CHATTANOOGA BROWNFIELD REDEVELOPMENTS ......... 47th Annual ENVIRONMENTAL SHOW OF THE SOUTH THE 2018 ENCORE MYSTERY TOUR OF SITES + STATUTES WITH YOUR GUIDES David C. Higney, Esq. Troy Keith, PG Grant Konvalinka & Harrison, PC TDEC, Division of Remediation 633 Chestnut Street Chattanooga Field Office Suite 900, Republic Centre 1301 Riverfront Parkway, Suite 206 Chattanooga, TN 37450-0900 Chattanooga, TN 37402 423.756.8400, ext. 230 423.634.5755 [email protected] [email protected] www.gkhpc.com tn.gov/environment Evan W. Spann J. Wayne Cropp, Esq. TDEC, Division of Remediation Baker Donelson Bearman Caldwell & VOAP-Brownfield Program Coordinator Berkowitz PC Tennessee Tower, 14th Floor 633 Chestnut Street, Suite 1800 312 Rosa L. Parks Ave. Chattanooga, TN 37450 Nashville, Tennessee 37243 423-756-2010 615.532.0919 [email protected] [email protected] Karen Stevenson-Simo, Esq. Mike Mallen Asst. General Counsel Miller & Martin, PLLC TDEC, Office of General Counsel 832 Georgia Ave. Tennessee Tower, 2nd Floor Volunteer Bldg., Suite 1200 312 Rosa L. Parks Ave. Chattanooga, TN 37402 423-756-6600 Nashville, Tennessee 37243 [email protected] 615.532.9407 [email protected] The Itinerary and Route 3:15p.m. First, you or your designee (or us) talking for 10-15 minutes about CARTA and it’s recent SMART 50 Awards (congrats) for the car share and EV charging programs. Second a CARTA reminder about how folks at the conference can return this summer to use Bike Chatt or Car Share on their visits, in addition to the free shuttles. Also, we would love there to be a mention about people going to visit/ride the Incline. 3:30’ish - Board buses at Convention Center South end doors on Chestnut St. The proposed route to review nearby Brownfield Sites is planned as follows: From Convention Center to R-turn on 11th 11th to R-turn on Broad Broad to R-turn at either 25th or 26th Street L-turn onto Chestnut and Stop at US Pipe area parking lot by Riverwalk and disembark briefly Board and back onto Chestnut going North to Main Street Cross 20th and view left to First TN Pavilion across Finley Stadium field R-turn Main St toward Central Ave Slow on Main near Hajoca and discuss Brownfields near Jefferson + Adams St. L-turn Central Ave to either E-10th or E-8th to view EPB (former Cavalier Corp. Site) (awaiting clarification about driving through facility) Return to Central Ave. and turn toward E. M.L. King Blvd. Turn onto ML King toward downtown with slowdown past 500 block of MLK Blvd (talk about Bike lanes, Brownfields and future developments) R-turn onto Broad Street (discuss Brownfield Sites) to Aquarium Cir. to disembark Discuss TN Aquarium site pre-Brownfields then to Trade Center Final drop-off/disembark End: 4:45 Attendees would also have opportunity to use downtown shuttle to return to hotel and/or stay at riverfront until the 7:00 reception at the TN Aquarium 2 How To Define A Brownfield “Real Property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” Types of Brownfields Often Encountered Parcels that lend themselves to reclamation and reuse as a Brownfield in the Voluntary Program, and which are often encountered, include: Old factories Legacy contamination of unknown origin Urban parcels Former coal yards Former junk yards Abandoned and former gas stations Former dry cleaners During today’s magical mystery tour of Chattanooga sites, each of the above examples can be discussed as part of one or more Brownfield Voluntary Agreements entered into by TDEC and a Voluntary Party in Chattanooga that had the vision, courage and conviction to try to make a difference in the community. Although the remediation aspect of Brownfield sites is often the most publicly touted, the site characterization, sampling data, and historical information, is of no lesser importance. Some may say the latter is, in actuality, more important in certain instances. In addition, the role of Brownfield redevelopment as an economic engine and change-agent catalyst in Chattanooga cannot be underscored. This transformative process is made possible through statutory authorization, federal support and funding of initiatives (EPA, HUD, CDBG, etc.). It is also made possible by a thorough understanding of the specific statutory provisions, including the precision and ambiguity that can be parsed, which allows willing regulators and voluntary parties to navigate towards common-sense results that are protective of human health and the environment. The Statutory Basis For Brownfields (the VOAP) All references are to sections of the Tennessee Code Annotated, and certain provisions have been shaded or highlighted to draw one’s attention to a particular provision of importance related to a site being discussed during today’s review: T.C.A. §68-212-224. Brownfield projects voluntary cleanup oversight and assistance program. (a) (1) There is established a voluntary cleanup oversight and assistance program for the voluntary cleanup of brownfield projects. The commissioner may enter into voluntary agreements or consent orders for the investigation