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Managing Environmental Risk through Brownfield Programs When Buying or Leasing Real Property in the United States

Written by Brooke F. Dickerson, Arnall Golden Gregory LLP

American environmental laws can be daunting for a foreign investor. For example, both federal and state laws can impose strict liability, which is liability regardless of fault or intent, on the owner or tenant of a contaminated property, which is sometimes called a “brownfield property.” Such liability could lead to the imposition of penalties, the obligation to perform cleanup work, the duty to reimburse another party for its damages, or the restriction of use of the property itself, even if the contamination occurred prior to the acquisition or lease of the property or if the contamination was not caused by the owner or tenant. However, there are various methods that an entity can use to limit or avoid such liability, as well as unexpected costs, time, expenses and possibly reverse phone lookup checks. A purchaser or incoming tenant of property that could be contaminated can protect itself by performing due diligence and availing itself of one or more of these methods.

One method frequently used to manage environmental liability is participation in a “Brownfield Program.” Brownfield programs provide liability protection and other benefits to a purchaser or new tenant of real property and have been adopted by several states. Generally, brownfield programs require that a party apply for acceptance either prior to or within a short time after acquiring a property interest. Both the property and the applicant must qualify under the particular criteria for that program. In the state of Georgia, for example: (1) the property must have a preexisting release of a hazardous substance but it cannot already be subject to cleanup requirements under other environmental laws; and (2) the applicant must not be a person who contributed to the contamination or have a close relationship with a person who contributed to the contamination, and the applicant must not be in violation of any environmental order or law. The applicant must agree to adequately assess the environmental conditions of the property, if not already done, and to address any releases that exceed regulatory clean up levels; the proposed assessment and remediation work are submitted in the application as part of a proposed corrective action plan. Finally, the applicant must certify to the agency that it has achieved its corrective action plan tasks after all the work is completed.

In return, an applicant will receive a “Limitation of Liability” under the brownfield law for all of the contaminants that it assessed and/or addressed. The limitation of liability is usually granted as soon as an application is approved, conditioned on the full performance of the corrective action plan. The limitation of liability becomes final upon approval of the applicant’s certification of compliance. The scope of a limitation of liability varies by state, but usually will include protection against any claim by the government for additional cleanup as well as by a third party, such as a neighboring property owner.

Participation in a brownfield program provides several other advantages as well. Remediation requirements can be reduced according to the specific intended use of the property and likely risks of exposure to human health or the environment. A residential use will require a more strict clean up than an industrial use; consequently, the cost to clean up property for an industrial plant will be much less than the costs to clean up property to be a housing development. A prospective purchaser or tenant will have a good estimate of how much it will have to spend and how much time it will take to address environmental problems before it acquires the property, enabling better budgeting and cost evaluation. A very important benefit is that the brownfield limitation of liability runs with the land, which means that the protections pass from the initial applicant to all subsequent owners and tenants of the property. Existing brownfield protection is a significant advantage when marketing the property if and when the owner wants to sell or re-lease it.

As with the extent of liability protection, other brownfield benefits can also vary state by state. Using the Georgia program as an example, a purchaser or new tenant in the brownfield program is excused from having to address any groundwater contamination (which is often the most costly type of remediation work), and the corrective action plan can be performed autonomously, only requiring governmental involvement when the entity submits its final certification of compliance with the corrective action plan. Not being required to obtain governmental approval at various milestones will save the owner or tenant significant time in completing the project.

Many states also offer tax benefits. The Georgia brownfield program incorporates property tax abatements up to the amount of eligible brownfield costs incurred. Eligible brownfield costs include almost all expenses related to assessing the property, working with consultants, cleaning up the property, preparing and submitting all required documentation and finalizing the limitation of liability; legal fees and true construction costs are not eligible. In essence, a new property owner or tenant can get reimbursed for all of its environmental costs through tax savings and still recoup the brownfield liability protection, limitation and certainty of expenses and time, and marketing benefits for resale.

In sum, a potential purchaser or tenant might want to give a contaminated property a second look. Such an investment may yield greater returns than locating on a clean property. So if you’re looking for new property to invest in, whether clean or contaminated, you may want to think about getting cash for your house in Seattle.

