Real estate discussions involving brownfields can be full of environmental jargon and acronyms. Here’s a reference to help translate and navigate the more technical side of environmentally-impaired real estate from environmental laws to Phase I report terminology to potential contaminants at brownfields.
ENVIRONMENTAL LAWS AND REGULATIONS
The regulations below (among others) are intended to protect human health and the environment, and each have different areas of focus.
RCRA (Resource Conservation & Recovery Act) governs the federal management of hazardous waste at active generator sites and transportation of hazardous materials. It also extends coverage to some previously regulated facilities and RCRA permitted units.
CERCLA (Comprehensive Environmental Response, Compensation, & Liability Act) is also referred to as the “Superfund” Act. CERCLA gives the federal government the power to respond to actual or threatened releases of hazardous substances and to pursue polluters or owners for clean-up costs. CERCLA amendments provide steps for exemptions from liability for potential property owners of contaminated sites to encourage redevelopment.
The CWA (Clean Water Act) regulates the quality standards for surface water, such as lakes, rivers, wetlands, and coastal areas; it prohibits discharging pollutants into navigable waters without a permit.
The CAA (Clean Air Act) regulates emissions of hazardous pollutants into the air.
TSCA (Toxic Substances Control Act) regulates the production, use and disposal of a large swath of chemicals, notably PCBs, asbestos, radon, and lead-based paint. It also designates existing chemicals for further testing to evaluate risk and the need for future regulation.
CERCLA offered important protection to potential purchasers of Brownfields and outlined steps to document their innocence related to preexisting contamination at the site or related to potential impacts from neighboring facilities. By meeting certain criteria before purchase and by maintaining their Continuing Obligations after purchase, buyers of a brownfield can qualify for Bona Fide Prospective Purchase Protection.
BFPPP (Bona Fide Prospective Purchase Protection) limits the EPA from coming after new owners for clean-up costs. BFPP does not protect against third-parties suing for harm to their health.
CO (Continuing Obligations) are steps taken to contain and prevent the spread of any existing contamination.
AAI (All Appropriate Inquiries) is due diligence prior to purchase to document the site condition and environmental impacts through an environmental site assessment (commonly called a “Phase I study” or an ESA).
ASTM 1527-13 is the Standard Practice for Environmental Site Assessments (Phase I ESA Process). ASTM 1903-19 is the Standard Practice for Phase II Site Assessments (Phase II ESA).
Responsible Parties are those who contributed to the contamination of the site, who owned the site when contamination happened, or who did not maintain their Continuing Obligations after purchase. They can be held liable for environmental cleanup and for harm to human health from site conditions.
PHASE I REPORT TERMINOLOGY
An ESA (Environmental Site Assessment) is often referred to as a ‘Phase I’. A Phase I ESA is a comprehensive environmental report that includes research on readily available information on the property previous uses and owners activities and the identification of Recognized Environmental Conditions (RECs). The Phase I can include recommendations for further examination of a site that would be completed as a Phase II investigation.
Institutional controls impose restriction on activity, use or access in order to protect human health and the environment by minimizing exposure to residual contamination. These are imposed through permits, deed restrictions, consent decrees, or zoning restrictions.
ERCs (Environmental Restrictive Covenants) or deed restrictions are a form of institutional controls called land use restrictions (LURs) that go with the land and are usually agreements between a government agency and a private party.
AOCs (Areas of Concern) are environmentally sensitive or damaged areas.
USTs (Underground Storage Tanks) often require a SPCC (Spill Prevention Control & Countermeasures Plan) to ensure there are onsite precautions being taken to prevent and identify any oil tank leaks; this is applicable where there is a combined above ground oil storage capacity greater than 1,320 gallons or underground storage capacity greater than 42,000 gallons.
Vapor Intrusion occurs when VOCs (Volatile Organic Compounds) seep into a building or are transmitted along utilities. This is typically managed by placing a vapor barrier made of a high density geomembrane above the impacted soil before any new construction occurs.
A plume is leakage or discharge of contamination from a specific point into any medium, typically groundwater.
Leachate is contamination that is picked up by water as a solvent.
A cap is a cover to isolate and contain contamination, which can be used for large plots, low levels of contamination, or as engineering control for regulated landfills. It can be pavement or clay covered by a geomembrane, sand/gravel, and vegetation with buried slotted pipes to collect water and reroute water from infiltration. Specifications vary based on regulatory framework and desired level of risk management. Caps can help control leachate generation.