and/or remediation of such sites or projects with any willing and able person; provided, however, that a voluntary agreement may not be employed with a person who generated, transported or released contamination that is to be addressed at the site. (2) A person entering into a voluntary agreement or consent order shall submit to the commissioner a summary description of all known existing environmental investigations, studies, reports or documents concerning the site's environmental condition. Such summary description shall include, but shall not be limited to: 3 (A) Date of the material; (B) Title of the material; (C) Person or entity that produced the material; (D) Results or conclusions contained in the material; (E) Any remedial action recommended including any monitoring and/or maintenance; and (F) Other information which could reasonably be construed to be material to the commissioner's decision to enter into a voluntary agreement or consent order. (3) The voluntary agreements or consent orders shall outline the agreed upon investigation, remediation, monitoring, and/or maintenance, and shall be consistent with § 68-212-201. Such voluntary agreements or consent orders shall address public notice and public input. All activities shall be subject to any otherwise applicable and appropriate zoning, land use regulations and cleanup standards, including without limitation all provisions regarding public notice and opportunity for public input. All such voluntary agreements or consent orders may provide for the reimbursement of the department's oversight costs. These agreements shall not limit liability for contamination of a site occurring after the date of the voluntary agreement or consent order or for contamination not identified and addressed in the voluntary agreement or consent order. (4) No voluntary agreement or consent order shall be entered into concerning a site listed on the federal National Priorities List, or after a site has been proposed for such listing, without the concurrence of the United States environmental protection agency (EPA). Sites that the EPA has identified and advised the commissioner as eligible to be proposed for listing on the federal National Priorities List will be managed in a cooperative process with the EPA. (5) For inactive hazardous substance sites, the commissioner has the discretion and is authorized to establish an apportionment of liability consistent with § 68-212-207(b) in a voluntary agreement or consent order. Further, the commissioner may limit the liability of the participant in any voluntary agreement or consent order entered into pursuant to this section. Such a voluntary agreement or consent order may limit the participant's liability to the obligations set forth therein and exempt the participant from any further liability under any statute administered by the department, for investigation, remediation, monitoring and/or maintenance of contamination identified and addressed in the voluntary agreement or consent order. The commissioner may extend this liability protection to successors in interest or in title to the participant, contractors conducting response actions at the site, developers, future owners, tenants, and lenders, fiduciaries or insurers, conditioned upon performance of the voluntary agreement or consent order and compliance with any land use restrictions required thereby; provided, that such liability protection to other persons does not apply to liability that arose prior to the voluntary agreement or consent order. Nothing in this section shall impair the rights of third parties with respect to tort liability claims for damage to person or property arising from the contamination addressed by the voluntary agreements or consent orders. (6) A person who enters into a voluntary agreement or consent order with the commissioner that contains an apportionment or limitation of liability, pursuant to this section, shall not be liable to third parties for contribution regarding matters addressed in the voluntary agreement or consent order; provided, that the third party was given actual or constructive notice of the voluntary agreement or consent order, and the third party had an actual or constructive opportunity to comment upon the voluntary agreement or consent order. Constructive notice may be accomplished by, among other means, publishing a summary of the voluntary agreement or consent order in a newspaper of general circulation within the 4 geographical area of the site or project at least thirty (30) days prior to the effective date of the agreement or order. For inactive hazardous substance sites, such voluntary agreements or consent orders shall, to the extent provided therein, constitute an approved administrative settlement pursuant to 42 U.S.C. § 9613(f). (7) Except in an action to enforce a voluntary agreement or consent order, such agreement or order shall not be admissible as evidence in any suit, hearing or other proceeding against a person who received liability protection pursuant to this section.