Cleaning Up and Reusing the Abandoned Corner Gas Station

     On October 14, 2008, U.S. EPA announced an action plan for promoting the cleanup and reuse of abandoned corner gas stations and other sites contaminated with petroleum.  The action plan is called “Petroleum Brownfields Action Plan:  Promoting Revitalization and Sustainability”.  The plan presents four strategic initiatives to achieve the Agency’s goals of cleaning up and reusing petroleum-contaminated brownfield sites.  The four initiatives are: (1) bolster communication and outreach to petroleum brownfields stakeholders; (2) provide targeted support to state, tribal, and local governments; (3) explore and evaluate policies to facilitate increased petroleum brownfields site revitalization; and (4) forge partnerships to promote investment in and the sustainable reuse of petroleum brownfields.  Each of the four initiatives has specific action items.

     U.S. EPA’s petroleum brownfields program is jointly managed by two U.S. EPA offices: the Office of Brownfields and Land Revitalization (OBLR), which has overseen the Brownfields program since its inception, and the Office of Underground Storage Tanks (OUST), which promotes the cleanup of leaking underground storage tank (LUST) sites.  U.S. EPA’s petroleum brownfields program began in 2002 when Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (“Brownfields Law”).  Under the Brownfields Law, petroleum-contaminated sites were eligible for the U.S. EPA Brownfields Program for the first time but Congress mandated that 25 percent of the funds appropriated to U.S. EPA for activities authorized under CERCLA §104(k) be used to characterize, assess, and remediate petroleum brownfields.  Although intended to boost petroleum cleanups, the statutory requirements have presented challenges for the cleanup of petroleum brownfields. 

     The 25 percent set-aside for petroleum-contaminated sites has created some administrative burdens for both applicants and U.S. EPA, including requiring difficult judgments when a site contains both petroleum and hazardous substance contamination and creating paperwork burdens.   For example, the current eligibility criteria for petroleum grants set forth in CERCLA §101(39)(D) require applicants to work with their State and U.S. EPA Regional staffs to verify that a site is “relatively low risk” and that “there is no viable responsible party.”  These criteria require risk levels to be compared with other petroleum-contaminated sites and require the grant applicant and staff to investigate a site’s ownership and history and potentially responsible parties.  If brownfields grants allowed for activities ranging from assessment to cleanup and allowed multiple substances to be addressed, this would streamline the process and make petroleum sites more viable as cleanup and revitalization projects.   By addressing these issues, U.S. EPA’s action plan attempts to bolster cleanups and reuse of the abandoned corner gas station and other petroleum-contaminated brownfields.

     Under the first initiative (i.e., bolstering communication and outreach to petroleum brownfields stakeholders), U.S. EPA’s plan identifies four action items.  These action items include defining and communicating the objectives of the petroleum brownfields program via brochures, fact sheets, reports, web site content, success stories, and newsletters; developing an online clearinghouse of resources and tools available to promote the assessment, cleanup, and sustainable reuse of petroleum brownfields; preparing a catalogue of petroleum brownfields redevelopment options that will describe examples of successful redevelopment on former petroleum brownfields, including sustainable or “green” cleanup and reuse strategies, and that will include details on public and private financing strategies used for interim and permanent redevelopment options; and exploring and promoting a recognition program.

     To achieve the second initiative (i.e., providing targeted support to state, tribal and local governments, U.S. EPA lists in its plan four action items. There will be a single U.S. EPA point of contact within each of its ten Regions.  U.S. EPA will explore opportunities under its Technical Assistance to Brownfields (TAB) grants and associated consulting teams to assist local and Regional petroleum brownfield efforts.  The Agency will assist in developing voluntary inventories of petroleum brownfields, and provide technical support for geographic initiatives, such as targeted economic development areas, enterprise zones, environmental justice, and other areas of special focus that provide opportunities to enhance the revitalization of petroleum brownfields.

     For the third initiative (i.e., exploring and evaluating policies to facilitate increased petroleum brownfields site revitalization), U.S. EPA promises to maximize grant flexibility and effectiveness by exploring new and innovative ways to reduce the burden on petroleum grant applicants to the extent consistent with the statutory requirements.  U.S. EPA will also seek burden reduction in the administration of the 25 percent set-aside for petroleum brownfields grants, and the Agency will also explore implementation of a multi-purpose grant for brownfields.  This action item will pose significant challenges due to differing statutory eligibility and cost share requirements for assessment and cleanup grants as well as the need to account separately for expenditures at petroleum and hazardous substance sites.

     Under the fourth initiative (i.e., forging partnerships to promote investment in and the sustainable reuse of petroleum brownfields), U.S. EPA identifies six action items.  U.S. EPA will promote sustainability and sustainable practices at petroleum brownfields, such as biofuels service stations and hybrid or electric vehicle recharging centers; launch and support the “Petroleum Brownfields To Open Space Projects” Program for the transformation of petroleum brownfields into small neighborhood pocket parks and wildlife habitat preserves; support the reuse of petroleum brownfields by small business owners by developing a partnership with the Small Business Administration to foster the reuse of petroleum sites; pilot and promote more optimal petroleum brownfields cleanup techniques; work with the U.S. EPA Office of Site Remediation Enforcement to promote the Environmentally Responsible Reuse and Redevelopment (ER3) initiative; and promote petroleum property deal flow sessions among current property owners, developers, potential future users, and other interested parties.

     U.S. EPA’s action plan will involve numerous stakeholders.  The Agency expects implementation of the action plan to take place over the next three years and to increase the cleanup and revitalization of petroleum-contaminated brownfields.  For additional information on U.S. EPA’s Petroleum Brownfields Action Plan and the assessment, cleanup, and revitalization of petroleum brownfields, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

    

    This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.