New Developments in Brownfield Redevelopment Navigating Recent Challenges in the Remediation of Contaminated Sites

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A New Developments in Brownfield Redevelopment Navigating Recent Challenges in the Remediation of Contaminated Sites TUESDAY, MARCH 19, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: David J. Freeman, Director, Gibbons, New York Nicholas W. Targ, Partner, Holland Knight, San Francisco Peter H. Weiner, Partner, Paul Hastings, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 BONA FIDE PROSPECTIVE PURCHASER REQUIREMENTS AFTER ASHLEY II Strafford Publications Webinar on New Developments in Brownfields Redevelopment March 19, 2013 David J. Freeman Newark New York Trenton Philadelphia Wilmington 5

6 Bona Fide Prospective Purchaser Requirements After Ashley II 1. What is a Bona Fide Prospective Purchaser (BFPP)? 2. Why is the BFPP concept important to brownfield transactions? 3. What did Ashley II actually decide? 4. What (if anything) has the Ashley II decision done to: a) BFPP jurisprudence b) Strategies for accomplishing brownfields transactions? Newark New York Trenton Philadelphia Wilmington 6

7 What Is a BFPP? CERCLA 107(a)(1) makes current site owners strictly liable for site cleanup Overdeterrence no one willing to buy contaminated sites 2001 Small Business Liability Relief and Brownfields Revitalization Act (BRERA) 101(40) Entities that perform All Appropriate Inquiries (AAI) and comply with certain ongoing obligations relieved of site cleanup liability under CERCLA Newark New York Trenton Philadelphia Wilmington 7

8 What Is a BFPP? No disposal during period of ownership All Appropriate Inquiries Phase I (and, possibly, Phase II) Environmental Site Assessment EPA Rulemaking in 2005 Regulations at 40 CFR 312 ASTM E 1527 Newark New York Trenton Philadelphia Wilmington 8

9 What Is a BFPP? Ongoing Obligations Complying with land use restrictions and institutional controls; Taking reasonable steps with respect to hazardous substance releases; Providing full cooperation, assistance, and access to persons who are authorized to conduct response actions or natural resource restoration; Complying with information requests and administrative subpoenas; and Providing legally required notices. Newark New York Trenton Philadelphia Wilmington 9

10 What Is a BFPP? No disqualifying affiliation with a PRP No direct or indirect familial relationship No contractual, corporate or financial relationship (other than that created by documents transferring title) Not a reorganization of a PRP Newark New York Trenton Philadelphia Wilmington 10

11 Significance of BFPP Status to Brownfields Transactions Contents of Brownfields Toolbox Due diligence Reps and Warrantees Assignment of cleanup liability/responsibility Indemnities Financial assurances Insurance Newark New York Trenton Philadelphia Wilmington 11

12 Significance of BFPP Status to Brownfields Transactions Why Do You Care? Assignment of responsibility/liability in PSA Doing cleanup anyway, usually under state supervision EPA overcalls of state-supervised cleanups very rare Potentially helpful vs. third-party claims for contribution (not personal injury or property damage) Can be helpful with lenders, insurers, joint venture partners Newark New York Trenton Philadelphia Wilmington 12

13 Ashley II Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 2010 WL (D.S.C.) Ashley tries to assert the BFPP defense as a shield against CERCLA contribution claims 43-acre Columbia Nitrogen Superfund Site in the Upper Peninsula area of Charleston, South Carolina In 2003, Ashley purchases portions of the Site totaling approximately 30 acres Ashley sues seeking cost recovery for $195K in response costs Defendant, in turn, files a contribution action under CERCLA 113 against Ashley and other defendants Newark New York Trenton Philadelphia Wilmington 13

14 Ashley II 55-page ruling on summary judgment and allocation as among 7 group of parties 4 pages devoted to Ashley s BFPP defense Likely releases during Ashley s ownership (spills from sumps during course of demolition) Did conduct AAI Did provide full cooperation, assistance and access to EPA Did comply with institutional controls and land use restrictions (none) Did comply with requests for information Did not exercise appropriate care (failure to investigate and remove debris piles) Newark New York Trenton Philadelphia Wilmington 14

15 Ashley II Release and indemnity to prior owners is a disqualifying affiliation Because of indemnity, Ashley urged EPA not to try to recover response costs from indemnities on the basis that doing so would discourage Ashley s future development efforts Just the sort of affiliation that Congress intended to discourage (p. 53) Newark New York Trenton Philadelphia Wilmington 15

