Developing Brownfields

For residential and mixed-use development, as William A. White, principle at Endurance Real Estate Group, notes, “another valuable feature of 'infill' development (which applies to many Brownfields) is that the locations are already surrounded by lots of amenities, unlike locations on the fringe where the new users often have to wait for more development to fill in around them.” Desirable amenities include stable school systems, public transportation, nearby shopping, and pedestrian-friendly infrastructure. Other favorable features include proximity to the workplace, scenic waterways and riverfront recreation, such as multi-use trails and entertainment facilities.

In short, residents desire a place where they can work, shop, play and sleep, without exhaustive commutes. That trend in lifestyle preference ultimately leads to an increased interest in properties that happen to be Brownfields.

Cleanup Programs

It's been a number of years since the watershed legislative changes at the federal and state levels that introduced the statutory liability defenses now available to lenders, bona fide prospective purchasers, contiguous property owners and others. See, e.g., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9607(q) and (r) (CERCLA or Cleanup Programs Superfund); the Hazardous Sites Cleanup Act, 35 P.S. Section 6020.701(b)(iv) (HSCA); the New Jersey Spill Compensation and Control Act (the Spill Act), N.J. Stat. Section 58:10-23.11g.d.2. Nonetheless, following these events, the regulatory arena has continued to become increasingly more favorable to developers. As most developers already know, “remediation” can often be accomplished not by removing contamination, but by creating physical and legal barriers to exposure (respectively, engineering controls and institutional controls, i.e., deed restrictions).

Generally, developers experience improved (quicker) regulatory review of remediation plans and acceptance of these controls than they did in the past. In some states such as New Jersey, government oversight has been replaced with oversight by private site remediation professionals working directly for responsible parties, which has dramatically improved the process for developers. These factors have made the redevelopment of Brownfields significantly easier, faster and more predictable.

Funding Sources

Private funding for redevelopment on Brownfields has also increased. Just as users and developers are becoming more comfortable with Brownfields, so too are banks and private equity firms. These entities have become adept at obtaining their own site assessments, engaging counsel for advice and negotiations, and securing insurance products to add predictability to future costs and risks.

On the public funding side, available vehicles have not changed significantly in recent years. These still include products like grants for municipalities and quasi-governmental entities to assess Brownfields, develop cleanup plans, and conduct community outreach, and Brownfield and economic redevelopment loans for developers. But, again, the process and creativity of public funding organizations have improved. These funds often leverage private financing and other government funding, and involved agencies are adept at providing guidance and support.

As two examples, agencies are amenable to the creative segmentation of projects in order to use economic redevelopment loans on portions requiring little remediation, use Brownfield loans on portions requiring extensive remediation, and on identifying factors to improve an applicant's qualifications, such as being near an anticipated transportation terminal.

On the federal level, the U.S. Departments of Housing and Urban Development (HUD) and of Transportation, and the U.S. Environmental Protection Agency (EPA) have created the Partnership for Sustainable Communities, which offers a number of tools to help communities improve access to affordable housing, increase transportation options, lower transportation costs, and protect the environment.

Risk Management Tools

Other significant advancements in risk management at Brownfield sites are more favorable insurance products and easier liability transfer. With insurance, a growing smorgasbord of product lines is available, at lower rates for some lines of coverage. “Marketplace Realities 2017,” Spring Update, Willis Towers Watson. According to Marcel Ricciardelli, Senior Vice President, Environmental Division at Allied World, the low-cost, widely available coverage is due in part to the entry into the marketplace of new carriers, agents, and underwriters. “Diggin' In: A look at the Environmental Market,” Property Casualty 360, Phil Gusman, Feb. 23, 2016.

Fundamentally, policies may cover future pollution conditions as well as both unknown and disclosed pre-existing conditions. In real estate parlance, Phase 1 and Phase 2 Environmental Site assessments are performed to instill sufficient underwriter confidence.

Insurance policies, of course, cover third-party claims for bodily injury, cleanup, property damage and even natural resource damages. One especially helpful aspect of insurance is its application to voluntary first-party cleanups. This enables policyholders to remove the cloud of cleanup liability even where no government agency is likely to take an enforcement action.

Insurance can also cover contractual obligations to conduct cleanup or address third-party claims, such as if a seller defaults on its cleanup obligations, or where the obligated party never had any statutory liability. This latter aspect opens the door to an especially useful redevelopment tool — liability transfer to otherwise uninvolved parties.

Conclusion

Environmental liability transfer is a growing industry where a complete outsider guarantees to conduct necessary cleanup or to indemnify against future cleanup obligations and third-party claims. Like carriers, liability transfer entities are able to take on large environmental risks both due to a deep understanding of likely loss and an economy of scale unavailable to many developers. Some providers are also remediation companies that offer their services as “sweat equity” in a project, which can further improve its viability. For the developer or user seeking to place occupants on top of former industrial ground, the complete transfer of liability to a strong guarantor can provide great certainty in moving forward on a project. With this certainty, a developer, buyer or investor can get to the crux of a Brownfield property — its economic viability.

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Paul M. Schmidt is co-chair of the environmental practice group at Zarwin Baum DeVito Kaplan Schaer Toddy. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.