A great deal of formerly industrial land in the US now sits
vacant and unused, adding to the ugliness and depressed feel of many cities,
large and small. The problem has been
how to redevelop the land, and clean up any potential contamination in the
process. Developers and other potential
buyers of the property as understandably reluctant to acquire and redevelop the
land because the exposure to liability and the enormous amount of governmental red
tape involved in cleaning up a property makes redevelopment too expensive of a
proposition. As a result, the property just sits, further decaying.
Government at
all levels has tried to combat this problem to encourage redevelopment of the
land but it often results in more red tape and too little progress. Typically, the safe harbors provided in the
law are designed to work in specific situations and with ownership structures.
When situations arise that don't exactly fit the parameters of the safe
harbors, there often is no leeway in the law that enable the government agency
to effectively deal with it.
There are
also grant programs in place to help cover the costs of clean up. However, in today's economy, tax dollars are
scarce and there are not sufficient funds available to clean up all the contaminated
properties that are out there. Further, there exists an alphabet soup of departments,
bureaus and agencies at all levels of governments with overlapping authority
and competing rules and regulations, and a developer must somehow accommodate
them all at great cost and potential risk.
At the US EPA,
cleanup of contaminated land might involve Brownfield regulation, removal of above-the-ground
or underground storage tanks, Resource Conservation and Recovery Act (RCRA)
corrective action, and Superfund issues.
Click
here to access the EPA web page for regulatory information on Land and
Clean Up. In Ohio, you may also need to deal with the Ohio EPA's Division
of Environmental Response and Revitalization.
In regulatory
guidance issued by the US EPA late last year, the use of institutional controls
such as deed restrictions, easements, zoning restrictions and other such
mechanisms that would help ensure that the uses of reclaimed contaminated land is
limited to those purposes that are safe. For example, certain real property may
be cleaned up sufficiently to be safe for commercial use, but would remain
unsuitable for single family homes. Deed or zoning restrictions can be useful in
this situation to ensure that the land is not converted to more ill-advised
uses in the future.
There is a
trend in environmental regulations and policy guidelines at the federal or
state level to encourage a higher level of public and governmental involvement
in this process. Obtaining input and buy-in from the local populace and
assistance from governmental regulators with knowledge and expertise in the
issue seems like a decent idea in theory. But let's never forget the old but
true axiom of the road to Hell being paved with good intentions. The result, in practice, is often just
another layer of complications and obstacles that result in greater risk,
expense and delay ending with a failed project that never gets completed.
How about
providing instead, a streamlined permitting and regulatory process with fewer
agencies to navigate, and which encourages developers to take on the clean up
with more manageable expenses and exposure to risk? Our grant programs for
clean up are not bottomless pits of funds and with a streamlined bureaucratic
process along with liability protections within a clearly defined safe harbor, developers
might be more inclined to revitalize the real property on their own dime.
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