16 Ashley II What Is Wrong with This Picture? Indemnity given in connection with documents transferring title, so exempted from affiliation test No support in legislative history for Court s statement of Congress views regarding indemnities Calls into question an essential tool in the brownfields toolbox Holding superfluous in light of other factors disqualifying Ashley from being BFPP Newark New York Trenton Philadelphia Wilmington 16

17 Ashley II What Is Wrong with This Picture? Court may have been swayed by what Ashley did as a result of the indemnity: asking EPA to withhold exercise of enforcement authority Statement that EPA s actions, if pursued, would discourage Ashley s future development efforts could be viewed as improper pressure Query as to whether, in light of these actions, Ashley provided full cooperation to EPA Newark New York Trenton Philadelphia Wilmington 17

18 Ashley II Current Status Fourth Circuit Court of Appeals heard oral argument in early December Decision pending 2011 EPA Guidance In September 2011, EPA issued a guidance stating that it generally does not intend to treat indemnities contained in sales agreements as an impermissible affiliation barring BFPP status No courts have yet followed Ashley II s lead on this issue Newark New York Trenton Philadelphia Wilmington 18

19 Ashley II Significance to Brownfields Jurisprudence and Practice Holding on indemnification Not good public policy Indemnification is an essential element in many brownfields transactions Unlikely that will be upheld on appeal, or be applied beyond specific facts of case Warning to developers: don t try to tell EPA that indemnity should effect exercise of enforcement discretion Newark New York Trenton Philadelphia Wilmington 19

20 Ashley II Significance to Brownfields Jurisprudence and Practice Holdings on continuing obligations Timely reminder that can lose BFPP status post-closing Need to exercise diligence in addressing contamination found at site Need to make sure remedial activities don t create potential for new releases Newark New York Trenton Philadelphia Wilmington 20

21 Brownfields Redevelopment Vapor Intrusion Risk Management Nicholas Targ Holland & Knight LLP Strafford Publications New Developments in Brownfields Redevelopment March 19, 2013

22 Vapor Intrusion Considerations Outline and Objectives Provide a basic understanding of: vapor intrusion (VI) exposure pathway why VI has become a hot topic ASTM s process for screening and assessing vapor encroachment conditions during Phase I/II Environmental Site Assessment steps that can be taken to manage project/deal risk from potential VI conditions Page 22

23 Q. What Is Vapor Intrusion? A. Off-gassing of chemicals in the ground that make their way inside Volatile chemicals (e.g., TCE, gasoline, benzene) can produce vapors that migrate through subsurface soils, along utilities, and into the indoors. Vapor intrusion (VI) is an environmental condition that can occur when volatile chemicals in soil and/or groundwater enter a building in vapor form. Page 23

24 Q. What are typical infill locations where VI may be an issue? A. Most older urban or reuse locations. On or near present and former: gas stations service stations/garages dry cleaners paint processing/mixing sites manufactured gas sites industrial sites municipal solid waste (garbage) landfills Page 24

25 Q. Why has VI become a hot topic? A. Understandings and rules are changing rapidly. Changes in toxicological health risks understanding, including: Potency of the chemical Ways in which known chemicals can impact people How much ( dose ) people take-in Federal and state regulators are taking action, including: New risk/clean-up levels (imminent and ongoing) New response action, including offering relocation Potential for re-opening sites Modification of remedial action objectives/goals Third party litigation Creditor/Banking community response Page 25

26 Regulatory Response Vapor migration/intrusion is prompting regulatory changes: Federal State 2002 EPA Draft VI Guidance being updated (expected shortly) 2011 EPA Hazard Ranking System being revised to include VI pathway EPA evaluating VI conditions in 5-year review Trichloroethylene (ubiquitous industrial solvent) toxicity and action levels are being re-evaluated by EPA Regions (USEPA guidance expected imminently) 30 states now have guidance, according to EDR Several states have changed clean-up thresholds for VOCs Several states have re-opened closed sites because of vapor pathway concerns California revising its community right-to-know thresholds for PCE Page 26

27 Credit/Bank Sector Response to VI Issues Sources: EDR s Annual Benchmarking Surveys of Financial Institutions. 2008, 2009, 2010 As of 2010, 40% of bankers surveyed work at banks with VI due diligence policies for lending In 2008, only 18% of risk managers responded that their bank had a VI policy Community banks, as of 2010, have not moved as aggressively in adopting VI policies. Fewer than 22% of respondents stated that their banks had VI policies. Page 27