This article has been republished with the permission of the authors. It was first published on the AGG website.


About the Author

Brooke F. Dickerson focuses her practice on transaction, regulatory, compliance and permitting matters. With regards to environmental work, she has significant experience with Superfund (CERCLA), hazardous waste (RCRA and HWMA), the Georgia Hazardous Site Response Act (HSRA), solid waste, Brownfields, wetlands, and site evaluation, assessment and remediation issues. She also advises clients on stormwater compliance, green leasing issues and green/sustainable building practices. With regards to construction work, Ms. Dickerson advises owners and developers on the drafting and negotiation of architect, construction and construction management agreements. She has represented clients in connection with the construction of office, multi-family, mixed use and tenant improvement projects. She also advises clients on OSHA matters and has represented several companies in obtaining reduced or dismissed penalties in settlement negotiations.

Kitchener, Ontario’s Largest Brownfield Redevelopment

Kitchener, Ontario’s biggest abandoned industrial site is well on its way into being redeveloped into a 50,000-square-foot facility for a tool and die company and a 3,150-square-metre medical office building.

The 78-acres industrial site is located on the southeast corner of Bleams Road and Homer Watson Boulevard in Kitchener, approximately 100 km west of Toronto.  It was developed with a 1.2 million square foot manufacturing facility that was constructed in several phases beginning in 1967.  The facility had been used by Budd Canada to manufacture auto parts, ThyssenKrupp Budd Canada, and eventually by Kitchener Frame.  The land has sat idle since 2009.

2010 Photo of fhe former Kitchener Frame Building (Photo Credit: Philip Walker/Record staff

In 2010, a group of investors purchased the property with the vision of redeveloping it.  It has taken eight years for the redevelopment to reach its current state – a series of approvals from various levels of government and a plan to start construction in early 2019.

The site is still waiting approval of the Record of Site Condition (RSC) from the Ontario Ministry of the Environment, Conservation and Parks (MOECP). It was filed in January of 2018.  An RSC is typically required by on Ontario Municipality if a property is being redevelopment for a more sensitive land use (i.e., from industrial to commercial or residential).  It is filed by an environmental consultant following the clean-up of a property.  It summarizes the environmental condition of a property based on the completion of environmental site assessments (i.e., Phase I & II ESAs).

Site Clean-up

Demolition work and subsequent site cleanup got underway in November 2011. The environmental remediation cost an estimated $8.5 million.

A soil remediation program was conducted at the property between April and June 2016 in an attempt to reduce the
concentrations of the contaminants of concern s in soil identified at the property. The remediation activity at the site included the excavation of approximately 9,360 cubic metres (5,200 tonnes) of contaminated soil for disposal at a licensed non-hazardous waste landfill.  No sediment or groundwater was remediated or removed for the purpose of remediation.

The clean-up of the site included the preparation of a Streamlined Tier 3 Risk Assessment Report.   A risk assessment provides an approach for developing property specific standards (PSS) under Ontario Regulation 153/04 (Records of Site Condition (RSC) – Part XV.1 of the Act), made under the Environmental Protection Act (the Regulation). A Tier 3 Risk Assessment goes beyond the generic approach of a Tier 2 risk assessment and involves a longer and more detailed review by the MOECP. According to the filed RSC, the MOECP has approved of the Streamlined Tier 3 Risk Assessment.

As reported in the Kitchener Post, a total of $7,787,000 in direct remediation costs are eligible to be reimbursed by the city and region under a joint tax increment grant application. The total estimated post redevelopment assessment value is estimated at more than $111 million.

Redevelopment

In an interview with the Daily Commercial News, Janinen Oosterveld, manager of site development and customer service in Kitchener-Waterloo’s planning division stated: “Approvals to finalize the subdivision of the lands into development parcels is currently underway.”

As of mid-October, the city had received site plan applications for two developments — a 50,000-square-foot facility for a tool and die company and a 3,150-square-metre medical office building.

Plans for the redevelopment envisage nine industrial parcels, totaling approximately 39 acres.

