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Brownfields' Re-development in Washington State: Evaluatiing Legal Mechanism Performance in the Brownfield Context
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Date
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2008
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Eng
Means, John
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Environmental Studies
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Brownfields’ Redevelopment in Washington State:
Evaluating Legal Mechanism Performance
in the Brownfield Context
By
John E Means
A Thesis
Submitted in partial fulfillment
of the requirements for the degree
Master of Environmental Studies
The Evergreen State College
June 2008
© 2008 by John E Means. All Rights Reserved
This Thesis for the Master of Environmental Studies Degree
by
John E Means
has been approved for
The Evergreen State College
by
________________________
Cheri Lucas Jennings
Member of the Faculty
________________________
Lin Nelson
Member of the Faculty
________________________
Date
ABSTRACT
Brownfields’ Redevelopment in Washington State:
Evaluating Legal Mechanism Performance in the Brownfield Context
John E Means
Federal and State toxics cleanup law has been instrumental in holding primary polluters
responsible for the remedial action costs of large scale or complex hazardous waste sites. The
strict, joint, and several liability imposed upon owners of contaminated facilities has been
instrumental in targeting and cleaning up the nation's worst contaminated sites. Brownfields are
an unintended consequence of toxics cleanup liability. Left abandoned, vacant or idle, brownfield
properties have become a significant driver for blight, depressed economic activity and social
injustice in rural and urban communities.
This study examines the development, structure and performance of legal mechanisms under
which brownfield remediation activities are conducted. An analysis of overall time cycles for
cleanups was tested for significance (P<0.05) in and between each type of legal mechanism, as a
measure of time/cost efficiency to identify whether particular trends vary significantly.
Additionally, brownfield time cycle outputs were divided into three programmatic groups. Formal
oversight, voluntary, and statutory cleanup were then compared to evaluate whether one
programmatic group presented a significant advantage in time (cost) saving. The analysis was
compared to a summary of administrative advantages and disadvantages to discern which group
presented the best overall benefit.
Study conclusions are that brownfield projects differed little between the administrative
pathways. The analysis also suggested that the investigative and negotiation phase of complex
cleanups was in significant disproportion to all other phases (regardless of pathway or legal
mechanism). Controlling for this disproportion revealed no significant difference in any of the
phases between brownfield cleanups conducted as a voluntary or formal mechanism.
TABLE OF CONTENTS
Chapter 1 Brownfields in Context ............................................................................ vi
Introduction ............................................................................................................. 2
The Socio-Economic Costs of Brownfields............................................................ 8
Cleanup Costs ....................................................................................................... 11
Spillover Effects.................................................................................................... 12
Brownfields Redevelopment, Market Conditions, and the Public Interest ........... 14
Chapter 2 Federal Brownfields Policy Development ............................................. 16
Superfund origins of brownfields policy .............................................................. 16
Liability: Strict, Joint and Several ........................................................................ 18
CERCLA Reform Efforts ..................................................................................... 20
Brownfields Initiatives under CERCLA ............................................................... 21
Chapter 3 Washington State Brownfields Policy ................................................... 27
Washington State Model Toxics Control Act ....................................................... 27
Enforcement and penalties .....................................Error! Bookmark not defined.
Two Procedural Pathways: Formal Oversight and the Voluntary Cleanup .......... 29
Voluntary Cleanup Program ................................................................................. 30
Formal Oversight Cleanup Process....................................................................... 34
Agreed Orders ....................................................................................................... 34
Consent Decrees.................................................................................................... 35
Prospective Purchaser Consent Decree................................................................. 36
Enforcement order ................................................................................................ 37
MCTA Seven Step Process ................................................................................... 37
Chapter 4 Brownfields Revitalization and Environmental Restoration.............. 42
Brownfields in the Federal and State Policy Context ........................................... 43
The nature and recognition of brownfields under MTCA .................................... 45
Organizational Structure of Brownfields in Assistance Washington ................... 48
Chapter 5 Analysis of Legal Mechanisms Performance ....................................... 53
Methods................................................................................................................. 54
Analysis of formal legal mechanisms ................................................................... 55
Chapter 6 Evaluating Administrative Pathways for Brownfield Redevelopment
..................................................................................................................................... 66
Conclusion and Recommendations ....................................................................... 69
References: ....................................................................................................................... 73
v
LIST OF FIGURES
Figure 1 Brownfields Problem: Remediation Costs and Market Conditions ................... 15
Figure 2 Environmental Response Jurisdictions ............................................................... 28
Figure 3 MCTA Administration Pathways ....................................................................... 30
Figure 4 State and Federal Brownfield Organization and Assistance .............................. 49
Figure 5 Remedial Action Grant Distributions ................................................................. 50
Figure 6 Time Cycle Variation of Brownfields Cleanups ................................................ 62
Figure 7 20-Year Average RI/FS Completion .................................................................. 63
Figure 8 Completed Puget Sound Remedial Investigations/ Feasibility Studies .............. 64
Figure 9 Relationship between FTE and RI/FS Completion ............................................ 65
LIST OF TABLES
Table 1 Brownfield Legal Pathways and Phase Comparison…………...……………….62
vi
ACKNOWLEDGEMENTS
My heartfelt thank you to Cindy Knudsen for all you have done day in and day out.
Kelly Cunningham and Sarah Haque for keeping me sane and reminding me to laugh.
A special thank you to my colleague and collaborator, Jessica Brandt, for her
ingenuity and expertise.
My trusted friend and mentor Dr. Dan Koroma for his encouragement.
The ever creative and empowering Jim Pendowski.
Cheri Lucas Jennings - it never really ends does it?
Lin Nelson for staring me down the path.
Dedicated to the life and times of:
Kathryn Michelle Means 1986 - 2005
v
Chapter 1
Brownfields in Context
Introduction
The strict, joint, and several liability imposed upon owners of contaminated facilities
under the Federal Comprehensive Environmental Response Compensation and Liability
Act (CERCLA) of 1980 has been instrumental in targeting and cleaning up the nation's
worst contaminated sites while holding primary polluters responsible for remedial action
costs of large scale or complex sites. However, an unintended consequence of CERCLA
liability and attendant costs has made many other properties with real, potential or
perceived contamination appear to be highly risky ventures to prospective purchasers
who may wish to redevelop such property. Because developers, municipalities and other
stakeholders fear that involvement with these sites may make them liable for cleaning up
contamination they did not create, they are more attracted to developing undisturbed
areas, called “greenfields”. The result can be blighted areas rife with abandoned or underused properties that create safety and health risks for residents, increase unemployment
and social service costs and foster a sense of hopelessness. The liability risk associated
with such properties act as a hindrance to the sale and redevelopment of abandoned or
underutilized property (Bartsch, 2003). To remedy the brownfields conundrum
lawmakers, public and private entities have sought a wide variety of solutions for the
reuse of contaminated and blighted properties, many of which will be described and
analyzed in the following chapters.
The cleanup and redevelopment of the former Union Pacific railway maintenance
complex, Kendall Yards, in Spokane Washington is an example of how brownfield
2
practitioners, working as a team can overcome regulatory, financial and logistical
barriers. Kendall Yards was operated by the Union Pacific from 1914 to 1955. The
property, 78 acres along the Spokane River across from downtown Spokane, sat
neglected for over 50 years. Because of the property’s former use and testing performed
by a subsequent landowner, the site was known to be contaminated with lead and arsenic
in fly ash from coal-fired locomotives and Bunker C, a heavy-petroleum based fuel oil. It
was estimated that over 90,000 tons of contaminated soil would have to be removed. In
the end that number would nearly triple. The enormity of the cleanup and associated
liability acted as a barrier to the land cleanup and reuse. Located on the edge of one of
Spokane’s poorest neighborhoods the vacant property became a driver for increased
blight and depressed property values. The property became notorious for illicit dumping,
drug dealing and transient camps.
In 2004, an Idaho developer approached the City of Spokane with an interest in acquiring
and redeveloping the property. The developer and city began to work closely with the
Washington State Departments of Ecology, and Community Trade and Economic
Development (CTED) to develop a cleanup and financial strategy. Working a as team,
the city and developer presented the project vision and sought input from the public,
while the Department of Ecology provided targeted consultation for site assessment and
cleanup plans. Concurrently, CTED began to execute a low interest EPA brownfield
revolving loan (BCRLF) to assist the developer with the remediation costs. In 2005 with
the remediation and redevelopment strategy in place, a $3.4 million BCRFL loan, the
3
largest to date in the nation, was executed to match the developers 2.8 million dollars for
cleanup costs.
The cleanup plan called for an estimated 90,000 cubic yards of contaminated soil
removal. Once the excavation began the Bunker C was found to a depth of 70 feet, well
beyond the point of compliance of 15 feet with no ground water present. Declining an
option to minimize soil removal by leaving the Bunker C in place below the point of
compliance and accept a restrictive covenant for land use, the developer opted to remove
all the contaminated soil; an additional 133,000 cubic yards in order settle liability and
allow for unrestrictive use. Despite the massive size of the cleanup, the removal action
was completed within one year and the site was removed from Ecology’s Hazardous
Sites List and settling future liability.
The first phase of the Kendall Yards redevelopment is expected to take 18 months at a
cost of $300 million. The plans call for a mixed use development consisting of 2600
townhouses, condominiums and apartments, 1 million square feet of commercial space,
public plaza and greenspace, all within an existing urban environment. The project is
expected to have a positive major impact to the city of Spokane and surrounding areas.
According to CTED an estimated 500 jobs will be created during the construction phase
and up to 2,500 permanent jobs will be created once the commercial space is complete.
The redevelopment is expected to return more than $32 million in revenues to state and
local governments during the construction alone. The success of the project depended on
4
several key arrangements by the stakeholders that are not typically used in brownfield
projects.
•
A commitment by the stakeholders to work cooperatively as a team to identify
barriers and proactively resolve problems;
•
Early and extensive outreach and public involvement for project planning and
the end use vision;
•
Providing several options to settle liability once the cleanup is complete. For
example, the developer initially sought a Pre-purchaser Consent Decree to
provide process certainty and liability settlement. However to qualify for a EPA
brownfield loan a Voluntary Cleanup agreement was required. Ecology provided
a dedicated site manager to provide consultation in cleanup investigation and
oversight while the developer resolved future liability by removing all
contaminated soils.
•
Providing attractive financial incentive to encourage risk taking by the investors;
•
Providing an innovative approach to site management staffing by the Department
of Ecology by dedicating a single experienced site manager to timely and decisive
oversight and consultation for the investigation and cleanup phases and;
•
Obtaining a developer with interest in the well-being of the community and
willing to expend the resources to the cleanup met and exceeded state cleanup
standards.
In practice, the CERCLA or Superfund cleanup process is primarily concerned with sites
on the National Priorities List that are severely contaminated, pose significant public
health concerns, and are technically complex. Sites that are ranked lower in priority, less
toxic, and whose cleanup is not currently mandated by enforcement action are often left
abandoned or idle because of the perceived economic risk brought about by high
remediation costs, lengthy procedural timelines, and uncertainties associated with the
finality of cleanup extent and liability relief. These sites or facilities, termed brownfields,
represent significant liability to communities, adjacent property owners, and the
5
environment. Federal and state laws concerning toxic cleanup and reuse have historically
been developed to address the clean up action as the priority task and have largely held
the redevelopment side of the equation as secondary consideration.
Recent Federal legislation has addressed many of the problems facing prospective
purchasers of brownfield facilities providing appropriate levels of liability relief and
administrative certainty (US Congress, 2001) 1 . Given the option between accepting
potential future CERCLA and state enforcement actions; unknown risk liabilities; and
open-ended remediation costs involved in redeveloping a contaminated site, or choosing
a greenfield site (an undisturbed or new property, often in suburban or semi-rural areas)
that carries no contamination risk - many developers and businesses opt for the latter. The
attraction for businesses to locate at greenfield sites has been a significant contributor to
urban sprawl in metropolitan areas while leaving core areas of both urban and rural
communities as zones of blight that are bereft of economic opportunity (Blanco, 2008).
It can be said that time is money. In Washington State, prospective property purchasers
wishing to redevelop brownfield properties must navigate a complex governmental
system of regulatory requirements and parallel administrative processes for remediation
and liability and settlement under Washington State Model Toxics Control Act (MCTA) 2
and the Federal Comprehensive Environmental Response Compensation and Liability
1
US Congress. 2001. Small Business Liability Relief and Brownfields Revitalization Act of 2001 (PL 107118,11 January 2002), 115 United States Statues at Large,2356-2381
2
Washington State Department of Ecology. 2007(revised), Model Toxics Control Act Cleanup Regulation
Chapter 173-340WAC, Publication No. 94-06, Olympia
6
Act (CERCLA). Section 128 (a) of CERCLA provides $48 million annually to State
Environmental Response programs (such as the Washington State Department of Ecology
Toxics Cleanup Program) to develop brownfield programs that facilitate the reuse of
contaminated property and to ensure that substantive cleanup standards are met. Subtitle C – Sec C 231:- State Response Programs- of the Brownfields Revitalization Act, an
amendment to CERCLA, formally shifts virtually all cleanup and enforcement
responsibility for brownfields cleanup to the states and provides that cleanups addressed
through state programs are protected from USEPA enforcement and cost recovery
actions. As a further incentive, Section 128 (a) authorizes EPA to administer $28 million
in grants and loans for site assessment and cleanup costs to local governments, nonprofits and private developers wishing to redevelop brownfields. Although the oversight
of cleanup is the states responsibility, the Section 128 (a) funding recipients must follow
federal eligibility and administrative process, as well as enter into a legal agreement with
the state program and follow the state administrative process concurrently to qualify for
the federal grants.
