5: Identify, Assess, Remediate, and Reuse Brownfields


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A community’s task in establishing the parameters of your area for purposes of area-wide planning is like building the foundation to a building, it needs to be strong and very well thought through. This takes research, planning, and stakeholder coordination. A community needs to focus on a discrete zone that embodies the intersection of problems solved by area-wide planning, but is not too large to take on realistically. And remember: the parcels involved have to be owned or controlled by viable, willing participants

- Scott Wilson Badenoch Jr., Esq., MDR, Founder, BRIGHT

This chapter deals with appropriate measures when confronting brownfields as part of your community revitalization project. Brownfields are “abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.” Common examples are dry cleaning sites, landfills, and auto mechanic shops. These brownfield sites must be remediated, or restored to their original (pre-contamination) condition by reversing or stopping environmental damage.


Identify Brownfields


Conduct an Environmental Assessment
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Introduction

Remediating brownfields is beneficial for many reasons. One, it leads to economic growth and revitalization for the community. Two, it protects the environment, natural resources, and open spaces. Third, it strengthens the community's resilience to climate change. Fourth, it furthers equitable development. Last, and most importantly, brownfield remediation leads to a healthier community.

Selecting an appropriate brownfield site is critical. Because the cost of brownfield remediation is so high, the Environmental Protection Agency (EPA) requires that a brownfield be included as a cornerstone of any Corridor Project. This allows the brownfield remediation cost to be factored into the for-profit development plans of any Corridor Project. Taking on too hefty of a project, both in terms of size and monetary expenditure, can lead to an unfinished project. There are many aspects to think about when selecting a site. These include:

It is helpful to hire an Environmental Consultant to perform a cursory review of the property and give you an estimate of the cleanup costs. You can then balance this information against the potential profit/usefulness of a remediated site before purchasing the site or performing an environmental assessment. As brownfield remediation is difficult (both due to its costs and legal ramifications) having professional assistance is recommended. Some pro-bono options in the Northeast include:

A surefire way to sink a Corridor Project is to purchase a brownfield site without balancing the cost of remediation with the future potential profit/usefulness.  

To remediate a brownfield site, a brownfield remediation plan must be created. Most successful brownfield remediation plans have four things in common. First, the plan must engage the community as a whole by reaching out to a wide array of community members through early and ongoing dialogue. The community members must be informed and involved in the plan. A good way to effectuate this is by using a project team with local leadership and a single manager.

Second, the plan must emphasize how the brownfield and its cleanup will beneficially impact the community. A good way to implement this is to create a goal for reuse of the brownfield property early and update the community regularly on progress. You should also listen to input from the community throughout the remediation process. Be creative when discussing potential end uses of the property.

Third, there must be transparent decision making and progress updates. Brownfield remediation is a long process, and this should be made clear to the community at large. In addition, the risks in remediating a brownfield must be made clear prior to starting the project. These risks occur because the owner of a piece of property designated as a brownfield site may be legally responsible for its cleanup, which can run into the millions of dollars. When managing these risks, it is helpful to contract with an environmental consultant, review your own financial sources, and consider legal protections prior to buying or acquiring the property. Once you have obtained access to the property, think about requesting disclosures from site owners regarding their use of the site and assigning cleanup costs between the buyer and the seller. For example, not allowing dry cleaning or auto repair on the site. This protects the municipality from any future litigation. Once you have bought/acquired the property, make sure that you follow all applicable laws, regulations, policies, etc. This is incredibly important as once you are the owner of the site, you can be liable for all applicable cleanup costs and ongoing fees related to the site. Thus, do not purchase a potential brownfield site without estimating the cost of cleanup and ongoing regulation costs.

Last, the plan must identify whether a property can be successfully remediated, if there are realistic funding options, and calculate a logical total cost of remediation. One way of doing this is through an adaptive approach. This is an extremely important step, as failure to identify costs of remediation can result in a municipality running out of money before the brownfield remediation is complete.