Future redevelopment of the former industrial property on Homer Watson Boulevard, Kitchener, Ontario (Photo Credit: Bill Jackson/Metroland)

 

Did the City of Hamilton overpay for a Brownfield Site

As reported by the CBC, the City of Hamilton recently paid $1.75 million for a brownfield site that once sold for $2.  The property, located at 350 Wenworth Street North, sold for $2 a decade ago and then for $266,000 two years ago.

In the property was purchased in 2013 for $266,000, hundreds of barrels of toxic waste were discovered behind a fake wall.  The barrels contained coal tar byproducts and industrial solvents, and roof tar.  The new owner arranged for the proper disposal of the barrels.  The Ontario Environment Ministry confirmed  in  an e-mail to CBC that the waste had been from the building and it was decontaminated by the fall of 2017.  It also confirmed that the clean-up included the removal of approximately 200,000 litres of liquid waste.

The cleanup of the toxic property has been going on intermittently since 2010 (Photo Credit: Hamilton Spectator) photo

It is not known how much the clean-up of the 800 barrels of toxic waste cost, but the Hamilton Spectator quoted the owner  in 2017 that the clean-up would cost $650,000.

Property records for the building stretch all the way back to 1988, when Currie Products Limited spent a million dollars for 350 Wentworth. Currie ran a tar facility that went out of business there in the late 1990s, and was considered by many to be the company that originally polluted the site. Owner John Currie died in 2013.

Through the years, the building has changed hands multiple times for a wide swath of prices, ranging from that original million dollars, to $610,000 in 2007, to $2 in 2008, to the tax sale in 2016 and now, for $1.75 million. Over that time, building owners fought with each other and the province over who was actually responsible for cleaning up the site, in some cases heading to court in search of a resolution. For each sale, the price of the property reflected what buyers knew about the site at the time.

The city’s purchase of the property is all part of a reshuffling of buildings in the area to create a transit hub for the lower city like the Mountain Transit Centre at 2200 Upper James.

While it appears the city could have saved money by taking over the property when it was up for tax sale, that’s not really the case, officials say. The city does sometimes take carriage of properties after a failed tax sale, but woudn’t do so on a property like this one with environmental issues, Hamilton City Councillor Matthew Green told the CBC.  He added, “The city won’t take on the liability by policy.  The liability is way too big, because you don’t know what you’re buying … you have no idea what could be found or buried.”

The city bought 350 Wentworth St. N., which has required much cleanup over the years. Most recently, 200,000 litres of liquid waste was removed from the site in 2017 (Credit: The Hamilton Spectator)

 

 

 

Can a Saskatoon brownfield be transformed into fertile green space?

The City of Saskatoon, Saskatchewan is in the process of implementing a Brownfield Renewal Strategy that it deems essential to growth in its main corridors. The initiative aims to assess and prioritize redevelopment potential of abandoned, vacant, derelict, or underutilized properties along the City’s major corridors that may have or do have perceptions of contamination.

The results of the brownfields evaluation will lead to the formulation of an incentive program that will help overcome financial and environmental barriers for redevelopment, as well as provide contamination management plans for future development.

One recent brownfield development in Saskatoon was initiated by a not-for-profit organization called CHEP Good Food.  CHEP has been promoting food security in Saskatoon for nearly 30 years. The organization is currently working toward restoring a plot of contaminated land to an agricultural plot of land.

The non-profit group, which works to promote food security, has already won a grant from CN Rail that will help them plant native trees and bushes at another brownfield site in Saskatoon and to restore the soil.   The project received the CN EcoConnexions grant through Tree Canada / Arbres Canada and Canadian National Railway Company to plant native trees and shrubs on the site.

The Askîy Project grows crops on brownfield land in Saskatoon using re-purposed containers. (CBC)

A previous fruit and vegetable garden project by CHEP began in 2014 under a different name as rooftop gardens at the University of Saskatchewan. The project relocated to the brownfield site  in 2015 and was renamed the Askîy Project — which means “Earth” in Cree.

The latest CHEP project is more ambitious than the existing Askîy Project.  It involves growing trees and bushes directly in the soil as well as remediation the site.  A professor from the University of Saskatchewan, Susan Kaminskyj, will oversee experimental bio-remediation at the site.

