Feature

Certification gives land an edge

For 25 years, 205 acres of prime industrial land sat on the market in Lebanon, Ore. While a few nibbles came and went over the years, extensive wetlands issues scared potential buyers away from the property for more than two decades, says John Hitt, the city administrator for the northwest Oregon town.

It wasn’t until the city teamed up with the Oregon Economic and Community Development Department (OECDD) that the property finally sold. The property found a buyer through the Oregon Industrial Site Certification program, which helps facilitate the sale of industrial land by providing purchasers with the important information they need when researching locations for their companies.

Certified in 2004 by OECDD, the land sold in only six months. The buyer was Lowe’s, the national home improvement store company. Lowe’s is building a 1.3 million-square-foot regional distribution center to serve the northwest. Plans are to expand the center to 2.1 million square feet in the future. When it’s up and running in 2007, the center may employ as many as 400 employees. That’s a welcome addition to a town of 13,000 people, says Hitt.

The city chose to participate in the state’s industrial site certification program to get local officials seriously focused on selling that property, Hitt says. The process forced the city to do its due diligence and address the wetlands issues. The state was able to help the city come up with a delineation plan for potential buyers.

In fact, Lowe’s officials couldn’t have been happier with the maps, surveys and other documentation provided by the certification process, Hitt says. Many times, officials referred to the 5-inch thick, three-ring binder that was the result of the process. “I don’t know how many times Lowe’s said this was a big help to them,” he says.

The Lebanon property was one of the first industrial sites certified in the state through this unique program (www.econ.state.or.us/IC). Since 2004, 41 sites have been certified throughout Oregon. Eleven of those sites have been sold, creating 1,850 new jobs, says Bev Thacker, industrial land specialist with OECDD.

Modeled after similar programs in New York and Pennsylvania, the certification program is one of the first established in the nation. The program is a marketing tool for Oregon; it shows developers the state is open for business and ready for development, Thacker says. It’s also a way of getting a better picture of what land is available for industrial use in the state, she adds.

Through the program, OECDD staff work with property owners, realtors, cities and state agencies to compile a comprehensive site certification notebook containing documentation for each site about water, sewer, electricity and other utilities available at site; local workforce availability, easements and liens, and any improvements on the sites as well as any state or local development incentives. State agencies also provide clearances for environmental contamination, wetlands, endangered species and cultural resources. Local governments provide assurances that the industry certification profile conforms to local zoning regulations and that there is local support for the development.

When the information is compiled, a site-selection consulting firm from New Jersey looks over the information to ensure it’s accurate. The two-year certification means the land can be built on within 180 days after it’s purchased.

The information contained in the certification notebooks has proven invaluable to site selectors looking to locate or expand a business in Oregon. Because this is material a company would have to compile anyway, having it readily available, along with government assurances about its accuracy, saves a company time and money, Thacker says.

For example, a project of the magnitude proposed by Lowe’s typically requires months, even years, to become project-ready. Completing the process in advance saves a prospective company millions of dollars and months of lost production time.

For a list of certified sites, visit www.oregonprospector.com.

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Problem Solver

How will you protect yourself from liability?

Faced with the issue of owning a contaminated property, or purchasing one, one of the first thoughts on property owners’ minds is how they can protect themselves from potential liability. Unfortunately, the answer doesn’t always come easy.

While the Small Business Liability Relief and Brownfields Revitalization Act in 2002 amended the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to provide important liability limitations for landowners who qualify as bona fide prospective purchasers, contiguous property owners or innocent landowners (view here), states also have come up with their own programs.

That means property owners and buyers need to look at potential liability under both state and federal laws. The two aren’t always the same. And, both apply within a state. Landowners or potential landowners should be working with their state's environmental agency to determine what protections are available to them.

Some states give more unconditional protection to entities taking on a brownfields challenge, says attorney Charles Wolfe of Seattle, who specializes in land use and environmental law. In these states, you don’t have to argue your way into protection, Wolfe says. He points to the East Coast and Midwest, which have been dealing with brownfields issues longer than those in the West.

In EPA Region 10, state environmental agencies have come up with various plans to help property owners with liability questions. Some of the common programs include:

• Voluntary cleanup programs are usually informal processes. Under the voluntary program, property owners usually submit a cleanup report to a state’s environmental agency. The agency then, for a fee, reviews the report. If the cleanup is found to be satisfactory, a “No Further Action” letter, or something similar, is issued to the property owner stating no further work is necessary. In Idaho, the Department of Environmental Quality will issue a “Covenant Not to Sue.” The Oregon DEQ also has established an independent pathway for low and medium environmental priority.
• A consent decree or judgment is a formal legal agreement filed in court. The work requirements in the decree and the terms under which it must be done are negotiated and agreed to by the potentially liable person and the state environmental agency, and the terms of the agreement are enforced by the court. Consent decrees protect the potentially liable person from being sued for “contribution” by other people incurring cleanup expenses at the site while facilitating any contribution claims against the other persons when they are responsible for part of the cleanup costs.
• A Prospective Purchaser Agreement (PPA), another more formal process, protects a “prospective purchaser” looking to buy contaminated land. The PPA, which must be done prior to cleanup, releases the buyer from liability in return for cleaning up the known contamination. A PPA usually has several criteria, including that the purchaser show the project will have a substantial public benefit. In most states, the PPA provides liability protection for the purchaser and subsequent owner. However, in Washington, under the Model Toxics Control Act, the purchaser is not exempt from liability under state law, only under CERCLA.

