INSIDE WASHINGTON/Brownfields relief
Municipal officials are convening a task force this month to seek a change in an Environmental Protection Agency (EPA) brownfields policy that occasionally holds local governments liable for contaminated property they are revitalizing. Matt Ward, from the National Association of Local Government Environmental Professionals (NALGEP), estimates that “billions of dollars in investment opportunity in our inner cities” is in jeopardy because of the policy.
“[Changing EPA’s rule] would allow cities to acquire these sites without liability and transfer them to the private sector for appropriate clean-up and reuse,” says Ward, whose Washington D.C.-based association is spearheading the effort to change the policy.
In 1995, EPA provided Superfund liability protection for local governments when they involuntarily acquire land through a tax foreclosure or by condemnation to build a road. The 1995 guidance, along with the passing of the 2002 brownfields law, spurred redevelopment of many abandoned sites.
But no such protection exists when municipalities seek to acquire property to redevelop. EPA’s liability protection is offered only “when the government takes private property for public use,” according to a NALGEP memo.
EPA estimates that between 400,000 and 600,000 brownfields sites are located in the country. EPA reopened the grant process after President Bush signed a measure into law in January that temporarily expands the number of brownfields eligible to receive federal funding under EPA’s brownfields assessment, revolving loan fund and cleanup grants.
Elizabeth, N.J., Mayor Christian Bollwage says EPA must rewrite the policy to help local governments revitalize blighted brownfields in their communities. “EPA needs to [know] that sometimes cities are the driving force behind redevelopment of brownfields,” says Bollwage, who serves as chair of the Washington, D.C.-based U.S. Conference of Mayors Brownfields Task Force.
In addition, local leaders say the current law makes them ineligible to receive federal brownfields grants if they take a parcel of land by condemnation or eminent domain and it is later revealed that the land is contaminated. They say that they do not know if a site is contaminated until it is under their control.
“With the economy moving up again, there will be increased interest in private redevelopment projects in which the local government’s condemnation powers are being used,” says Clifford Case, from the New York-based law firm, Carter Ledyard & Milburn. “Our goal is to make sure EPA agrees with us that the exemption is available in such transactions.” Case will represent the Washington, D.C.-based International Municipal Lawyers Association on the task force.
Ward says the task force will conduct surveys to determine how many local governments are adversely affected by the policy, draft a position paper expressing municipalities’ concerns and present their findings to EPA representatives and Department of Justice officials who oversee brownfields enforcement. While being cautious about the outcome of the task force’s efforts, Case also notes, “preliminary indications are that [some administration officials] would very much like to be helpful.”
The author is Washington correspondent for American City & County.