The Project Team
A successful brownfields project draws on the expertise of a huge variety of governmental and non-governmental, professional and non-professional, technical, financial, and logistical resources. A typical development team will consist of some or all of the following professions and entities:
- Property owner. In certain circumstances, governmental entities may choose to employ eminent domain powers to take a property from a negligent owner. So-called “takings” are done for the greater public good and not for the benefit of a particular non-governmental entity. Public entities taking or coming into ownership of private property are protected from Superfund liability under the Brownfields Act.
- Developer (if different from the property owner). There may be multiple developers on large or complicated projects.
- Project manager. Some brownfield redevelopers hire project managers who specialize in construction projects, especially if they do not have this expertise in-house.
- Architect. The design of the new building can be influenced by the existing contamination. In addition, vapor mitigation measures, which often are needed in a building being constructed on a brownfield, must be coordinated with the architecture designs.
- Public regulatory agencies. Because brownfield redevelopment covers so many issues, multiple regulatory agencies will get involved. It is helpful to designate a lead regulatory agency at the beginning of the project to avoid turf battles as the project progresses.
- Municipal agencies. In addition to the building department, other municipal agencies, such as public works,
- Financial institution(s). As discussed in the preceding article, there are numerous financial tools available to a brownfield developer. Multiple means of financing may be used on a single project. In addition, different financial institutions can provide liquidity from different sources or to different portions of the project. There can be first-tier lenders, second-tier lenders, and so on. As a result, the financing of brownfields projects can get very complicated, and require the services of a professional well-versed in the various financial instruments to be employed on a project.
- Insurance company. In addition to pollution liability insurance, insurance companies may offer “excess of indemnity” insurance on large, complicated projects. Excess of indemnity insurance provides insurance if costs on the overall project exceed an agreed-upon limit.
- Utilities. Public utilities may get involved in the planning stage of a project to ensure that the new development will have adequate electrical and usually natural gas service.
- Community groups. Community groups, some of which may be formally organized and recognized by the local government, may be offered input on the proposed development, especially if it may change the character of the area.
- Attorneys. The brownfield developer will need various types of legal advice. A real estate attorney is an integral part of the team on a brownfield redevelopment project, as may be attorneys with expertise in project financing, construction, and environmental regulations, if the investigation and remediation of the real estate will be complicated.
- Geotechnical consultant. The geotechnical consultant will test the subsurface for its ability to withstand the load to be constructed on the property. Geotechnical consultants employ many of the same methods as used by environmental consultants, namely borehole drilling and soil sampling. However, soil samples are tested for their physical properties rather than their chemical properties.
- Asbestos abatement contractor. If there is a building on the Site, a licensed contractor may be needed to render the building asbestos-free prior to demolition.
- Demolition contractor, if there is a building on the property.
- General construction contractor. The general contractor, or GC, is responsible for the construction of the new building. The GC will hire subcontractors for tasks that it does not have in-house. Typical subcontractors will perform tasks related to steel construction, masonry, roofing, electrical and plumbing systems.
- Environmental Consultant. The tasks of the environmental consultant on a brownfield redevelopment project are discussed below.
The Role of the Environmental Consultant
The environmental investigation and remediation of a brownfields site is similar to the investigation and remediation of any contaminated site, and environmental consultants can wear many hats on a brownfield redevelopment project. Before a shovel is placed into the ground on a redevelopment site, the environmental consulting is busy performing all or some of the following activities:
- Perform a Phase I environmental site assessment, typically in accordance with ASTM International (ASTM) Standard Practice E1527
- Perform a vapor encroachment survey, typically in accordance with ASTM Standard Practice E2600
- Conduct a subsurface investigation to test for the presence of contamination of soil, groundwater, and soil vapors
- Prepare an environmental impact statement (EIS) if federal or in some cases state or local funding is involved. Follow-up studies relating to waterfronts, streams, wetlands, or endangered or threatened species often follow the initial EIS.
- If a building is currently on the property, then the environmental consultant may be asked to perform hazardous materials inventory (HMI). The HMI would include, at a minimum, an asbestos survey, a survey for lead-containing paint, and a survey for PCB-containing materials, universal wastes, and hazardous wastes. A radon survey may be warranted as well.
If contaminants or hazardous building materials are identified, the environmental consultant may become involved in the following mitigation measures:
- Soil or groundwater remediation
- Perimeter air monitoring during construction,if contaminated soils will be disturbed during construction
- Asbestos abatement
- Removal of lead-containing paint, PCB-containing materials, and the universal and hazardous wastes
- Vapor mitigation if elevated concentrations of soil vapors are encountered. Mitigation measures may include the design and construction of a vapor barrier and a sub-slab depressurization system (SSDS) for the new building.
In summary, a brownfields redevelopment project has the potential to require all of the tools in the toolbox of an environmental professional.
Designing the Environmental Investigation and Remediation
The environmental investigation and remediation of a brownfield must be designed in view of the property’s future usage rather than current usage of the property. For instance, if the property is being repurposed for residential usage, then residential remediation criteria must be employed, regardless of the current or former usage of the property. Importantly, the timeliness of the environmental remediation is critical to the success of the overall redevelopment project. Remedies that take years to achieve generally are not desirable on brownfields sites where the developer has a tight schedule as do its financers and other stakeholders, in many cases. For instance, some public grants and loans have so-called “sunset clauses,” mandating that the money be spent within a certain time period. The environmental consultant must take this into account when selecting the remedial action(s) for the property.
In certain circumstances, the environmental consultant’s findings can influence the proposed construction. For instance, if the environmental due diligence phase of the project identifies a former filling station or dry cleaner on the portion of the property where the building is to be constructed, or if the subsurface investigation identifies significant contamination on that portion of the property, then the project team may choose to move the future building to an uncontaminated or presumably uncontaminated portion of the property and place the parking area or passive recreational portion of the property where the contamination is present or suspected to be present.
The fourth and final article in this series will present a case study of a successful brownfields project.