Brownfields Tax Expensing and New Markets Pass House in Extender’s Bill.

HR 4213, the “tax extenders” bill, passed the House earlier this month.  The bill included a one-year extension of the brownfields tax expensing program.  According to the Joint Committee on Taxation (JCT), this provision would reduce revenues by $159 million over ten years.   The bill also extends the new market tax credit for one year.  The credit is provided to businesses that make qualifying investments in community development entities.  According the JCT, this provision would reduce revenues by $1.4 billion over ten years.

Vapor Intrusion (VI) Seeps onto the Stage

EPA Toxicology Review of TCE

On November 3, 2009 EPA released a draft of its Toxicological Review of Trichloroethylene for public comment, with comments due by February 1, 2010. External peer review has not yet been conducted. The document concludes that TCE is carcinogenic in humans by all routes of exposure. The document calculates an inhalation unit risk of 2 x 10-2 per ppm (4 x 10 -6 per ug/m3) based on kidney cancer risk. This number is twice the inhalation unit risk value used by EPA in establishing the Regional Screening Level value for TCE. The document can be found at: TCE Review

Washington DEC Releases Draft VI Guidance

On October 16, 2009 the Washington Department of Ecology Toxics Cleanup program released its draft vapor intrusion guidance for public comment. Comments were due November 30, 2009. The document covers a tiered assessment approach, mitigation, and the establishment of media cleanup levels. The document can be found at: Washington VI Guidance

Oregon Releases Draft VI Guidance

On September 14, 2009 the Oregon DEQ Land Quality Division released a draft Guidance for Assessing and Remediating Vapor Intrusion in Buildings. The document covers investigation guidelines, risk based evaluation, and mitigation. The comment period closed on October 30, 2009 and the draft document can be found at: Oregon VI Guidance

North Carolina Issues Guidelines for Evaluation of VI

The North Carolina Department of Environment and Natural Resources Division of Waste Management issued Supplemental Guidelines for the Evaluation of Structural Vapor Intrusion Potential for Site Assessments and Remedial Actions on November 5, 2009. The document covers screening procedures and sampling guidance and can be found at: North Carolina VI Guidance

Postal Service Issues VI Guidance

In September 2009 the U. S. Postal Service issued vapor intrusion guidance to assist its staff in responding to VI concerns at postal facilities. The guidance suggests internal roles and responsibilities for both reactive and preventive approaches. The document can be found at: Postal Service VI Guidance

AEHS West Coast Conference

The Twentieth Annual Association for Environmental Health and Sciences Meeting and West Coast Conference on Soils, Sediments, and Water will be held in San Diego, CA on March 15-18, 2010. EPA will be chairing an all day vapor intrusion session on March 16 where three new EPA technical documents will be discussed. There is also a petroleum vapor intrusion workshop scheduled for the evening of March 16 as well as other vapor intrusion platform sessions on March 15. The preliminary program can be found at the following link: AEHS Conference

ITRC Classroom VI Training Course

The Interstate Technology and Regulatory Council will be offering its two day course, Vapor Intrusion Pathway: A Practical Guideline, in Norfolk, Virginia on March 22-23, 2010. Information on the course is found at: ITRC Course

HUD Brownfields Programs Rescued

The HUD Brownfields Economic Development Initiative (BEDI) and HUD 108 programs were rescued in the Transportation HUD Appropriations Conference Committee.  BEDI got a boost - $17.5 million, which is $7.5 million above the FY 09 level and HUD 108 was continued at $6 million (leverages $275 million in loans).  BEDI and HUD 108 were eliminated in the Obama budget and in the Senate Appropriations Bill, but the House appropriated $25 million for BEDI and $6 million for HUD 108.

The Northeast-Midwest Institute coordinated a campaign - including the National Brownfields Coalition, Smart Growth America, the National Association Housing and Redevelopment Organizations (NAHRO), and LOCUS (Responsible Real Estate Developers and Investors Group) - to provide Congress with the documented benefits of these programs and the reasons that BEDI and HUD 108 fill a unique niche that cannot be addressed through the EPA Brownfields Program or the HUD CDBG Program.  The campaign was bolstered by letters from the mayors of Philadelphia, Tacoma, Cleveland, Cincinnati, and Baltimore - as well as the Economic Development Director of Pittsburgh, a group of 16 local governments and non-governmental organizations in Wisconsin, and a letter from the National Brownfields Coalition co-signed by 22 organizations.