28 Q. How is VI screened as part of a Phase I ESA? A. VI should be considered, like other potential conditions ASTM E (June 2010), Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions) Tier 1: Focuses on known or suspected contaminated sites in a specific area of concern If such a site exists, the consultant must apply professional judgment to determine whether it may be a Vapor Encroachment Condition (VEC) If so, a determination must be made whether the VEC is a Recognized Environmental Condition (REC) and, if a REC, decide with the client what further investigation, if any, may to be performed Page 28

29 Consider VI in Phase I/II Assessments (ASTM Guidance) Tier 2 (follow-on work if VEC REC is identified): Focuses on impacted media (soil or groundwater) from any contaminated sites in AOC, proximate to the project May be accomplished by: Agency files review, or If no plume data is available, by soil gas sampling at property boundary. Page 29

30 Notes of Phase I VI Screening 1. Not all Vapor Encroachment Conditions are RECs. Site specific factors may make a VEC a de minimis REC. Relevant factors, among others, may include: Known or inferred groundwater condition Soil qualities Age of release 2. Finding a VI REC does not need to be a deal stopper Environmental insurance Build-in cost of vapor mitigation Design around condition. 3. In most cases a VI conditions found after project construction (e.g., on refinancing) can be managed through engineering controls retrofits. Page 30

31 Q. How can you manage VI risk? A. Treat VI as you would contamination in soil or groundwater. Evaluate potential vapor intrusion risk in the due diligence process (Phase I/Phase II) Evaluate VI coverage in environmental insurance products Consider vapor intrusion issues in project design and layout Don t ignore closed sites Be aware that your creditors will want to include a VI screening at time at time of underwriting and refinance Stay current on state and Federal requirements/guidance Page 31

32 Brownfields Vapor Intrusion Resources OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance) (EPA November 2002) EPA Vapor Intrusion Screening Level Calculator Brownfields Technology Primer: Vapor Intrusion Considerations for Redevelopment (EPA March 2008) 20Considerations%20for%20Redevelopment%20EPA%20542-R pdf Page 32

33 BRIGHTFIELDS Peter H. Weiner (415) Strafford Publications: New Developments in Brownfields Redevelopment, March 19, 2013 Paul, Hastings, Janofsky & Walker LLP

34 Brightfields The term brightfields refers to the conversion of contaminated sites into usable land by bringing pollution-free solar energy and high-tech solar manufacturing jobs to these sites, including the placement of photovoltaic arrays that can reduce cleanup costs, building integrated solar energy systems as part of redevelopment, and solar manufacturing plants on brownfields. - U.S. EPA U.S. DOE in 1999 began a brightfields program but idea really took off in the last 5 years. 34 Paul, Hastings, Janofsky & Walker LLP

35 EPA Brightfields Initiative Re-Powering America s Land Initiative EPA partnered with National Renewable Energy Labs (NREL) to promote renewable energy siting, providing Maps of renewable energy potential with brownfield site overlays Estimates of greenhouse gas benefits from siting renewable energy on contaminated land Advice on Liability issues EPA Robust Re-Power America website: 35 Paul, Hastings, Janofsky & Walker LLP

36 State Programs State laws directly promoting Brightfields do not yet appear to exist Renewable Portfolio Standards 32 States have RPS RPSs require electricity providers to obtain minimum percentages of power generation from renewable source Brightfields facilitates RPSs by Turning contaminated sites into renewable energy production facilities State brownfields programs: the Missing Link State Transmission policies could emphasize use of unused transmission capacity, e.g. from declining landfill gas 36 Paul, Hastings, Janofsky & Walker LLP

37 Current Status of Brightfield Projects EPA (Nov. 2012): 60 sites, 184 MW installed US capacity (109 MW solar) Most in last 4 years Only 10 of 60 (11.7MW) on Landfill sites 130 MW wholesale electricity Massachusetts: 39 projects permitted, 13+ MW online 37 Paul, Hastings, Janofsky & Walker LLP

38 Siting Solar on Landfills: Bright Future or Risky Business? EPA Says Bright Future See Best Practices for Siting Solar Photovolataics on Municipal Solid Waste Landfills (Feb. 2013) Landfills often have excess transmission Close to roads and other infrastructure Size (often under 5MW) fits into attractive utility purchasing categories 38 Paul, Hastings, Janofsky & Walker LLP

