Brownfields Update for the Pacific Northwest

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