New Developments in Brownfield Redevelopment Navigating Recent - - PowerPoint PPT Presentation

New Developments in Brownfield Redevelopment

Navigating Recent Challenges in the Remediation of Contaminated Sites Today’s faculty features:

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TUESDAY, MARCH 19, 2013

Presenting a live 90-minute webinar with interactive Q&A

David J. Freeman, Director, Gibbons, New York Nicholas W. Targ, Partner, Holland Knight, San Francisco Peter H. Weiner, Partner, Paul Hastings, San Francisco

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Newark New York Trenton Philadelphia Wilmington

BONA FIDE PROSPECTIVE PURCHASER REQUIREMENTS AFTER ASHLEY II

Strafford Publications Webinar on “New Developments in Brownfields Redevelopment” March 19, 2013 David J. Freeman

212-613-2079 DFreeman@gibbonslaw.com

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Bona Fide Prospective Purchaser Requirements After Ashley II

1.

What is a Bona Fide Prospective Purchaser (BFPP)?

2.

Why is the BFPP concept important to brownfield transactions?

3.

What did Ashley II actually decide?

4.

What (if anything) has the Ashley II decision done to:

a)

BFPP jurisprudence

b)

Strategies for accomplishing brownfields transactions?

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What Is a BFPP?

CERCLA § 107(a)(1) – makes current site owners strictly liable for site cleanup Overdeterrence – no one willing to buy contaminated sites 2001 – Small Business Liability Relief and Brownfields Revitalization Act (BRERA) § 101(40)

• Entities that perform All Appropriate Inquiries (AAI) and

comply with certain ongoing obligations relieved of site cleanup liability under CERCLA

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Newark New York Trenton Philadelphia Wilmington

What Is a BFPP?

No disposal during period of ownership All Appropriate Inquiries

• Phase I (and, possibly, Phase II) Environmental Site

Assessment

• EPA Rulemaking in 2005
• Regulations at 40 CFR § 312
• ASTM E 1527

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What Is a BFPP?

Ongoing Obligations

• Complying with land use restrictions and institutional

controls;

• Taking reasonable steps with respect to hazardous

substance releases;

• Providing full cooperation, assistance, and access to

persons who are authorized to conduct response actions or natural resource restoration;

• Complying with information requests and administrative

subpoenas; and

• Providing legally required notices.

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What Is a BFPP?

No disqualifying affiliation with a PRP

• No direct or indirect familial relationship
• No contractual, corporate or financial relationship (other

than that created by documents transferring title)

• Not a reorganization of a PRP

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Significance of BFPP Status to Brownfields Transactions

Contents of Brownfields Toolbox

• Due diligence
• Reps and Warrantees
• Assignment of cleanup liability/responsibility
• Indemnities
• Financial assurances
• Insurance

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Significance of BFPP Status to Brownfields

Transactions—Why Do You Care?

Assignment of responsibility/liability in PSA Doing cleanup anyway, usually under state supervision EPA overcalls of state-supervised cleanups very rare Potentially helpful vs. third-party claims for contribution (not personal injury or property damage) Can be helpful with lenders, insurers, joint venture partners

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Ashley II

Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 2010 WL 4025885 (D.S.C.)

• Ashley tries to assert the BFPP defense as a shield against

CERCLA contribution claims

• 43-acre Columbia Nitrogen Superfund Site in the Upper

Peninsula area of Charleston, South Carolina

• In 2003, Ashley purchases portions of the Site totaling

approximately 30 acres

• Ashley sues seeking cost recovery for $195K in response

costs

• Defendant, in turn, files a contribution action under CERCLA

§ 113 against Ashley and other defendants

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Ashley II

55-page ruling on summary judgment and allocation as among 7 group of parties 4 pages devoted to Ashley’s BFPP defense

• Likely releases during Ashley’s ownership (spills from

sumps during course of demolition)

• Did conduct AAI
• Did provide full cooperation, assistance and access to EPA
• Did comply with institutional controls and land use

restrictions (none)

• Did comply with requests for information
• Did not exercise appropriate care (failure to investigate and

remove debris piles)

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Ashley II

Release and indemnity to prior owners is a disqualifying affiliation Because of indemnity, Ashley urged EPA not to try to recover response costs from indemnities on the basis that doing so “would discourage Ashley’s future development efforts” “Just the sort of affiliation that Congress intended to discourage” (p. 53)

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Ashley II – What Is Wrong with This Picture?