For more information, contact Evans Paull (202/329-4282) at the Northeast-Midwest Institute.

Brownfield Business Development Strategy #3: Connect with the local Economic Development Corporation/Foundation

The local economic developer has a working relationship with all the existing industries and is typically the first person a site selection consultant calls (even before the mayor) on behalf of an industry that is interested in bringing a business to a community. Healthy relationships with these key local stakeholders will give you an idea who's coming and who's leaving.  A good start would be connecting with the State representative of the Southern Economic Development Council (http://www.sedc.org).  Also, each State has its own Economic Development Council, representing the economic development organizations within the State.  The Southern organizations are:

• Economic Development Association of Alabama (EDAA)


• Arkansas Economic Development Commission


• Florida Economic Development Council


• Georgia Economic Developers Association (GEDA)


• Kentucky Association for Economic Development (KAED)


• Louisiana Industrial Development Executives Association (LIDEA)


• Mississippi Economic Development Council (MEDC)


• Missouri Economic Development Council


• North Carolina Economic Developers Association (NCEDA)


• Oklahoma Professional Economic Development Council (OEDC)


• South Carolina Economic Developers Association (SCEDA)


• Tennessee Economic Development Council (TEDC)


• Texas Economic Development Council (TEDC)

Missouri Economic Development Counci

New EPA Publication: State Brownfields and Voluntary Response Programs: An Update from the States

State Brownfields and Voluntary Response Programs: An Update from the States
November 2009
Publication Number: EPA-560-R-09-522

The "State Brownfields and Voluntary Response Programs: An Update from the States" explores the evolving landscape of state environmental, financial, and technical programs, including the incentives designed to promote brownfields cleanup and redevelopment. This user-friendly tool looks at multiple components of state brownfields and voluntary response program(s), and provides a synopsis of each state's response program(s) and contact information.

The information in the EPA "Update" for each State, starting with EPA Region 4, will be featured on a page in the blog.  Here's Alabama's link.

Subscribing to this web site will keep you updated on changes.

*NOTE: Let me know if there are any errors or modifications.

Brownfield Business Development Strategy #2:Notice Periodic Changes in the Brownfield Inventory

Each State should have a "brownfield inventory" or a listing of contaminated sites. For Mississippi, it can be found at http://list.brownfields.ms and is referred to as the CERCLA/USS File List. If you're not sure where to find your State brownfield inventory, contact your State Brownfield Coordinator; or, if you have a Phase I ESA with an EDR Report (more to come on that in a later discussion thread), look up the reference to the "State Inventory" of contaminated sites. The EDR Report will typically list the frequency that the list is updated.

For Mississippi, the brownfield inventory is usually updated monthly. Any changes from month to month typically represent (1) changes is site status (site has been cleaned up and has received a "No Further Action" Letter), (2) minor typographical modifications or addition of information like latitude/longitude, or (3) NEW SITES ADDED TO THE INVENTORY. When sites are added to the inventory, they may be still in the market for an environmental consultant. Perfect time for a call.

US Dept. of Housing and Urban Development (HUD) Policy Revised to Allow Risk-Based Cleanups

HUD has issued a revised contamination policy for HUD-assisted multi-family housing projects. HUD's previous contamination policy was characterized by brownfield practitioners as "dig-to-clean" or complete removal of contamination to de minimis levels.     

The revised policy allows "incomplete removal of contamination" when it can be demonstrated that "costs are deemed to be exorbitant and/or the feasibility deemed impractical for remediation of on-site contamination to de minimis levels". Risk based cleanups must be reviewed by HUD, approved by state voluntary cleanup or other oversight programs, and must follow EPA and ASTM protocols.  Revisions to the contamination policy found in the Guide to Multifamily Accelerated Processing (MAP Guide) are listed below.