Herein lays the problem, under MCTA, cleanup activities can be conducted under seven
different legal mechanisms. Each mechanism has its own administrative process, along
with varying degrees of liability and settlement. The general assumption amongst
brownfield practitioners in Washington State is this, the greater the level of liability
settlement, the longer it takes and more expensive it becomes to comply with the
administration requirements. However, a closer scrutiny at the actual performance of
legal mechanism for brownfield projects, when measured in units of time, reveals that
7
there is little to no significant difference between them. So, given that the administrative
process of each mechanism varies, how does one choose or recommend the option that
provides the optimal balance between time (money) saving and the greatest degree of
liability settlement? Further, what policy recommendations can be made to improve the
administrative process and encourage the reuse of contaminated properties?
The Socio-Economic Costs of Brownfields
Federal and state environmental response programs have prioritized the cleanup of
contaminated sites on a worst case first basis since the 1980’s. What’s left are the vast
majority of brownfield sites that are of relatively low risk, such as abandoned gas
stations. While the cleanup actions of brownfield properties can be costly, inaction on
remediation and redevelopment brownfields also bears socio-economic costs associated
with blight and economic decline. Thus, a primary motivator for communities engaging
in cleanup and reuse is the potential that exist in the reuse itself rather than the sole
concerns surrounding cleanup. Meyer (2003) provides an inventory of these costs:
•
The economic costs of damage to humans, e.g., health care, loss of life;
•
Ecosystem damage costs, .e.g., potential loss of species, additional costs
for water treatment;
•
Fiscal costs to local governments associated with revenue losses due to
reduced real estate values of brownfields as well as adjacent properties;
•
Social costs associated with environmental inequality;
•
Costs of decreasing urban densities, and its impact on the quality of life,
e.g., increase in travel time, vehicle use, air pollution;
•
Long-term costs of sprawl, i.e., capital costs of underutilized and
redundant infrastructure, increased costs of delivering police, fire, and
other emergency services to a larger geographic area, and potential
adjustment costs of serving an aging suburban population with
transportation services not now available.
8
Among these costs, much attention has been focused on the fiscal and economic
development impacts of brownfields on local governments. Reflecting that these sites are
often considered underutilized, if not “idle,” tax revenues are a tangible measure as well
as a powerful indicator of the spillover effects of those properties. For example, a
Conference of Mayors conducted a survey of 33 cities within which brownfields are
located. The lost tax revenues were estimated to range between $121 million and $386
million per year in these cities alone (Wernstedt, 2003). On a national scale, local
governments "could be losing billions of dollars each year in local tax receipts resulting
from their failure to restore brownfields to economic viability" (as quoted in Brower
1998, EPA Director’s Address). The same U. S. Conference of Mayors has characterized
brownfields as "dead zones" and as "pockets of disinvestment, neglected and missed
opportunities" that exist within American cities. As already indicated, however, these are
not just problems isolated to cities, rural areas are facing similar issues. Arguably, the
ripple effects may be more acute in rural areas simply because of the small size of those
communities.
Based on these potential costs of inaction, economic development experts (Hise and
Nelson 1999; Meyer et al 1995; etc) argue that the redevelopment of brownfields will
have significant positive economic benefits by creating new employment opportunities,
improving quality of life and increasing the municipal tax base once redeveloped
properties are returned to the tax rolls. The very presence of brownfields can undermine
the economic competitiveness of a region by damaging its image and making it less
attractive. As urban or town centers hollow out, commuting distances grow. Expanding
9
new construction takes farmland and open space, and major investments in infrastructure
are required to serve new areas while existing infrastructure in developed areas is under
utilized and may deteriorate over time due to underfinanced and inadequate maintenance
(Blanco 2008).
Based on these potential costs of inaction, economic development experts (Hise and
Nelson 1999; Meyer et al 1995; etc) argue that the redevelopment of brownfields will
have significant positive economic benefits by creating new employment opportunities,
improving quality of life and increasing the municipal tax base once redeveloped
properties are returned to the tax rolls. The very presence of brownfields can undermine
the economic competitiveness of a region by damaging the entire region’s image and
making it less attractive.
An example can be seen in Tacoma Washington. In 2005, the home improvement retail
firm Lowes Inc. was looking to establish a regional distribution center in western
Washington. One property of suitable size was located in the former Tacoma industrial
area of Nalley Valley. The site was well situated along the Interstate 5 corridor and near
the port of Tacoma shipping and rail facilities. However, the portions of the Nalley
Valley surface stormwater that drain into Commencement Bay are considered an
operable unit of the EPA Commencement Bay superfund site, making the property
ineligible for a low interest EPA brownfields cleanup loan. Citing the cost of cleanup
(making the overall property value marginal) uncertainty, risk and stigma associated with
the EPA superfund, Lowes opted to locate the facility 50 miles to the south in rural Lewis
County, despite concerns with the added trucking costs along the highly congested
10
Interstate 5. The new site is within the Chehalis River floodplain along Interstate 5. In
2007 the Chehalis River flooded the entire valley including weeklong closure of the
Interstate 5, while causing extensive damage to businesses in Lewis County. Although
the Lewis County location initially was penciled out to be more cost effective, the longer
term costs are already turning out to be greater than anticipated.
Using the above case as an example, the ever increasing cost of diesel fuel and poor
proximity to seaport and railheads, not to mention the uncertainty of future regulation
concerning business operation in the flood prone Chehalis Basin, makes the reuse and
infill of established industrial land a more attractive choice. Hence brownfields
redevelopment has been claimed as a key strategy from both the sustainable development
and the urban growth management perspectives (Greenberg et al. 2001).
Cleanup Costs
The cost consideration of brownfields is not limited to the social costs of inaction. The
redevelopment of brownfields also has associated multiple costs for developers and
municipalities. Unless redevelopment involves the rehabilitation of existing structures, it
incurs demolition costs in addition to land and construction costs. Since initial
redevelopment costs are typically greater for a developer than new development,
redevelopment tends to occur when the supply of land in a metropolitan area is relatively
tight and the demand is high, that is, in strong property markets (Blanco 2008). Brownfields redevelopment is additionally burdened by the following costs (Meyer, 2003):
•
Due diligence costs, site assessment costs, i.e., costs of investigation
aimed at determining the extent or absence of contamination on suspected
sites, valuation and risk appraisal;
11
•
Remediation feasibility and planning costs, e.g., determining the
remediation strategies and costs;
•
Remediation costs themselves, which can range widely;
•
Risk management costs, e.g., legal advice on liability, insurance, reserves;
•
Present value of potential future costs involving remediation costs.
These additional costs, if unsubsidized by government grants, put urban brownfields at a
competitive disadvantage compared to undeveloped land in the suburban or rural fringe
of a metropolitan area. For rural communities these costs, or the perception of high
cleanup expense, act as a barrier to brownfield reuse unless the opportunity costs of
inaction can demonstrate the long term economic advantage of site reuse.
Spillover Effects
The metropolitan growth management argument for the cleanup and redevelopment of
brownfields is particularly important for Washington State, since Washington is a leader
among the dozen states in the country with strong state-wide growth management
legislation. The State’s Growth Management Act (RCW 36.70A) passed in 1990 has 13
statewide goals. Out of these 13 goals, three are procedural, dealing with property rights
(6); permits (7), and public participation (11), and the rest are substantive dealing with
various aspects of the natural and built environment. Brownfields cleanup and
redevelopment efforts advance most, if not all, of these substantive goals. The first goal
of GMA is ”to encourage development in urban areas where adequate public
infrastructure is in place or can be provided in an efficient manner” (RCW 36.70A.020).
12
This goal is implemented through a policy that requires growing counties and cities to
identify a boundary for their urban growth areas within which urban infrastructure and
services are currently provided or are planned to be provided, and to permit urban
densities within these urban growth areas and not outside their boundaries. In effect, this
goal encourages infill development of vacant or under-utilized properties within existing
urban areas. Relevant here also is the relation between brownfields and greenfields.
Greenfields refer to undeveloped areas that have never been built upon, such as farmland
or natural resource areas. The urban growth boundary strategy of GMA is aimed at
protecting greenfields. And the benefits of brownfields redevelopment instead of
greenfields development may be significant in terms of land conservation. An EPA study
(Deason et al. 2001) concludes that the amount of land used in greenfields development
is greater than in brownfields redevelopment because of lower density regulations in rural
areas. They calculated, based on a study of 48 brownfields redevelopment cases in
several metropolitan areas across the country, that greenfields development would have
used 4.5 acres to every 1 acre of brownfields land. Note also that the term greenfield is
often used specifically to denote public open space, parks and recreation areas, as well as
habitat conservation areas. It is for reasons of value and increasing scarcity of this sort of
space that a reversal of policy often takes place where cities and regional authorities are
beginning to consider redeveloping brownfields into greenfields, primarily into parks and
open space. 3 Recently a concentrated multi-jurisdictional effort to cleanup former
industrial properties adjacent to Puget Sound in Washington State has been undertaken.
3
See The Greening of Brownfields in American Cities by Christopher A. De Sousa. Journal of
Environmental Planning and Management. July 2004. 47 (4): 579. De Sousa examines 20 greening
projects, including the issues involved, the benefits of such projects, and the specific planning processes
involved.
13
Nearly all of the 650 sites scheduled for cleanup have a strong component for shoreline,
habitat and Greenspace restoration as part of the cleanup and reuse planning (Gardiska,
pers. communication, 2008).
The urban growth boundary approach is also meant to enable the efficient provision of
infrastructure (which is linked to ensuring adequate infrastructure for development (goal
12) and encouraging efficient multimodal transportation (goal 3) as well as conservation
of undeveloped lands in the State also addresses the goals of retaining open space (goal
9) and protecting the natural environment (goal 10). Reducing sprawl (goal 2) is also
directly connected to a brownfields strategy. Brownfields often make up a significant
proportion of land in cities, already equipped with urban infrastructures. Once cleaned
up, such sites could become competitive with suburban locations, and reduce the
attractiveness of suburban sites for developers. Brownfields efforts could be key
elements of economic development strategies (goal 5) by removing blighted areas, and by
increasing the supply of urban land available for new economic activities (Blanco, 2008).
Brownfields Redevelopment, Market Conditions, and the Public Interest
Land values and development pressures play a significant role in contaminated site
cleanup and redevelopment. As these increase in strong real estate markets, site cleanup
can become “just another dimension” of the real estate deal (Hersh, Wernstedt 2004).
Quite simply, this occurs as the investment opportunity presented by a contaminated site
located in a favorable market overcomes the additional costs and risks of the
environmental issues that come with it. However, in areas of economic decline,
perceived or real threat of contamination often leaves property values “upside down,”
14
where the costs to address the real or perceived contamination exceed the value of the
land itself. In areas where there are concentrations of multiple contaminated sites, the
negative economic effects are cumulative, such that brownfields are often thought of as
both cause and effect of the economic decline that blocks cleanup and redevelopment.
This stylized description (see Figure 1 for a graphic depiction) distinguishes brownfields
from the universe of contaminated sites, and identifies the constellation of environmental
and economic factors that characterize the brownfields problem. These have led to
legislative reform relaxing liability (without relaxing cleanup standards) at brownfields
sites and creating financial assistance to push and pull attention to brownfields towards
cleanup and redevelopment (Blanco, 2008).
Figure 1 Brownfields Problem: Remediation Costs and Market Conditions
15
Chapter 2
Federal Brownfields Policy Development
Brownfields, defined as properties whose potential contamination complicates their use
or development, pose both environmental and economic problems for governments, as
well as their would-be developers, both private and public. From the perspective of
government’s role in protecting the public interest, these are properties that have
multiple, negative, social and environmental spillover effects (market imperfections)
beyond the specific public health risk that they pose. The spillover effects of brownfields
establish a presumptive public interest in their cleanup and redevelopment. Blanco
(2008) argues that prioritizing cleanup of contaminated property can be guided by two
complementary but separable public interests: the public interest in safeguarding public
health and the environment, which leads to the prioritization of the cleanup of most
hazardous sites, including their public funding; and the public interest in effective
metropolitan management and ecosystem protection which leads to the prioritization of
brownfields redevelopment, including the provision of public subsidies and liability
safeguards.