Indemnity given in connection with documents transferring title, so exempted from “affiliation” test No support in legislative history for Court’s statement of Congress’ views regarding indemnities Calls into question an essential tool in the brownfields toolbox Holding superfluous in light of other factors disqualifying Ashley from being BFPP

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Ashley II – What Is Wrong with This Picture?

Court may have been swayed by what Ashley did as a result of the indemnity: asking EPA to withhold exercise of enforcement authority Statement that EPA’s actions, if pursued, would discourage Ashley’s future development efforts could be viewed as improper pressure Query as to whether, in light of these actions, Ashley “provided full cooperation” to EPA

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Ashley II – Current Status

• Fourth Circuit Court of Appeals heard oral argument in early

December 2012. Decision pending

• 2011 EPA Guidance
• In September 2011, EPA issued a guidance stating that it

“generally does not intend” to treat indemnities contained in sales agreements as an impermissible affiliation barring BFPP status

• No courts have yet followed Ashley II’s lead on this issue

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Ashley II – Significance to Brownfields Jurisprudence and Practice

Holding on indemnification

• Not good public policy
• Indemnification is an essential element in many brownfields

transactions

• Unlikely that will be upheld on appeal, or be applied beyond

specific facts of case

• Warning to developers: don’t try to tell EPA that indemnity

should effect exercise of enforcement discretion

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Ashley II – Significance to Brownfields Jurisprudence and Practice

Holdings on continuing obligations

• Timely reminder that can lose BFPP status post-closing
• Need to exercise diligence in addressing contamination

found at site

• Need to make sure remedial activities don’t create potential

for new releases

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Brownfields Redevelopment Vapor Intrusion Risk Management Nicholas Targ Holland & Knight LLP

415.743.6926 nicholas.targ@hklaw.com Strafford Publications New Developments in Brownfields Redevelopment March 19, 2013

Vapor Intrusion Considerations Outline and Objectives

Provide a basic understanding of:

• vapor intrusion (VI) exposure pathway
• why VI has become a hot topic
• ASTM’s process for screening and assessing vapor

encroachment conditions during Phase I/II Environmental Site Assessment

• steps that can be taken to manage project/deal risk

from potential VI conditions

Page 22

• Q. What Is Vapor Intrusion?
• A. Off-gassing of chemicals in the ground that make their way inside

 Volatile chemicals (e.g., TCE,

gasoline, benzene) can produce vapors that migrate through subsurface soils, along utilities, and into the indoors.

 Vapor intrusion (VI) is an

environmental condition that can

• ccur when volatile chemicals in

soil and/or groundwater enter a building in vapor form.

Page 23

• Q. What are typical infill locations where VI may be an issue?
• A. Most older urban or reuse locations.

On or near present and former: – gas stations – service stations/garages – dry cleaners – paint processing/mixing sites – manufactured gas sites – industrial sites – municipal solid waste (garbage) landfills

Page 24

• Q. Why has VI become a hot topic?
• A. Understandings and rules are changing rapidly.
• Changes in toxicological health risks understanding,

including: – Potency of the chemical – Ways in which known chemicals can impact people – How much (“dose”) people take-in

• Federal and state regulators are taking action, including:

– New risk/clean-up levels (imminent and ongoing) – New response action, including offering relocation – Potential for re-opening sites – Modification of remedial action objectives/goals

• Third party litigation
• Creditor/Banking community response

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Regulatory Response

• Vapor migration/intrusion is prompting regulatory changes:

– Federal

• 2002 EPA Draft VI Guidance being updated (expected shortly)
• 2011 EPA Hazard Ranking System being revised to include VI

pathway

• EPA evaluating VI conditions in 5-year review
• Trichloroethylene (ubiquitous industrial solvent) toxicity and action

levels are being re-evaluated by EPA Regions (USEPA guidance expected imminently) – State

• 30 states now have guidance, according to EDR
• Several states have changed clean-up thresholds for VOCs
• Several states have re-opened closed sites because of vapor

pathway concerns

• California revising its community right-to-know thresholds for PCE

Page 26

Credit/Bank Sector Response to VI Issues

Sources: EDR’s Annual Benchmarking Surveys of Financial Institutions. 2008, 2009, 2010

• As of 2010, 40% of bankers surveyed work at banks with VI

due diligence policies for lending

• In 2008, only 18% of risk managers responded that their

bank had a VI policy

• Community banks, as of 2010, have not moved as

aggressively in adopting VI policies. Fewer than 22% of respondents stated that their banks had VI policies

.

Page 27

• Q. How is VI screened as part of a Phase I ESA?
• A. VI should be considered, like other potential conditions

Tier 1:

• Focuses on known or suspected contaminated sites in a

specific “area of concern”

• If such a site exists, the consultant must apply professional

judgment to determine whether it may be a Vapor Encroachment Condition (VEC)

• If so, a determination must be made whether the VEC is a

Recognized Environmental Condition (REC) and, if a REC, decide with the client what further investigation, if any, may to be performed

ASTM E2600-10 (June 2010), Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions)

Page 28

Consider VI in Phase I/II Assessments (ASTM Guidance)

Tier 2 (follow-on work if VEC REC is identified):

• Focuses on impacted media (soil or groundwater) from any

contaminated sites in AOC, proximate to the project

• May be accomplished by:

– Agency files review, or – If no plume data is available, by soil gas sampling at property boundary.

Page 29

Notes of Phase I VI Screening

• 1. Not all Vapor Encroachment Conditions are RECs. Site specific

factors may make a VEC a “de minimis REC.” Relevant factors, among others, may include:

• Known or inferred groundwater condition
• Soil qualities
• Age of release
• 2. Finding a VI REC does not need to be a deal stopper
• Environmental insurance
• Build-in cost of vapor mitigation
• Design around condition.

3. In most cases a VI conditions found after project construction (e.g.,

• n refinancing) can be managed through engineering controls

retrofits.

Page 30

• Q. How can you manage VI risk?
• A. Treat VI as you would contamination in soil or groundwater.
• Evaluate potential vapor intrusion risk in

the due diligence process (Phase I/Phase II)

• Evaluate VI coverage in environmental

insurance products

• Consider vapor intrusion issues in

project design and layout

• Don’t ignore “closed” sites
• Be aware that your creditors will want to

include a VI screening at time at time of underwriting and refinance

• Stay current on state and Federal

requirements/guidance

Page 31

Brownfields Vapor Intrusion Resources

OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance) (EPA November 2002) http://www.epa.gov/epawaste/hazard/correctiveaction/eis/vapor.htm EPA Vapor Intrusion Screening Level Calculator http://www.epa.gov/oswer/vaporintrusion/guidance.html#Item6 Brownfields Technology Primer: Vapor Intrusion Considerations for Redevelopment (EPA March 2008) http://www.brownfieldstsc.org/pdfs/BTSC%20Vapor%20Intrusion% 20Considerations%20for%20Redevelopment%20EPA%20542-R-08- 001.pdf

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Paul, Hastings, Janofsky & Walker LLP

BRIGHTFIELDS Peter H. Weiner

(415) 856-7010 peterweiner@paulhastings.com Strafford Publications: New Developments in Brownfields Redevelopment, March 19, 2013

Paul, Hastings, Janofsky & Walker LLP

Brightfields

 The term “brightfields” refers to the conversion of contaminated sites into usable land by bringing pollution-free solar energy and high-tech solar manufacturing jobs to these sites, including the placement of photovoltaic arrays that can reduce cleanup costs, building integrated solar energy systems as part of redevelopment, and solar manufacturing plants on brownfields. - U.S. EPA

 U.S. DOE in 1999 began a brightfields program but idea really took off in the last 5 years.

