Forrest P. Merithew, Attorney at Law, practices environmental and construction law in the Asheville region, and across North Carolina. He has a wealth of personal experience in both by growing up in a construction family and focusing on environmental studies, law, and policy throughout his academic career. Since graduating Forrest has regularly been involved in a wide range legal construction and environmental matters including, but not limited to, green building and certification, development, city planning and municipal law, renewable energy development, regulatory and administrative law, and business consulting on the greener side.
I previously wrote an article providing an introduction to North Carolina’s Brownfield Redevelopment Program, including basic steps, costs, and benefits. In that article I made reference to NC’s Brownfield Redevelopment NOW, Ready for Reuse, and Voluntary Cleanup Programs, to be discussed herein. The Brownfield Redevelopment Now Program allows prospective developers the opportunity to pursue Brownfield Redevelopment in a faster more streamlined manner, for an increased amount of fees and costs. The Ready for Reuse Program allows owners of property who are not eligible for a Brownfield Redevelopment themselves, to secure a provincial Brownfield Agreement with the “prospective developer” to be determined, thereby increasing the marketability of the property and ability to redevelop it. The Voluntary Cleanup Program provides resources and guidelines for polluting/contaminating property owners to clean up the property themselves via the NC DENR.
Brownfield Redevelopment Now:
Under this advanced Program there is a significantly higher fee to hire project managers that have fewer projects on their plates, so they can respond throughout the brownfield agreement process quickly and without delays. The fee for this Program is $30,000, instead of the standard $5,500. These fees do not include any federal funding subsidy, which may be available through the Brownfield Agreement or local fund options. The increased fee pays for a primarily project-specific project manager as well as additional Program attorney resources to avoid or get through bottlenecks in the negotiation and production of a final brownfield agreement.
Acceptance into this Program is assured if there are few enough projects in the Program at the time of application to maintain zero queue immediate response throughout the process. Slots for additional projects in the Program will be filled in order of the public benefits inherent in a specific project. The prospective developer interested in the Program must sign a Redevelopment Now Fee Consent Document and provide the $30,000 fee payment in order to sign up. Upon receipt of the fee check and the signed Consent Document, the Program will assess the project for brownfield eligibility in an expedited manner.
Ready for Reuse and Voluntary Cleanup Program:
It is important for current, non-polluting owners to know that even if they and/or their property is not eligible for a Brownfield Agreement, this program can work with the owner to develop a draft brownfield agreement, with the prospective developer listed in the agreement as “to be determined.” The prospective purchaser or developer cannot be the original contaminating owner. A “Ready-for-Reuse Brownfield Agreement” will then provide a prospective purchaser with a site that is ready to go, with a draft brownfield agreement, prepared in advance and awaiting finalization. This may ultimately aid the marketing of the property and, therefore, its responsible redevelopment.
These agreements do come with inherent factors that make them more time consuming and expensive. Therefore, subject to the negotiated brownfields agreement, the NC DENR is setting the estimated standard ‘Ready-for-Reuse” fee at $15,000, payable in two installments: half upon receiving eligibility determination from the program, and half when the Ready-for-Reuse Brownfields Agreement is agreed to by the owner and DENR, and is made ready for public comment. Under this system the future prospective purchaser would get the benefits of liability protection of the agreement just as the prospective developer did, but would still have the same responsibility to adhere to any land use restrictions in the applicable Brownfields Agreement.
Finally, for properties the owner/contaminator wishes to clean up themselves, there is the “Voluntary Cleanup Program”, which is also referred to as the Registered Environmental Consultant Program (REC), administered through the North Carolina Inactive Hazardous Sites Program of DENR. The REC Program allows a responsible party to employ an environmental consultant to serve as a proxy for DENR and to take action at contaminated sites faster than would otherwise be possible. Slowly but surely, the REC Program is becoming a more attractive option for responsible parties than it has been in the past. Unfortunately, at this time, complying with North Carolina law does not ensure that a responsible party will avoid having to deal with EPA.