The bio-remediation will consist of utilizing native a fungi that will assist the plants in growing but will also biodegrade the petroleum hydrocarbon contamination at the brownfield site.

Professor Kaminskyj explained in an interview with CBC, that the microbe is a common fungus, but one with “unique abilities.”  A property in the fungus allowed plants to grow and thrive on coarse Oil Sands tailings.  In early field trials, Professor Kaminskyj’s team found more than 90 per cent of dandelion seeds treated with the fungus sprouted on coarse tailings while no untreated seeds sprouted. The researchers also found the fungus was able to grow with diesel, crude oil and similar materials as its only nutrient source.

 

 

 

Brownfield Remediation Success in Hamilton

A recent report by the City of Hamilton has revealed that significant progress has been made over the last 10 years to reduce the number of brownfield sites in the municipality.

According to Brownfield Inventory Report, there were 91 vacant brownfield sites listed by the City in 2008.  As of early 2018, 51 of the sites had been developed representing over 72 ha. Of the 40 sites still considered vacant and contaminated, approximately 13.2 ha are within the Bayfront Industrial Area.

Hamilton is one of the oldest and most heavily industrialized cities in Canada and includes a large number of brownfields in Hamilton’s older industrial areas, downtown, and throughout the urbanized area.

Part of the success in Hamilton in brownfield’s redevelopment is the Environmental Remediation and Site Enhancement Community Improvement Plan (ERASE) (CIP) which began in 2001.

Since the ERASE CIP was approved, approximately 145 property owners and potential
property owners have been approved for Environmental Study Grants. A number of
these studies have led to brownfield sites being redeveloped. A total of 47 projects
have been approved by City Council for ERASE Redevelopment Grants. These
projects once complete will result in:

  • Over 380 acres of land studied;
  •  Total assessment increase due to Environmental Remediation Grant in excess of
    $129,029,379;
  • Every $1 contributed by the City has generated $11.10 in private sector
    construction; and,
  • Remediation and redevelopment approval of approximately 210 acres of Brownfield land 123 acres (59% of approved land area) remediated to date.

In its 16 years, the ERASE CIP has proven to be very successful in providing the
financial tools needed to promote the remediation and redevelopment of Brownfield
sites. There is consistent support for the expansion of programming and updating of
policy in order to meet the significant challenges associated with Brownfield
redevelopment.

Two noteworthy recent brownfield remediation projects have included the Freeman Industrial Park, located at the site of former Otis Elevator and Studebaker plants, and the former Consumers Glass property.

The Freeman Industrial Park is the site of the old Otis Elevator and Studebaker plants.  It is the largest brownfield development project in the City of Hamilton to date.  the developer, UrbanCore Developments, has City approval to divide the 10.5-hectare property into 18 lots and build a road through the property.

440 Victoria Street, Hamilton (former Otis Elevator Building)

The Freeman Industrial Park property is zoned K, which allows nearly any type of heavy industry from fertilizer production to a coke oven.  UrbanCore has prospective buyers for about half of the lots.

Initiated in 2014, the site clean up and remediation program on the Freeman Industrial Park is now complete.

On the Consumers Glass property, the City has plans to build a sports field.  The property at Lloyd Street and Gage Avenue North is the future home of an outdoor sports facility, which will be an $8-million project that will replace the former Brian Timmis Field.  In 2015, it was used as a parking lot for the Pan Am Games.

With respect to the existing inventory of brownfield sites, consideration by Hamilton city Counsel with respect to the viability of contaminated land to be used
for purposes such as the growing/harvesting of medical marijuana, given the concerns
expressed with respect to this industry placing pressure on current viable farm land.

Staff reviewed the prospect of using brownfield land for growing medical marijuana and noted that under Regulation 153/04, cultivation of marijuana would be treated as an agricultural operation, and therefore, deemed a more sensitive operation if located on former industrial or commercially used lands.  On this basis, a mandatory filing of a Record of Site Condition would be required and the threshold for site remediation would be one of the most onerous to conform.

 

 

The National Brownfield Summit – A Brief Recap

By David Nguyen – Staff Writer

This year’s conference is about charting the future of the CBN. (Image from CBN).