Superfund Origins of Brownfields Policy
Brownfields policy must be understood in the broader context of federal policy related to
hazardous materials from which it evolved. Three major federal laws address the use,
storage and disposal of hazardous substances:
16
•
Toxics Substances Control Act of 1976, which regulates the registration and use
of new hazardous chemicals manufactured by the chemical industry
•
Resource Conservation and Recovery Act (RCRA) of 1976, which regulates the
current disposal of hazardous waste into the air, water and land. It put into place
tracking and permitting mechanisms and focused on enforcing responsible parties
to clean up sites they contaminate.
•
Comprehensive Environmental Response, Compensation and Liabilities Act
(CERCLA) of 1980 or Superfund, prompted by several environmental disasters,
in particular, the public outrage over the Love Canal incident, where a community
was built atop a chemical waste dump site.
•
CERCLA had authorized United States Environmental Protection Agency
response to environmental emergencies involving hazardous wastes or pollutants
and contaminants, to initiate investigations and cleanups, and take enforcement
action against responsible parties federally, also extended oversight to the
Washington State Department of Ecology Model Toxics Cleanup Control Act.
•
CERCLA was also revised through The Superfund Amendments and
Reauthorization Act (SARA) a Brownfields Economic Development Initiative
(BEDI) and the Small Business Liability Relief and Brownfields Revitalization
Act (BRERA)
The Resource Conservation and Recovery Act amended the Solid Waste Disposal Act of
1965, and gave EPA the authority to manage waste from “cradle to grave”. (CFR Title
40, Parts 260-279). The Act prohibited all open dumping of waste, provided guidelines
for the safe management of municipal waste and encouraged recycling and toxic source
reduction. RCRA also authorizes EPA to cleanup environmental problems caused by the
17
mismanagement of waste, and its corrective actions cover facilities that treat, store, and
dispose of hazardous waste. Generally, RCRA cleanup actions are limited to facilities
that have viable operators and ongoing operations.
CERCLA or Superfund is of particular importance for brownfields, since federal
brownfields initiatives stem from Superfund amendments. This legislation was intended
to address the problem that RCRA could not address--already abandoned sites and
historical contamination. Since no cleanup funds existed before Superfund, government
could not do anything about contaminated sites where owners could not be found. Taxes
on petroleum products and chemicals funded the initial $1.6 billion fund (Superfund) that
was authorized under CERCLA. But note that Superfund excludes petroleum products
from the list of hazardous materials to which it applies. 4 The fund could only be used if
EPA could not find the parties responsible for the contamination, or if the party
responsible could not afford the cleanup costs.
Liability: Strict, Joint and Several
EPA was authorized to respond directly through emergency cleanup actions or by forcing
the potentially responsible parties (PRP’s) to comply and respond. CERCLA also
authorized EPA to conduct emergency cleanup at a site and then later sue the potentially
responsible parties (PRPs) for the costs associated with the cleanup and for natural
resource damages. In the case of non-compliant PRPs, CERCLA authorized EPA to
4
RCRA addresses the storage and cleanup of underground storage tanks (USTs) containing petroleum and
natural gas.
18
charge up to three times the response and damage costs. Costs could be collected through
demand letters, negotiations, administrative settlement, judicial settlement, and litigation.
Instead of direct regulation, CERCLA uses liability to ensure that the polluter pays.
Under CERCLA, potentially liable parties fall into four main categories: a) current
facility owners and/or operators; b) past facility owners and operators at the time of
disposal of a hazardous substance; c) persons who arranged for treatment or disposal of
hazardous substances; d) transporters of hazardous substances who selected the disposal
site. Once potentially liable parties are identified, EPA can then impose strict liability
meaning that “legal responsibility is imposed without regard to fault, and diligence
generally is no defense” (US EPA 1992) or joint and several liability meaning that EPA
can sue any individual for the entire costs of the cleanup regardless of the existence of
other potentially liable parties. CERCLA does not specifically mention strict liability
under § 9601 (32), the courts have inferred such liability from the language of the Act,
which subjects certain parties to liability unless they can successfully assert one of the
limited defenses available 5 .
Concerns for potential liability under CERCLA continue to cloud the cleanup and
redevelopment of contaminated property, although recent amendments have provided
liability protections for innocent and other parties. Since the funds were limited,
Plater, Zygmut,J.B., 2004. Environmental Law and Policy: Nature Law and Society. Aspen Publishers.
New York. pp 890-91.
5
19
Superfund required that eligible sites be identified and prioritized. 6 Several groups
contributed to the list of sites that were identified as potentially eligible for cleanup under
Superfund 7 . At first, 8,000 sites were identified across the country, and compiled into an
inventory called CERCLIS (Information Systems). This list was narrowed and sites were
designated to a National Priorities List (NPL) through a hazardous ranking system
(HRS), which is primarily based on existing or potential impact on groundwater. 8 Sites
scoring 28.5 or higher qualify for the NPL, and those below the HRS threshold are left to
the states for cleanup. 9 There are currently about 1,300 sites listed in the NPL, and 48
NPL sites in Washington State. It is clear that the federal Superfund program is only
dealing with a small fraction of total contaminated sites in the country, which are
estimated in the hundreds of thousands (US GAO 1987).
CERCLA Reform Efforts
The Superfund Amendments and Reauthorization Act (SARA) amended CERCLA in
1986 to increase the trust fund to $8.5 billion, reauthorized the program through 1991. It
also broadened public participation, and established strict cleanup goals, including the
use of permanent solutions. States and local governments were required to pay 10% of
6
CERCLA required that the National Oil and Hazardous Substances Pollution Contingency Plan, called for
by the 1973 amendments to the Clean Water Act, include a list of national priorities among the known or
threatened releases of hazardous substances, pollutants or contaminants in the US. NPL is that list. It is
incorporated into the Plan as Appendix B of 40 CFR Part 300.
7
CERCLA does not incorporate process for discovering contaminated sites; it relies on the reports of
various interested parties, including EPA, state and local governments, private citizens and citizen groups,
hazardous waste handlers who contribute to the list. .
8
NPL requires an annual update and report to Congress.
There are two other ways for sites to be listed in the NPL: a) Each state can designate a single site
regardless of HRS score that it deems of highest priority; b) regardless of HRS score, if the Agency for
Toxic Substances and Disease Registry (ATSDR) of US Public Health Service issues a health advisory that
recommends human evacuation and EPA agrees. Qualifying for the NPL on the basis of HRS score does
not guarantee a listing on the NPL. EPA requires concurrence from a state’s governor to list a qualifying
site on the NPL.
9
20
cleanup costs for private sites, and 50% for sites operated by contractors for state or local
governments. SARA also added a liability protection for innocent purchasers who acquire
real estate without knowledge of hazards on the site and who do nothing to contribute to
contamination of a site. To qualify for the innocent landowner defense, a purchaser must
have undertaken at the time of acquiring the property an “all appropriate inquiry” (AAI)
into previous ownership and uses of the property. What constitutes an “all appropriate
inquiry” is addressed further in the 2001-2002 CERCLA amendments.
SARA introduced other improvements to the Superfund program based on the lessons
learned during the program's first six years. The 1986 Superfund amendments had the
following impact on removal actions:
•
Raised the limits on removal actions from six months to one year and $1 to $2
million;
•
Authorized a waiver to the new time and cost limits if an added expenditure of
time or money would be consistent with the long-term goals of a planned
remedial action;
•
Introduced a provision that all short-term removal actions must be designed to
contribute to efficient performance of any long-term remedial action;
•
Mandated that hazardous waste targeted for removal should go only to sites in
compliance with strict Resource Conservation and Recovery Act standards.
•
Authorized EPA to reimburse local governments for costs incurred in carrying out
temporary emergency response to hazardous substance incidents. (SARA)
Brownfields Initiatives under CERCLA
A Brownfields Economic Development Initiative (BEDI) was introduced by EPA in 1993
to address sites that may be contaminated by hazardous substances but which do not pose
21
the type of public health risk as the sites listed in the NPL. EPA defined brownfields then
as “abandoned, idled or under-used industrial and commercial facilities where expansion
and redevelopment is complicated by real or perceived environmental contamination”.
For the next four years, EPA funded its brownfields initiative through the Superfund
appropriations. Beginning in 1997, the EPA brownfields program received its own line
in EPA appropriations.
In her article arguing for a universal conceptual definition of brownfields, Yount (2003)
uncovers several variations in the definition of the word among the states that differ
primarily on the characterization of brownfields as “abandoned or underutilized.” This
definition was first established when the EPA launched its Brownfields Action Agenda in
1995, which used the words “abandoned, idled, or under-used industrial and commercial
facilities” (USEPA 1995) to define brownfields and this was largely adopted by other
levels of government.
The Small Business Liability Relief and Brownfields Revitalization Act (BRERA)
The current definition was introduced by the Small Business Liability Relief and
Brownfields Revitalization Act (BRERA), an 2001 amendment to CERCLA, marks an
evolution in the concept of brownfields defined as “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” Changing “abandoned,
idled, or under-utilized commercial or industrial properties” to simply “real property”
(emphasis added) reflects the broad view that real or perceived contamination
complicates the use or redevelopment of many types of properties, and not exclusively
22
properties in commercial or industrial use. Note also, that under this later definition, both
the activities that may be complicated, and the type of contaminant are broader, and that
mention of “active potential for redevelopment or reuse” is absent. The BRERA
definition also leaves out any mention of other laws and programs, unlike the previous
federal definition, which excluded listings in the National Priority List. Yount argues not
only that the BRERA definition is superior to other definitions on the grounds that it is
more encompassing, but also emphasizes that a definition should not include eligibility
criteria and that instead these latter should be addressed separately.
The Voluntary Cleanup Program (VCP) concept was also recognized by EPA as an
approach initiated by several states, including Washington State, to deal with the sheer
number of brownfields by disseminating a guidance document. 10 State voluntary cleanup
programs, which began emerging in the early 1990s, were created to address
contaminated property which posed lower public health and environmental risk. These
programs permitted “private-initiated cleanups” to proceed with varying levels of state
oversight and enforcement conditions. VCPs provided less extensive administrative
processes for lower risk sites than the state statutory programs modeled on Superfund
which targeted the higher priority sites despite providing a lower level of liability
settlement. A spectrum of administrative process issues and uncertainty for complex
sites with commingled contaminates, area wide groundwater contamination and multiple
PLP”S also began to emerge with the advent of VCP programs.
10
Federal Register. Sept. 9, 1997 (Vol. 62, No. 174, pp. 47495-47506. EPA FRL 5890/ Guidance for
developing Superfund MOA language concerning State Voluntary Cleanup Programs.
23
The legislative passage of BRERAs, also known as the Brownfields Act, established a
separate brownfields program at EPA. The Act authorized $250 million in grants funds
each year through 2006. EPA brownfields grant eligibly criteria require grant recipients
to conduct cleanups under the state VCP programs. For the complex cases discussed
above, this requirement has created additional conflicts in states such as Washington
where the remediation must meet the substantive state cleanup standards, more stringent
than Federal standards. In these cases a cleanup conducted under a formal agreement that
provides ongoing oversight and support from the state is better suited than a VCP cleanup
where the states role is largely review of completed actions.
The Brownfields Act also provided liability safeguards to bona fide prospective
purchasers (BFPP) of potentially contaminated sites who acquired ownership of such
properties after the passage of the Brownfields Act, provided such prospective purchasers
met several conditions. 11 With the passage of BRERA several groups could claim
liability protections--bona fide prospective purchases, contiguous property owners and
innocent landowners--if they met the threshold criteria of performing an “all appropriate
inquiry”. In addition, another act of Congress in 1996 had provided a secured creditor
exemption, which removed lenders from the definition of “owner” or “operator” under
CERCLA, as long as the lending agency did not participate in the management of the
11
The conditions are that a prospective: 1) purchased property after the disposal of the hazardous
substance; 2) made an all appropriate inquiry regarding prior use and ownership of the site; 3) provide
legally required notices of discovery or release of contaminant; 4) exercise appropriate care: preventing
continuing release, potential release, or environmental and human exposure to previous releases of
hazardous substances; 5) provide access and cooperation to individuals cleaning up the site: 6) not
impeding the performance of a response action on the site; 7) comply with requests and subpoenas issued
under the Act: and 8) is neither directly nor indirectly liable for response costs associated with the facility.
24
facility. 12 The creditor exemption is crucial for brownfields redevelopment since without
it, banks faced the risk of becoming potentially liable parties as holders of mortgages
upon foreclosures 13 The Brownfields Act, also, required EPA to develop a permanent
“all appropriate inquiry” standard by January 2004, which actually became effective on
November 1, 2006.
The criteria contained in the “all appropriate inquiry” standard are crucial for reducing
CERCLA liability risks in the cleanup and redevelopment of brownfields. Before the
enactment of the standard, an “all appropriate inquiry” was defined in terms of whether
the inquiry was conducted “in accordance with generally accepted good commercial and
customary standards and practices”. 14 The AAI standard includes several major changes
from previous practice. Under the new standards, the initial investigation is to be
conducted by an Environmental Professional 15 ; the investigative interviews to be
conducted include a broader range of individuals with experience on the property; visual
inspections of the adjoining properties are also required; the environmental professional
needs to take into account other factors in his inquiry, such as the relationship of the
purchase price to the value of the property; and the AAI has a defined shelf life (if the
report is older than 6 months, then additional inquiry needs to be performed, if older than
one year, then all the information needs to be updated), By following the AAI rule,
12
The Asset, Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996
During 1980’s and 1990’s due to the liability protections under CERCLA until 1996 amendments.