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Paul, Hastings, Janofsky & Walker LLP

EPA Brightfields Initiative

 Re-Powering America’s Land Initiative

 EPA partnered with National Renewable Energy Labs (NREL) to promote renewable energy siting, providing

 Maps of renewable energy potential with brownfield site

• verlays

 Estimates of greenhouse gas benefits from siting renewable energy on contaminated land  Advice on Liability issues

 EPA Robust Re-Power America website: http://www.epa.gov/oswercpa

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Paul, Hastings, Janofsky & Walker LLP

State Programs

 State laws directly promoting Brightfields do not yet appear to exist

 Renewable Portfolio Standards

 32 States have RPS

 RPSs require electricity providers to obtain minimum percentages of power generation from renewable source

 Brightfields facilitates RPSs by  Turning contaminated sites into renewable energy production facilities

 State brownfields programs: the Missing Link  State Transmission policies could emphasize use of unused transmission capacity, e.g. from declining landfill gas

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Paul, Hastings, Janofsky & Walker LLP

Current Status of Brightfield Projects

 EPA (Nov. 2012): 60 sites, 184 MW installed US capacity (109 MW solar)

 Most in last 4 years  Only 10 of 60 (11.7MW) on Landfill sites  130 MW wholesale electricity

 Massachusetts: 39 projects permitted, 13+ MW online

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Paul, Hastings, Janofsky & Walker LLP

Siting Solar on Landfills: Bright Future or Risky Business?

 EPA Says Bright Future

 See Best Practices for Siting Solar Photovolataics on Municipal Solid Waste Landfills (Feb. 2013)  Landfills often have excess transmission  Close to roads and other infrastructure  Size (often under 5MW) fits into attractive utility purchasing categories

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Paul, Hastings, Janofsky & Walker LLP

Risky Business: Investors, Lenders see Specter of CERCLA Liability

 CERCLA Generally Holds Owners and Operators Liable, including some lessees  Exemptions for Bona Fide Prospective Purchaser (Innocent purchaser inapplicable)  Third party liability the key  Even if liability limited, risky O&M?

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Paul, Hastings, Janofsky & Walker LLP

Legal considerations: Brightfields

 Is solar company an “operator” or “owner” under CERCLA/RCRA

 A ground tenant can be deemed an “owner” of a contaminated property, for CERCLA liability purposes, if the lease is for a long period of time (e.g., 30 years)  Moreover, in addition to this potential CERCLA liability as a de facto “owner” under CERCLA, a tenant who conducts site development activities, such as grading or earth removal activities, may likewise find itself liable under CERCLA as an “operator” or “transporter”  EPA will provide “Comfort Letters” but advises State

• signoff. Comfort letters do not protect against 3d party

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Paul, Hastings, Janofsky & Walker LLP

Limitation of Liability: A Safe Harbor with No Water In It?

 Bona Fide Prospective Purchaser limitation

• f liability

 Requires, among other elements

 All appropriate inquiry  Appropriate care exercised with respect to any release

 Companies seeking liability relief in connection with Brightfields development must ensure all proper steps are taken  “Appropriate care” and AAI Risks

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Paul, Hastings, Janofsky & Walker LLP

The State Signoff: Who needs it and who can get it?

