Brownfields - Additional Frequently Asked Questions

What are “Brownfields”?

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. Often the potential liability associated with contamination complicates business development, property transactions, or expansion on these properties.

Cleaning up and redeveloping brownfields properties is necessary to preserve neighborhoods, reduce urban sprawl, and stop the continued development of new industrial and commercial facilities on farmland. By investigating and cleaning up a brownfields property and addressing the property’s potential health or environmental risks, communities can reuse property - producing jobs, increasing the tax base, and adding other benefits such as creating a park or residential area.

Every city and county, in both rural and urban areas, has brownfields properties. NDEE currently has programs to assist communities with the redevelopment of brownfields properties.

What are "Greenfields"?

Greenfields are undeveloped lands such as farmlands, woodlands, or fields. Businesses often prefer to develop new facilities on greenfields to avoid the real or perceived difficulties associated with brownfields redevelopment. This tendency to develop open spaces on the outskirts of cities promotes urban sprawl, taking land away from communities who would otherwise use these areas for recreation or other quality of life purposes.

Why Redevelop Brownfields?

Redeveloping brownfields potentially benefits the environment, the community, and industry by:

• Preserving green areas outside cities
• Restoring property for productive use and increasing property values
• Increasing the local tax base
• Improving the community image
• Mitigating public health and safety concerns
• Using existing infrastructure (streets, sewer systems, lighting) resulting in cost savings
• Creating jobs

Brownfields redevelopment can benefit communities and private investors. For communities, redeveloping unused or under utilized property can result in an increase in the tax base as well as removing properties that may present a hazard, nuisance or are simply an eye-sore. In many cases redeveloped brownfields become the foundation for redeveloping an entire revitalization effort. For the private sector, brownfields redevelopment can mean new business opportunities, the potential for profit on unused or under-utilized properties, and access to untapped urban markets.

What are the barriers to Brownfields redevelopment?

Communities, municipalities, and private investors encounter many impediments to redeveloping brownfields, such as:

• Concerns about liability
• Potential environmental concerns
• Lack of funding for investigation and cleanup
• Unfavorable neighborhood or market conditions
• Reluctance to invest in distressed communities due to concerns with socio-economic conditions
• Lack of community support

How can NDEE help a community redevelop their Brownfield?

NDEE has programs and funding that can assist communities or other governmental agencies evaluate and cleanup brownfields. One of the programs is referred to as the Section 128(a) program. NDEE offers Section 128(a) assessments free to communities. NDEE also has a voluntary cleanup program referred to as VCP. The VCP represents a streamlined approach to investigate and cleanup a brownfield property.

What is a Section 128(a) assessment?

NDEE receives funding from the Environmental Protection Agency (EPA) to conduct Section 128(a) assessments at the request of an applicant. The program provides funding and technical assistance to assist communities in assessing properties. NDEE’s program targets properties that are of interest to local governments and non-profit organizations; have low to moderate contamination; include issues of environmental justice; suffer from the stigma of liability; or have a prospective purchaser willing to buy and pay for the cleanup of the property, if needed.

Depending on the need of a community, NDEE can provide various investigations and may encompass one or more of the following activities at no cost to the community:

1. Section 128(a) Phase I Assessments are environmental site assessments that provide preliminary environmental information to determine if hazardous chemicals were used or stored on a property and what the historical land use was for a property and the adjacent properties. These assessments provide most of the information required in the EPA “All Appropriate Inquiry” standard and may include additional activities
2. Section 128(a) Phase II Assessments include sampling activities to identify types and concentrations of contaminants and the areas of contamination that may need to be cleaned up; and 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 will be evaluated in the Assessment Report
3. Inventories of brownfield properties within of a given area of the community
4. Lead-based paint and/or asbestos surveys and partial assistance for lead-based paint and/or asbestos removal
5. Site cleanup activities

Section 128(a) assessments are conducted by environmental consultants currently under contract with NDEE. A final report will be provided to the applicant.

It is important to note that this program does not routinely provide assistance to pay for disposal costs associated with building demolition activities. However, in limited situations, partial assistance may be provided to pay for disposal costs associated with demolition of buildings contaminated with hazardous substances or petroleum, and with demolition of condemned buildings containing lead-based paint and/or asbestos.

Who is eligible to apply for a Section 128(a) assessment?

Local governments or non-profit groups interested in better understanding the environmental issues which may be hindering redevelopment of a particular site may apply for assistance through this program. Preferential assistance is given to groups who already have redevelopment goals in place for a specific site and where those goals provide a clear public benefit (i.e., job creation, enhancement of the tax base, creation of a public amenity). Section 128(a) assessment applicants have included a number of municipalities, school districts and non-profit organizations. For-profit development organizations and parties who are responsible for causing the contamination are not generally eligible.

What sites are eligible for investigation?

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

How do I apply for a Section 128(a) assessment?

NDEE would like to provide 128(a) assessments for as many eligible sites as possible and will accept applications as long as resources remain. To increase the chances of your project being funded, applications should be submitted as soon as possible.

Section 128(a) Assessment Process:

1. Interested parties should contact the NDEE’s Brownfields and Voluntary Cleanup Program BF/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 BF/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.
7. NDEE and the applicant will discuss the results of the findings and possible next steps.

Do I have to own the property to apply for a Section 128(a) assessment?

No, but in order to conduct environmental site assessments, NDEE needs the interested applicant to receive written permission from the property owner to allow access onto the property. If the property owner is not the applicant and the property owner does not allow access, NDEE cannot force access. 

How does a S128(a) Phase 1 Assessment help me to obtain limited Superfund liability relief?

As stated earlier, a Section 128(a) phase I assessment provides most of the information required in the EPA “All Appropriate Inquiry” standard. The applicant is responsible for addressing the remaining information required by the EPA standard. Completion of a phase I assessment in accordance with the EPA standard provides limited liability protection under Superfund law to innocent landowners, bona fide prospective purchasers, and contiguous property owners.

How does the State Voluntary Cleanup Program Apply?

The Voluntary Cleanup Program (VCP) is designed to allow any entity to enter into an agreement with NDEE to assess and clean up a property, if necessary, on a voluntary basis and receive a ”No Further Action” letter from the NDEE when the work is satisfactorily completed. The VCP agreement requires the applicant to provide all work plans and reports to DEE for review and provides for the applicant to reimburse NDEE for its oversight costs. For information about this program, contact the Brownfields and Voluntary Cleanup Program Coordinator at (402) 471-6411.