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Q: What is a brownfield?
A: Indiana defines a brownfield site as a parcel of real estate that is abandoned or inactive or may not be operated at its appropriate use and on which expansion or redevelopment is complicated because of the presence or potential presence of a hazardous substance, a contaminant, petroleum, or a petroleum product that poses a risk to human health or the environment. Many brownfields are obvious eyesores, while some are open fields that look pristine but may have formerly been occupied by a commercial or industrial operation that caused contamination. When fear of known or suspected contamination is hindering transfer, reuse or redevelopment of a property, the site may be considered a brownfield.
Q: What is the difference between a Comfort Letter and a Site Status Letter?
A: The differences between the two types of letters are discussed in detail in the Brownfields Program Comfort & Site Status Letters non-rule policy available on the web: http://www.in.gov/idem/files/nrpd_waste-0051.pdf. A Comfort Letter is issued to a party that qualifies for an applicable exemption to liability found in Indiana law or application of an IDEM enforcement discretion policy, but is not a legal release from liability. A Comfort Letter explains the liability exemption or enforcement discretion policy for which the stakeholder has qualified and by which IDEM has determined not to pursue a party for cleanup. A Site Status Letter is issued to a party that did not cause or contribute to or knowingly exacerbate site contamination and can demonstrate that current levels of contaminants of concern at the brownfield substantially meet current cleanup criteria as established by IDEM. The potential cleanup liability of the party requesting the letter is not addressed. The Site Status Letter states that based on a technical analysis of information submitted to IDEM pertaining to site conditions, IDEM concludes that current site conditions do not present a threat to human health or the environment and that IDEM does not plan to take or require a response action at the brownfield site.
Q: How long will it take to receive a letter?
A: The length of the time required for the Program to issue a letter varies on the number of other requests already in the queue and the volume of data/reports associated with the site at issue that require review to draft the letter. Stakeholders should plan for a minimum of 90 days from the time the Program receives all pertinent documentation and information to receive the letter requested. Note: because the BFPP exemption was designed to be self-implementing, a stakeholder need not have IDEM’s Comfort Letter in hand at the time of closing to be protected under the law.
Q: How do you qualify as a Bona Fide Prospective Purchaser (BFPP)?
A: To meet the statutory criteria for liability protection as a BFPP under state law, a landowner must meet certain threshold criteria and satisfy certain continuing obligations. To be eligible, site ownership must be acquired after January 11, 2002 (for hazardous substances contamination) and June 30, 2009 (for petroleum contamination), and the disposal of hazardous substances and/or petroleum at the Site must have occurred prior to site acquisition. See 42 U.S.C. § 9601(40)(A). Prior to acquisition, the Prospective Purchaser must conduct all appropriate inquiries into the previous ownership and uses of the Site. See 42 U.S.C. § 9601(40)(B)(i) and cannot be potentially liable or affiliated with any person that is potentially liable for contamination at the site. See 42 U.S.C. § 9601(40)(H). Applicable continuing obligations to qualify for and maintain BFPP status are outlined in 42 U.S.C. §§ 9601(40)(C)-(G) and include exercising “appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to – (i) stop any continuing release; (ii) prevent any threatened future release; and, (iii) prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance.” 42 U.S.C. § 9601(40)(D). The stakeholder will also have to continue to provide the cooperation, assistance and access required by 42 U.S.C. § 9601(40)(E), maintain compliance with any land use restrictions established for the site and not impede the implementation or the effectiveness of any institutional control as required by 42 U.S.C. § 9601(40)(F), and supply required notices and respond to requests for information or administrative subpoenas in accordance with 42 U.S.C. § 9601(40)(C) and 42 U.S.C. § 9601(40)(G), respectively.
Q: Does the entity for which a Phase I report was prepared (the "User") have to have the same name/be the same entity as the entity purchasing the property (that will be listed on the deed) for the purchasing entity to qualify as a BFPP?