 Municipal landfills can give developers hold harmless, indemnities, and covenants not to sue  Limits on covenants: if the solar facility impairs the cap, who is responsible?  States, like EPA, do not want to spend the resources on Prospective Purchaser Agreements

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Paul, Hastings, Janofsky & Walker LLP

Legal considerations: Brightfields

 Strategies to insulate solar developers from liability

 Create a liability shield around the project by acquiring the property and all of its environmental liabilities via an entity that directly manages the clean up with the relevant government agencies  Once remediated, lease the property in a long-term contract to a wholly separate entity, which then develops and finances the solar installation, including acquiring necessary permits to qualify for federal and state incentives and to secure a PPA

 Model followed by: Brightfields LLC

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Paul, Hastings, Janofsky & Walker LLP

Legal considerations: Brightfields

 Strategies to insulate solar developers from liability

 Obtain an easement  Courts have ruled that a pipeline owner with an easement through contaminated property, but did not contribute to the contamination and had no control over remediation at the site, was not an ”owner” or “operator” under CERCLA

 Long Beach Unified School Dist. v. Dorothy B. Godwin Living Trust, 32 F.3d 1364 (9th Cir. 1994).

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Legal considerations: Brightfields Regulatory assurances

 Strategies to insulate solar developers from liability

 Request a status letter from the U.S. EPA

 A status letter will usually address key issues such as the likelihood of EPA involvement at the brownfield site, statutory provisions or other policies that are applicable to the site, and information on the cleanup process or other steps which should be taken at the site  May not be sufficient for investors and lenders

 Seek judicial consent agreement with relevant agencies to insulate their project from third-party litigation

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Paul, Hastings, Janofsky & Walker LLP

Legal considerations: Brightfields Regulatory assurances

 Strategies to insulate solar developers from liability

 Obtain a Prospective Lessee Agreement from EPA

 Developer agrees to pollution minimization practices  EPA & DOJ covenant not to sue

 Lessees that could be considered “owners” under CERCLA may be considered a BFPP - 2009 EPA Guidance

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Prospective Purchaser Agreements: The once and future solution

 Prospective Purchaser Agreements tailor rights, obligations, and immunities to the individual project.  PPAs require formal signoff by the State agency.  PPAs can be filed as part of a federal court “settlement” to eliminate third party liability.

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A Bright Future

 Large-scale solar development will have natural limits due to public land controversy and private land scarcity  Brightfields present a golden opportunity for 1-10 MW Solar Development  EPA should issue clear formal guidance exempting solar projects from

• wner/operator status under CERCLA

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LAND USES AND REMEDIATION

Peter H. Weiner

Strafford Publications: New Developments in Brownfields Redevelopment, March 19, 2013

Paul, Hastings, Janofsky & Walker LLP

CERCLA: General Remediation Principles and Preferences

 Protective of Human Health and the Environment  Unrestricted Use

 Or Restricted with Land Use Covenants

 Permanent Remedy  Cost-Effectiveness

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Paul, Hastings, Janofsky & Walker LLP

How Land Use Guides Remediation

 CERCLA, as interpreted by EPA, requires consideration of “reasonably anticipated” future land use  See, e.g. OSWER Directive 9355.7-19, 3/17/10, “Considering Reasonably Anticipated Future Land Use…”  See, e.g., OSWER Direction 9355.7-04 (5/2595), “Land Use in the CERCLA Remedy Selection Process”

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RCRA, State Programs Also Consider Future Land Use

 See, e.g. RCRA Corrective Action Regulations  See, e.g. CA Health & Safety Code Sections 25356.1 and 26395.60 et seq.

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Agencies Require Cleanup to Facilitate Anticipated Reuse, with Land Use Covenants if not unrestricted

 Remedial Goals Require Excavation, Treatment, or Cover to Avoid Anticipated Exposures  Land Use Covenants (Running with the Land) Restrict Uses That Would Require More Remediation than Anticipated  Where future use could include sensitive receptors, unrestricted cleanup is required. See, e.g., CA DTSC “Response Actions for Sites Where Future Use May Include Sensitive Uses”: http://www.dtsc.ca.gov/LawsRegsPolicies/Policies/SiteClean up/upload/SMBR_POL_SENSITIVEUSES-MM_E-02-002.pdf

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How to Assess Anticipated Use

 EPA Requires Consultation with Stakeholders

 Local Governments, Community Groups  Owners, Tribes, etc.