In-situ remediation is performed “in place” or on site, such as chemical oxidation, soil amendment injections, or microbial enhancement.
Ex-situ remediation is handled off site and usually takes the form of digging and hauling contaminated soil to a specially regulated landfill.
REGULATIONS AND AGENCIES
The USEPA (U.S. Environmental Protection Agency) is a federal agency tasked with implementing laws and regulations to protect human and environmental health.
The federal EPA typically is only involved once a site is placed on the NPL (National Priorities List), an annually-updated list of the most serious hazardous waste site requiring long-term clean-up and federal oversight.
Only NPL sites qualify for funding from the Superfund, which is a trust fund for cleanup programs established under CERCLA.
OSHA (U.S. Occupational Safety & Health Administration) has HAZWOPER (Hazardous Waste Operations and Emergency Response) regulations for worker safety that apply to many environmental cleanups, including hazardous waste and hazardous substances sites where investigation and remediation are conducted. HAZWOPER worker protections are usually required at RCRA-site and CERCLA site operations as well as demolition and asbestos abatement sites.
Local and state agencies dedicated to environmental protection are the ones typically overseeing and approving clean-up at sites with contamination. Most states have a VRP (Voluntary Remediation Program), sometimes called a VCP (Voluntary Cleanup Program), for those who voluntarily come forward to resolve environmental contamination on their site. These programs help facilitate the clean-up of sites by offering incentives, guidance, and the ability in some states to use risk-based cleanup standards that consider site-specific conditions and future land use.
When regulatory agencies are satisfied that environmental contaminants have been addressed based on the intended end use, they will issue a NFA (No Further Action) letter to designate which areas or types of contamination have been “closed” and what continuing obligations are required. They can contain “re-opener” clauses that allow them to re-evaluate the site based on new information.
POTENTIAL CONTAMINANTS AT BROWNFIELDS
Many compounds are known to be toxic without much additional explanation, such as lead or mercury. Other compounds are more masked in terms of what they are. This list is by no means comprehensive, but it does cover some of the pollutants found in brownfields. Knowing a site’s previous historical use can give you clues as to what kind of contamination could be at play at that site. These chemicals are so powerful that their concentration is often measured at very minute levels (Parts Per Million-PPM or Parts Per Trillion-PPT).
These are commonly found in various industrial applications, plating facilities, metal working & fabrication, foundries, leather tanning, pesticides, and paint. Metals historically are used in a wide variety of industrial and consumer products. Some examples are Arsenic, Chromium, Lead, Mercury, and Copper.
The BTEX family of chemicals are volatile aromatic compounds found in gasoline or other petroleum products. Some examples are Benzene, Toluene, Ethylbenzene, and Xylene.
PCP is commonly used for wood preserving and in the past as an ingredient in fungicide, herbicide, and algicide.
1,4 Dioxane (DXA) is a common stabilizer in chlorinated solvents and previously used in shampoos, cosmetics, and personal care products.
PFAS (Per- and Polyfluoroalkyl substances)
One chemical in the PFAS family is PFOA (Perfluorooctanoic acid) and is used in cookware, stain- and water-resistant fabrics and carpeting, cleaning products, paints, and fire-fighting foams.
(cVOCs) Chlorinated Volatile Organic Compounds
Some common cVOCs are TCE (trichloroethene), which is used to degrease metal or in other solvent applications, and
PCE or PERC (tetracholoroethene), which is used in dry cleaning and to make other chemicals.
Hexavalent chromium is a biocide used in chrome plating shops, auto manufacturing and metal treatment.
SVOC (semivolatile organic compounds)
This family of chemicals gets a lot of attention. PCB (Polychlorinated Biphenyl) is used in electrical transformers and in plastics, paints, caulks, heat treating fluids, and lighting ballasts. PAH (Polycyclic Aromatic Hydrocarbon) is found in petroleum fuels, coal products, and wood preservation. Phenols are byproducts of tanning, petroleum refining, and other manufacturing.
As you can see, the environmental and regulatory elements to a brownfield can be complex and have their own language! Engaging the right team to handle these and other issues inherent with brownfields will help ensure success in eventually redeploying the site for its highest and best use.