The Brownfields Amendments of 2001, P.L. 107-118, established three landowner liability protections: the bona fide prospective purchaser defense under CERCLA Section 107(r), the contiguous landowner defense under CERCLA Section 107(q), and the “innocent landowner” defense under CERCLA Sections 107(b)(3) and 101(35). In order to qualify for any of these defenses, the landowner must establish that it………..

Prospective Purchaser Agreements (covenant not to sue)

Status, Comfort and No-Action Letters (no further action letter)

Negotiated Cleanup Standards (You Don’t Need a Cadillac Cleanup to Park Your Pickup)

Consent Decree (government version of a settlement agreement)

Lease from Redevelopment Agency

Environmental Liability Acquisition Companies

Indemnities and Releases

Environmental Risk Insurance

Comment: Complete article below is from 1996 but still is a great introduction to strategies for limiting environmental liability.

The attached file includes an article on pages 8-12 by Richard G. Opper, the founding partner of Opper and Varco, LLP, (www.envirolawyer.com), in San Diego, CA.

The article is a very helpful introduction to the Polanco Redevelopment Act, which provides that a redevelopment agency can demand that owners (and other responsible parties) propose and carry out a remedial plan for a property within a project area. If the demand is ignored, the agency can either undertake the work itself and bill back to owners/responsible parties, or force the owners/responsible parties to take on a clean up themselves.

A recent (from 9/03) survey showed that about 60 of the State’s 350 redevelopment agencies were using the act, or had used it. This is not a “last-minute” solution. Using the Act takes lots of foresight.

Ironically, brownfield redevelopment and political circumstances surrounding 9/11 caused a lessening of CERCLA/Superfund liabilities for landowners and therefore affected redevelopment agencies’ abilities to enforce Polanco. Nonetheless, use of the Polanco act has increased.

Question: Have any of our readers been involved with a transaction or development assisted by the Polanco Act? Please tell us about it. Did it help make for a redevelopment that otherwise wouldn’t have happened? Was it an efficient or painful process? Was it worth it?

Question: It seems like the obvious question is, “does the Polanco Act get used only when a redevelopment project area exist to facilitate the act?…..or do cities actually create redevelopment project areas specifically in order to be able to use the Polanco Act on key sites?

Question: Do any of our readers have any other comments?

Click Here To Link To Article

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?

Great article below.

The reporter, Bennett Voyles, really seems to have done homework about who to talk with. Lots of big players from consulting companies, development companies and insurance companies have chimed in.Ã

I thought the part about, “…..Sarbanes-Oxley and Financial Accounting Standards Board Rule 47 (FASB) are prodding companies into dealing with the problems” was interesting.

Question: Will that free up some of corporately owned parcels that have been stuck in limbo for too long?

Question: Anyone else read this one?

• When are you eligible to treat environmental cleanup expenses as a deduction?
• If a property is to be cleaned up in conjunction with a sale, who receives the tax benefit of the cleanup?
• Can you enjoy a one- to two-year reduction in the annual property tax assessment of a property?
• If share price is a concern, is it cost effective to clean up a property, and remove an environmental liability, thus bettering the bottom line for shareholders to see?
• Reference: The points listed above are but a few of the informative issues discussed in the article below written by Bruce Keys (of Foley and Lardner law firm, www.Foley.com) and published by Society of Real Estate Counselors).
• Comment: I thought the discussion was interesting about the idea that it might benefit a corporation to sell an environmentally distressed property because it could potentially remove a large liability from their balance sheet, which hopefully could counterbalance some of the same corporation’s fears about selling the property. Another point I found interesting was that it’s often easier for new, innocent buyers of brownfield properties to obtain funding (grants, tax credits, TIF, etc.) than it would be for the current owner of the property.
• Call for Discussion: Have any of our readers used any of these “tricks of the trade”, or any others?