On June 13, 2018, The Canadian Brownfields Network (CBN) held their 8th annual conference, taking the form of a National Brownfield Summit. This year also marks the 15th anniversary of the 2003 National Roundtable on the Environment and the Economy report, and the cornerstone of this year’s summit was to revisit the original report and reflect on the progress since then, as well as the challenges that still need to be addressed.

Keynote Speaker

After an introduction by president Grant Walsom, the conference began with the keynote speaker Marlene Coffey, Executive Director of the Ontario Non-Profit Housing Association, who spoke about previous examples of the developments on Brownfields, including housing developed on a Goodyear Tires site, or the Vancouver Olympic village or Toronto Pan American housing facilities.

She spoke of Toronto’s current housing crisis and how costs have outpaced income for many renters due to the market response to the economic growth in the Greater Toronto Area, as well as Hamilton and Waterloo. She also spoke about how condominium development is preferred due to the pre-selling and reselling markets providing profit and equity for the developer before and during construction.  Contrast that to rental housing, where developers of must put up front all costs of development before any profits.

The city of Toronto’s plan to address these concerns include building 69 000 affordable rental units within 10 years, extending the life of 260 000 units, as well as income support for 311 000 households. In addition, the federal government launched the National Housing Strategy in 2017, with $40 billion over 10 years to support affordable housing initiatives across Canada. Coffey reports that municipality participation is key to obtaining funding for affordable housing, and a role that can be played is to donate available land for development.

Current Affairs

A series of professional presentations followed, discussing various emerging investigation and remediation techniques. These included Dr. Barbara A. Zeeb discussing the use of phytotechnologies to remediate brownfield sites. She compared the traditional method of soil excavation, transport, and disposal to phytoextraction – the use of plants to remove the contaminant while leaving the soil intact and reusable, such as using natural and native species to remove organics like DDT. Other benefits include its cost effectiveness and the uptake of greenhouse gasses, but technologies are site specific, and can take years to remediate fully – highlighting the role that phytoremediation can play alongside traditional remediation methods.

A legal update with lawyer John Georgakopoulos provided an overview of legal cases currently before the courts, with implications for the brownfield development. His presentation compared cases of regulatory liability to civil liability and about managing environmental liabilities through exercising due diligence. He noted, however, that due diligence plays a bigger role in regulatory liability and a smaller role in civil liability, and he encouraged environmental liability protections like environmental insurance and regulatory liability protection.

Cross-Country Check-Up Panelists Kerri Skelly (front left), Lisa Fairweather (centre) and Krista Barfoot (left) with President D. Grant Walsom (back). (Photo from the CBN).

A cross-country checkup with panelists from across Canada discussed the changing landscape for excess soils. Speakers include Krista Barfoot (of Jacobs Engineering Group) speaking about Ontario’s proposed guidelines on excess soils, such as the emphasis on the use of excess soil management plans and addressing issues such as situations where there is no beneficial reuse site. Lisa Fairweather spoke about the Alberta’s Remediation Certificate and its impacts on reducing barriers to brownfields development; and Kerri Skelly spoke about British Columbia’s new excess soil regulations and its goals of clarifying rules for businesses moving soil and increasing the opportunity for soil reuse.

Angus Ross (left) with Grant Walsom. (Photo from the CBN).

Before breaking up into working groups, the final presentations reviewed the current state of brownfield development in Canada. Angus Ross, who chaired the original task force, discussed how the National Strategy succeeded in addressing liability issues, financial funding, and building public awareness of brownfields. A major recommendation was the formation of a national brownfield network, which led to the CBN.

Ryerson PhD student Reanne Ridsdale presented findings on a survey of about 6,500 brownfield remediated sites across Canada, where 80 participants were polled, including environmental consultants, government officials, lawyers and financiers.

Reanne Ridsdale presenting the results of the CBN/Ryerson survey. (Photo from the Daily Commercial News).

