DEP ISSUE PROFILE
Brownfields Program
October 2006 Contact: (207) 287-2651

Purpose
A “brownfield” is defined by the United Stated Environmental Protection Agency (EPA) as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of hazardous substances, pollutant or contaminants.” The purpose of the Brownfields Program is to encourage re-development at these properties. This is accomplished by working with municipalities and potential owners to assist them with conducting investigations and remediation where necessary to allow for productive re-use of brownfields sites.

Background
An unintended consequence of the Superfund Law, also known as CERCLA (Comprehensive Environmental Response, Compensation and Liability Act), was that properties with an industrial past (i.e. brownfields) were assumed to have insurmountable environmental liability associated with them. The result was that developers and bankers decided, in many instances without any supporting data, that the risk outweighed redevelopment potential and undeveloped properties (or greenfields) were more suitable. This stigma left many properties unproductive and underused, often creating tax liabilities for the community and encouraging industry to locate in more rural areas. This trend known as “sprawl” leaves existing infrastructure such as sewer and water underutilized where it exists and causes expansion of services to new areas. As a result, the United States Environmental Protection Agency (EPA) began developing the Brownfields Program in the mid 1990s.

Brownfields Law
The initial brownfields legislation had its origins within the Superfund law and as a result was tied to the existing regulatory requirements. The then existing regulations included onerous and time-consuming processes that were not necessarily conducive to redevelopment. In 2002, new legislation passed, the Small Business and Brownfields Revitalization Act (SBBRA) (42 U.S.C. §§ 9601-9628), which eased some of the regulatory requirements and further encouraged redevelopment of brownfields. This is commonly referred to as the Brownfields Law.

Brownfields Process
Once brownfields sites are identified, they all follow the same general process to determine if there is contamination and ultimately resolve issues related to the contamination found. The process begins with environmental site assessments (ESAs) in two phases. A Phase I ESA is a historical and records review of the property to determine if activities at the site potentially could have caused onsite contamination. The result of the Phase I report is identification of “Recognized Environmental Conditions” (REC) (i.e. areas onsite that are potentially contaminated).

If RECs are identified in Phase I, a Phase II ESA is conducted. This investigation usually involves environmental sampling of groundwater and soil to determine if contamination actually exists onsite. A Feasibility Study may follow the discovery of contamination to evaluate clean-up options and to provide an estimate of costs.

Sites usually enter the Maine Department of Environmental Protection’s (MEDEP) Voluntary Response Action Program (VRAP) between the Phase I and Phase II investigation. Often the Phase II work plan is submitted for review and comment, and the VRAP program works with the applicants to ensure the investigation is acceptable and will produce sufficient information to determine if remediation is necessary.

Remediation conducted with oversight of the VRAP program will result in liability releases to the extent allowed in the VRAP Law. For more information on the VRAP program see DEP Issue Profile, Voluntary Response Action Program dated October 2006 or find more information online at http://www.maine.gov/dep/spills/brownfields/index.html.

EPA Funding
EPA provides funding for brownfields through two grant processes. There is a competitive grant program through which EPA provides money directly to municipalities and other not-for-profit entities. This process is explained in more detail below.

EPA also provides funding for state and tribal programs that MEDEP uses to fund our Brownfields Program. The MEDEP Brownfields Program is also described in more detail below.

Competitive Grants to Municipalities and Not-for-Profits
EPA has money available through grants for municipalities and other not-for-profit entities. Grants are awarded for either hazardous substance or petroleum contamination sites for Site Assessment, Clean-up and to provide revolving loan funds. Applicants may apply for grants on specific sites or on a community-wide basis. There are eligibility requirements for each type of grant. Applications from across the country are evaluated by EPA and are awarded on a competitive basis. One EPA requirement in the application process is that the MEDEP provides a letter of acknowledgement that the municipality is applying for funding. As a result, the grant recipients are required to work with the MEDEP via the VRAP program throughout the process. This ensures activities are conducted in an appropriate manner and that properties are suitable for re-use when the process is complete.

