Key Brownfields Redevelopment Terms

Sources: The U.S. Economic Development Administration (EDA), the Office of Management and Budget (OMB), U.S. Census Bureau, the Rural Policy Research Institute (RUPRI), the Environmental Protection Agency (EPA) and the National Brownfields Association.

All Appropriate Inquiry Rule - This rule was negotiated and directed under the Brownfields Law 2002. It refers to the requirements for assessing the environmental conditions of a property prior to its acquisition, be it purchase or donation, and clarifies the requirements necessary to establish the innocent landowner defense under CERCLA in addition to providing Superfund liability limitations for bona fide prospective purchasers and contiguous property owners. Among the requirements added to CERCLA is the requirement that such parties undertake “all appropriate inquiry” (AAI) into prior ownership and use of a property at the time at which a party acquires the property.

Bona fide prospective purchasers who buy property after January 11, 2002 must perform AAI prior to purchase and may buy knowing, or having reason to know, of contamination on the site and enjoy the limitation on liability provided by the new definition. Contiguous property owners whose property is not the source of contamination, but is adjacent to a facility that is the source of contamination found on their property must perform AAI prior to purchase and buy not knowing, or having reason to know, of contamination on the site.

Innocent purchasers/landowners must perform all appropriate inquiry prior to purchase of a property and must buy without knowing, or having reason to know, of contamination on the property. The Brownfields Law also establishes that site characterizations or assessments conducted by entities with the use of brownfields grants awarded under CERCLA Section104(k)(2)(B)(ii) must be conducted in accordance with the AAI standards established under the law to be overseen by an environmental professional.

Assessment - Environmental professionals conduct assessments to determine contamination presence and characterization. Two phases of assessments identify the potential for hazardous releases and the severity of contamination. The Phase I environmental assessment investigates the historical use of the site and tests for various contaminants to determine the likelihood of contamination and possible levels of severity. The Phase I assessment determines whether or not a Phase II assessment will be needed. If the Phase I assessment reveals no suspect prior usage or onsite hazardous issues, then there is likely no need for a Phase II assessment, and redevelopment planning or implementation can begin.

When the Phase I assessment indicates that further investigation is needed, a Phase II assessment is conducted. The Phase II assessment should accurately characterize the levels or volume of contamination and the type of contaminants. Phase II assessments are sometimes divided into levels of investigation. Proper documentation of the investigation is important. The Phase II assessment often is a requirement for parties that receive or apply for private and public funding. Also, to legally establish liability relief or innocent landowner defense through the Brownfields Law, the Phase II documentation must be in accordance with the all appropriate inquiry rule or the American Society for Testing and Materials (ASTM) standards E1527-05 (applicable after November 2006). The closing Phase II assessment report sometimes is useful for determining liability.

Brownfields - In Public Law 107-118 (H.R. 2869), Small Business Liability Relief and Brownfields Revitalization Act signed into law January 11, 2002, Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601) is amended by the following expanded definition: “brownfields site” means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant and includes land contaminated by petroleum or petroleum products, a controlled substance as defined in the Controlled Substance Act or mine-scarred land.

Comprehensive Economic Development Strategy (CEDS) - Tool used by Economic Development Administration planning grantees to address economic opportunities and constraints. The process was established by the EDA Reform Act of 1998, as amended by the Public Works and Economic Development Act of 1965, to create jobs, foster stable and diversified economies and improve living conditions. Economic Development Administration (EDA) - EDA, under the Department of Commerce, was established through the Public Works and Economic Development Act of 1965 (42 U.S.C. 3121), as amended, to generate jobs, retain existing jobs and stimulate industrial and commercial growth in economically-distressed areas of the United States. Assistance is available to rural and urban areas with high unemployment, low income or other severe economic distress.

Engineering Controls - Engineering controls are designed to minimize exposure to residual materials on a brownfields site that may still be hazardous. Examples of engineering controls would include exhaust systems and wetting systems to control dust. Engineering controls remove the hazard, either by initial design specifications or by applying methods of substitution, minimization, isolation or ventilation. Environmental Insurance - Environmental insurance is intended to limit liability associated with the discovery and cleanup of contamination on brownfields. A growing number of types of environmental insurance are available, including pollution liability, cleanup cost cap, finite risk and secured creditor. Environmental insurance may reduce the uncertainties of brownfields redevelopment projects and limit cleanup cost exposures. It can provide a strong basis for quantifying risk, a condition frequently demanded by lending institutions, and is often a requirement of federal and state grant programs. Several states offer assistance for environmental insurance coverage. Many grant programs, such as the EPA brownfields grant program, allow grantees to purchase coverage.

Environmental Justice - Fair treatment for people of all races, cultures and incomes, regarding the development of environmental laws, regulations and policies. Under Executive Order 12898 enacted in 1994, federal agencies are directed to address the concern that minority populations and/or low-income populations bear a disproportionate amount of adverse health and environmental effects. Environmental Professional - The EPA All Appropriate Inquiry Rule defines the environmental professional, the party conducting the assessment, as someone who possesses sufficient specific education, training and experience necessary to use professional judgment to develop conclusions about conditions indicative of releases or threatened releases of hazardous substances at a property. In addition, an environmental professional must have a state or tribal-issued certification or license and three years of relevant full-time work experience; or have a Baccalaureate degree or higher in science or engineering and five years’ experience; or have 10 years’ experience. Individuals who do not meet these requirements may still participate in all appropriate inquiries. However, they must work under the supervision of an individual who does meet the requirements for an environmental professional.