Following was a presentation by a Ryerson student planning studio group compared brownfield policies of each province, based on criteria such as clear policies, an accessible brownfield site inventory, and incentives for development. Ontario, Quebec, and British Columbia were considered to be very progressive in their policies towards brownfield development, but improvements could still be made across Canada in terms of standardizing rules and policies and producing developer friendly guidelines for site remediation. Then PhD student Reanne Ridsdale talked about the results of the CBN/Ryerson survey of the brownfield community’s view of progress in the last 15 years. Respondents indicated that the CBN is too eastern focused on central and eastern Canada, with little presence in the Prairies, as well as being too research-focussed and not conducting enough outreach.

Charting the Future

The day was capped off with breakout discussion groups to discuss “challenge questions” and allow attendees to contribute ideas to future CBN activities to advance brownfield developments. Challenge question topics included the roles of the federal, provincial, and municipal governments, the development of a brownfield inventory, innovations in brownfield developments, and the societal impacts of brownfield development on communities. One of the key discussion points was for the CBN to promote a “Put Brownfields First” mentality, particularly within governments. This includes developing a financing model/regime for governments to support brownfield developments, particularly in smaller municipalities, as well as to harmonize rules and guidelines for brownfield development. In addition, the CBN should facilitate the education of brownfields to local communities and involve land owners and developers in the process of implementing brownfield policies.

The National Brownfield Summit provided an amazing opportunity for members and attendees to provide input towards the goals of the CBN. More information about the Canadian Brownfields Network can be found at https://canadianbrownfieldsnetwork.ca/ including the summit program and information about the presenters.

United States: EPA Soliciting Comments On BUILD Act

Article by Phillip E. Hoover and Vickie C. RusekSmith Gambrell & Russell LLP

The Environmental Protection Agency is seeking to streamline the cleanup and reuse of National Priorities List sites with an emphasis on private party participation and private investment. NPL site designation was once a popular way for affected communities to secure federal funding for remediation, but the program has long suffered from lack of funding. Now, the Trump administration seeks to streamline the delisting of NPL sites in the same manner as the redevelopment of brownfields. One example of this initiative is the Brownfields Utilization, Investment and Local Development (BUILD) Act, which was enacted on March 23, 2018, and reauthorizes EPA’s Brownfields program at current funding levels through 2023. EPA is currently developing policy guidance to implement the BUILD Act, and is soliciting comment on three of the Act’s provisions: (1) the authority to increase the per-site cleanup grant amounts to $500,000; (2) the new multi-purpose grant authority; and (3) the new small community assistance grant authority. Click here for more information about these provisions and submitting comments to EPA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was first published on the Smith, Gambrell & Russell LLP website.

__________________________

About the Authors

Phillip E. Hoover is a Partner in the Environmental and Sustainability Practice Areas of Smith, Gambrell & Russell, LLP.  Mr. Hoover’s practice includes providing counsel on numerous environmental regulatory matters, as well as the redevelopment of environmentally impacted properties. These include state and federal superfund sites, corporate mergers and acquisitions of such properties. His environmental experience includes representation of Potentially Responsible Parties at superfund sites. He has negotiated RCRA permits and corrective action plans on behalf of clients in various states.

Vickie Chung Rusek is an Associate in the Environmental Practice of Smith, Gambrell & Russell, LLP. Ms. Rusek represents clients in all aspects of environmental compliance, enforcement, permitting, and litigation, including Superfund cleanups, Resource Conservation Recovery Act compliance, Clean Air Act and Clean Water Act permitting and compliance, and environmental tort litigation.

Brownfields Road Map (U.S. EPA, 2018)

Prepared by the U.S. Environmental Protection Agency (U.S. EPA) Office of Land and Emergency Management, The Brownfields Road Map 6th Edition breaks down Brownfields site investigation and cleanup into an easy to understand, step-by-step process that provides valuable and up-to-date information to a wide range of Brownfields stakeholders involved in or affected by the redevelopment of Brownfields sites. It introduces readers to a range of considerations and activities, and provides links to online technical resources and tools.

