The Brownfields Utilization, Investment, and Local Development or “BUILD” Act

BUILDlogo_FINAL_crop The Brownfields Utilization, Investment, and Local Development or “BUILD” Act (2013) is a bill recently introduced in the US Senate that would make federal brownfields cleanup grants available to a wider variety of groups and local governments, and would smooth the way for communities to redevelop these properties. These grants are a critical part of the success of the nation’s Brownfields program. According to EPA figures Brownfields grants have resulted in the assessment of more than 20,000 properties and the completion of 845 cleanups.

The bill was introduced by Senators Lautenberg, Inhofe, Crapo and Udall  to amend the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §9601 et seq. (“CERCLA”), which has been the main US law governing federal cleanups since the 1970s. The BUILD Act reauthorizes the EPA’s Brownfields Program through Fiscal Year 2016. The BUILD Act is more than a simple reauthorization bill, however, as it contains important new eligibility and increased funding provisions that have the potential to both revive Brownfields projects that were tabled due to the economy and encourage new redevelopment projects. While currently non-profit organizations are only eligible for site remediation grants, the Act broadens the definition of an “eligible entity” under CERCLA to include non-profit organizations, certain limited liability corporations, limited partnerships and “qualified community development entities” among those that can obtain site assessment grants.

Some of the other important features of the BUILD Act include:

  • Local governments benefit from expanded opportunities to obtain site assessment grants to allow them to investigate properties that were acquired prior to the enactment of the Small Business Liability Relief and Brownfields Revitalization Act in 2002. The site assessment grants are available to local governments even if they do not qualify for the “bona fide prospective purchaser exemption” under CERCLA (i.e. they did not undertake a level of due diligence amounting to “all appropriate inquiry” before buying the site).
  • Under the Act, states benefit through targeted funding. The EPA is authorized under the BUILD Act to award up to $2,000,000 to provide grants to states. The caveat is that states must have spent at least 50% of the previous year’s funding on site assessment and remediation to qualify.
  • Increases in the amounts and allowable uses for funding are key elements of the proposed legislation. Under the current law, site remediation grants cannot exceed $200,000 per site. The BUILD Act would increase that cap to $500,000 per site and give the EPA further authority to waive the limit and award up to $650,000.
  • Grant recipients would have greater flexibility under the BUILD Act in terms of the costs that can be reimbursed though the grant program. Currently, CERCLA prohibits grant recipients from using grant proceeds to pay for administrative costs. If enacted, the BUILD Act would remove this prohibition and permit grant recipients to use up to 8% of any grant for administrative costs.
  • The BUILD Act would create multipurpose Brownfields grants of up to $950,000 that could be used to fund inventory, characterization, assessment, planning or remediation work at one or more sites in an area, provided that the grant money is used within a three-year period. At present, the grants are segmented in such a way that multiple grants may be needed in order to complete an entire project. Allowing applicants to apply for one grant to cover multiple phases of a project is be expected to save grant recipients money by reducing the administrative application costs and the delays and uncertainty associated with piecemeal grants.
  • The Act incents Brownfields redevelopment at particular types of sites through focused funding. It directs EPA to give priority in awarding technical assistance grants to “small communities, Indian tribes, rural areas, or low-income areas with a population of not more than 15,000” individuals. The EPA will also be required under the BUILD Act to give consideration to “waterfront brownfield sites” when awarding funds. A “waterfront brownfield site” is a site that is located adjacent to a body of water or a federally designated floodplain. Special grants up to $500,000 are available for clean energy projects, which include renewable energy (wind, solar and geothermal) projects at Brownfields sites.

Want to know more? A convenient section by section summary presented by Smart Growth America is available here.

As participants in successful brownfields redevelopments in Pennsylvania, New Jersey, and Delaware over the last twenty-five years, REPSG stays on top of funding opportunities, grants and legislation pertaining to your development. Please do not hesitate to contact me at Cdrake@repsg.com, or post in the comments below, to discuss your project and see how we can help.

