New Rules

Changes in federal and state brownfield regulations provide new liability protection for builders.

The Federal Brownfield Act of 2002 (formally known as the Small Business Liability Relief and Brownfields Revitalization Act) includes a number of new provisions. Several, including the windfall lien, protect the government by allowing it to recoup (from private developers) some cleanup costs on land it has cleaned up at great expense—on which a developer makes a killing at resale. Most, however, make development of brownfield properties less risky for you. These include:

  • Relief from potential federal liability under the Superfund Act (also known as the Comprehensive Environmental Response, Compensation, and Liability Act). Purchasers of brownfield properties, along with their tenants, will not be held liable for unexpected cleanup issues later on, provided they address preexisting conditions and cooperate with the state and federal mandated guidelines.
  • Protection from future liability for private individuals/firms that clean up contaminated properties under state voluntary programs. This protection, however, applies only to properties that have not been previously identified as Superfund sites .
  • Protection for owners of property situated next to contaminated sites. If your site becomes polluted due to runoff from a site next door that you don't own, you will not (in most cases) be required under federal regulations to investigate or clean up that contamination. The owner of the polluting property will be held responsible.
  • More money for voluntary state cleanup programs. These programs may receive up to $50 million in federal grants. State and local agencies can get up to $200,000 to investigate brownfield property and $1 million for remediation, per site.

    • Source: Gerald Pouncey, Morris Manning & Martin

    Locate And Connect

    Like all other types of real estate, brownfield sites have to have something to offer that will make them desirable places to live and work. That could be views, public transportation, closeness to a park or commercial area, or proximity to an urban hub. Atlantic Station's designers greatly increased the perceived value of the site by adding a modern “multimodal” bridge over the interstate highway (I-75/85), connecting the site to midtown Atlanta.

    Reuse Solid Fill
    When mapping out the parcel for site preparation, areas should be specifically earmarked for different types/levels of soil and construction debris. These staging areas allow reusable materials to be kept separate from contaminated stuff. For example, Atlantic Station recovered 132,000 cubic yards of concrete by crushing and saving old foundations. The developers also crushed 164,000 cubic yards of bedrock. All of this material was used as backfill for the new structures.

    Discover The History
    Often, the need for multiple soil tests and excavations can be greatly reduced by reviewing public records about the site. Where was the smelting furnace located? Was there a designated dumping area? Was any of the site used for barracks or kitchens, and, therefore, less likely to contain heavy contaminants?

    Cool The Hot Spots
    Many brownfields have certain areas where pollution is most severe. To reduce liability and protect construction workers who will be climbing all over the site in months to come, the bad areas need to be neutralized first. This may entail capping or fencing off the worst areas or expert removal of the more dangerous contaminants.

    Steer Runoff
    A key concern with any brownfield is water runoff and seepage into local aquifers. MACTEC addressed this problem economically at Atlantic Station by sloping the site so that all water runs into a series of wells in a conservation easement before passing into the city sewer system. But all runoff gets tested for contamination before it gets a free pass. If toxins are found, the runoff is automatically cycled through a water-treatment facility on site before entering the city sewer pipes. Because this treatment center is a backup, not a full-time system, it can be small and economical.

    Think Double Duty
    Even badly contaminated soils can sometimes be addressed to regulator satisfaction by capping them with concrete or pavement. Keep this in mind when laying out your master plan and pouring foundations. A few more feet of concrete in a basement floor may adequately encapsulate bad soils and save thousands on what you might have spent capping all of the trouble areas without regard to building layout.

    Learn The Ropes
    City planners like well-planned brownfields and are willing to work with developers, especially by fast-tracking permitting. You should also look into programs that offset property taxes. You might get a deal that allows you (as developer/builder) to pay the same amount of taxes (for up to 10 years) on a developed brownfield as you did before it was developed.

    Station Report
    Hailed by the city of Atlanta and regulators as a “town inside a metropolis,” the Atlantic Station brownfield project has some impressive credentials. When completed, it will include 3,000 to 5,000 residential units, 1.4 million square feet of retail and entertainment space, and 6 million square feet of office space. The Station will contribute $30 million a year in property taxes and about $500 million in sales tax from retail establishments on the property. Thanks to its proximity to mass transit, the new bridge, and strong support from the city, the Station is already attracting eager home buyers. People are moving in, and units are selling briskly.