Tag: Brownfields

Washington’s Model Toxics Control Act: Transforming Contaminated Sites into Community and Environmental Assets

The Model Toxics Control Act (MTCA) has been cleaning up contaminated sites in Washington State for 30 years. On December 10, 2019, Beveridge & Diamond and the Environmental Law Institute will be hosting a seminar (MTCA 30) to celebrate the success and examine the future of the state’s cleanup statute with an all-star program featuring some of the state’s leading experts. In advance of the seminar, B&D is publishing a series of articles focused on MTCA.

MTCA’s Many Triumphs

MTCA has been spurring the cleanup of contaminated sites in Washington for 30 years. Since MTCA went into effect, over 7,000 sites have been cleaned up. While the workhorse statute is not going to take a rest anytime soon, with more than 6,000 sites requiring further action before closure and over 200 new sites identified each year, the citizen’s initiative already has amassed an impressive legacy. Below are just a few of the many examples where MTCA has been instrumental in turning contaminated properties into productive community and environmental assets – on both large and small scales and in urban and rural areas of Washington.

  • Mount Baker Housing Association – Restoring Brownfields to Provide Affordable Housing in Seattle’s Rainier Valley. In 2016, the Mount Baker Housing Association (MBHA) entered into a prospective purchaser consent decree with the State of Washington to investigate and ultimately clean up chlorinated solvent contamination from a former dry cleaner and petroleum contamination from a former gas station and auto repair facility. The innovative use of MTCA’s prospective purchaser provisions allowed the nonprofit affordable housing developer to take on the risks of investing in properties with known contamination while gaining liability protections and expanding housing options for lower-income earners in an expensive real estate market. Importantly, the settlement also has provided a vehicle for MBHA to receive public funds to cover at least some of the remedial action costs. Just the other week, MBHA released a draft remedial investigation / feasibility study and a draft cleanup action plan for public comment.

  • Puget Sound Initiative – Ensuring Healthy Habitats in Padilla and Fidalgo Bays. In 2007, the Department of Ecology (Ecology) identified seven bays around Puget Sound where it would prioritize cleaning up contaminated sites and habitat restoration. In Padilla and Fidalgo Bays in northern Puget Sound, six industrial waterfront sites have been cleaned up while work on five other sites is in progress. The bays are home to valuable marine habitat, including extensive eelgrass beds, which serve as groundfish nurseries. The sites that have been cleaned up in the last 15 years include a former oil tank farm, a former lumber mill and pulp mill, a boatyard, and former milling, shipbuilding, and marina operations, among others.

  • Kittitas Valley Fire and Rescue – Building a New Fire Station in Ellensburg. When the Kittitas Valley Fire and Rescue was looking for a new fire station location, it purchased a property that had been used for hay scales, as well as truck repair and fueling, with associated soil and groundwater contamination. During property redevelopment, the contamination was investigated and remediated, with assistance from Ecology. With effective planning and use of the building design as a protective cap, cleanup was completed for under $250,000 and in under three months.

  • Kendall Yards – Transforming an Old Railyard in Spokane. In 2005, River Front Properties, LLC entered Ecology’s Voluntary Cleanup Program to address contamination at a 78-acre site to the northwest of Spokane’s downtown area. The site had been used extensively for locomotive repair and servicing and had served as a location for plating and storage operations. Over a single year, 200,000 tons of soil contaminated with petroleum, PAHs, and metals were removed from the site. Now, Kendall Yards has turned into a vibrant community with a growing collection of houses, apartment buildings, offices, and restaurants.

  • Gas Stations, Dry Cleaners, and Underground Storage Tanks Around the State. Contaminated sites are not caused only by heavy industrial operations. Many of the most common sources of contamination are gas stations, dry cleaners, and other businesses with underground storage tanks. Ecology has identified over 7,000 leaking tanks in the state. But significant progress is being made. Contamination from over 4,000 tanks has been remediated, and cleanup has started for over 2,000 more tanks. For gas stations, Ecology has entered into multi-site agreements to facilitate and coordinate cleanups for parties with larger portfolios of sites. Collectively, efforts to address contamination at service stations and dry cleaners have resulted in about a thousand NFA determinations under MTCA.

  • Substantial Public Funding for Cleanups and Related Projects. The 1988 citizens’ initiative resulted in a tax on the “first possession” of hazardous substances in Washington, in addition to MTCA’s cleanup framework. Although the tax revenue has fluctuated due to volatility in oil prices, it generated around $2.2 billion between 1988 and 2017 to support Ecology programs and to fund cleanups and related environmental projects around the state. This funding is critical to remediating sites where sufficient private dollars are not available. For instance, between 2015 and 2017, Ecology provided $1.2 million to remediate American Legion Park in Everett. The park was impacted by the nearby former Asarco smelter. The area-wide cleanup has exceeded the dollars collected in a 2009 bankruptcy settlement with Asarco. This year, the state legislature converted the tax on petroleum products from a price-based tax to a volumetric tax with the goal of making funding more predictable. The Department of Revenue also has estimated that revenues under the new tax will be higher.