 EPA Regions Develop Reuse Assessments  Cleanup Standards Limited by Feasibility

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When is Anticipated Use Set?

 EPA: If Anticipated Use Changes Pre- Record of Decision, Revise Risk Assessment and Remedy (2010 OSWER)  If Changes Occur post-ROD, Site by Site Decision (including determining whether the party seeking the change will pay incremental costs)

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Paul, Hastings, Janofsky & Walker LLP

Role of Local Planning and Zoning

 General Plan: Specific Enough for Remedy Selection?  Zoning: Specific Enough for Remedy Selection?  Specific Plans and Flexibility: Confusing to Agencies?

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Local Planning and Risk Assessment

 Translating Plans and Zones into EPA and State Agency risk assessment considerations  The case of “mixed use”, “community nodes,” and other modern planning and zoning concepts  Translating land use into exposures into risks

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The Community Role in Remedies

 City/County and Community Understanding of Land Use Planning Influence on Remedy is Essential  Translating Local Definitions of “Residential” to EPA/State Understanding of Exposures and Risks is Critical  EPA and State Agencies Must be Sensitive to Changing Community Land Use Plans

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Paul, Hastings, Janofsky & Walker LLP

Discussion

 For Further Discussion and Information Please contact Peter H. Weiner Paul Hastings peterweiner@paulhastings.com (415) 856-7010

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Brownfields Redevelopment Funding New Developments Nicholas Targ Holland & Knight LLP

Strafford Publications New Developments in Brownfields Redevelopment March 19, 2013

Page 60

• Q. Is incentive funding available for brownfields projects?
• A. Yes, funding is available from federal, state and local source
• Brownfield funding (e.g., grants and low-cost loans) and

regulatory incentives are available on a project-by-project basis

• Beneficial tax treatment for brownfields costs may be

available more generally

• To receive funding and other benefits, typically, the applicant

will need to be a Bona Fide Prospective Purchaser status

• Certain funding opportunities are limited to government

entities and non-profit organizations

• To take advantage of opportunities, pre-acquisition strategic

planning to position the project is essential

Page 61

Federal/EPA Brownfields Funding

• The Federal Brownfields Act authorizes grants worth $200

million annually including:

• Site assessment and remediation
• Superfund sites excluded unless on case by case

basis determine protect health and economic development

• Matching requirement (20%, labor, materials,

services)

Page 62

Federal/Non-EPA Brownfields Funding

• US Department of Housing and Urban

Development

– Community Development Block Grant funding – Section 108 funding

• US Department of Commerce

– Economic Development Administration

• US Department of Transportation

– Funding to add on-site transit, improve transit connection, or other TOD infrastructure

• Brownfield Tax Incentives

Page 63

Federal/non-EPA Brownfields Funding

• Brownfield Tax Incentives

– Cleanup costs, including institutional controls, are fully deductible in the year incurred, rather than capitalized and spread over a period of years – Requirements

• The taxpayer incurring the cleanup expense must own

the property and use it in a trade or business or for the production of income

• Hazardous substances or petroleum contamination must

be present or potentially present on the property

• Taxpayers must obtain a statement from a designated

state agency confirming the site is a brownfield and therefore eligible for the tax incentive

Page 64

Brownfields Funding

• State Funding Programs

– State programmatic or bond funding – State Brownfields Revolving Loan Programs

• State Water Resources Control Board

– UST cleanup fund – CA Recycle Underutilized Sites Program

• Local/Project Based Funding

– Community Development Block Grant (HUD pass through) funding – Tax increment financing – General obligation bonds – Community Finance Districts

Page 65

Brownfields Funding Resources

A Guide to Federal Tax Incentives for Brownfields Redevelopment (EPA 2012). http://www.epa.gov/swerosps/bf/tax/tax_guide.pdf EPA Brownfields Grants and Funding Webpage. http://www.epa.gov/brownfields/grant_info/ EPA Region 9 Contact List (names and contacts) http://www.epa.gov/region9/brownfields/contacts.html

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Environmental Justice in the Brownfields Context

Strafford Publications Webinar on “New Developments in Brownfields Redevelopment” March 19, 2013 David J. Freeman

Newark New York Trenton Philadelphia Wilmington

Environmental Justice in the Brownfields Context

1.