39 Risky Business: Investors, Lenders see Specter of CERCLA Liability CERCLA Generally Holds Owners and Operators Liable, including some lessees Exemptions for Bona Fide Prospective Purchaser (Innocent purchaser inapplicable) Third party liability the key Even if liability limited, risky O&M? 39 Paul, Hastings, Janofsky & Walker LLP

40 Legal considerations: Brightfields Is solar company an operator or owner under CERCLA/RCRA A ground tenant can be deemed an owner of a contaminated property, for CERCLA liability purposes, if the lease is for a long period of time (e.g., 30 years) Moreover, in addition to this potential CERCLA liability as a de facto owner under CERCLA, a tenant who conducts site development activities, such as grading or earth removal activities, may likewise find itself liable under CERCLA as an operator or transporter EPA will provide Comfort Letters but advises State signoff. Comfort letters do not protect against 3d party 40 Paul, Hastings, Janofsky & Walker LLP

41 Limitation of Liability: A Safe Harbor with No Water In It? Bona Fide Prospective Purchaser limitation of liability Requires, among other elements All appropriate inquiry Appropriate care exercised with respect to any release Companies seeking liability relief in connection with Brightfields development must ensure all proper steps are taken Appropriate care and AAI Risks 41 Paul, Hastings, Janofsky & Walker LLP

42 The State Signoff: Who needs it and who can get it? Municipal landfills can give developers hold harmless, indemnities, and covenants not to sue Limits on covenants: if the solar facility impairs the cap, who is responsible? States, like EPA, do not want to spend the resources on Prospective Purchaser Agreements 42 Paul, Hastings, Janofsky & Walker LLP

43 Legal considerations: Brightfields Strategies to insulate solar developers from liability Create a liability shield around the project by acquiring the property and all of its environmental liabilities via an entity that directly manages the clean up with the relevant government agencies Once remediated, lease the property in a long-term contract to a wholly separate entity, which then develops and finances the solar installation, including acquiring necessary permits to qualify for federal and state incentives and to secure a PPA Model followed by: Brightfields LLC 43 Paul, Hastings, Janofsky & Walker LLP

44 Legal considerations: Brightfields Strategies to insulate solar developers from liability Obtain an easement Courts have ruled that a pipeline owner with an easement through contaminated property, but did not contribute to the contamination and had no control over remediation at the site, was not an owner or operator under CERCLA Long Beach Unified School Dist. v. Dorothy B. Godwin Living Trust, 32 F.3d 1364 (9th Cir. 1994). 44 Paul, Hastings, Janofsky & Walker LLP

45 Legal considerations: Brightfields Regulatory assurances Strategies to insulate solar developers from liability Request a status letter from the U.S. EPA A status letter will usually address key issues such as the likelihood of EPA involvement at the brownfield site, statutory provisions or other policies that are applicable to the site, and information on the cleanup process or other steps which should be taken at the site May not be sufficient for investors and lenders Seek judicial consent agreement with relevant agencies to insulate their project from third-party litigation 45 Paul, Hastings, Janofsky & Walker LLP

46 Legal considerations: Brightfields Regulatory assurances Strategies to insulate solar developers from liability Obtain a Prospective Lessee Agreement from EPA Developer agrees to pollution minimization practices EPA & DOJ covenant not to sue Lessees that could be considered owners under CERCLA may be considered a BFPP EPA Guidance 46 Paul, Hastings, Janofsky & Walker LLP

47 Prospective Purchaser Agreements: The once and future solution Prospective Purchaser Agreements tailor rights, obligations, and immunities to the individual project. PPAs require formal signoff by the State agency. PPAs can be filed as part of a federal court settlement to eliminate third party liability. 47 Paul, Hastings, Janofsky & Walker LLP

48 A Bright Future Large-scale solar development will have natural limits due to public land controversy and private land scarcity Brightfields present a golden opportunity for 1-10 MW Solar Development EPA should issue clear formal guidance exempting solar projects from owner/operator status under CERCLA 48 Paul, Hastings, Janofsky & Walker LLP

49 LAND USES AND REMEDIATION Peter H. Weiner Strafford Publications: New Developments in Brownfields Redevelopment, March 19, 2013 Paul, Hastings, Janofsky & Walker LLP

50 CERCLA: General Remediation Principles and Preferences Protective of Human Health and the Environment Unrestricted Use Or Restricted with Land Use Covenants Permanent Remedy Cost-Effectiveness 50 Paul, Hastings, Janofsky & Walker LLP