A Primer to NJ’s EPH Categories

Approved methods of compound analysis change all the time, and so do their associated regulations. While it is always advisable to read and become fully familiar with the most up to date versions of regulations that are available, sometimes what you need is a primer to help get you started. And that’s what this post is all about.

Previously in New Jersey, petroleum hydrocarbons were analyzed by the total petroleum hydrocarbon (TPH) analysis method 418.1, however, over time this method was systematically replaced through a series of evolving methods designed to address extractable petroleum hydrocarbons (EPH). The method eventually settled on, and which is now in place, is known as ‘NJDEP EPH Method Revision 3.’

Protocol for implementation of the EPH Method Revision 3 divides petroleum types into two categories. Category 1 deals with releases of diesel fuel and/or number 2 (No. 2) fuel oil, while category 2 deals with releases of petroleum hydrocarbon mixtures other than diesel fuel/No. 2 fuel oil such as: cutting oils, crude oils, hydraulic oils, lubricating oils, number 4 and number 6 fuel oils, and waste oils. Category 1 requires analysis of non-fractionated EPH only while category 2 utilizes analysis of both non-fractionated and fractioned EPH analysis.

One thing to keep in mind when analyzing for EPH is that, regardless of the category, contingent analysis of specific compounds may be required based on your EPH results. EPH concentrations that trigger contingent analysis are determined by Table 2-1 of the Technical Requirements for Site Remediation Guidance (known as the ‘Tech Rule’ or ‘N.J.A.C. 7:26E’). Contingent analysis triggers and parameters vary based on petroleum type, so make sure to package your samples accordingly!

The concentration of EPH present within a sample that warrants soil remediation is 5,100 ppm for category 1, residential exposure. This is referred to as the human health value. Soils with concentrations above 5,100 ppm must be treated or removed. Alternatively, engineering controls (like an asphalt cap) and institutional controls (like a deed notice) can be used to mitigate exposure. A concentration of 54,000 ppm is the human health value for category 1 non-residential exposure scenarios. A determination of the presence of EPH product is made for both the category 1 residential exposure scenario and the non-residential exposure scenario when the concentration of EPH reaches 8,000 ppm. Soils with EPH concentrations above 8,000 ppm must be removed.

The Department requires that an ecological evaluation be conducted when the concentration of non-fractionated EPH reaches 1,700 ppm. However, if you’re a homeowner, or if the site being evaluated doesn’t have any significant ecological receptors, you’re in luck! The NJDEP typically doesn’t require that an ecological evaluation be conducted in those instances.

For category 2, the 1,700 ppm ecological evaluation trigger can also serve as the trigger to analyze for fractionated analysis. Initially, non-fractionated EPH analysis is sufficient; however, concentrations over 1,700 require fractionated EPH data. Due to analysis turnaround times with labs, you may find it prudent to simply analyze category 2 soils for both non-fractionated and fractionated EPH at the same time. The human health value for category 2 can be calculated using the NJDEP’s EPH calculator spreadsheet. Simply input fractionated data and whether the scenario is residential or non-residential and the spreadsheet will indicate if additional remediation is necessary. A determination of the presence of EPH product for category 2 samples is made when the concentration of EPH reaches 17,000 ppm. As with category 1, soils with concentrations of EPH above 17,000 require removal while soils with concentrations below 17,000 that are calculated to be above the human health value may be treated, removed, or addressed with a combination of engineering and institutional controls.

For both category 1 and category 2 EPH analysis, the evaluation of sheen is determined utilizing the Department’s Sheen Remediation Guidance.

Now that you have the basics of the NJDEP’s EPH protocol down, please download (and read!) the complete NJDEP EPH Protocol Guidance document to learn more. Or if you have any questions, feel free to contact me at sshourds@repsg.com, or leave a comment in the reply section below. Happy sampling!