SNEAPA 2013 Thursday d2 3_30_converging_blight

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A Vision of the FutureConverting Blight to Public Open Space

Southern New England American Planning Association Conference

Worcester, MA

October 17, 2013



A Vision of the FutureConverting Blight to Public Open Space

James Greacen, LSP, LEP, PG (Mabbett)Pamela Brown, Esq. AICP (Brown & Brown, PC)

Andrew Glucksman, LEED AP (Mabbett)



Managing Uncertainties Associated with Environmentally Impaired Properties

• Environmental Impairment– Subsurface contamination– Buildings

• Addressing Environmental Liabilities– Assessing the magnitude of the problem– Managing the financial impact– Managing the physical impact

• Example Case Studies



Typical Sources of Contamination

• Leaking underground storage tanks

• Historic industrial waste management practices (the back 40)

• Discharge from floor drains• Sewers in a poor state of

repair• Waste burial• Urban fill



Contaminant Migration

1. Oils, solvents, and other liquid contaminants can migrate through the subsurface

2. Rainwater or groundwater leaching through contaminated soil or contaminant sources (leaking tanks, drums, waste piles, landfill)



Typical Sources of Groundwater Contamination



Typical Sources of Groundwater Contamination



Contaminated AirMigration of Subsurface Vapors into Buildings



Contamination in Buildings

• Asbestos• Lead-based paint• PCBs in building material• Mercury• Mold• Radon



Contamination in Buildings - Asbestos







• Cement pipes• Cement wall floor tile• Vinyl floorboard• Asphalt floor tile• Vinyl sheet flooring• Acoustical plaster• Decorative plaster• Textured Paints/coatings• Ceiling tiles

• Construction Mastics– Floor tile– Carpet– Ceiling tile

• spray-applied insulation• Blown-in insulation• Fireproofing materials• Elevator equipment

panels• HVAC duct insulation




• Boiler insulation• Ductwork flexible fabric

connections• Pipe insulation• Heating and electrical

ducts• Electrical panel partitions• Electric wiring insulation• Roofing shingles

• Roofing felt• Base flashing• Fire doors• Caulking and putties• Adhesives• Wallboard• Joint compounds

spackling compounds



Contamination in Buildings – AsbestosUse a Reputable Contractor



Contamination in Buildings - Lead Based PaintUsed before 1978

Percentage of Homes with Lead Based Paint

24% between 1960-1977

69% between 1940-1959

87% before 1940



PCBs in Building Materials and Industrial Applications

• Transformers• Hydraulic fluids• Paints• Water proofing sealants• Fluorescent light ballasts• Lubricating oils• Caulking• Insulating materials



Other Regulated Building Materials

• Thermostats (mercury)• Switches (mercury)• Refrigerants (ozone-depleting substances)

Other Environmental Issues• Mold• Radon



The point (if you don’t get it already) is that there is a Big Downside if you are unprepared to assess and manage environmental liabilities



So Why Bother, Why Take on the Risk?

• The good, cheap stuff is already gone• Brownfields are often in prime locations• There are ways to manage contamination,

sometimes with little incremental cost• Brings properties to a higher use and benefit

to the community



Before Acquiring a PropertyEnvironmental Due Diligence

It may be easy to see the smoking drums out back, but most environmental issues are less apparent



Do We Really Have to Spend All That $$ on Environmental Consulting?• Flag issues that could complicate

or delay the transaction• Develop cost estimates to address

environmental liability• Develop cost sharing or cost

allocating mechanisms• Identify and obtain Brownfields

and other financial assistance• Address regulatory requirements



ASTM Phase I Assessment• Site inspection (and interview of persons

knowledgeable of site history) by a qualified environmental professional

• Extensive file review (federal, state, local records)

• Historical aerial photographs

• Chain-of-title examination for liens or AULs

• Evaluation of risks posed by neighboring properties



ASTM Phase I Assessment

• Fulfills “due diligence” requirements under CERCLA

• Allows for “Innocent Landowner Defense” for a prospective purchaser (or lender)



ASTM Phase I AssessmentOften Does Not Include

• Asbestos

• Mold

• Wetlands issues

• Lead-based paint

• Radon

• Building systems



Quantifying the ImpactSearch of Deal Breakers

•These are often conditions that extend off of the subject property

• Pools of oil in the subsurface• Groundwater plumes that extend off of the property

•As-is/Quick Closing offers by the seller• Seller will not allow prospective buyer to collect

environmental samples• Unrealistically short time frame to assess

environmental impacts



Quantifying the Impact

Understand what you don’t know

•Inventory past industrial use and practices that pose potential but unknown issues

•If environmental assessment has been performed, what are the data gaps?




“There are known knowns. These are the things we know that we know.

There are known unknowns. That is to say, there are things that we know we don’t know.

But there are also unknown unknowns. There are things we don’t know we don’t know.”

Donald Rumsfeld, addressing the absence of evidence linking Iraq with the supply of weapons of mass destruction to terrorist groups (2-12-2002)




Understand the Extent of Potential Environmental Liability

•Level of comfort proceeding with the property transfer without additional environmental information

•Cost-benefit of collecting additional environmental information




Some data the could limit uncertainty

•Regulated building materials survey•Soil and groundwater sampling •Vapor intrusion study



Quantifying the ImpactOK, now what do you do with that information?