51 How Land Use Guides Remediation CERCLA, as interpreted by EPA, requires consideration of reasonably anticipated future land use See, e.g. OSWER Directive , 3/17/10, Considering Reasonably Anticipated Future Land Use See, e.g., OSWER Direction (5/2595), Land Use in the CERCLA Remedy Selection Process 51 Paul, Hastings, Janofsky & Walker LLP

52 RCRA, State Programs Also Consider Future Land Use See, e.g. RCRA Corrective Action Regulations See, e.g. CA Health & Safety Code Sections and et seq. 52 Paul, Hastings, Janofsky & Walker LLP

53 Agencies Require Cleanup to Facilitate Anticipated Reuse, with Land Use Covenants if not unrestricted Remedial Goals Require Excavation, Treatment, or Cover to Avoid Anticipated Exposures Land Use Covenants (Running with the Land) Restrict Uses That Would Require More Remediation than Anticipated Where future use could include sensitive receptors, unrestricted cleanup is required. See, e.g., CA DTSC Response Actions for Sites Where Future Use May Include Sensitive Uses : up/upload/smbr_pol_sensitiveuses-mm_e pdf 53 Paul, Hastings, Janofsky & Walker LLP

54 How to Assess Anticipated Use EPA Requires Consultation with Stakeholders Local Governments, Community Groups Owners, Tribes, etc. EPA Regions Develop Reuse Assessments Cleanup Standards Limited by Feasibility 54 Paul, Hastings, Janofsky & Walker LLP

55 When is Anticipated Use Set? EPA: If Anticipated Use Changes Pre- Record of Decision, Revise Risk Assessment and Remedy (2010 OSWER) If Changes Occur post-rod, Site by Site Decision (including determining whether the party seeking the change will pay incremental costs) 55 Paul, Hastings, Janofsky & Walker LLP

56 Role of Local Planning and Zoning General Plan: Specific Enough for Remedy Selection? Zoning: Specific Enough for Remedy Selection? Specific Plans and Flexibility: Confusing to Agencies? 56 Paul, Hastings, Janofsky & Walker LLP

57 Local Planning and Risk Assessment Translating Plans and Zones into EPA and State Agency risk assessment considerations The case of mixed use, community nodes, and other modern planning and zoning concepts Translating land use into exposures into risks 57 Paul, Hastings, Janofsky & Walker LLP

58 The Community Role in Remedies City/County and Community Understanding of Land Use Planning Influence on Remedy is Essential Translating Local Definitions of Residential to EPA/State Understanding of Exposures and Risks is Critical EPA and State Agencies Must be Sensitive to Changing Community Land Use Plans 58 Paul, Hastings, Janofsky & Walker LLP

59 Discussion For Further Discussion and Information Please contact Peter H. Weiner Paul Hastings (415) Paul, Hastings, Janofsky & Walker LLP

60 Brownfields Redevelopment Funding New Developments Nicholas Targ Holland & Knight LLP Strafford Publications New Developments in Brownfields Redevelopment March 19, 2013 Page 60

61 Q. Is incentive funding available for brownfields projects? A. Yes, funding is available from federal, state and local source Brownfield funding (e.g., grants and low-cost loans) and regulatory incentives are available on a project-by-project basis Beneficial tax treatment for brownfields costs may be available more generally To receive funding and other benefits, typically, the applicant will need to be a Bona Fide Prospective Purchaser status Certain funding opportunities are limited to government entities and non-profit organizations To take advantage of opportunities, pre-acquisition strategic planning to position the project is essential Page 61

62 Federal/EPA Brownfields Funding The Federal Brownfields Act authorizes grants worth $200 million annually including: Site assessment and remediation Superfund sites excluded unless on case by case basis determine protect health and economic development Matching requirement (20%, labor, materials, services) Page 62

63 Federal/Non-EPA Brownfields Funding US Department of Housing and Urban Development Community Development Block Grant funding Section 108 funding US Department of Commerce Economic Development Administration US Department of Transportation Funding to add on-site transit, improve transit connection, or other TOD infrastructure Brownfield Tax Incentives Page 63

64 Federal/non-EPA Brownfields Funding Brownfield Tax Incentives Cleanup costs, including institutional controls, are fully deductible in the year incurred, rather than capitalized and spread over a period of years Requirements The taxpayer incurring the cleanup expense must own the property and use it in a trade or business or for the production of income Hazardous substances or petroleum contamination must be present or potentially present on the property Taxpayers must obtain a statement from a designated state agency confirming the site is a brownfield and therefore eligible for the tax incentive Page 64

