CLEARCC

Property Evaluation - A target property can be evaluated to determine the nature and extent of contamination within surface and subsurface soil, groundwater or indoor air.  This step involves some sort of sampling and lab analysis with data collection, followed by interpretation of findings, and then by a presentation of conclusions and recommendations.  If warranted some degree of remedial feasibility study may need to be completed to determine a best cleanup option. Evaluation results are compared to applicable regulatory standards (with respect to human health and the environment), and the property owner and stakeholder’s plans for the site and its use are taken into account.

 

Contaminated Property Cleanup - After completing an evaluation step then comes implementation of a corrective action type of remedy to mitigate and cleanup impacted soil, groundwater or indoor air. Corrective action planning is carried under the appropriate regulating agency.  Site specific environmental restoration efforts may utilize various method including but not limited to in-situ methods, bioremediation, thermal treatment, air sparge, soil vapor and ground water extraction, horizontal wells and injection technology, and other proven and effective methods.  Cleanup is directed by regulatory requirements and agency input, and by common sense, and is driven by a protection of human health and the environment.

 

Contaminated Property Management - Sometimes certain types of contaminated property come  with continuing obligations.  For a property owner/operator that might mean following a notice of environmental use restrictions including adhering to a Material Management Plan (MMP) when disturbing restricted use areas.  For a site developer or general contractor they may need to follow a Soil Characterization and Management Plan.

 

For a purchaser of a contaminated property, they would need to establish landowner liability protection (LLP) prior to property transfer.  For instance, a bona fide prospective purchaser provision in the 2002 Brownfield Amendments helps to protect a prospective purchaser from environmental liability who knows or who has reason to know that a property is contaminated at the time of purchase. The bona fide prospective purchaser is one of three landowner liability protections under The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund.  The bona fide prospective purchaser must perform “all appropriate inquiries” prior to purchase, must demonstrate no affiliation with a liable responsible party and must satisfy the following obligations:

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• compliance with land use restrictions and not impeding the effectiveness or integrity of institutional controls;

• taking “reasonable steps” with respect to hazardous substances affecting a landowner’s property;

• providing cooperation, assistance and access;

• complying with information requests and administrative subpoenas; and

• providing legally required notices.

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The other two landowner liability protections under CERCLA are innocent landowners and continuous property owners. Both of these defenses must complete, “all appropriate inquiries” prior to purchase, and must buy without knowing, or having reason to know of contamination on the property.  Completion of a fully compliant Phase I Environmental Site Assessment is needed when “all appropriate inquiries” becomes necessary.

 

Engineering and Institutional Controls - A contaminated property may have engineering control (slurry wall, capping, containment, extraction wells, treatment methods, others), installed that requires on-going monitoring, operations and maintenance (O&M), repairs and replacement to components, or periodic evaluation.  There may be institutional control implemented with land use restrictions or restrictive notice, environmental covenant, with a material handling plan, or a soil characterization and management plan in-place.  Perhaps there’s a groundwater discharge permit in place that requires periodic monitoring and reporting to a government agency in order to insure that neighboring property and the environment are not being impacted.

 

Notice of Environmental Use Restrictions – When its viable to continue to use contaminated property an environmental covenant or use restriction can sometimes be implemented.  This enables a property to continue to be used with use restrictions and with guidelines to follow to remain protective of human health and environment. 

 

Conditional Closure – It’s possible for a low threat site with residual groundwater contamination to receive a conditional closure with use restrictions from the regulating agency.

 

Conditional Closure Re-Evaluation - Sites under conditional closure with a regulating agency can be periodically re-evaluated for a no further action determination (NFAD).  A change from conditional closure to no further action can free-up encumbrances associated with maintaining engineering and institutional controls.  These types of properties may have (for instance) an environmental covenant in-place, and by re-evaluating the new findings may warrant that an institutional control (such as use restrictions), can be removed depending upon contaminant concentration with respect to applicable regulatory standards.

 

Voluntary Cleanup and Redevelopment Programs – Redevelopment and transfer of contaminated property is possible through state voluntary cleanup and redevelopment programs.  Property known or thought to be contaminated can sit unused. A voluntary cleanup process enables a property owner a way forward, where cleanup decisions are based upon current standards, and proposed property use.   A No Further Action (NFA) determination is possible through the voluntary cleanup program. There’s Memorandum of Agreement with EPA that assures they will not take Superfund action under this program.  There are Brownfields tax credits available for qualifying properties.