© 2019 Beveridge & Diamond PC

For more environmental site developments, see the National Law Review Environmental, Energy & Resources law page.

Three Strategies to Develop Renewable Energy Projects on Potentially Contaminated Lands

Developing renewable energy on contaminated lands has proven to be both effective and cost-effective for companies pursuing a new solar or wind energy project. The utility-scale solar farm constructed on the 120-acre Reilly Tar & Chemical Corporation Superfund site is a great example, and there are thousands more that are ripe for redevelopment.

Renewable energy continues to grow in volume and importance in the U.S. as corporations drive demand for sustainable energy, with 166 companies to date committing to go 100 percent renewable as part of a global initiative called RE100. At the same time, states and local governments are driving policy that prioritizes sustainable energy development. Two recent Illinois bills, the Path to 100 Act (HB 2966/SB1781) and Clean Energy Jobs Act (HB3624/SB2132), seek to incentivize the development of new renewable energy and move the state to 100 percent renewable energy by 2050. Other states, including California, New Jersey, New York, and Wisconsin, have called for or passed similar laws.

Using Superfund sites, brownfields, retired power plants, and landfills offers potential benefits to developers and community stakeholders:

  • Preserve Open Space: Large-scale renewable energy facilities – often called “utility scale” projects – can require a lot of land that may displace or impact agricultural lands, open space, or other “greenspace.” Developing renewable energy on potentially contaminated properties can help to preserve the “greenspace” while returning blighted lands to sustainable and productive use.

  • Lower Costs and Shorter Timeline: Developers can significantly lower costs and timelines because contaminated sites are usually already served by existing infrastructure, like substations, power lines, and roads, which would otherwise need to be constructed. Streamlined permitting and zoning can also reduce costs and timelines because potentially contaminated property is often already zoned for industrial or commercial use, which likely poses fewer obstacles to constructing renewable energy structures. Decreased land costs, programs for the procurement of renewable energy credits generated from developing renewable energy projects on brownfields or potentially contaminated properties, and federal and state brownfield tax incentives can drive costs down even further.

  • Greater Community Support: Communities may be quicker to get behind renewable energy projects that are sited on potentially contaminated lands because, rather than taking agricultural land out of production, the projects can clean up the otherwise abandoned sites, boost surrounding property values, increase tax revenues, and provide low-cost clean power.

Despite these benefits, developers often build renewable energy facilities on greenspaces rather than brownfields because of concerns related to potential liabilities or contamination. Below are three strategies that developers can use to move past those concerns and develop a successful renewable energy project on potentially contaminated lands.

  1. Screen Sites for Renewable Energy Potential

Screen potentially contaminated properties to see whether they’d be a good fit for your renewable energy project. For example, confirm that a property has enough usable space and is close enough to transmission or distribution lines to support development. Determine whether a site is free from land-use restrictions that would preclude the use of your chosen renewable energy. Ensure the community doesn’t already have a plan in mind to redevelop the property you’re assessing. And inspect the property for evidence of potential contamination, like soil surface staining or debris stockpiles. If a site has not yet been assessed, you will need to investigate the site to determine whether redevelopment is appropriate. To help, the EPA has published guidance to assist prospective developers in screening prospective sites for solar and wind projects on potentially contaminated lands.

  1. Coordinate the Cleanup and Renewable Energy Development

Developing renewable energy can occur at any stage of a property cleanup, from site inspection and preliminary assessment to post-construction completion. However, identifying and coming to a site at the beginning of or early on in the cleanup process has its advantages. It allows you to engage the community and other stakeholders, including potentially responsible parties, from the start of the redevelopment. It also allows you to coordinate and integrate the cleanup and renewable energy development decisions. For example, you can work with the governmental agency overseeing the site to fold renewable energy design requirements into the remedial design, rather than having to construct renewable energy structures on top of and around the completed remedy. Getting in early will ensure that the renewable energy project is compatible with the remedial design, institutional controls, monitoring activities, and engineering controls.

  1. Protect Yourself from Liability Exposure

Many prospective developers, purchasers, and lenders stay away from or tread cautiously around building on contaminated properties for fear of liability under federal or state cleanup laws. However, many state cleanup programs provide liability protections for new owners or lessees, like a developer, who are not responsible for prior contamination at a site. The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) also generally limits EPA enforcement at certain qualifying brownfield sites, known as “eligible response sites”, where a party is conducting a response action in compliance with a state cleanup response program. Contact a lawyer and work with state government early on in the process to see what liability protections are available to you and how to qualify.

Other contaminated properties may be addressed under the CERCLA cleanup program. CERCLA has several self-implementing liability protections for developers and the like who acquire contaminated property but did not cause the contamination, including a protection for “bona fide prospective purchasers.” Ensure that you take the required steps to qualify for the BFPP protection, which will include, among other things, working with an environmental consultant to conduct “all appropriate inquiries” through a Phase I environmental site assessment. CERCLA can also offer liability protections for people who lease contaminated properties.

 

© 2019 Schiff Hardin LLP
This post was written by Alex Garel-Frantzen and Amy Antoniolli of Schiff Hardin LLP.