The article below called, “The Brownfield Toolbox” is an oldie but goodie. It was written by some smart folks over at Barg Coffin Lewis & Trapp, LLP in San Francisco.

The article touches on many different issues, including risk-based corrective action, the details of and difference between Phase I and Phase II investigations, Voluntary Cleanup Program, Prospective Purchaser Agreements (locking in agency protection prior to purchasing), de minimis landowner settlements (I didn”t create the contamination, I just own it….), environmental insurance, etc.The issue of risk-based analysis is interesting because it details how previously there was a zero-tolerance policy with regards to contamination, which mostly lead to alot of boarded up and fenced off sites. Subsequently, the regulators moved to the risk-based system which focused less on the qualitative analysis of whether a site was contaminated and focused more o on the quantitative approach of determining how risky that contamination actually is to humans or the environment. In summary, that provided a more common-sense and solution oriented approach to redevelopment.

Question: Did anyone else find this article interesting?
Question: Any experts out there want to comment on what, if anything, has changed since this was written in June of 1999?

Obviously grants can be made/received for purposes of remediating a site. This article shows that grants can be made/received for purposes of investigating possible contamination.

The attached file, “All Appropriate Inquiries - New Standard for Environmental Due Diligence” was written by the smart folks over at Winston & Strawn LLP (www.winston.com). Contact info for specific attorneys/contributors can be found at the bottom of the article.

To qualify for defenses to CERCLA’s “strict liability”, one has to show they’ve made “all appropriate inquiries” that reflect generally accepted good commercial practice. That was formerly proven by identifying recognized environmental conditions. The EPA’s new rule, effective 11/1/06, mandates that not only do you need to recognize conditions, you also need to achieve certain objectives and performance standards. The old ASTM standards have been updated to reflect EPA’s new guidelines.

Comment: I don’t know if the new ruling has changed this situation, or whether this situation was always in place. But I find it interesting that landowners could be deemed to have failed “all appropriate inquiries” if the consultant they hired doesn’t adequately consider “data gaps.” So it appears it’s not enough to hire a qualified consultant, you also have to hire one you’re sure will get it right.

Question: Clearly, Phase I costs depend on the particular assignment, so it would be difficult to estimate the EPA’s new ruling effect on costs, on an absolute $ basis. But does anyone dare to take a shot at generalizing how much Phase I costs will increase, on a percentage basis?

Call for Discussion: Any Phase I consultants care to chime in with what you’re doing to be prepared to meet the new ASTM/EPA standards? This article was written in November, 05 - does anyone know whether financial institutions are gearing up to impose the new standards in their underwriting requirements?

The attached article mentions all the problems we’re painfully aware of, with respect to brownfield sites, but it also goes on to mention on pages 3 and 4 some, “Federal Policy Options and opportunities for brownfields and vacant properties.”

I have to think this will be interesting to developers and landowners for future projects, since it lists quite a few ideas for the federal government, including the following:

-EPA grants/Federal subsidies/Multi-purpose grants.
-Brownfield Economic Devp Initiative (BEDI) and Section 108 loan guarantees.
-Section 198 brownfield tax expensing.
-Federal browfield tax credits.
-Eminent domain.
-Enforcing Sarbanes-Oxley
The document is written by Matt Kane, Charles Bartsch and Barbara Wells of the Spring 2006 Northeast Midwest Economic Review. www.nemw.org.

Link to Document Here and Open the pdf file called  Northeast-Midwest Economic Review: Spring 2006