(Wick 1992)
14
In effect, the condition was met if the investigation met the standard promulgated by the American
Society of Testing and Materials for initial investigations of potentially contaminated property (ASTM E
1527-00). ASTM had to revise its old standard to achieve compliance with EPA’s new standard.
15
Defined as “persons who possesses sufficient specific education, training and experience necessary to
exercise professional judgment to develop opinions and conclusions regarding conditions indicative of
releases or threatened releases…on, at, in, or to a property, sufficient to meet the objectives and
performance factors.” (Fed. Reg. 66070)
13
25
buyers and neighbors of potentially contaminated property can qualify for liability
protection under CERCLA 16 . Further, the rule is being used by EPA to judge eligibility
for brownfields assessment grants.
Federal brownfields policy thus grew out of the recognition that Superfund cleanup funds
could only be applied to a fraction of contaminated sites, those that posed the highest risk
to public health. Since state programs closely mirrored the Superfund program, both
federal and state programs were aimed at responding to the worst contaminated sites, and
neglected the less contaminated ones. In addition, the early liability requirements of
Superfund geared to ensure that the “polluter pays” had the unintended consequence of
aggravating the brownfields problem by discouraging parties interested in redeveloping
such sites, including lenders. In contrast to the original CERCLA legislation, which was
driven by environmental values, brownfields policy has been driven by economic and
social concerns raised by distressed communities in conjunction with economic
development and growth management concerns.
16
As already indicated these liability protections extend to “innocent purchasers”; “bona fide prospective
purchasers”; and for property owners where the contamination stems from “contiguous property”. 42
U.S.C. § 9601 (35), (40) (A)-(H), § 9607 (q)(1).
26
Chapter 3
Washington State Brownfields Policy
Washington State Model Toxics Control Act
Hazardous site cleanup in Washington State is governed by two parallel environmental
response statutory frameworks. As noted earlier federal enforcement actions under
CERCLA concentrate on the worst of the worst sites as Superfund actions. All other
cleanup actions are governed by the Washington State Model Toxic Control Act (MCTA)
of 1988 17 , administered by the Washington State Department of Ecology Toxics Cleanup
Program. The MTCA Cleanup Regulation (Chapter 173-340 WAC) establishes the
procedural and technical requirements for the cleanup of contaminated sites in
Washington (see Figure 2)
In addition to CERCLA liability Washington State law, RCW 70.105D Model Toxics
Control Act imposes liability as well. Strict liability may be assigned to owner/operator,
and transporters regardless of who is culpable. Ecology also has authority under RCW
70.105D.040 (2) to hold one party responsible. Current property owners are Potentially
Liable Persons (PLP) under MTCA. Former owners are PLP’s only if the release
17
Washington State Department of Ecology. 2001(revised), Model Toxics Control Act Cleanup Regulation
Chapter 173-340WAC, Publication No. 94-06, Olympia
27
occurred while they owned the property.
Under normal circumstances the current
owner is held accountable for the clean up (WADOE, 2005 POL520A pp4) 18 .
Because it is often difficult or impossible to allocate responsibility among persons liable
for contamination of hazardous sites MTCA RCW 70.105D040 (2) specifically states
that "Each person who is liable under this section is strictly liable, jointly and severally,
for all remedial action costs and for all natural resources damages resulting from the
release or threatened releases of hazardous substances". The standards of liability apply
to sites all placed on Hazardous List regardless of the extent and nature of contamination.
Thereby low risk sites (such as petroleum contamination) carry the same level liability as
a high risk site contaminated with chlorinated dibenzofurans.
Figure 2 Environmental Response Jurisdictions
Jurisdiction over cleanups is not exclusive to CERCLA
MTCA is independent authority subject to federal facility restrictions in CERCLA
CERCLA
42 USC 9601
MCTA
RCW 70.105D
EPA lead with State
consultation
State lead with EPA
overview 9604(d)(1)
Cooperation agreement
gives State authority to
carry out CERCLA.
These are binding contracts
enforceable in court
- NPL sites unless state
given lead by agreement
NPL by agreement with
EPA
-Most states have their own
cleanup laws because States
can not seek injunctive relief
to cleanup parcel under
CERCLA.
-CERCLA also does not
include petroleum as
hazardous substance
Any site, including NPL site
unless a federal facility on
NPL.
42 USC § 9620(a)(4)
18
(Washington State Department of Ecology, 2005. Interim Policy: Prospective Purchaser Agreements .
Report No. POL520A, pp4)
28
In addition to state and federal statutory liability, under joint and several liabilities,
responsible persons are subject to third party contribution suit as a separate action outside
of statutory action. In these cases the primary responsible party, often those responsible
for the release of contaminate, may sue other PLP’s such as the current owner/operator
for contribution towards cleanup costs.
RCW 70.105D.050 provides substantial legal authority to enforce clean actions against
recalcitrant parties where under RCW 70.105D.050 (1) "the attorney general may bring
actions against any liable person who refuses or fails to comply with an order or Agreed
Order for (a) amounts up to three times any costs incurred by the state (assessment,
remediation, administrative and natural resource damages), and; (b) a civil penalty of up
to twenty-five thousand dollars for each day the party refuses to comply".
Two Procedural Pathways: Formal Oversight and the Voluntary Cleanup
Five primary legal mechanisms are available to the Department of Ecology, and PLP’s to
reach agreement in cleanup efforts. The agreements range from the expedient Voluntary
Cleanup Program to an Enforcement Order placed on recalcitrant parties. Parties
considering redevelopment of a hazardous site may negotiate the terms with the state
under which the cleanup actions are conducted. Ecology uses two basic approaches to
cleanup property (see Figure 3): supervised cleanups (Formal Sites) and independent
cleanups (VCP Sites). Both must meet the MTCA requirements. The main difference is the
level of involvement of Ecology staff in the process, public participation and level of liability
settlement. Contaminated sites are identified and prioritized by Ecology for cleanup based on
29
the severity of the contamination and threat to public health. A site manager is assigned to
formally oversee the process as it progresses through remedial investigation through final
cleanup and can take several years.
Figure 3 MCTA Administration Pathways
.
Provided the substantial cleanup standards of MTCA are met, varied levels of settlement
may be obtained to minimize liability risk. The negotiated settlement may provide for a
simple No Further Action determination from Ecology to complete removal from
Ecology’s Hazardous Site List, a covenant not to sue, and protection from third party
contribution suit.
Voluntary Cleanup Program
In 1997 the Legislature authorized Ecology to implement a voluntary cleanup process in
which a potentially liable party or other person can take charge of the investigation and
cleanup without formal Ecology supervision. The person handling the cleanup can submit
conformation data as evidence of cleanup completion to Ecology for an opinion that the
30
cleanup has met the requirements of MTCA. The PLP can also seek technical guidance from
Ecology on such independent cleanups during the course of the cleanup process for a fee.
The PLP would be billed for this technical service. Again the entire process varies by the
complexity of the site, but in general such independent cleanups take one to six years to
complete.
Over the last several years, some developers have preferred to move even large complex
projects through the VCP program because of the (1) perceived relatively short timeframe
needed to complete the process and (2) lower cost associated with the voluntary process
(little attorney involvement). A growing number of lending institutions accept a No Further
Action opinion letter from Ecology as enough evidence to offset liability concerns in lieu of a
Consent Decree or prospective purchaser Consent Decree.
Liability relief is limited to the issuance of a No Further Action (NFA) letter from
Ecology provided that after review substantive cleanup requirements of the MTCA have
been met. Owner/operators pursuing this option do so at their own risk, and this might
lead observers to assess a mixed notion of preference for the voluntary approach as lower
in terms of both cost and time investment, but higher in potential PLP risk. Those
assumptions are precisely what this thesis study seeks to explore. Neither submission of
information nor any response by Ecology constitutes settlement of liability. However
owner/operators requesting and paying for consultation may receive: (a) informal
technical advice and assistance on the administrative and technical requirements of
MTCA; (b) a written opinion letters providing Ecology's nonbinding determination that
31
remedial action performed meet MTCA's substantive requirements or whether further
action is necessary at a site; and (c) removal of site, or portion of site, from the
Hazardous Sites List, if appropriate. Removal from Ecology’s Hazardous Sites List is
subject to public notice and comment. Opinion letters, as with all cleanup settlements are
subject to a periodic review (every 5 years) to evaluate the effectiveness of the remedy in
protecting human health and the environment. Any case may be reopened for further action
should further action be necessary.
There are currently approximately 2,270 VCP sites listed on Ecology’s Confirmed and
Suspected Sites List. Ecology devotes twenty eight site manager positions to the VCP to
provide review of independent cleanup actions and issue opinion letters. It is important to
note that the Ecology site manager’s primary role in the VCP in is to review completed
actions. Hence the relatively low number of staff assigned to a large number of sites. The
VCP program is designed to facilitate relatively low-risk, simple cleanup actions as opposed
to more complex cleanups that are best served with ongoing consultation from site managers
under a formal agreement.
However, the VCP approach has also been used to facilitate large complex brownfield
cleanups. Two examples of these redevelopment efforts are the Rainier Court project in
Seattle and Kendall Yards in Spokane. Rainier Court consisted of a mix of dilapidated
buildings, oil drums, tires, old cars, and fenced-off lots. It is being redeveloped into mixed
senior low-income housing and commercial space. Kendall Yards is an old contaminated
railroad property that is to be developed into mixed residential and retail space. Rainier
32
Court started in 2001 when a non-profit company (SEED) approached Ecology and EPA for
brownfields funding. SEED intended to buy up parcels with dilapidated buildings and
unused lots for redevelopment into commercial space and various forms of housing. SEED
was directed to the Department of Commerce and Economic Development (CTED) for the
brownfield funding portion of this project. A VCP site manager was assigned to provide
consultative support throughout the investigative and cleanup phases of the project process.
The developer retained a respected consultant to handle the cleanup and work in concert with
Ecology. The project required more Ecology staff time than most VCP projects but less
supervision than most formal sites. Although the multiphase build-out and cleanup has taken
several years, the collaborative model has worked well in avoiding delays stemming from
post action review and additional work for compliance.
With Kendall Yards, a developer approached the City of Spokane with an idea to develop the
abandoned railroad property. The City received brownfield funding for assessment of the
project from the EPA Brownfields Cleanup Revolving Loan program. The Ecology gave the
site a higher priority in terms of staff time by assigning a site manger outside the VCP
program to assist the developer’s consultants with the process from remedial investigation
through cleanup. A site manager not assigned to the VCP program was selected because of
the size of the project and her experience. The site manager met with the consultant
regularly, billing her time through the VCP program. The entire cleanup process took
approximately 13 months to complete.
33
Formal Oversight Cleanup Process
The formal site process has also been used to facilitate redevelopment. The advantage to
formal review is the potential to settle liability through an Agreed Order, Consent Decree or
Prospective Purchaser Consent Decree. An owner or prospective purchaser can approach
Ecology with a proposal for cleanup and development. If the State accepts such a proposal,
the parties negotiate a site-specific agreement that describes the owner’s commitment to
cleanup or the prospective purchaser’s contribution to cleanup and settles the owner’s or
purchaser’s liability. Based on data provided, Ecology has executed 117 Consent Decrees
and 21 prospective purchaser Consent Decrees as of January 2006. The data does not
indicate that all these decrees led to redevelopment.
Agreed Orders
An Agreed Order is a legally binding administrative order issued by Ecology and agreed
to by the potentially liable person. Agreed Orders are not filed in court and offer the
advantage of not involving the State Attorney General Office thus simplifying the
process. Under an Agreed Order PLP’s may receive: (a) guidance regarding
administrative and technical requirements of MTCA; (b) site-specific advice; and (c)
removal of site from Hazardous Sites List. Agreed Orders may be fractated, where a
separate agreement is negotiated for each stage of the cleanup; remedial investigation,
feasibility study and cleanup action plan. Unlike the VCP, a public participation plan
including public notice and comment for each phase is required allowing the public to
comment on the project scope, standards for cleanup of the constituents of concern
(hazardous substances), remedy selection and timeframe. Public comment is a keystone
principle in MTCA and has proven value as a tool to avoid unforeseen consequences.
34
Unless an emergency exists or new or additional remedial action is required, Ecology will
stay any enforcement action as long as the PLP meets all terms and conditions of the
order. However, an Agreed Order is NOT a settlement of liability, and therefore does
NOT provide a covenant not to sue or contribution to suit protection. An Agreed Order
includes a re-opener clause that reserves Ecology's authority to require different or
additional remedial action under certain circumstances.