A. Yes, the name of the entity for which the Phase I report (and User Questionnaire) was completed needs to match the name of the entity that will be listed on the property deed (unless the party seeking protection is a prospective tenant, in which case it must match the entity identified in the lease agreement). If the Phase I and User Questionnaire have already been completed for a different-named entity that will not be on the deed (or on a lease), the party seeking liability protection may be able to obtain a reliance letter for use of the report and will have to complete a new User Questionnaire.
Q: When does a Phase I Environmental Site Assessment (ESA) report need to be updated to satisfy all-appropriate inquiry requirements?
A: Phase I reports have two key expiration dates:
1. In order to be valid for a property transfer, certain components of the Phase I report cannot be older than 180 days. If more than 180 days has lapsed since the initial report information was collected prior to closing (from the earliest date collected/conducted), the following components of the Phase I report must be updated prior to closing:
a. Interviews with past and present owners, operators, and occupants (40 CFR 312.23)
b. Searches for recorded environmental cleanup liens (40 CFR 312.25)
c. Reviews of federal, tribal, state, and local government records (40 CFR 312.26)
d. Visual inspections of the facility and adjoining properties (40 CFR 312.27)
e. The declaration by the EP (40 CFR 312.21)
2. The shelf life of the Phase I report is one year. If more than one year has lapsed from the date on which the earliest report information was collected prior to closing, an entirely new Phase I report must be obtained to qualify as a BFPP.
Q: Who can rely on a Phase I ESA?
A: A Phase I report can only be utilized by the person(s)/entity(ies) for which it was commissioned and which is/are listed within the report. If a Phase I is to be used to establish a BFPP liability defense, the name of the recipient (the person/entity seeking liability protection) identified in the Phase I should exactly match the name of the entity that will hold title to the property upon acquisition.
Q: If I have a reliance letter, can I use a Phase I ESA issued to a different prospective purchaser or the seller to help qualify as a BFPP?
A: Obtaining a reliance letter in and of itself does not satisfy the all appropriate inquiry (AAI) requirements to qualify as a BFPP. If an applicant for a Comfort Letter based on the BFPP liability exemption submits a Phase I with a reliance letter (which must be obtained prior to acquisition), the Phase I must meet the AAI standard, be current within the 180 day window prior to the property transfer (if not, a Phase I Update must be obtained), and the applicant must also have also completed a new User Questionnaire to accompany the Phase I report.
Q: Can the Program issue a Comfort Letter for a Site if the Phase I does not identify any RECs and/or a Phase II does not find any contamination?
A: No. Issuance of a Comfort Letter presumes environmental conditions are known or suspected to exist on a property making it likely that IDEM would pursue the parties legally responsible for cleanup. The purpose of a Comfort Letter is to address the agency’s exercise of enforcement discretion pertaining to the requestor’s potential liability for cleanup of environmental contamination. If there are no recognized environmental conditions (RECs) or historic recognized environmental conditions (HRECs), or Phase II site assessment data has not found contamination above applicable closure screening levels, there is no potential cleanup liability and, therefore, no potential for an enforcement action to be taken by the State. Therefore, there is no enforcement discretion exercised by IDEM to be memorialized in a letter. Instead, the party requesting a Comfort Letter will receive a Comment Letter to that effect.
Q: Is there a timeframe in which an Environmental Restrictive Covenant (ERC) issued in conjunction with a Comfort, Site Status or No Further Action Letter must be recorded on the deed?
A: There is no timeframe in which an ERC must be recorded on the deed; however, in order for the Program’s determination in the related letter to be effective, the ERC should be recorded as soon as possible and a certified copy from the applicable county recorder’s office returned to the Program. In the case of a Comfort Letter, the land use restrictions required by the ERC should be upheld in the period prior to recordation to ensure “reasonable steps” are being taken and BFPP status is not jeopardized.
Q: Does the State of Indiana have an inventory list of the brownfields located in Indiana?
