Brownfields Assistance Section 128(a) Assessments

Section 128(a) Assessments are Environmental Site Assessments (ESAs) that provide preliminary environmental information to determine if there is contamination on a property. The Nebraska Department of Environment & Energy (NDEE) offers these assessments to communities at no cost.

These assessments are performed in accordance with the “all appropriate inquiry” requirements but may include additional activities such as nearby drinking water well sampling and testing building materials for asbestos, lead-based paint and/or mold.

The first part of the assessment examines the background, setting and past uses of a property. It includes a records review, site reconnaissance, interviews, and, as a final product, a report documenting the environmental conditions at the property.

The second part of the assessment examines and evaluates the environmental conditions identified in the initial assessment. Soil and groundwater sampling and analyses are conducted to determine whether contamination associated with any environmental conditions has occurred on the site. The results of the sampling and analyses are evaluated in the Assessment Report.

Who assesses the property?

NDEE has its own assessment contractors to conduct these investigations.

Who is eligible to receive a Section 128(a) assessment?

NDEE performs ESAs for interested parties at eligible sites. Interested parties may include communities and counties planning to redevelop sites that may be contaminated.

Projects benefiting the community will be considered. Organizations that represent community interests including city or county government, non-profit economic development organizations, and regional councils of government are eligible. For-profit development organizations and individuals who are responsible for causing the contamination are not generally eligible.

Eligible sites are those meeting the definition of a brownfield. Certain sites are excluded from the program including, but not limited to, sites under an order or permit from a federal cleanup program

What is a brownfield?

Brownfields are “Real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant.”*

Common brownfields include vacant or under-utilized industrial or commercial property in older parts of communities.

Examples may include railroad facilities, salvage yards, dry cleaners, landfills, gas stations, and a variety of other sites.

* Synopsis of the definition of Brownfield Site (CERCLA § 101 (39))

Section 128(a) Assessment Process

1. Interested parties should contact the NDEE’s Voluntary Cleanup Program (VCP) Coordinator to discuss their proposed project.
2. Interested parties must obtain access to the property for the purposes of allowing the NDEE and its contractor to work there.
3. A Section 128(a) Assessment Application and Access Agreement must be completed and submitted to the VCP Coordinator.
4. NDEE reviews the application and determine the eligibility of the site and availability of funds.
5. Upon approval of the work, NDEE tasks its contractor to conduct the work.
6. Upon completion of the work, a report is submitted to the applicant and site owner.

NDEE and the applicant will discuss the results of the findings and possible next steps.

Why is property access so important?

To conduct the environmental site assessment, NDEE needs the interested applicant to receive written permission from the property owner to allow access onto the property for this purpose and to submit this to the Department. An example Access Agreement will be provided for you use.

Why is an assessment useful?

An ESA can be the first step towards redevelopment of a “brownfield” site.

• It can verify the presence of contamination. In many instances, an environmental site assessment has shown that no environmental problems exist and reuse can begin at the property.
• It can be useful for pursuing additional grants for revitalization of the property.

What is the cost?

Section 128(a) assessments are free to communities. The Environmental Protection Agency (EPA) provides funding to the NDEE to operate this program.