Consent Decrees
Consent Decrees are at the heart of the brownfield redevelopment process by providing
the greatest degree of liability relief. A Consent Decree is a formal legal agreement filed
with the appropriate superior court or federal court with jurisdiction. The work
requirements in the decree and the terms under which it must be done are negotiated and
agreed to by the PLP, Ecology and the Attorney General Office. Before a Consent
Decree becomes final, it must undergo a public review and comment period that often
includes a public hearing. Ecology may determine, after public notice and any required
hearing, that the proposed settlement will lead to a more expeditious cleanup. Like
Agreed Orders, Consent Decrees may be structured where a separate agreement is
negotiated for each stage of the cleanup. Provided the work meets substantive
requirements of MTCA and all terms and conditions have been met, the attorney general
will settle the liability of a PLP for the site by providing a PLP with a covenant not to sue
and contribution protection / no enforcement against the settling party or successor in
interest. A Consent Decree includes a re-opener clause that reserves Ecology's authority
to require different or additional remedial action be performed under certain
circumstances.
35
Prospective Purchaser Consent Decree
In addition to the requirements and terms of settlement in a standard Consent Decree a
party that is not liable for cleanup at a site and wishes to purchase a clean up site for
redevelopment or reuse may apply to negotiate a Prospective Purchaser Consent Decree.
Under the authority of RCW 70.105D.040 (5)(a) “The attorney general may agree to a
settlement with a person not currently liable for remedial action at a facility who
proposes to purchase, redevelop, or reuse the facility, provided that: (i) the settlement
will yield substantial new resources to facilitate the cleanup; (ii). The settlement will
expedite remedial actions… (iii) …the redevelopment or reuse of the facility is not likely
to contribute to the existing release…interfere with remedial actions… or increase health
risk to persons at or in the vicinity of the site” [Emphasis added].
The intended advantage to a Prospective Purchaser Consent Decree purchaser is that the
negotiated cleanup actions and costs are estimated prior to purchase of the property and
assumption of liability. The legislative intention for Prospective Purchaser Consent
Decrees was to give priority to the cleanup and reuse of vacant/abandoned commercial or
industrial contaminated property, in essence to address brownfield properties. A
prospective purchaser might want to undertake clean-up responsibilities for a brownfield
site that is, say, located more accessibly and conveniently than other regional sites or one
that has an existing clientele attached to it. But, in reality, despite the advantage to
prospective purchasers wishing to reuse contaminated land, Prospective Purchaser
Consent Decrees are used cautiously. According to the Department of Ecology there are
several reasons for this. 1) Each stage of the assessment and clean up process requires the
negotiation of a separate agreement. This requires considerable staff time for which there
36
is no dedicated funding. The negotiations also must be done with the attorney general
office, adding a layer of expense and complexity; 2) In adhering to the Standards of
RCW 70.105D040 (5)(a) Ecology and the attorney general office interpret the definition
of qualifying sites as “vacant or abandoned commercial or industrial property thereby
excluding many brownfield sites that would be more accurately qualified under the
federal definition as all…”real property, the expansion, redevelopment, or reuse of which
may be complicated by the presence or potential presence of a hazardous substance,
pollutant, or contaminate”.; 3) The term priority is undefined in the statute which has
historically led to an interpretation meaning worst sites first, without full consideration of
a range of priority issues raise by non-governmental entities such as the potential for tax
revenue generation, revitalizing blighted areas and greenspace restoration.
Enforcement order
Rarely used in the brownfield context, Enforcement Orders are issued to a potentially
liable person when the Department believes a cleanup solution cannot be expeditiously
achieved through negotiation or if an emergency exists. Under enforcement order there is
no settlement of liability even if the cleanup meets the substantive clean up requirements
under MTCA. Ecology can take action to recover all costs and penalties incurred by the
state.
MCTA Seven Step Process
The Model Toxics Control Act was established under CERCLA authority where states
were allowed to create their own standards for cleaning up hazardous waste, which were
not included in the National Priority List (NPL). In some cases, states adopted standards
37
that are/were even more demanding than the standards used to generate CERCLA’s NPL.
Washington State’s Model Toxics Control Act (MTCA) governs the toxics cleanup
program administered by the Washington State Department of Ecology (Ecology).
MTCA established the Local and State Toxics Control Account, a toxics cleanup fund,
like the Superfund account, funded by a tax on petroleum and hazardous substances, and
established processes to identify and prioritize the cleanup of hazardous sites posing the
highest risk to public health on a worst-case first basis.
Under the MTCA framework the clean up process involves a seven step process, whether
or not the site is considered a brownfield. Recognizing the confusion and expense
associated with CERCLA, MTCA was designed to be as streamlined as possible while
ensuring strict cleanup standards to protect human health and the environment. However,
the length of time and expense in conducting a cleanup action that provides the most
appropriate level of liability settlement is an important consideration for anyone who
wishes to redevelop a brownfield site. The process typically takes a minimum of 2 years
to complete for sites that receive priority consideration by Ecology. The time-frame
involved under MTCA regulation can act as a considerable disincentive to developers,
making the option to develop greenfield sites much more attractive. Further, negotiations
for remedy selection and apportionment of remedial costs amongst a wider range of
PLP’s can considerably delay the process. As an aside, it is important to briefly outline
the cleanup and liability settlement options process mandated by MTCA so the reader
may better understand the complexities involved in brownfield redevelopment.
38
1) Site Discovery. Sites where contamination is found must be reported to the
Washington State Dept. of Ecology within 90 days of discovery. At this point potentially
liable persons (PLP’s) may elect to conduct an independent clean up without Ecology’s
oversight, but clean up results must be reported to Ecology. Parties not electing a
voluntary cleanup may enter into an Agreed Order, Consent Decree or should they prove
to be recalcitrant be forced to conduct the cleanup under an enforcement order.
2). Initial Investigation or Phase I Assessment. Ecology is required to conduct an
initial investigation of the site within 90 days of receiving a discovery report. Based on
the Phase I information a decision must be made within 30 days to determine if the site
requires additional investigation, and emergency cleanup of no further action. If further
action is required Ecology sends notice to all PLP’s inviting them to work cooperatively
with Ecology to conduct a clean up action.
3) Site Hazard Assessment. If further action is required a site hazard assessment is
conducted to confirm the presence of hazardous substances and to determine the relative
risk the site poses to human health and the environment.
4) Hazard Ranking. MTCA requires that sites be ranked according to the relative health
and environmental risk each poses. Working with an independent Science Advisory
Board, Ecology created the Washington Ranking Method to categorize sites using data
from site hazard assessments. Sites are ranked on a scale of 1 to 5. A score of 1
39
represents the highest level of risk and 5 the lowest. Ranked sites are placed on the State
Hazardous Sites list.
5) Remedial Investigation/ Feasibility Study. A remedial investigation and feasibility
study is conducted to characterize the extent and nature of contamination at the site (any
adjoining property if necessary). Potential impact to human health and the environment
and alternative cleanup technologies are also evaluated in the study. The study and results
which are conducted under a Consent Decree, Agreed Order or enforcement order are
subject to a 30 day public review prior to finalization. Formal agreements for this step
may be developed independently of other steps.
6) Selection of Cleanup Actions. Following the study phase a cleanup action plan is
developed. The plan identifies the preferred cleanup methods and specifies the cleanup
standards and all other requirements at the site. As with the previous step the plan is
subject to 30 day public review before finalization and the formal agreement for the plan
may be developed independently of other steps.
7) Site Cleanup. Implementation of the cleanup plan includes design, operation and
monitoring of the cleanup actions. Following successful implementation of the cleanup
activities the site may be removed from the Hazardous Sites List if Ecology determines
that the substantial requirements of clean up standards have been met.
Not all brownfields are urban and it is of particular concern how these state policies are
negotiated for brownfield sites in rural or small towns. Mainly a result of closing natural
40
resource-based industries, such rural areas and smaller towns, are often in depressed
economic areas. The dilemma of not being able to generate a return on investment to
attract developers adds an additional dimension of constrain on proposals to cleanup and
revitalize rural sites. It is at this point that discussion and review of options for
brownfields restoration by either potentially Liable Parties or Prospective New Owners
leads directly to the assessment of mix preference for a voluntary or more formal,
statutory approach and the funding that is available to aid reuse and revitalization efforts
instituted by Washington State Department of Ecology under MTCA.
41
Chapter 4
Brownfields Revitalization and Environmental Restoration
Although the magnitude of the brownfields problem is sizable, the majority of
contaminated brownfields sites are, though clearly of significance to human health and
the environment, still not of the highest rank in threat. This is not to imply that the
environmental concern for protecting public health and the environment is less for
brownfields properties. In Washington State the standards that brownfields cleanups
must meet for safeguarding public health and the environment meet or exceed standards
of federal Superfund legislation. Less severely contaminated brownfields typically meet
such standards at a lesser cost than more highly contaminated properties. While the
primary criterion for brownfields, as for all contaminated sites, is environmental
protection - brownfield development is evolving into an integrated model where the
interplay of environmental and redevelopment is an issue, not of relaxing environmental
protection standards, but rather of facilitating appropriate reuse through public
involvement, financial incentives and appropriate safeguards from liability claims.
Focus on Rural Sites
Brownfields sites range in size from former gas stations and dry cleaners to light
industrial, manufacturing, or agri-business sites. These sites are often tax-delinquent or
have been left inactive by property owners, complicating the identification of a probable
liable party. Although urban brownfields are the focus of attention in brownfields
discussions, not all brownfields are urban. Of particular concern are brownfields in rural
42
or small towns, mainly the result of the closing of natural resource-based industries, such
as lumber mills, gas stations or landfills. Rural areas or small towns, often in depressed
economic areas, face the dilemma of not being able to generate a return on investment to
attract developers or lenders, yet have the need to cleanup and revitalize the sites. This is
an area of concern for many states, including Washington State, that experience duel
economies where wealth and economic activities are concentrated in cities. Also
important to note here is that the redevelopment of brownfields is not just significant for
real estate markets focused on housing, industrial and commercial uses. Brownfields
redevelopment can achieve other substantive state goals in the areas of habitat
restoration, public recreation and open space.
Against this broad policy backdrop of public attention to brownfields, recent initiatives in
Washington State are beginning to highlight brownfields redevelopment. Revisions to
federal legislation of contaminated sites has followed suit in state legislation, in 1994,
1997, and again in 2004. More recently, the State Legislature passed House Bill 1761,
introducing new programs and reforms to existing financial assistance and incentives for
brownfields cleanup and redevelopment specifically. Additionally, the Governor’s Puget
Sound Initiative now called the Puget Sound Partnership pulls brownfields into an
ambitious program established to clean up both public and private aquatic sediments
along and upland up to one-half mile from the Puget Sound shoreline by 2020.
Brownfields in the Federal and State Policy Context
Over the last decade, considerable attention has been directed to the legacies of
environmental neglect; as simultaneously the cause and effect of economic decline in
43
urban and rural areas; as well as a prime strategy for achieving sustainable development.
In part, the sheer number of brownfields can convey the scope of the problem. The U.S.
General Accounting Office (1987), for example, has concluded that there may be
between 130,000 and 450,000 contaminated commercial and industrial sites located
within the United States based on data collected from several federal agencies in the
1980’s. Later estimates have placed this figure in the range of 500,000 – 600,000
(Simons 1988), or even as high as 1 million sites (U.S. EPA).
The sheer magnitude of the brownfields problem stems from the economic restructuring
which occurred in the country, beginning in the early 1970s, and continuing through
today, as the U.S. economy has shifted from an industrial to services and information
sectors. This deindustrialization led to the widespread abandonment of industrial and
commercial property. Most heavily impacted initially, Northeast and Midwestern
metropolitan areas first lost jobs and industries to Sunbelt and Western locations, and
later to foreign competitors. Later waves of deindustrialization also affected Sunbelt and
Western regions. Since the potentially hazardous contaminants or pollutants employed
by industrial processes were not regulated by the federal or state governments until the
1970s, there is a high likelihood that these properties, already idled by economic forces,
held some level of toxic contamination.
The uncertainty regarding the extent of contamination on a previously industrial or
commercial site, combined with the liability provisions aggravated the problem for
would-be developers. If prospective purchasers or developers could count on firm
44
estimates of cleanup costs, they could incorporate these costs into their financial
calculations, and even obtain reasonable reductions in the purchase price to, at least,
partially compensate them for the cleanup costs. But the lack of information on the
extent of contamination made it difficult to calculate cleanup costs and profits margins on
brownfields projects. In turn, this made such projects too risky for lenders. Brownfields
projects were already risky investments for lenders due to the unknown and variable costs
of cleanup. Until liability protections for several categories of potential investors in
brownfields properties and lenders were put into place beginning in the late 1990s, it is
likely that CERCLA contributed significantly to the idling of the stock of brownfields for
close to two decades.
The Nature and Recognition of Brownfields under MTCA
The Toxics Cleanup Program (TCP) includes a specially targeted effort designed to
facilitate the return of brownfields properties to productive use. The TCP brownfields
program is coordinated with the state of Washington Department of Community Trade
and Economic Development (CTED) and the U.S. Environmental Protection Agency
(EPA). Efforts to develop and enhance Washington’s brownfields activities have been
enhanced by past grants awarded under EPA’s Section 128 (a) State and Tribal Response
Program (STRP).
The Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA)
was signed into law on January 11, 2002 and amends Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) by adding Section 128(a).
Section 128(a) authorizes a grant program awarded and administered by the United States
45
Environmental Protection Agency (USEPA) to establish and enhance state response
programs that address the assessment, cleanup and redevelopment of brownfields sites
and other contaminated sites as defined by the law. On November 25, 2003, the USEPA
published in the Federal Register, Document number EPA 500-F-04-002, the Notice of
Grants Funding Guidance for State and Tribal Response Programs. One goal of the
funding as defined by the guidance is, “to provide funding for other activities that
increase the number of response actions conducted or overseen, by a state or tribal
response program". Ecology has established a brownfield program through an EPA Title
II section 128 (a) State and Tribal Response Program Grant with an annual budget of 1.3
million dollars. The program provides outreach and networking, technical assistance,
brownfield policy development, and technical applications development aimed
specifically for brownfields redevelopment.
The Local Toxics Control Account, funded by a tax on the import of hazardous substances
including petroleum products, can be used for financial assistance to local programs and to
assist potentially liable parties with remedial action costs but only when these are part of a
settlement and the Director of Ecology finds that the funds will substantially expedite cleanup
and that the funds will prevent unfair economic hardship. The Local Toxics Control Account
can be used by Ecology for grants or loans to local government remedial actions, hazardous
waste programs, solid waste programs, cleanup of the hazardous substances associated with
methamphetamine sites, and cleanup of derelict vessels. 227 million dollars in grants have
been awarded to local government since 1988 from the Local Toxic Control Account. In the
last couple years, the demand from local government has exceeded the available dollars.
46
MTCA recognizes the importance and public benefit of reusing contaminated properties.
The policy goal set forth in RCW 70.105D.010 (5) (b) addresses the legislative intent
where “the primary purpose of this subsection is to promote the cleanup and reuse of
vacant and abandoned commercial or industrial contaminated property". The attorney
general and the department (Ecology) may give priority to settlements that will provide
substantial public benefit, including, but not limited to, the reuse of a vacant or
abandoned manufacturing facility or the development of a facility by governmental entity
to address an important public purpose”. The 2007 legislative amendment toMTCA,
House Bill 1761, directs specific financial resources from the Local Toxics Control Account
to Ecology’s Remedial Action Grant program. House Bill 1761 directs Ecology to aid local
governments wishing to cleanup and put vacant, abandoned and idle properties back into
reuse, by raising the State Remedial Action Grant match from 50 percent up to 90%. Further,
the bill allows for additional funding to be targeted for habitat restoration, economic
development activities, public recreation and property acquisition.
Despite this policy intent, the brownfields program in Washington State currently
operates without a statutory definition of brownfields. The closest definition of
brownfields in the state is the phrase, “a vacant, abandoned, commercial or industrial,
contaminated property.” Further, the Department of Ecology does not distinguish
between brownfields assistance and other contaminated site remediation under the state’s
Local Toxics Cleanup Account 19 , and does not provide targeted brownfields assistance
19
The Local Toxics Cleanup Account is one of two accounts funded by the state tax on petroleum and
hazardous substances authorized by MTCA to fund grants and loans for local governments.
47
using state funds. Even the 2007 amendments to MTCA included in HB 1761 do not
directly mention brownfields, although HB 1761 does provide increased funding for
strategies to assist local governments in integrating site clean up with economic
development, public recreation, and habitat restoration.
Organizational Structure of Brownfields in Assistance Washington
In practice the redevelopment of a brownfield site involves two primary parts; the clean
up process; and the development process. The Department of Ecology’s Brownfield
Program serves to develop policy and technical tools to enhance both aspects of the
brownfield redevelopment equation. Historically, the agency focus has been on the
cleanup aspect and the redevelopment specifications not considered part of the mission.
As the recognition and understanding of the nature of brownfield origination and
solutions began to emerge, the brownfields program has been in the vanguard of a
philosophical shift to embrace reuse as an equitable aspect of the remediation process.
The Brownfields Program works with the EPA, Community Trade and Economic
Development, local governments and the private sector to coordinate state and federal
brownfield grant applicant activities (see figure 4).
48
Figure 4, State and Federal Brownfield Organization and Assistance
CERCLA Title II - Brownfields Revitalization and Environmental
Restoration.
Washington State Department of Ecology
Toxics Cleanup Program
Brownfield
Revolving Cleanup
Loan Fund (RLF)
State and Tribal Response
Program (STRP)
CTED – Brownfield
Coalition
Site Specific
Assistance
Program
Technical
Tools
Technical
Outreach
Team
Local Toxics Account
Cleanup
Market Driven
Cleanup
Assessment
Funding
CTED Site
Assessment
Technical
Review and
Oversight
EPA Targeted Brownfield
Assessment
EPA Brownfield Cleanup
Grants
There are three primary pathways for brownfield financial and technical assistance in the
State of Washington:
1. Private and commercial financial source with fee based technical oversight from
Ecology. This is the most common method for commercial real estate transaction
driven cleanup and redevelopment in high value metropolitan markets.
2. Remedial Action Grants available to local governments. These grants are
administered through the Department of Ecology Toxics Cleanup Program. There
are two options for the state Remedial Action Grants. The first is through a formal
oversight program where grant activities are conducted under an Agreed Order.
The oversight grant program is by far the most widely used with over 227 million
dollars in grants awarded since 2001. Grant recipients are eligible to receive 50 to
90 percent of eligible costs. The second pathway is the VCP side of the program
where local governments may conduct independent cleanups and submit
49
conformation data to obtain a No Further Action Opinion Letter from Ecology
and apply for 50 percent of eligible costs retroactively. Since 2001 44 million
dollars in grants has been awarded (see figure 5).
Figure 5 Remedial Action Grant Distributions
Remedial Action Grant Distribution Over Past Eleven Biennia
April 2008
$95,000,000
$90,000,000
$85,000,000
$80,000,000
$75,000,000
$70,000,000
$65,000,000
$60,000,000
$55,000,000
$50,000,000
$45,000,000
$40,000,000
$35,000,000
$30,000,000
$25,000,000
$20,000,000
$15,000,000
$10,000,000
$5,000,000
$0
87- 89
89- 91
91- 93
93- 95
95- 97
97- 99
99- 01
01- 03
03- 05
05- 07
07- 09
5,050,201
19,134,150
26,561,249
21,715,857
20,728,117
21,102,315
19,090,375
39,080,824
20,839,647
64,250,000
85,407,862
Gr ant Suppor t St af f
-
-
-
-
-
-
Derelict Ships
-
-
-
-
-
-
5,756
50,000
49,178
VCP
-
-
-
-
-
-
380,816
1,148,569
822,901
1,000,000
1,094,600
Dr ug Labs
-
-
-
-
985,040
UST Grant s
-
-
-
SHA' s
-
-
565,000
TSP
-
-
-
5,050,201
26,000,000
40,000,000
Remedial Gr ant s
Allocat ion
-
-
-
-
190,000
-
342,352
508,359
908,417
756,750
900,000
113,134
3,780,078
1,151,553
191,204
-
-
-
960,000
1,276,064
1,569,191
2,622,485
2,367,627
1,893,060
2,649,929
5,148,320
-
-
-
1,529,085
2,285,296
2,061,886
2,050,071
-
28,000,000
24,150,000
26,226,400
25,232,526
45,981,937
26,380,000
70,900,000
92,875,000
3. EPA brownfield loans and grants. Since 2001 local governments and non-profits
have received 9.5 million in competitive cleanup and assessments grants from
EPA with technical assistance and oversight provided by the Department of
Ecology and the Department of Community, Trade and Economic Development
Technical assistance. Since 2001 the CTED BCRLF has executed approximately
5 million in low interest loans to private developers and community development
corporations. All cleanup actions conducted with EPA brownfields funding,
regardless of applicant administrative capacity technical sophistication or project
complexity must be done under state VCP program. Technical assistance in
submitting applications for a revolving fund loan or coordinating site assessments
50
is done in partnership with King County/City of Seattle, City of Tacoma, and the
City of Spokane.
The Cleanup Enhancement and Land Revitalization team (CLEAR), recognizing an
emerging need to establish brownfield reuse linked to landuse planning as a strategic
community or regional investment, the Ecology Brownfield Program reorganized in 2008
assists brownfield stakeholders to develop projects that integrate remedial actions with
larger community vision of restoration, recreation, or economic benefit. This approach
can often solve multiple problems, leverage multiple funding sources, and keep stake
holder focus on the end goal. The team blends policy and planning expertise with
technical remediation expertise to provide a holistic approach to project development. In
addition to the technical and financial assistance discussed above several innovations
have been introduced by the CLEAR team to aid local communities in using the concepts
of Integrative Project Planning including Integrated Planning Grants Economic Fore
casting, and Model Targeted Brownfields Outreach Teams to initiate projects based on
the four fundamental principles of: developing vision, understanding risk, respecting
time, and leveraging money.
1. A new grant program, Integrated Planning Grants has been made available to
local governments through the remedial action grant program. The grants provide
$200,000 with no match requirement for front-end planning and design and
outreach to encourage cleanup actions that are integrated with community vision
and comprehensive site planning. The intent is to foster support for sustainable
community revitalization and natural resource restoration and future pollution
prevention as well as preventing future pollution as an integrated action.
2.
Economic Forecasting Model: Using funding from the State and Tribal Response
Grant (STRP) the group has begun the development of an economic forecasting
51
model to measure potential revenue generation and opportunity costs. Public and
private investors can use this model to project long-term revenues, thereby,
refocusing decision makers on the longer-term advantages for revitalization.
*The Economic Forecasting Model provides a tool to overcome several barriers
that impede efforts to revitalize contaminated properties. In particular, project
proponents may be often uncertain or unaware of the potential net return on
investment associated with the remediation and redevelopment of property
brownfields. The first phase of the project has been completed with the
development of the model. Ecology will initiate the second phase under the 2008
STRP grant. This will entail the development of software application and beta
testing on several brownfield projects.
3.
Targeted Brownfields Outreach Teams: provide planning, legal, financial,
marketing, and design expertise to facilitate brownfield clean redevelopment.
Many smaller communities lack the staffing and professional experience
necessary to plan and execute brownfield redevelopment with sustainable reuse
and/or ecological enhancement as end use goals. Using an approach similar to the
states of New Jersey and Wisconsin, this program will provide a systematic
approach to coordinating Targeted Brownfield Outreach Teams to assist local
governments and non-profits with strategic cleanup and redevelopment planning.
It is the intention of all of the initiatives and grant programs discussed in this chapter,
and facilitated by the state to significantly speed the cleanup of brownfield properties
while providing enhanced environmental benefit through sustainable reuse. Emphasis
will be placed on developing additional environment benefits from green building and
livable communities to ecological enhancement and restoration.
52
Chapter 5
Analysis of Legal Mechanisms Performance
As we have seen, the administrative pathways for brownfield project clean up and
redevelopment provide for a great degree of situational flexibility on one hand; yet their
complexities can make it astoundingly difficult to discern which pathway and associated
financial assistance is most appropriate. Herein lies the problem, under MTCA there are
four primary legal mechanisms to conduct cleanup activities. Each mechanism has its
own administrative process and varying degrees of liability settlement and grant
eligibility requirements. However, a closer scrutiny of the actual performance of legal
mechanism when measured in units of time reveals that there is little to no significant
difference between them. So, given the administrative process of each mechanism varies
and the grant administrative requirements conflict, how does one choose or recommend
the option that provides the optimal balance between time (money) saving, funding
options and the greatest degree of liability settlement? Further, what policy
recommendations can be made to improve the administrative process and encourage the
reuse of contaminated properties?
This chapter investigates the above questions by conducting a quantitative analysis of
overall time to completion of each type of legal mechanism as a measure of time/cost
efficiency, then tests for significance between those mechanisms to identify which, if
any, differs significantly from the other – in time/cost terms, as well as the statutory time
53
requirements. Next, we test to determine if the effect of site hazard ranking, as a measure
of complexity, and explain the differences between mechanisms and the statutory time
frame. Then conduct a quantitative time cycle analysis of each phase of a cleanup:
discovery, investigation; remedial investigation /feasibility study, cleanup action plan and
cleanup construction, for each mechanism to identify whether particular trends vary
significantly from the MTCA statutory timelines and identify trends in performance and
level of effort over MTCA 20 year lifespan.
Third, the mechanisms time cycle outputs were divided into three programmatic groups:
real estate market driven formal oversight, real estate market driven Voluntary Cleanup
and projects utilizing federal and state brownfield funding. Each group was then
compared to evaluate whether one programmatic group presents a significant advantage
in time (cost) savings to the other two. The quantitative analysis was be compared to a
qualitative summary of administrative advantages and disadvantages to discern which
program, if any, presents the best overall benefit.
