The Unknown Complainer

Because I’ve been working for a state regulatory agency in the brownfield world for a while, one might think I’ve heard every permutation of every question that could be asked. While I understand the private sector is in business to make money, I don’t understand why they think they can get immediate response and easy answers to complicated questions.

Representatives of state government have the responsibility to protect human health and the environment — this takes time. Here are some of the typical questions I have heard:

1. I’m buying a contaminated site and want to use all the incentives available from the government, but don't want to do any investigation. I just want to slap some asphalt down and maybe build housing when the market improves. Do you have a problem with that?
2. I made an agreement with the seller to take over the site and get a No Further Action letter within 15 days of closing. No reports have been filed with you yet. Is there any problem meeting the time frame?
3. My clients are from out of state and bought some property a few years ago. They didn’t look at any files, didn’t visit the site or do any investigation then, and now they have reason to think it is contaminated. Can they get innocent prospective purchaser protection now?
4. We’re just building on top of the ground -— why do we have to worry about groundwater or the adjacent, contaminated river?
5. How can the government impose deadlines subject to enforcement actions on us, but have no accountability for how long your review takes?

Valid requests? Perhaps. Naive? Perhaps. Reflecting a certain lack of awareness about laws and regulations? Definitely.

How To Work with Governments
Most brownfield programs throughout the country really want to help developers bring environmentally challenged properties back to productive use. The programs want to work collaboratively with developers so everyone knows what is involved with the property, what the timing is, what the projected development is, etc.

If the government is to be your partner, then think about getting it involved early in the process.  Ask for a “pre-app” meeting, and ask questions to understand the nuances of each government entity’s laws and regulations. Know the laws and regulations you are about to work under, or hire transaction support experts who do.

Understand the definitions in the law. If a “prospective” purchaser is one who has not yet purchased the land, and you know you purchased it three years ago, guess what? You aren’t a “prospective” purchaser! You may qualify for other protections if you go ahead with cleanup and development, but you don’t meet that definition and that set of protections.

Ask about review time frames and don’t bind the entity to a time frame that you are told can’t be met. Give the government up-front information on your timing needs and have them work with you to meet your needs. 

Understand that brownfield developments have two major components:  Cleanup of the environmental and public health problems and working with remediated land for development. The cleanup has to be done to qualify for the incentives and the legal protections —- that means cleanup to the appropriate end-use standard. Yes, you do have to meet a higher standard for child care centers and housing than you do for chemical production or pork fat rendering.

Some entities want the entire cleanup done before development — that means remediating soil, groundwater and sometimes surface water, too. It also probably includes vapor intrusion safeguards (especially if you are building housing, schools, playgrounds and child care centers). Other entities let you bifurcate the cleanup -— finish the soil work at part of the site, start your development there, then move onto more soil work or perhaps groundwater work. 

If you take nothing else away from this article, remember to get the government entity involved early. And, listen to us! We know the laws and the technical requirements that will govern your efforts -— we know the nuances, precedent and emerging policies. Remember, we’re public servants, which guarantees you good, useful advice at an excellent price (they don’t use the word “servant” for nothing). And, aren’t you always looking for a good price? BFN