Services AgreementConsultative Services Agreement
DTSC feedback on Site Assessment, Response Plans etc., outside and prior to AB 389 Agreement Execution
Pays DTSC Costs
DONGELL LAWRENCE FINNEY LLP
Site Designation, Prospective Purchaser Site Designation, Prospective Purchaser AgreementAgreement
Mission Bay – San FranciscoMission Bay – San Francisco
Residential developments Part of UCSF
Research Campus
DONGELL LAWRENCE FINNEY LLP
Dean Di Carli Plaza Dean Di Carli Plaza Stockton, California Stockton, California
Before
After
DONGELL LAWRENCE FINNEY LLP
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
DONGELL LAWRENCE FINNEY LLP
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
916-449-3999916-449-3999
DONGELL LAWRENCE FINNEY LLPDONGELL LAWRENCE FINNEY LLP