Environmental inspections dated on or after December 1, 2009, must follow these requirements of the revised Chapter 9 of the MAP Guide, and, prior to that date, were voluntarily implemented.

1. Environmental Report and Checklist. It is HUD and not the Lender that is responsible for the preparation of the Sample Field Notes Checklist and the Environmental Report, Form HUD-4128;


2. Reliance on ASTM Guides. The revised Chapter 9 lists the American Society of Testing Materials (ASTM) Practices and Guides that must be followed by the developer’s environmental professional.


3. Vapor Analysis. The steps described for remediation of hazards include the Phase I ESA and Phase II ESA, as does the previous version of the chapter, but the revised chapter includes a new test that has been developed since the MAP Guide was revised in 2002.


4. Remediation Plans for Site Contamination. For most of the projects, the developer will bring any site contamination to minimum levels prior to Firm Commitment. The chapter also describes a Risk-Based Corrective Action (RBCA) which is designed for removal of contamination after firm commitment but before Initial Endorsement. RBCA usually requires engineering controls, monitoring wells, and institutional controls. The Lender, under RBCA, may be required to establish an escrow account to cover the cost of maintaining the remediation. Tenants must be notified that the process of remediating existing contamination is underway.


5. Monitoring Wells. The chapter being replaced states that properties with testing, flushing, or monitoring wells in operation may be evidence of site contamination, and are prohibited for FHA mortgage insurance. Field offices have been advised that they can waive that prohibition for good reason. The policy’s change reflects the fact that the presence of a testing or monitoring well on the property no longer bars the property from consideration for mortgage insurance.


6. Capping. The chapter being replaced states that HUD will not accept property for mortgage insurance where a site contamination problem has been capped or paved over. The revised Chapter allows the use of engineering controls such as concrete or slurry walls, for risk-based corrective actions (RBCA).


7. Costs of Remediation. In unusual circumstances, the cost of remediation may be included in the mortgage. The RBCA must be completed, and the site must be tested and approved by the governmental authority (usually the State) prior to Initial Endorsement. The basic practice has been and continues to be that environmental site assessment and remediation should be completed before Initial Endorsement and the costs cannot be part of the mortgage costs. If, however, the remediation cost can be determined and agreed upon, and the costs are reasonable for the extent of work and do not subject the Department to unexpected risk, such costs may be mortgageable. For example, HUD may allow all or some of the removal of an underground storage tank as an eligible cost to be included in the construction costs, subject to the review by the Hub or Program Center.

Brownfield Business Development Strategy #1: Early WARNing for Plant Closures

Strategy #1 - Knowing that a plant is closing, a strategically placed service call to the environmental officer can lead to a discussion of how the company plans to sell the plant. Knowing that the best brownfield is the one that was recently closed (not left idle for years), a savvy business development director for an environmental consulting firm could work to get State and Federal Liability Protection provisions in place for the company.

Under the Federal Worker Adjustment and Retraining Notification Act (WARN), an employer must give notice if an employment site (or one or more facilities or operating units within an employment site) will be shut down, and the shutdown will result in an employment loss (as defined later) for 50 or more employees during any 30-day period. This does not count employees who have worked less than 6 months in the last 12 months or employees who work an average of less than 20 hours a week for that employer. These latter groups, however, are entitled to notice (discussed later).

Mass Layoff: A covered employer must give notice if there is to be a mass layoff which does not result from a plant closing, but which will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33% of the employer's active workforce. Again, this does not count employees who have worked less than 6 months in the last 12 months or employees who work an average of less than 20 hours a week for that employer. These latter groups, however, are entitled to notice (discussed later).

The notice goes to the State Department of Employment Security. For the Southeastern States, WARN Notices can be found at the following links:

MS - http://bit.ly/58F4rC

AL - http://www.adeca.alabama.gov/wdd/Default.asp

FL - http://www.floridajobs.org/react/warn.asp?year=2009

TN - http://www.state.tn.us/labor-wfd/et_dw_services.html

LA - http://www.laworks.net/WorkforceDev/WFD_warnfacts.asp