In Oregon, the Department of Environmental Quality has found much success with PPAs. The agency has entered into more than 80 PPAs in the last 10 years, says Charlie Landman, a legal policy advisor for the agency’s land quality division in Portland. Because a PPA is done at the agency and not through the attorney general’s office, they can be completed in about six weeks if the site has been thoroughly examined, says Landman, who counts an additional 14 PPAs on his desk that he’s currently working on.

The more investigation a property owner does, the more likely the state is to consider a PPA, says Kristie Carevich, lead attorney for the Toxics Cleanup Program in Washington. Property owners need to have a real understanding of the contamination on a site and how it will affect neighboring sites when going the PPA route, she advises.

For more information, visit:

Alaska Department of Environmental Conservation: http://www.dec.state.ak.us/spar/csp/reuse.htm#6

The Idaho Department of Environmental Quality:
http://www.deq.state.id.us/Applications/Brownfields/index.cfm?site=voluntarycleanup.htm

The Model Toxics Cleanup Program in Washington:
http://www.ecy.wa.gov/programs/tcp/cleanup.html

The Washington Department of Ecology:
http://www.ecy.wa.gov/programs/tcp/policies/pol520a.html
http://www.ecy.wa.gov/programs/tcp/vcp/Vcpmain.htm

The Oregon Department of Environmental Quality:
http://www.deq.state.or.us/wmc/cleanup/ppa0.htm
http://oregondeq.com/wmc/cleanup/vcp0.htm

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Groundwork

Brownfields challenge rural villages

Inventorying brownfields sites has taken on new meaning in rural Alaska, where small communities often times bring challenges not faced in other states in EPA Region 10.

“Rural brownfields in Alaska are much different than any rural development you’ve ever thought of,” says John Carnahan, brownfield coordinator for the Alaska Department of Environmental Conservation.

Malinda Chase, brownfield program manager for the Yukon River Inter-Tribal Watershed Council, has been going into villages in the watershed to begin documenting brownfield sites. Only one of these communities is accessible part of the year by a road, Chase says. Visitors must travel to the villages by plane, boat or snow machine. The larger coastal communities may have up to 1,000 people, while the smaller interior communities may have 100 or 200 people. For many, the villages have been a family’s home for many generations.

These villages have subsistence- and cash-based economies, Chase says. Unlike rural communities in the lower states, officials will have to look at how brownfields are affecting such factors as moose populations or berry-picking areas because tribal people depend on these resources to live.

These are communities that also depend on fuel-carrying barges traveling along the Yukon River. The fuel is used to fuel generators that provide power and heat homes in the winter. Much of the contamination expected to be found in the villages will include spilled fuel resulting from poor tank farm management, leaking storage tanks and community dumps. Other potential brownfield sites include abandoned military facilities or former Bureau of Indian Affairs school buildings, some of which are dilapidated and may contain asbestos and lead paint, Carnahan says. Communities are very interested in seeing some of these structures assessed and made useable again, rather than left to simply deteriorate over time, he says.

Earlier this year, the Yukon River Inter-Tribal Watershed Council received a nearly $220,000 State and Tribal Response Program grant from EPA. Using the grant money, the watershed council will visit 20 rural villages in Alaska to begin inventorying sites and educating the public about brownfields. This inventory will collect information about potential contamination, causes and concerns; possible threats to the community, habitat and wildlife; and which sites have good reuse potential if cleaned up. From the inventory, two sites will be selected for Phase I and Phase II assessments.

Also earning grant monies from the State and Tribal Response Program were the Leisnoi Village (Woody Island Tribe), Anvik Tribal Council and the Native Council of Port Heiden. These grants are given to tribes looking to develop a program to identify, document and manage contaminated lands. Activities funded under these grants include locating sites, developing mapping capabilities, conducting assessments, establishing new outreach programs, and creating inventories of brownfield sites within their regions.

Carnahan is excited to see the smaller communities benefiting from the federal grant dollars. There are some high-risk situations and questions of economic revitalization that need to be addressed in these rural areas, Carnahan says. It’s also difficult for our brownfield program to obtain this type of information in these remote locations, he adds. As more of these sites are identified, it’s Carnahan’s hope the state will identify funding sources to address the environmental problems and help revitalize these communities.

Collecting this information for the inventory is labor intensive, Chase says. It involves working jointly with community environmental staff and leadership to map and photograph potential sites, talking with people knowledgeable about the sites and gathering community information. To encourage public awareness and participation about brownfields, community outreach will be woven throughout the inventory effort. A public record of potentially contaminated sites in the Yukon River Watershed also will be available on the YRITWC Web site (www.yritwc.com).

Once more people are educated about brownfields and their potential for economic revitalization, the villages will be eager to see these contaminated sites removed from their communities, says La’ona DeWilde, science, research and mapping director at the watershed council.

“I think people are really ready to deal with these sites,” DeWilde says.

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About this newsletter.

To help raise awareness of the economic and environmental benefits of redevelopment, Building on Brownfields brings you news and information on brownfields in EPA Region 10: Alaska, Idaho, Oregon and Washington. The newsletter is funded by the EPA through Washington state's Department of Ecology, and is a cooperative effort between the four states and the EPA.

For past issues of the newsletter, go to www.buildingonbrownfields.com.

This e-newsletter is sponsored by Washington's Department of Ecology
and funded by EPA.