Methods
The inquiry explores whether the choice of the legal mechanism affects the timely
completion of site clean up and whether observed cleanup timelines are in compliance
with MTCAQ regulation. Sample population data (n=36) were drawn from the
Washington State Department of Ecology’s Confirmed and Suspected Contaminated
Sites List. Sample data were selected from sites where cleanup action was complete and
conducted under a formal legal mechanism and were known commonly known as
brownfield sites. Sample selection criteria focused on sites where; 1) clean up activity
54
was complete, 2) site clean up was conducted under a formal order, and 3) sites were
planned for redevelopment. The sample population (n=36) was divided into three subset
populations with respect to legal mechanism. In addition, site hazard ranking, as
established by the Department of Ecology, was also considered. All data were interval
times calculated in months from the start date of initial site hazard assessment to final
clean up completion as reported in the Department of Ecology site record. The sample
population was represented with equal distributions of mechanism type and hazard
ranking. The data was checked and met the assumptions for normality and equal
variances. Source: http://www.ecy.wa.gov/programs/tcp/cscs/CSCSpage.HTM
Analysis of formal legal mechanisms
Question 1: what is the average time it takes to clean up a site under each formal order?
•
Enforcement = 74.8 months, Agreed = 108.1 months, Consent = 91.4 months
Question 2: Is there a significant difference between the average times it takes to clean
up a site under the formal agreements?
An ANOVA Single Factor test was used to determine if there is a significant difference
between the mean times of legal mechanisms. The hypothesis for the test is that at least
one type of order differs significantly from the other. Conversely the null hypothesis is
one of no difference between Enforcement Orders, Agreed Orders and Consent Decrees.
The test results in a p-value that is significantly larger than alpha (α = 0.05) and the FStatistic (1.53) is smaller than the F-Critical value (3.28) which would provide enough
evidence to reject the null. Therefore it can be inferred that there is no significant
difference between the time performances for each of the legal mechanisms.
55
H0: There is no difference between Enforcement orders, Agreed Orders, and Consent orders
H1: At least one order differs
SUMMARY
Groups
Count
Sum
Average
Variance
Column 1
11
823
74.81818
1884.364
Column 2
14
1513
108.0714
2832.841
Column 3
11
979
89
1911.2
ANOVA
Source of Variation
Between Groups
Within Groups
Total
SS
6962.185065
74782.56494
81744.75
df
2
33
MS
3481.093
2266.138
F
1.536134
P-value
0.230207
F crit
3.284918
35
Question 3: is there a significant difference between the average time to completion
between the deadlines specified in MCTA Cleanup regulation, WAC 173-340-140, and
mean time to completion for each of the types of formal orders listed above?
A T-test & estimate of the mean test was conducted for each legal mechanism in order to
determine if there is a significant difference between each of the sample means and the
specified mean clean up time specified in stated in WAC 173-340-140. The hypothesis
for each test was the mean time to completion for an Enforcement Order, Agreed Order
and Consent Decree, respectively is greater than the required time specified in the statute.
The null hypothesis for each of the test is that there is no difference between the mean
time to completion for each type of order and the required mean time specified in the
statute.
The analysis for each of the three tests resulted in p-value that is smaller than alpha (0.05)
and the t-statistic is larger than the t-critical value providing evidence to reject the null
hypothesis. Therefore, it can be inferred that the mean clean up time of the sample is
56
greater than the required mean time specified in the statute.
t-Test and Estimate: Mean
Mean
Standard Deviation
Hypothesized Mean
Df
t Stat
P(T<=t) one-tail
t Critical one-tail
Enforcement
Order
Standard Error
Bound
LCL
UCL
74.8
43.4
40
10
2.6
0.0119
1.81
108.07
53.2
40
13
4.7
0.0002
1.77
Consent
Decree
89
43.71
40
10
3.7
0.002
1.81
13.08
29.16
45.65
103.98
14.22
30.73
77.34
138.80
13.18
29.36
59.63
118.36
Agreed Order
Question 4: Is there a significant difference in the average clean up time based on the
site’s hazard ranking, given a scale 1-5 (1 = most hazardous, 5 = least hazardous)?
An ANOVA Single Factor was used to determine if there is a significant difference in the
mean clean up time based on the site’s hazard ranking. The hypothesis for the test is that
there is a difference in mean clean up time based on ranking. Conversely the null
hypothesis is that there is no difference in mean clean up time based on ranking.
FINDINGS: given that the p-value of 0.45 is significantly larger than the alpha (α = 0.05)
and the F-Statistic of 0.94 is smaller than the F-Critical value (2.67) there is not enough
evidence to reject the null and therefore it can be inferred that there is no difference in
mean clean up time when controlled for site hazard ranking.
SUMMARY
Groups
Count
1
2
3
4
5
Sum
872
952
861
284
346
Average
109
95.2
95.66667
56.8
86.5
Variance
4534
774.84444
2398.75
1226.7
3361.6667
57
ANOVA
Source of Variation
Between Groups
Within Groups
SS
df
4
31
Total
MS
2212.838
2351.4
F
0.9410723
P-value
0.45332098
F crit
2.678667
35
Question 5: Do the legal mechanism, when controlled for site ranking, explain the
difference between mean clean up time and the mean statutory time requirement?
An ANOVA: Two-Factor without replication test was performed to determine whether
the hypothesis for the test is that there is a difference in mean clean up time for individual
legal mechanism when controlled for hazard ranking. Conversely the null hypothesis is
Anova: Two-Factor Without
Replication
SUMMARY
Count
92.25
87
54.66666667
60
56
2
2
2
2
2
Sum
191
194.5
207.25
112
160
2
3
5
5
476
388.75
ANOVA
Source of Variation
Rows
Columns
Error
SS
2924.65
761.2562
15817.03
Total
19502.93
df
4
1
4
Average
95.5
97.25
103.625
56
80
Variance
7320.5
882
2831.281
544.5
5000
95.2
77.75
2735.669
1949.75
MS
731.1625
761.2562
3954.256
F
0.184905
0.192516
P-value
0.934545
0.68349
F crit
6.388233
7.708647
9
that there was no difference in mean clean up time for individual legal mechanism when
controlled for hazard ranking.
58
FINDINGS: given that the p-values of 0.93 and 0,68 are significantly larger than the
alpha (α = 0.05) and the F-Statistic values of 0.18 and 0.19 are smaller than the F-Critical
values (6.38 and 7.7) the is not enough evidence to reject the null. Therefore, it can be
inferred that there is no difference in mean clean up time for individual legal mechanism
when controlled for hazard ranking. It should be noted that, when controlling for hazard
ranking, sample populations of unequal sizes may have undetected variances due to
limitations of the test.
Question 6: if there is no difference between the mechanisms, even controlling for
hazard/complexity, and there is a difference with the statutory deadlines, are there one or
more phases of the MCTA process steps that notably deviates from statutory guidelines?
A sample population of brownfield cleanups (n=36) phases conducted under the VCP
were included in the analysis to compare the effect of formal legal negotiations against
VCP which do not have negotiation aspects. It should be noted that actual cleanup
construction times were not included in this analysis. This is due to 1) the highly variable
nature variation of actual cleanup construction, and 2) MTCA does not specify a time
frame for actual construction. An ANOVA Single Factor test was performed to determine
if there is a significant difference between and with in the mean phase time that deviates
from the statutory timelines? The hypothesis for the test is that there is a difference
between at least one phase and the statutory timelines. Conversely the null hypothesis is
that there was no difference between at least one phase and the statutory timelines.
59
Anova: Single Factor
SUMMARY
Groups
Discovery
RI/FS
Workplan/Legal
Negotiations
R I/FS /Legal
Negotiations
New Order
Negotiations
Cleanup Action Plan
(CAP)
Count
ANOVA
Source of Variation
Between Groups
Within Groups
4
Sum
36
Average
9
Variance
0
4
69
17.25
10.91667
4
238
59.5
627.6667
4
261
65.25
621.5833
4
296
74
1089.333
MS
3527.375
469.9
F
7.50665
SS
14109.5
7048.5
Total
df
4
15
21158
P-value
0.001577
F crit
3.055568
19
FINDINGS: given that the p-value of 0.001 is significantly smaller than the alpha (α =
0.05) and the F-Statistic of 7.5 is larger than the F-Critical value (3.05) it can be inferred
that there is a difference between at least one phase and the statutory timeframe.
Anova: Two-Factor Without Replication
SUMMARY
Discovery 9
RI/FS Workplan
RI/ FS, Negotiations
New Order
CAP
Count
9
9
4
4
4
Sum
340
190
188
Average
85
47.5
47
Variance
1965.333
501.6667
376
15
37
43
51
3
3
3
3
54
201
218
245
18
67
72.66667
81.66667
13
604
602.3333
1281.333
df
MS
1900.333
2442.778
200.1111
F
9.496391
12.20711
ANOVA
Source of Variation
Rows
Columns
Error
SS
3800.667
7328.333
1200.667
Total
12329.67
2
3
6
P-value
0.013836
0.005771
F crit
5.143253
4.757063
11
60
An ANOVA two-factor without replication test was performed to determine whether one
phase is significantly different that others with in the groups. The hypothesis for the test
is that one phase within the groups is significantly different that the others. Conversely
the null hypothesis is that there is no difference in phases within the groups.
FINDINGS: given that the p-values of 0.013 and 0.005 are significantly smaller than the
alpha (α = 0.05) and the F-Statistic values of 9.49 and 12.20 are larger than the F-Critical
values (5.14 and 4.75) there is sufficient evidence to reject the null. Therefore, it can be
inferred that one phase within the groups is significantly different that the others. This is
interpreted to be the Remedial Investigation/ Legal Negotiation phase on complex sites,
See Table 1 and Figure 6 below. The sites are characterized by having multiple PLP’s,
recalcitrant or reluctant PLP’s, contaminated aquatic sediments and or significant
groundwater contamination. Investigations are typically negotiated under Agreed Orders.
TABLE 1. Brownfield Legal Pathways and Phase Comparison
VCP typical
case
Complex
Groundwater
and
Sediment
Sites
Mean
Formal
Brownfield
Maximum
MCTA
Deadline
Discovery
RI/FS
Workplan/Legal
Negotiations
R I/FS
/Legal
Negotiations
New Order
Negotiations
Cleanup
Action
Plan
(CAP)
9
15
37
43
51
9
21
95
101
123
9
14
57
58
61
9
19
49
59
61
61
Brownfield sites completed under the VCP were examined for comparable phase time
cycle performance to brownfield pre-cleanup activities cleanups conducted under
Consent Decrees, Agreed Orders and the statutory deadlines. While the VCP process
proved to be shorter overall as well as discrete phases, there is no statistical significance
between VCP agreements and formal orders and the statutory deadlines. The mean VCP
time to the Cleanup Action Plan (CAP) phase was 51 months compared to 61 months for
formal agreements and statutory deadlines (see Table 1).
Figure 6 Time Cycle Variation of Brownfields Cleanups
CLEANUP TIME CYCLE VARIATION: Brownfields
180
160
Complex MCTA Cleanup
Cumulative months
140
120
100
80
Maximum Maximum
Deadline Provided
by MCTA
Mean Formal Brownfiel
60
40
M
C
20
0
Dis
ry
ve
co
S
/F
RI
W
ns
tio
ia
ot
eg
N
l
ga
Le
n/
la
kp
r
o
l
ga
Le
S/F
RI
ns
tio
tia
go
e
N
w
Ne
O
er
rd
ns
ti o
tia
go
e
N
Phase
p
nu
ea
Cl
tio
Ac
n
Pla
n
A
(C
P)
Cle
up
an
on
cti
tru
ns
o
C
ly
igh
(h
e)
bl
ria
Va
The relationship between staffing levels (full time equivalents or FTE’s) and the number
of and length to complete a RI/FS was also examined to explain the significant difference
between a more complex site and the other sample populations. A sample (n=94) of
RI/FS start to finish times were taken From Ecology’s Integrated Site Information System
data base from a twenty year period. The times ranged from 12 to 128 months with a 20
62
year mean of 41 months and a 99% probability that all sample sites will take between 12
and 72 months (see Figure 7). The mean time to complete the RI/FS has nearly doubled
from 1988 to 2008. From 1988 to 1999 the mean was 31 months, from 2000 to 2008 the
mean 57 months. The distribution of the number of RI/FS completion of the twenty year
period reflects a bi-modal shape with the first peak in 1997 of 12, a decline from 1999 to
2005 averaging 2 per year the rising to an average of 8 per year from 2006 until 2008
(See Figure 7).
Number of completed RI FS over 20 years
Number of Puget Sound Sites
14.0
12.0
10.0
8.0
6.0
4.0
2.0
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
1990
1989
1988
1987
0.0
Year
Figure 7 20-Year Average RI/FS Completion
63
20 year average RI FS completion = 3.4 years (+/- 0.84 years Standard Error)
10
9
8
7
6
5
4
3
2
1
19
85
19
86
19
87
19
88
19
89
19
90
19
91
19
92
19
93
19
94
19
95
19
96
19
97
19
98
19
99
20
00
20
01
20
02
20
03
20
04
20
05
20
06
0
Figure 8 Completed Puget Sound Remedial Investigations/ Feasibility Studies
The number of staff assigned to oversee the remedial investigation and negotiate the
terms of a formal administrative order may have a profound influence on the number of
the investigation and negotiations completed. A regression was performed to examine
the relationship between two variables over a twenty year period from 1988 to 2008.