The first edition of the Road Map, published in 1997, provided a broad overview of the U.S. EPA Brownfields Program and an outline of the steps involved in the cleanup of a Brownfields site. Designed primarily for stakeholders who were unfamiliar with the elements of cleaning up a Brownfields site, the Road Map built awareness of the advantages offered by innovative technologies. As the EPA Brownfields Program
matured, the second (1999), third (2001), and fourth (2005) editions were published to update information and resources associated with the program, innovative technologies, and emerging best practices. The fifth edition, published in 2012, streamlined the publication to make it more accessible to users, providing additional resources covering new technology applications and methods.

This edition builds off the streamlined approach of the fifth edition, providing updated content and guidance on the Brownfields remediation process. New features include an updated list of “Spotlights,” highlighting and describing key issues. This edition provides updated information on Brownfields funding and best management practices (BMPs), with guidance on how to incorporate greener cleanups and new standards into the cleanup process.

This edition of the Road Map will help:

  • New and less experienced stakeholders. The Road Map will help these users learn about the technical aspects of Brownfields by introducing general concepts and methods for site investigation and cleanup.
  • Decision-makers who are familiar with the EPA Brownfields Program but are also interested in obtaining more detailed information. The Road Map provides these users with up-to-date information about the applicability of technologies and access to the latest resources that can assist them in making technology decisions. In addition, it highlights BMPs that have emerged in recent years.
  • Community members. The Road Map helps to encourage community members to participate in the decision making process by providing information about the general site cleanup process and tools and alternatives to site cleanup, as well as guidelines and mechanisms to promote community involvement.
  • Tribal leaders. The Road Map offers information on technical and financial assistance specific to tribes for implementing cleanup and restoration activities on tribal lands, as well as successful remediation examples highlighting the potential community restoration opportunities associated with Section 128(a) Response Program funding.
  • Stakeholders who hire or oversee site cleanup professionals. The Road Map includes information to help stakeholders coordinate with many different cleanup practitioners, such as environmental professionals, cleanup service providers, technology vendors or staff of analytical laboratories. The Road Map provides these stakeholders with a detailed understanding of each phase in a typical Brownfields site cleanup and presents information about the roles that environmental practitioners play in the process.
  • Regulators. The Road Map will increase the understanding by regulatory personnel of site characterization and cleanup technologies and approaches. The Road Map also serves as a resource that regulators can use to provide site owners, service providers and other stakeholders with useful information about the EPA Brownfields Program. The Road Map also provides links and pointers to additional information on specific technologies, approaches, and issues.
  • Other potential Brownfields stakeholders. The Road Map helps other stakeholders, such as financial institutions and insurance agencies, by providing information for their use in assessing and minimizing financial risks associated with Brownfields redevelopment.

The Road Map draws on the EPA’s experiences with Brownfields sites, as well as Superfund sites, corrective action sites under the Resource Conservation and Recovery Act (RCRA), and underground storage tank (UST) sites to provide technical information useful to Brownfield stakeholders. Specific conditions—such as the nature and extent of contamination, the proposed reuses of the property, the financial resources available, and the level of support from neighboring communities—vary from site to site. Readers of the Road Map are encouraged to explore opportunities to use the BMPs described in the following pages in accordance with applicable regulatory program requirements. The use of BMPs and site characterization and cleanup technologies may require site specific decisions to be made with input from state, tribal, and/or local regulators and other oversight bodies.

 

Tracking brownfield redevelopment outcomes using Ontario’s RSCs

By David Nguyen, staff writer, Hazmat Management Magazine

GeoEnviroPro’s latest webinar event featured Dr. Christopher De Sousa, a professor and director of the School of Urban and Regional Planning at Ryerson University.  He spoke about his research using record of site conditions (RSCs) to track brownfield developments in Ontario.

Christopher De Sousa.BA, MScPL, PhD (Associate Professor, Ryerson University)

A RSC is typically filed on the Environmental Site Registry with the Ontario Ministry of the Environment and Climate Change (MOECC) after property has undergone a Phase I, and often a Phase II Environmental Site Assessment (ESA) and the property is undergoing a zoning change to a more sensitive land use (i.e., industrial to residential).  A record of site condition summarizes the environmental condition of a property, based on the completion of ESAs.