MEDEP Brownfields Program
The MEDEP Brownfields Program began in 1995 when MEDEP received funding from EPA to conduct site assessments. In 1997 EPA began providing funding for enhancement of the State’s Brownfields Program. The MEDEP has conducted investigations at least 25 sites and provided oversight at an additional 10 sites since the programs inception.

The program began within and remains a part of the State’s Voluntary Response Action Program (VRAP). The VRAP program provides review, oversight and approval for investigations and remediations, and issues liability releases to purchasers based on these activities. The major difference between VRAP and Brownfields is that EPA provides some direct funding for brownfields and property owners, purchasers or developers provide funding for VRAP sites.

Each year the MEDEP applies for grant funding in conjunction with the following activities: 1) program development to enhance the “four elements” and public record requirements, 2) program development to enhance clean-up capacity and 3) site specific activities. There are two other categories available for funding through the EPA Brownfields Program which the MEDEP has not requested funding for: environmental insurance mechanisms and funding to capitalize a revolving loan fund.

The “4 Elements”
The Brownfields Law (SBBRA) requires that states meet four elements to receive brownfields grant funding and to become an EPA recognized program. These elements are: 1) to provide a timely inventory of brownfields sites in the state; 2) to have enforcement authority to ensure that response actions will protect human health and the environment and be conducted in accordance with federal and state law; 3) to have a mechanism for approving clean-up plans and verifying and certifying that the clean-up is complete; and 4) to provide meaningful opportunities for public participation.

MEDEP has already met the first three elements. In April 2004, MEDEP surveyed all of the 492 municipalities in the state of Maine regarding the number and types of brownfields. Four hundred and sixty two municipalities responded reporting 2,105 sites; 46% of these were gas stations and auto repair facilities. The MEDEP has programs in place through the Division of Oil and Hazardous Waste Facilities Regulation and Division of Remediation to provide enforcement authority. The MEDEP approves, verifies and certifies remediation has been completed at sites through the VRAP program. MEDEP is in the process of fulfilling the last element by working with a stakeholders group to develop a public communication policy for the program. A policy has been drafted and reviewed by the public. The next step in the process is implementation.

Public Record
EPA also requires that states provide a public record of sites in their program. The MEDEP public record is a database available online at http://www.maine.gov/dep/maps-data/remdiscriptanddata.html.
This database lists pertinent information about the sites including: site name, status, geographic coordinates and use of institutional controls at the property.

Site Assessment
MEDEP receives funding under our grant to conduct ESA activities on behalf of municipalities in the state. Municipalities with sites that meet the brownfield definition can apply to the MEDEP to have investigations conducted. Municipalities do not have to currently own the properties but should have an interest in obtaining ownership or have a redevelopment plan for the property. Examples of potentially eligible properties include: currently unoccupied properties with delinquent taxes on which the municipality has the ability to foreclose, or vacant sites with re-development potential that the municipality has the ability to purchase or is working on redevelopment with a potential purchaser. The MEDEP has environmental consultants under contract to conduct ESAs including Phase I, Phase II and Feasibility Studies. Applications received will be prioritized based on the re-development potential.

Applications are available online at http://www.maine.gov/dep/spills/brownfields/index.html

Remediation
MEDEP has funding to provide contractors and oversight for remedial activities at municipal brownfields sites. The municipality must own the property or be in the process of obtaining ownership. For a site to qualify for funding under this program, the municipality must have completed, at a minimum, a Phase I ESA. However, in most cases a Phase II ESA and Feasibility Study also will be needed. Funding for each site is limited to $50,000.00 and must result in a clean site ready for re-development. If the clean-up cost exceeds $50,000.00 the municipality is responsible for the remainder of the cost.

Applications are available online at http://www.maine.gov/dep/spills/brownfields/index.html

For Additional Information:
For additional information, call the Department’s Bureau of Remediation and Waste Management at (207) 287-2651or write to:

Department of Environmental Protection
Bureau of Remediation and Waste Management
Attn: Nick Hodgkins, Brownfields Program
17 State House Station
Augusta, Maine 04333

e-mail:Nick.Hodgkins@maine.gov