The regression reflects a strong positive correlation (R2 = 0.87) between the number of
staff and the umber of RI/FS completed (see Figure 9).
64
Figure 9 Relationship between FTE and RI/FS Completion
Relationship between FTE and RI/FS Completion
Number of RI FS Completed
14
12
y = 0.2421x - 25.54
R2 = 0.8773
10
8
6
4
2
0
100
110
120
130
140
150
Number of FTE's
The above analysis suggests that, in statistical terms, there is little difference in terms of
time between the administrative pathways i.e. formal vs. VCP and the main legal
mechanisms for brownfield projects. The analysis also suggests that there is a significant
difference between the overall cleanup times and the statutory deadlines in MTCA. The
complexity of the site in terms of hazard ranking does not explain this difference. The
examination of time cycle for discreet phases of the process shows that the remedial
investigation, feasibility study and legal negotiations aspect complex cleanups conducted
under Agreed Orders is in significant disproportion to all other phases regardless of
pathway or legal mechanism. The perception that brownfield cleanup conducted under
formal agreements takes significantly longer than VCP cleanup is confounded by the
inclusion of sites where the complex nature is more reflective of high risk cleanups. .
65
Chapter 6
Evaluating Administrative Pathways for Brownfield Redevelopment
Distinguishing the difference between complex or real estate market driven cleanups and
more typical brownfield cleanups allows for a well grounded to evaluate administrative
options. That being said, it should be noted that even when controlling for the influence
of the RI/FS phases in complex cleanups the same phase for brownfield projects still
exceeded the same phase of the real estate market driven VCP by twenty months. This
difference may be partially explained by the availability of Ecology staff. As the analysis
suggests, staffing levels at the Department of Ecology may have a direct influence on the
number of sites that can receive timely consultation, oversight and negotiation of the
terms of a formal pathway. However once staff are assigned and when controlling for the
remedial investigation, feasibility study and legal negotiations aspect on complex
cleanups, it indicates that there is no significant difference in any of the phases between
the brownfield VCP and brownfield cleanups conducted under Consent Decrees and
Agreed Orders. Therefore ,it can be argued that that overall time investment for formal
processes may not be as significant as commonly perceived. The degree of liability
settlement, near term and future, combined with procedural certainty may, in many cases,
be of greater value than time alone.
The advantages brought about in the development of VCP programs i.e. minimal
oversight, minimal legal negotiations, no delays in waiting for formal agreement
development and staff assignment were once thought to be the panacea for brownfield
66
redevelopment; so much so that EPA brownfield grant and loan eligibility essentially
requires grantees to enter into VCP programs. As the popularity of conventional real
estate transaction cleanups that were conducted under the VCP’s grew, lenders became
more accepting of a No Further Action Opinion letters as assurance of liability relief.
This approach has worked very well for brownfield projects, notably urban projects
where the proponents have staff and resources of sufficient sophistication to undertake
the investigation and remediation with minimal oversight. For others, particularly small
rural local governments who may not have the level of technical and professional staff
available, the review based VCP may require additional investigative and conformational
sampling. In order for a VCP to receive an opinion letter stating no further action is
necessary (NFA Letter) the investigation and Cleanup Action Plan (CAP) must meet the
substantive requirements of MTCA. In other words, the work to characterize the extent
and nature of the contamination and develop the cleanup plan is essentially the same
under the VCP as in a formal agreement process. However, the VCP process does not
include public comment periods. Nor does it include the level of in-process consultation,
legal negotiations, and overall Ecology staff time that the formal process requires.
Without early consultation and public comment, the “bring me a rock” syndrome may
develop as the proponents are required to conduct additional sampling, more extensive
cleanup, or become mired in more public controversy than was originally conceived. The
degree and timing of liability settlement is a critical factor in assessing the feasibility of
redeveloping a given site. Lenders, although excluded for liability risk (provided they
67
met the defense stated in RCW 70.105D.020), often require assurance that a settlement of
liability is obtained between the owner/operator or prospective purchaser and with
Ecology as a condition for financing. The formal agreements administered by Ecology
present advantages that the VCP program does not. As part of the agreement, Ecology
assigns a dedicated site manager to provide consultation and oversight throughout the
process. An Agreed Order or Consent Decree establishes roles of responsibility,
performance measures and milestones in advance of any undertaken action. The
advantage is certainty in the process that provides stakeholders with measures of
accountability and outcome. Another advantage is that formal agreements under MTCA
and the State Environmental Policy Act requirements are streamlined together as one. A
clear understanding of how the project may impact the local community and providing a
mechanism for feedback are key element in developing stakeholder support and
maintaining project momentum.
Of concern to public project developers are eligibility concerns associated with grants for
land acquisition and redevelopment. Grant administrators tend to look with disfavor on
projects that involve contaminated properties. Formal agreements can provide a
satisfactory level of assurance that the remediation will be sufficient to resolve liability
concerns. Lastly, formal agreements also result in a significantly higher degree of
liability settlement. This is particularly true in a Pre-purchaser Consent Decree that
protects those wishing to acquire from third party contribution suit and offers finality in
liability settlement. The disadvantages in choosing the formal pathway are the added
expense and time for attorney involvement, and potential delay associated with waiting
68
until Ecology staff becomes available. Attorney fees are not eligible expenses for state
and federal grant programs. Local governments, particularly rural and distressed cities
and counties become hard pressed to muster the resources to negotiate with the state,
while the tax payers bear the cost of Attorney General’s time to represent the state. Left
alone, the issue represents a major impediment to projects entering the formal process.
Currently public brownfield redevelopment projects must compete with other ongoing
and planned remediation projects for staff time. Although funding through the EPA State
and Tribal Response Grant is available to pay for technical oversight on EPA funded
projects, the eligibility criteria for the cleanup requires the cleanup to enter into the VCP,
hence the unavailability of potential staff funding for formal cleanup processes. Further,
the Washington State Legislature sets the limits on the number of staff Ecology can hire,
making it difficult for Ecology to meet the growing demand for consultation and
oversight. Since brownfields is codified in Washington State statute there is not the
statutory framework to develop administrative justification that would devote additional
staff for brownfield projects.
Conclusion and Recommendations
Based on the examination of this paper the recommendations below seek a pathway
through the seemingly opposing policy goals set forth in the legislative policy of MTCA
RCW 70.105D.010. On one hand the policy sets out the protective goals of the legislation
and establishes MTCA’s primary purpose to clean up sites where:
(1) Each person has a fundamental and inalienable right to a healthful
environment, and each person has a responsibility to preserve and enhance
69
that right. The beneficial stewardship of the land, air, and waters of the
state is a solemn obligation of the present generation for the benefit of
future generations.
(2) A healthful environment is now threatened by the irresponsible use and
disposal of hazardous substances. There are hundreds of hazardous waste
sites in this state, and more will be created if current waste practices
continue. Hazardous waste sites threaten the state's water resources,
including those used for public drinking water. Many of our municipal
landfills are current or potential hazardous waste sites and present serious
threats to human health and environment. The costs of eliminating these
threats in many cases are beyond the financial means of our local
governments and ratepayers. The main purpose of Chapter 2, Laws of 1989
is to raise sufficient funds to clean up all hazardous waste sites and to
prevent the creation of future hazards due to improper disposal of toxic
wastes into the state's land and waters.
On the other hand, MTCA’s final policy goal proclaims an underlying redevelopment
emphasis, and emphasizes how:
“It is in the best interest to efficiently use our finite land base, to integrate our
land use planning policies, and to clean up and reuse contaminated industrial
properties in order to minimize industrial development pressures on undeveloped
land and to make clean land available for future social use” [Emphasis added].
The legislature emphasized the point and provided a de facto definition of brownfields in
§ (5) (b) where
” the primary purpose of this subsection is to promote the cleanup and reuse of
vacant or abandoned commercial or industrial contaminated property. The
attorney general and the department (Ecology) may give priority to settlements
that will provide substantial public benefit, including, but not limited to, the reuse
of a vacant or abandoned manufacturing facility or the development of a facility
by governmental entity to address an important public purpose”. (RCW
70.105D.010 (4) [Emphasis added].
The legislation made valuable provision to assist in the redevelopment of contaminated
property by establishing Pre- purchaser Consent Decrees as codified in WAC 173-340
70
under the authority of RCW 70.105D.040 (5) (a) which provides for a settlement of
liability under § (4) where:
“the attorney general may agree to a settlement with a person not currently liable
for remedial action at a facility who proposes to purchase, redevelop or reuse a
facility providing that the settlement will yield substantial new resources to
facilitate the cleanup; will expedite the cleanup; and will not continue to
contribute to the existing release or interfere with remedial actions”.
This redevelopment goal has become overarching in the brownfield context. The goal
both provides the legislative basis for the brownfield redevelopment and site cleanup (as
well as consistency with the state’s land use policies), and simultaneously establishes the
tension inherent in Ecology’s cleanup program between facilitating the redevelopment
process and the agency’s emphases on human health and the environment.
Providing a statutory definition for the State could provide both conceptual clarity and a
statutory basis for targeting financial and technical assistance to brownfields. The
distinctive nature of brownfields was recognized by the federal government with
statutory amendment of CERCLA which provided a definition to identify brownfields as
a unique type of contaminated site and provided the basis to develop innovative
administrative processes to address the problem. While Washington State has developed
many brownfield innovations and sophisticated legal mechanisms these tools are not
specific to the nature of brownfield and somewhat miss the mark. The lack of a statutory
definition for brownfields and specific legislative recognition continues to challenge
Ecology’s ability to develop brownfield specific policy, administrative mechanisms, and
financial assistance.
71
By codifying brownfields and providing a definition for brownfields, the legislature can
provide the statutory basis to resolve the inherent conflict of MTCA policy goals, thereby
giving full weight to the recognition that the reuse of existing developed land is fully as
important as remediation alone. Further, the statutory foundation is laid to develop
brownfield specific administrative process and legal mechanism that improve on the
existing methods. This institutionalization of brownfields can provide the basis to
promote and prioritize Brownfield cleanup, dedicate brownfield specific Ecology staff for
consultation and oversight, and establish a formal link for the Remedial Action Grant
program under the Local Toxics Control Account for financial resources.
72
References:
42 USC Chapter 103, Comprehensive Environmental Response, Compensation and
Liability Act of 1980,
Bartsch, Charles. 2003, The New Federal Law on Brownfields: The Small Business
Liability Relief and Brownfields Revitalization Act, in Environmental Practice Vol. 5,
No. 1, March 2003. Oxford University Press. Cambridge
Blanco, Hilda. et al. 2008. Linking Toxics Cleanup and Redevelopment: Lessons for
Washington State. Department of Urban Design and Planning, College of
Architecture and Urban Planning, University of Washington, Seattle
(2006). Brownfields resource guide: guide to agency assistance for brownfields
redevelopment in Washington State. Washington State Dept. of Ecology :
Washington State Community, Trade and Economic Development Olympia, WA
Deason, J.P., G.W. Sherk, G.A. Carroll. 2001. Public Polices and private Decisions
Affecting the Redevelopment of Brownfields: An Analysis of Critical Factors,
Relative weights and Areal Differentials. Report submitted to the Office of Solid
Waste and Emergency Response. United States Environmental Protection Agency.
George Washington University, Environmental and Energy Management Program,
Washington DC.
Greenberg
Meyer, Peter B. 2003, Brownfields and Red Ink: The Costs of Contaminated Land
in Environmental Practice Vol. 5, No. 1, March 2003. Oxford University Press.
Cambridge
Plater, Zygmut, J.B., 2004. Environmental Law and Policy: Nature Law and
Society. Aspen Publishers. New York.
Personal Communication. 2008. Dawne Gardiska, Program Planner. Toxics
Cleanup Program. Washington State Department of Ecology
Personal Communication: 2008, John Means Brownfields Program Planner, Toxics
Cleanup, Washington State Department of Ecology
US Congress. 2001. Small Business Liability Relief and Brownfields Revitalization Act
of 2001 (PL 107-118,11 January 2002), 115 United States Statues at Large,2356-2381
73
Washington State Department of Ecology. 2001(revised), Model Toxics Control Act
Cleanup Regulation Chapter 173-340WAC, Publication No. 94-06, Olympia
Washington State Department of Ecology, 2004 Model Toxics Control Account
Fiscal Year 2004 Report, annual report
(Washington State Department of Ecology. 2005. Interim Policy: Prospective
Purchaser Agreements . Report No. POL520A,
Wernstadt, Kris, Lisa Crooks, Robert Hersch. 2003. Brownfields Redevelopment in
Wisconsin: A Survey of the Field. Resources for the Future. Washington D.C.
Yount, Kristen R. 2003. What Are Brownfields? Finding a Conceptual Definition,
in Environmental Practice Vol. 5, No. 1, March 2003. Oxford University Press.
Cambridge
74
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