A: No, the State of Indiana does not maintain an inventory list of brownfields at this time. The State does maintain a list of sites that have been voluntarily entered the Indiana Brownfields Program for financial, technical or legal of assistance to facilitate brownfield redevelopment. See http://www.in.gov/ifa/brownfields/. Also, the Indiana Brownfields Program is working o n a Statewide Brownfields Inventory Initiative to obtain local site information on a voluntary basis to help with resource planning in support of site assessment, cleanup, and redevelopment activities at identified brownfield sites statewide. If a community organization or local unit of government is interested in addressing brownfields in its community, an important first step is to identify such properties and develop such a list. This can be done by considering the definition of a brownfield and simply driving through the community, asking local neighborhood organizations for input and enlisting the help of other local governmental entities, such as the health department. The next step is to prioritize the identified brownfield sites, taking into consideration local needs and desires (e.g., as identified in a community’s comprehensive plan) and a property’s redevelopment viability. Throughout the process it is important to keep in mind that educating local citizens about brownfields and involving them in long-term planning decisions is vital. More information about the Statewide Brownfields Inventory Initiative may be found at http://www.in.gov/ifa/brownfields/files/BB_Winter_2016 FINAL_1-29-2016(1)pdf. as well as web and email listserv updates from the Indiana Brownfields Program.
Q: Can delinquent property taxes on a brownfield site be reduced or waived in order to facilitate redevelopment by a new property owner?
A: The Department of Local Government Finance may cancel any property taxes assessed against real property owned by a county, township, city, town or the state in a petition requesting that the department cancel the taxes is submitted by the auditor, assessor and treasurer of the county in which the real property is located (IC 6-1.1-36.7). This provision applies to any property, regardless of whether it is a brownfield site. However, there is a specific statutory provision dealing with the waiver or reduction of delinquent taxes on a brownfield property that applies to property owners as well. See IC 6-1.1-45.5. The brownfield tax reduction or waiver statute outlines a similar process for a person that owns or desires to own a brownfield to file a petition with the county auditor seeking a reduction or waiver of the delinquent tax liability. As a part of the petition that is filed, the petitioner must seek a statement from the Indiana Department of Environmental Management (IDEM) that the property is a brownfield. Submittal of the tax reduction waiver form to the Indiana Brownfields Program will enable IDEM to make such a determination. In order to be eligible for reduction or waiver of taxes, the petitioner may not have contributed, or had an ownership interest in any entity that contributed, to the contamination of the property. For additional information about the state brownfield tax reduction waiver, please read the tax reduction waiver fact sheet.
Q: Who is responsible for a leaking Underground Storage Tank (UST) on my property?
A: The answer depends on whether the UST was used for petroleum or other substances, when the tank was in operation, and who the current owner is. Typically, the current owner and operator is/are responsible for the remediation of a leaking UST. However, if the UST used for petroleum has not been used since November 8, 1984, the person who owned the tank immediately before the discontinuation of the use of the tank is liable under leaking UST laws. One exception is for persons who hold title to the UST to protect a security interest, such as lenders. Other liability may exist for leaking USTs, such as liability for hazardous substances if the tank was not used solely for petroleum, and liability for common law nuisance, trespass, and worker exposure.
Q: What kind of tax benefits are available for redeveloping brownfields?
A: On the federal level, originally signed into law in 1997 and recently extended through December 31, 2009, the Brownfields Tax Incentive encouraged the cleanup and reuse of brownfields by providing the following advantages to taxpaying stakeholders conducting environmental cleanup at brownfield sites:
Q: How can my community take advantage of U.S. Environmental Protection Agency brownfields grant funding?
A: Through the Small Business Liability Relief and Brownfields Revitalization Act, the U.S. EPA offers brownfields assessment, revolving loan fund, and cleanup grants to eligible entities to address brownfield sites with hazardous and/or petroleum contamination. The application process is nationally competitive and typically begins annually in late fall. For more information about eligibility requirements, the application process, and other U.S. EPA funding, please visit www.epa.gov/brownfields. For information on the State’s involvement, contact Michele Oertel of the Indiana Brownfields Program at (317) 234-0235 or firstname.lastname@example.org.
Q: Who are my potential partners in a brownfields project?