65 Brownfields Funding State Funding Programs State programmatic or bond funding State Brownfields Revolving Loan Programs State Water Resources Control Board UST cleanup fund CA Recycle Underutilized Sites Program Local/Project Based Funding Community Development Block Grant (HUD pass through) funding Tax increment financing General obligation bonds Community Finance Districts Page 65

66 Brownfields Funding Resources A Guide to Federal Tax Incentives for Brownfields Redevelopment (EPA 2012). EPA Brownfields Grants and Funding Webpage. EPA Region 9 Contact List (names and contacts) Page 66

67 Environmental Justice in the Brownfields Context Strafford Publications Webinar on New Developments in Brownfields Redevelopment March 19, 2013 David J. Freeman Newark New York Trenton Philadelphia Wilmington

68 Environmental Justice in the Brownfields Context 1. What is EJ? 2. What is EPA doing about EJ? 3. How do current developments in EJ affect brownfields practice? Newark New York Trenton Philadelphia Wilmington 68

69 Environmental Justice: What Is It? Environmental justice is achieved when everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment Fair Treatment No disproportionate share of negative environmental consequences Meaningful Involvement Opportunity to participate in decisions Concerns will be considered in the decision-making process Decision-makers should seek out and facilitate the involvement of those potentially affected Newark New York Trenton Philadelphia Wilmington 69

70 What Is EPA Doing About EJ? National Environmental Justice Advisory Council publishes Environmental Justice, Urban Revitalization, and Brownfields: The Search for Authentic Signs of Hope highlighting recommendations to EPA raised through the public dialogues on how to develop the Brownfields Program The 2002 Brownfields Amendments requires environmental justice be addressed and provides for funding of nonprofit organizations National Environmental Justice Advisory Council publishes Unintended Impacts of Redevelopment and Revitalization Efforts in Five Environmental Justice Communities highlighting concerns of gentrification and displacement in brownfield communities Brownfields Program contributes to EPA Office of Solid Waste and Emergency Response Environmental Justice Action Plan Newark New York Trenton Philadelphia Wilmington 70

71 What Is EPA Doing About EJ? Plan EJ 2014 issued in 2011 as a roadmap to fully integrate the principles of environmental justice throughout EPA Not a rule or regulation but rather a strategic plan The goals of EJ 2014 are to: Protect health in communities overburdened by pollution Empower communities to take action to improve their health and environment Establish partnerships with local, state, tribal and federal organizations to achieve healthy and sustainable communities. Newark New York Trenton Philadelphia Wilmington 71

72 What Is EPA Doing About EJ? Key elements of EJ 2014: Incorporate EJ concepts in rulemakings Consider in EJ in permitting Advance EJ through compliance and enforcement Support community-based programs Engage in stakeholder outreach Newark New York Trenton Philadelphia Wilmington 72

73 How Will It Affect Brownfields Practice? Brownfields Revitalization Funding Under Superfund 104(k) Assessment, Revolving Loan Fund and Cleanup (ARC) Grants comprise the majority of the 104 grants FY13 Guideline for Applications for Brownfields Revolving Loan Fund Grants states that a description of the environmental justice concerns of the targeted community should be included in the assessment of community need Fiscal Year ARC Grants Selected ARC Grants Selected Dollar Amount $72.5 M $73.9 M $75.4 M $72.4 M $70.7 M $74.1 M 2009* 389 $111.9 M $79.9 M $62.5 M $59.0 M Newark New York Trenton Philadelphia Wilmington 73

74 How Will It Affect Brownfields Practice? Funding of State Response Programs Under Superfund 128 The guidelines for 128 funding "strongly encourage" input from environmental justice communities Newark New York Trenton Philadelphia Wilmington 74

75 Community Action for a Renewed Environment (CARE) Program Competitive grant program for communities to organize and take actions to reduce toxic pollution in local environments not restricted to brownfields projects 111 projects funded by CARE grants since 2005 Not funded in FY 2012 President s budget proposes $2.1 million funding for FY 2013 Newark New York Trenton Philadelphia Wilmington 75

76 How Will EPA s EJ Policies Affect Brownfields Practice? Strong priority given to grant and loan applications that address EJ issues Support for empowerment of community organizations Active involvement with/comment on brownfields activities of private developers Newark New York Trenton Philadelphia Wilmington 76