The 30th Street Industrial Corridor in Milwaukee incorporated these four factors of a successful brownfield remediation plan. The Wisconsin Department of Natural Resources (DNR) partnered with the city of Milwaukee, and the Environmental Protection Agency, to focus resources on the 30th Street Industrial Corridor, with the goal toward eventual redevelopment. From this partnership, the DNR was able to secure EPA brownfields assessment grants to begin the process of brownfields redevelopment. By securing EPA funding, the project was also able to leverage additional funding from several entities, including a DNR specific assessment grant, funding from the Wisconsin Economic Development Corporation, an EPA Cleanup subgrant, and funding from the HUD Economic Development Initiative.

In 2005, before the sites for redevelopment were selected for assessment/cleanup, the partnership reached out to residents, community organizations, and interested stakeholders. These engagement efforts informed the community of the project and gave them an opportunity for input on which sites, within the corridor, needed assessment work. From that outreach effort, and a search of the DNR's database on contaminated sites, the project identified 50 properties for site assessments. Throughout the project, the partnership maintained open and transparent communication with the community. In 2008, the partners held an Open House/Public Availability Session, to provide site-by-site progress, give background on the EPA grants, and offer health information about the chemicals of concern in the Corridor. Additionally, the DNR created a website for outreach opportunities and to also provide tracking information on the sites that were undergoing environmental assessments.

Ultimately Phase I environmental site assessments were conducted on 49 of the 50 identified sites. For some of the sites, Phase 1 findings illustrated that there was a low risk of environmental contamination, meaning that the sites were ready to be marketed. However, some of the findings showed serious environmental concerns, which led the partners to decide to conduct Phase II assessments on 24 sites. Phase II site investigations were completed at 18 sites, and these sites were then ready for cleanup and redevelopment, but 6 sites still needed additional investigation. These environmental site assessments and the breadth of received funding enabled the partnership to determine potential beneficial end-uses to serve the community and demonstrate that 44 of the 50 identified sites could be successfully remediated.

This area-wide plan demonstrated a successful brownfields remediation effort using the four factors laid out in this chapter. The project continually engaged the community for their input and updated the community on the progress of the project, leading to transparent decision-making and progress updates. Further, through the assessment process, the partnership was able to study the sites for potential end-uses, such as green infrastructure, urban agriculture, residential projects, and business developments. Lastly, the partnership was able to identify that the brownfields sites could be successfully remediated.

Laid out below is a four-step overview of the brownfield remediation process.

Step One: Identify Brownfields

The first step of any successful brownfield remediation plan is to identify the brownfield. There are a number of ways this can be done. An extremely easy way to do this is by asking community members about any idle, vacant, or underproductive land. Oftentimes, community members are the best sources of knowledge. However, there are a number of other ways to obtain this information, which are laid out below:

  • Check Envirofacts, the Agency for Toxic Substances and Disease Registry Brownfield search tool
  • Review public records from municipal, state, or federal agencies. One way to obtain records from federal agencies is through a Federal Freedom of Information Request
  • Involve municipal, state, or federal agencies in the Brownfield process. Involving agencies (such as the Environmental Protection Agency) in the brownfield remediation process will allow you to free up resources for other aspects of the community revitalization process. In addition, other agencies are often better suited for dealing with brownfield remediation as they often have more knowledge of the process. You can even apply for technical assistance from the EPA.

Once you obtain information on where the brownfield sites are in your community, create a map overlaying the brownfields with other existing municipal land use information. Once you complete this map, prioritize sites for further investigation and cleanup. This prioritization should cater to the vision of your Corridor Project. For example, you may prioritize the cleanup of a large brownfield site in the middle of your Corridor Project instead of smaller sites on the peripheral. You can also conduct risk screening of the sites identifying vulnerabilities to climate impacts and assess which sites need more resiliency measures. 

For high priority sites, create a resource roadmap and briefing sheet (example p. 28-33). After prioritizing the sites for further investigation, try and obtain access to any private sites. Prior to acquiring a private site, you should review your findings with an environmental consultant so that you do not find yourself legally liable for the cleanup of a brownfield site. Make sure that you have the capacity to clean up the brownfield sites you identify and that they fit into your Corridor Project. An easy way to sink a Corridor Project is by pursuing and purchasing a brownfield site without a plan as to the cleanup cost and potential profit from the site after cleanup. Once you have reviewed with an environmental consultant, if you still want to acquire a private site, there are a few ways to do so. If possible, it is optimal to perform an environmental site assessment (discussed below) prior to purchasing the site.