Environmental Protection Agency Brownfields Program (EPA Brownfields) - EPA formally launched its Brownfields Initiative in 1995. Over several years, EPA has provided technical and financial assistance for brownfields revitalization based on four goals: protecting the environment, promoting partnerships, strengthening the marketplace and sustaining reuse. This approach has enabled states, tribes, local governments and other stakeholders to assess, clean up and reuse brownfields. Since 1995, the investment in EPA’s Brownfields Program has leveraged more than $5 billion in cleanup and redevelopment and generated more than 25,000 jobs. In 2002, Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (the Brownfields Law). In 2003, EPA awarded over $120 million in grants under the Brownfields Law for assessment, cleanup, revolving loan funds, job training and state and tribal response programs. In implementing the Brownfields Law, EPA has worked with NADO and other organizations to ensure a fair distribution of funding between urban and nonurban areas.

Institutional Controls (ICs) - ICs are non-engineered instruments, such as administrative or legal controls. ICs help reduce the potential for exposure to contamination, such as when residual contamination remains onsite at a level that does not allow for unrestricted use. Redevelopment - Refers to the planning and reuse of brownfields to protect human health and the environment. Redevelopment either promotes economic development or enables the creation or preservation of parks, greenways, undeveloped property, open space, or other property used for nonprofit purposes pursuant to proper assessment and/or cleanup of hazardous substances, pollutants or contaminants.

Regional Development Organization (RDO) - More than 500 RDOs in the U.S. work daily with local governments, businesses, academic institutions, nonprofit organizations and others engaged in community and economic development. They are multi-jurisdictional and manage an array of programs and services, including economic planning, job training, small business development and finance, transportation planning, water/wastewater management, coordinating emergency services, aging programs, youth development and various initiatives aimed at promoting employment opportunities. RDOs are also known as area development districts, councils of government, planning and development districts, economic development districts, economic development commissions, local development districts, regional planning commissions or regional development councils.

Resource Conservation and Recovery Act (RCRA) Brownfields Site - Congress enacted RCRA in 1976 to protect human health and the environment from the hazards of waste disposal to conserve energy and natural resources, reduce the amount of waste generated and ensure that wastes are managed in an environmentally sound manner. In 1984, Congress enacted the Hazardous and Solid Waste Amendments (HSWA), which expanded RCRA’s scope; including the creation of a corrective action program. Under this program, owners or operators of treatment, storage or disposal facilities are responsible for investigating and cleaning up releases at or from their facilities, regardless of when the releases occurred. Over 6,500 facilities are subject to RCRA corrective action statutory authorities.

A Brownfield RCRA Redevelopment is a RCRA facility that is not in full use, where there is redevelopment potential, and where reuse or redevelopment of that site is slowed due to real or perceived concerns about contamination, liability and RCRA requirements. The RCRA Brownfields Prevention Initiative was established by EPA to encourage the reuse of potential RCRA Brownfields so that the redevelopment better serves the needs of the community as more productive commercial or residential development or as greenspace.

Rural/Small Metropolitan - The U.S. Census Bureau and the Office of Management and Budget (OMB) have three different levels of “rural,” but generally speaking, “rural cities” are considered to have a population of 50,000 or less and “rural counties” are considered to be a population of less than 100,000. The 1999 United States Census further defines rural as “an area with a population density of less than 100 individuals per square mile.” The Census Bureau classifies 61.7 million (25 percent) of the total population as rural, and OMB classifies 55.9 million (23 percent) of the population as non-metro-rural. According to the Census definition, 97.5 percent of the total U.S. land area is rural; according to the OMB definition, 84 percent of the land area is nonmetro-rural. There are several other definitions of rural, including frontier counties, isolated rural and micropolitan areas. Federal and state funding resources are often distributed based on an in-house definition of rural according to each department’s focus, making it difficult to adopt a universal definition. States also offer various population thresholds and location restrictions relevant to defining “rural.”

Superfund site - As of 2006 EPA has 1,244 final and proposed sites on the Superfund National Priorities List. Superfund is the Federal government's program to clean up the nation's uncontrolled hazardous waste sites. The program was established in 1980 under EPA to locate, investigate and clean up the worst ranking sites nationwide. Under the Superfund Law, EPA is able to make entities responsible for contaminated sites perform and pay for investigations and cleanup activities. EPA may also use the Superfund Trust Fund to pay for investigation and cleanups, and then attempt to get the money back from responsible parties through legal actions. Superfund sites that are successfully de-listed may be eligible for EPA brownfields program funding or various state and federal redevelopment program funding.

Underground Storage Tank (UST) - USTs typically contain hazardous contents such as gasoline, solvents and diesel fuel that are harmful if leaked in high concentrations. Thus, the overall goal of the EPA Underground Storage Tank Program, which began in 1985, is to protect human health and the environment through the prevention, detection and cleanup of releases from USTs. In September 2001, EPA launched its USTfields pilot initiative. Currently 34 states, the District of Columbia and Puerto Rico have approved “state” UST programs. Of the money allocated to EPA’s Office of Underground Storage Tanks each year by Congress, about 85 percent goes to state programs.

The EPA petroleum brownfields funds can also be combined with state UST cleanup funds to promote the revitalization of these blighted sites, due to the Brownfields Act of 2002’s expansion of the definition of brownfields to include land contaminated by petroleum or petroleum products. EPA estimates that there are 705,000 USTs nationwide that store petroleum or hazardous substances. An estimated 200,000 are abandoned gas stations and other petroleum sites – a common rural and small community brownfields site. Many policy implementation and program changes regarding USTs are now underway following the Energy Policy Act of 2005.