What is EJ ?

2.

What is EPA doing about EJ?

3.

How do current developments in EJ affect brownfields practice?

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Environmental Justice: What Is It?

Environmental justice is achieved when everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment

Fair Treatment

No disproportionate share of negative environmental consequences

Meaningful Involvement

Opportunity to participate in decisions Concerns will be considered in the decision-making process Decision-makers should seek out and facilitate the involvement of those potentially affected

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What Is EPA Doing About EJ?

1996 - National Environmental Justice Advisory Council publishes Environmental Justice, Urban Revitalization, and Brownfields: The Search for Authentic Signs of Hope highlighting recommendations to EPA raised through the public dialogues on how to develop the Brownfields Program The 2002 Brownfields Amendments requires environmental justice be addressed and provides for funding of nonprofit organizations. 2006 - National Environmental Justice Advisory Council publishes Unintended Impacts of Redevelopment and Revitalization Efforts in Five Environmental Justice Communities highlighting concerns of gentrification and displacement in brownfield communities 2007 - Brownfields Program contributes to EPA Office of Solid Waste and Emergency Response Environmental Justice Action Plan

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What Is EPA Doing About EJ?

Plan EJ 2014 issued in 2011 as a roadmap to fully integrate the principles of environmental justice throughout EPA Not a rule or regulation but rather a strategic plan The goals of EJ 2014 are to:

Protect health in communities overburdened by pollution Empower communities to take action to improve their health and environment Establish partnerships with local, state, tribal and federal

• rganizations to achieve healthy and sustainable

communities.

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What Is EPA Doing About EJ?

Key elements of EJ 2014:

Incorporate EJ concepts in rulemakings Consider in EJ in permitting Advance EJ through compliance and enforcement Support community-based programs Engage in stakeholder outreach

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How Will It Affect Brownfields Practice?

Brownfields Revitalization Funding Under Superfund § 104(k)

Assessment, Revolving Loan Fund and Cleanup (ARC) Grants comprise the majority of the §104 grants FY13 Guideline for Applications for Brownfields Revolving Loan Fund Grants states that a description of the environmental justice concerns

• f the targeted community should

be included in the assessment of community need Fiscal Year ARC Grants Selected ARC Grants Selected Dollar Amount 2003 211 $72.5 M 2004 257 $73.9 M 2005 295 $75.4 M 2006 305 $72.4 M 2007 294 $70.7 M 2008 314 $74.1 M 2009* 389 $111.9 M 2010 309 $79.9 M 2011 214 $62.5 M 2012 219 $59.0 M

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How Will It Affect Brownfields Practice?

Funding of State Response Programs Under Superfund § 128

The guidelines for § 128 funding "strongly encourage" input from environmental justice communities

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Newark New York Trenton Philadelphia Wilmington

Community Action for a Renewed Environment (CARE) Program

Competitive grant program for communities to organize and take actions to reduce toxic pollution in local environments—not restricted to brownfields projects 111 projects funded by CARE grants since 2005 Not funded in FY 2012 President’s budget proposes $2.1 million funding for FY 2013

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Newark New York Trenton Philadelphia Wilmington

How Will EPA’s EJ Policies Affect Brownfields Practice?

Strong priority given to grant and loan applications that address EJ issues Support for empowerment of community organizations Active involvement with/comment on brownfields activities

• f private developers

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