De Sousa’s research focussed on the effects of the RCS legislation since its introduction in 2004, focussing on the scale and value of projects using RSCs from 2004 to 2015 (noting the revisions to the RSC legislation in 2011).  Property Assessments and Tax information was used to determine the nature of the developments that have occurred on brownfields.  Private sector stakeholders were interviewed to determine the factors that influence private sectors to develop on brownfields.

The research showed that from 2004 – 2015, 31% of RSCs were filed for Toronto properties.  However, the cities with the greatest total area redeveloped (based on RSC filings) were Brampton and Vaughn, with Toronto having the third largest total area redeveloped. With the exception of Ottawa, projects requiring RSCs occurred primarily in the greater Toronto and Hamilton area.

Of the RSCs filed from 2004 – 2015, 24% consisted of only Phase I environmental site assessments (ESA), 69% consisted of a generic Phase I and II ESAs, and 7% used a Phase I and II ESA combined with a site specific risk assessment.

With land use changes, the most common previous land use was commercial (36.8%) followed by industrial (22.3%) and the most common intended land use was residential (67.5%) followed by commercial (14.9%).

Toronto’s development focussed on residential projects located near major transit and roadways (85.6% of which being condos).  Smaller municipalities like Waterloo and Kingston also primarily developed residential properties (31% and 58%, respectively).  De Sousa notes that provincial growth plans and community improvement plans can help municipalities be more proactive in housing and economic development goals.

From a private sector perspective, the main motivations for brownfield developments are based on real estate factors (profit, market, locations), with barriers being costs, liabilities, and time (in project reviews and approvals).

Facilitation strategies that governments can utilize involve financial and regulatory changes, particularly in more effective and efficient processes and tools in high priority areas, with perhaps more government intervening regulations in secondary/ weaker markets to encourage development of brownfields vs. greenfields.

Toronto’s Port Lands feature numerous brownfields sites, image by Marcus Mitanis

Largest Clean-up Grant in Canadian History

As reported by Laura Osman of the CBC, Councillors on Ottawa’s finance committee unanimously approved a $60-million grant to clean up contaminants to make way for a massive new development on Chaudière and Albert islands.

Windmill Development Group applied for the grant for its mixed-use Zibi project.

Windmill will clear the contaminated soil on the site, which has historically been used as an industrial site, and demolish a number of buildings.

An artist’s rendering of the Zibi development, which could receive a substantial grant from the city for soil and building cleanup. (City of Ottawa)

“These are contaminated lands on a derelict site in the city’s urban core,” said Lee Ann Snedden, director of Ottawa’s planning services.

“This truly is a poster child for a brownfield grant.

The city’s brownfields redevelopment program awards funds to developers for cleaning up contaminated sites and deteriorating buildings, which helps encourage developers to build in the core rather than the suburbs.

The grant would pay for half of the total projected cost of the cleanup.

Windmill has promised to create a $1.2 billion environmentally friendly community with condos, shops, offices, waterfront parks and pathways on the 15-hectare site, which spans both the Quebec and Ontario sides of the Ottawa River.

The city will only pay for the actual costs of cleanup after the invoices have been verified, Mayor Jim Watson said.

The developer promised to only do the work if they find contamination is present.

“It would be fantastic news for us as the proponent if there’s less contaminants there,” said Jeff Westeinde with Windmill Development Group.

The developer hopes to have the Ottawa part of the development completed in seven or eight years.

Snedden pointed out the city will not  pay to clean up the nearby LeBreton land to allow development because the land is controlled by the federal government.

But the National Capital Commission technically owned about 20 per cent of the Zibi development lands as well said Coun. Catherine McKenney, who argued the federal government should contribute to the cleanup costs.

The NCC owned the lands and had a perpetual lease with Domtar, which operated a paper-mill on the site for nearly 100 years.

“So why are we paying the cost?” asked Peter Stockdale with the Fairlea Community Association.

Some councillors received letters from constituents concerned about the large amount of money going toward a money-making venture.

Capital ward Coun. David Chernushenko acknowledged the grant was “staggeringly” large, but said someone must be responsible for cleaning up contaminated sites.

“I don’t see this as some sort of corporate welfare,” he said.

The grant will still need to be approved by city council.

Chaudière and Victoria islands seen from the air above the Quebec side.