  • Purchase the property - This can be done: “As is” or without any protection for potential damage/liability; Sale after an environmental consultant or other professional reviews the site and calculates a probable amount for cleanup costs; or Sale after assessment and cleanup of the site by the site owner.
  • Permission from Site Owner - An owner may want to retain ownership and work with you to clean up the brownfield. Here, you would not obtain ownership of the property, but cleaning up the site may greatly increase the likelihood of success of your community revitalization plan.
  • Eminent Domain - You may be able to take private property and convert it into public use for suitable compensation. Check with a lawyer before moving forward with this step.
  • Adverse Possession - If you use a piece of property for a number of years without the permission of the owner (such as an absentee owner), it may be possible to obtain the property through adverse possession. However, this is highly unlikely and should be extensively discussed with a lawyer prior to utilization. 
  • Foreclosure - If the owner of the site has not paid rent/taxes, it may be possible to foreclose on the property. 

Some specific types of brownfields include:

  • Gas Stations/Auto Mechanics
  • Brownfields on Tribal Land (p. 19)
  • Dry Cleaners
  • Manufacturing/Chemical Plants
  • Industrial Areas
  • Military Facilities
  • Landfills
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Step Two: Conduct an Environmental Assessment 

After obtaining access to, or possession of, the brownfield site, an environmental assessment must be done. There are a number of federal and state laws that require contamination from properties to be cleaned up so that it doesn’t affect other environmental aspects, such as groundwater. An environmental assessment identifies potential contamination from a brownfield and identifies necessary steps to remediate any contamination found. An example of this would be if a site in your community used to be used as a landfill. Over time, waste in that landfill could have deteriorated and leaked into the soil underneath the site. This leakage could cause harmful chemicals to percolate into the groundwater beneath a community and negatively affect the drinking water of the community. A landfill site will likely need all three phases of an environmental assessment (Phase I-identify environmental conditions/contamination; Phase II-evaluates contamination found during Phase I; Phase III-creates plan to remediate contamination). On the other hand, a parking lot likely has little to no contamination, so an environmental assessment will likely only require Phase I. Thus, it is imperative to determine how much funding you have for a brownfield cleanup and the amount of post-cleanup regulatory oversight. 

An environmental assessment will identify whether contamination is still in the landfill property, whether chemicals are leaking out of the landfill property, and what can be done to stop and reverse this process. As community health is of utmost importance, an environmental assessment is a necessary process of the community revitalization process when a brownfield is part of the plan. 

There are three phases of an environmental assessment. A Phase I assessment should always be done and based on its findings, a Phase II and/or III assessment may be required. 

Phase I

A Phase I environmental assessment is used to identify recognized environmental conditions/contamination at a site through a review of readily available information. There are four stages of a Phase I assessment: 

  • Review of historical records to determine past owners/uses;
  • Survey of site and assessment of surrounding areas;
  • Interviews with owners and local government agencies; and
  • Evaluation of Site and final report.

This assessment is performed by a properly certified consultant through an All Appropriate Inquiries (AAI). In addition, some states require that certified professional geologists, licensed site professionals or professional engineers oversee various stages of the investigation and cleanup process. The consultant performing the AAI must meet the definition of an environmental professional provided in the AAI rule. A great way to obtain such an assessment is applying to the Environmental Protection Agency (EPA) for a Targeted Brownfield Assessment which consists of an EPA contractor conducting a variety of tasks including site assessments, cleanup options and cost estimates, and community outreach.

AAI is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination. AAI investigations are required to be performed for a future property owner to be considered a bona fide prospective purchaser, innocent landowner, or contiguous property owner under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA is a federal law enacted to identify sites with hazardous materials, identify the responsible party, and ensure the cleanup of the hazardous materials. AAI is also an element required for obtaining liability protection and certain EPA grants. Some aspects of AAI elements must be conducted within one year before acquisition of property, some within 180 days of acquisition of property. An AAI evaluation should be conducted consistent with ASTM International Phase I ESA practices. One tip: be sure to check to see if an assessment was previously completed as some companies offer quick assessment reports online (Environmental Data Resources; Fidelity National Information Solutions). In addition, tell the professional conducting your assessment to take climate change into account so that you know the past, current, and projected weather/climate-related impacts to the property.

One important matter to note. If your brownfield has underground storage tanks look at: https://www.epa.gov/ust/state-underground-storage-tank-ust-programs.

If no contamination is found after the review, apply for a No Further Action which allows you to not partake in Phase II or III of an environmental assessment. However, if environmental contamination is found, contact federal, state, or local agencies and perform Phase II analysis.

Phase II 

If environmental contamination is found during a Phase I assessment of a brownfield, a Phase II assessment must be taken. A Phase II assessment evaluates the environmental conditions found during Phase I through sampling and testing. This assessment may include the analysis of samples of building materials and environmental media, such as soil, soil gas, groundwater, surface water, sediment, and indoor air for the purpose of supporting subsequent cleanup and reuse decisions. A Phase II assessment must be conducted consistent with ASTM Phase II ESA practices

When conducting a Phase II assessment, as with all phases of an environmental assessment, it is important to observe and hopefully minimize the climate impact through the use of local laboratories, the reuse of existing wells, using renewable energy, using field test kits, etc.

Phase III 

A Phase III assessment is performed after a Phase II assessment and examines the potential risk of the contamination found during a Phase II analysis. During this phase, a remediation plan is created for dealing with contaminants at the site and indicates allowable remaining concentrations of contaminants. Once a Phase III analysis is completed, move on to Step Three: Remediate Brownfield.

The information collected about the site is typically organized into a project life cycle conceptual site model (CSM) which should be shared with the community and planning team to have a more realistic idea of the overall project.


Remediate Brownfields
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Reuse Brownfields
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Step Four: Reuse Brownfields

The last step of any brownfield remediation plan is deciding how to use the property after the environmental contamination has been cleaned up. A good guide for this is here (go to Chapter 4).When deciding how to use the property make sure to obtain input from community residents and stakeholders for their vision for reuse. In addition, integrate community, environmental, and economic considerations in your plan for reuse. A smart way to begin thinking about how to best reuse the property is by thinking about the needs of the community (go to Chapter 2). Some general needs could be: 

Another important note is that the objective and goals of the property reuse should be realistic. It may be helpful to obtain a site marketing-feasibility study which covers zoning, potential contamination, and rough cost estimates. 

After establishing the property reuse goal, there are two aspects that must be considered. One is constructing the proposed property use. A construction process checklist is useful here and consists of:

  • Accepting bids from architects, construction firms, business owners and operators. Think about attaching accountability and equity procedures (such as paying living wages and encouraging job training/retention) to developer bids. Think about the use of green infrastructure in construction (p. 37-40)
  • Obtain permits and clearance from regulatory agencies
  • Acquire legal title to land
  • Finalize financing
  • Work with architects and developers to finalize plans for site

The second is how to obtain funding. This is examined mostly in Chapter Six, but some preliminary ideas include:

  • Leveraging local resources such as strong leadership and high community involvement to obtain more outside funding
  • Leveraging municipal funds to facilitate private financing of brownfields redevelopment
  • Educate developers about federal and state financial assistance programs
  • Obtain environmental insurance
  • Create marketing plan for attracting investors
  • Clarify liability for developers (innocent landowner/bona fide prospective purchaser)
  • Bank loans
  • Site redevelopers or private investors 
  • Federal or state tax incentives
  • Community foundations or regional/federal philanthropic organizations
  • Require demonstration of local commitment by grant applicants (ex. Matching in-kind resources such as staff time)
  • Work with Community Development Entities - The New Markets Tax Credit Program, for example, permits taxpayers to receive a tax credit for making qualified equity investments in approved Community Development Entities, who in turn use the funds to provide investments in low-income communities.

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