Assign dollar values to each identified issue:•Asbestos abatement•Environmental site closure (soil or groundwater issues)•Vapor Intrusion

• Remediation• Deed restriction• Subslab Depressurization system (radon

system)




With cost estimates to address environmental liabilities you can:

• Walk from the deal (or threaten to walk)

• Negotiate a lower price

• Negotiate an escrow to address the issues

• Ask the seller to address the issues and then come back



Manage the Financial Impact Federal Assistance

Brownfields Assessment Grants http://www.epa.gov/swerosps/bf/applicat.htm#apag

Targeted Brownfield Assessment Program http://www.epa.gov/region1/brownfields/programs/targeted.html

Brownfield Tax Incentive Program http://www.epa.gov/brownfields/tax/

New Markets Tax Credit Program http://www.irs.gov/pub/irs-utl/atgnmtc.pdf

EPA Revolving Loan Fund and Cleanup Grants http://www.epa.gov/region1/brownfields/programs/revolving/

HUD Brownfield Economic Development Initiative http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/BEDI



Manage the Financial Impact State Assistance

Connecticut Environmental Assistance Programshttp://www.ctbrownfields.gov/ctbrownfields/cwp/view.asp?a=2620&q=319628 CT EPA Assessment Program Underground Storage Tank Clean-up Program Special Contaminated Property Remediation and

Insurance Fund (SCPRIF) Urban Sites Remedial Action Program (USRAP) Environmental Insurance Program Targeted Brownfield Development Loan Program Abandoned Brownfield Cleanup Program



Manage the Financial Impact Commonwealth Assistance

Massachusetts Assistance Programs Brownfields Support Team Initiative

http://www.mass.gov/eea/docs/dep/cleanup/bst1112.pdf MassDevelopment Brownfields Redevelopment Fund

http://www.massdevelopment.com/financing/specialty-loan-programs/brownfields-redevelopment-fund/

Brownfield Redevelopment Access to Capital (BRAC) Program http://www.bdcnewengland.com/capital-access-program/

Executive Office of Housing & Economic Developmento MassWorks Infrastructure Program

http://www.mass.gov/hed/economic/eohed/pro/infrastructure/massworks/



Manage the Financial Impact State Assistance

Rhode Island Assistance Programs Brownfields Cleanup Revolving Loan Fund

http://www.dem.ri.gov/brownfields/financial/rlfoverview.htm

Brownfields Job Training and Development Demonstration Pilot Program



Liability Protection ProgramsConnecticut Liability Protection Programshttp://www.ctbrownfields.gov/ctbrownfields/cwp/view.asp?a=2631&q=319608 Third Party Liability Program Covenant Not to Sue CERCLIS Comfort Letter Land Use Restrictions Environmental Insurance ProgramMassachusetts Liability Protection Programshttp://www.mass.gov/ago/doing-business-in-massachusetts/economic-development/brownfields-covenant-program/ Brownfields Covenant Not to Sue ProgramRhode Island Liability Protection Programshttp://www.dem.ri.gov/brownfields/steps/liabilityprotection.htm Settlement Agreement and Covenant not to Sue (SACNTS)



Manage the Financial Impact

Environmental Liability Insurance

1.Pollution Legal Liability• Protection against third party claims (property

damage, personal injury, cleanup costs)

2.Cleanup Cost Capping• Cleanup cost overruns




Pollution Legal Liability• Premiums ($10K+)• Policy Limits ($1M to $150M)• Policy Limits (liabilities of <$1M are typically not

covered)• Deductable ($20K per incident)




Cleanup Cost Capping

• About 8% to 10% of the estimated cleanup cost

• Policy Limits ($1M to $150M)

• Policy Limits (liabilities of <$1M are typically not covered)




Cleanup cost capping insurance covers:•Discovery of unknown pollution•Additional amounts of known pollution•Changes in regulatory requirements

It does not cover:•Legal costs•Professional negligence •Investigation of newly discovered contamination



Manage the Physical Impact

Contaminated soil is expensive to manage

• Even soil that meets regulatory standards with “minor” levels of contaminants may cost much more to haul offsite than ordinary soil

Incorporating a radon abatement system into building design is more effective than retrofitting




Incorporate Environmental Remediation into Redevelopment Planning

Don’t remove expensive contaminated soil if you can reuse it safely on site.•Use if for regrading (cover with clean soil)•Cover it with parking lots or building foundations

This may require a deed restriction to manage future contact with the soil




What about all those MassDEP requirements for assessment and cleanup?

These regulations and the Massachusetts Contingency Plan are flexible•Flexible does not mean lenient•Privatized system that allows for Licensed Site Professionals (LSPs) to manage cleanups and certify site closures

• MassDEP audits a percentage of these LSP Opinions to ensure standards of care are maintained




What about all those CT DEEP and RI DEM requirements for assessment and cleanup?

• In Connecticut, a Licensed Environmental Professional (LEP) may investigate and remediate most sites in the Property Transfer Program

• Rhode Island allows Environmental Land Use Restrictions to allow contamination to remain under certain conditions to facilitate redevelopment



A Developer’s Perspective ($$)

Needs Investment Capital

How to attract investment capital?•Return on investment•Management of Risk



A Developer’s Perspective

Primary Needs

1.Access to Information2.Feasibility of Various Development Scenarios3.Economic Incentive4.Incentive Zoning




1. Make as much information available as possible and in one place

•Phase 1 Reports

•Environmental Data




2. Easily Evaluate the Feasibility of Various Development Scenarios

Clarity on what can be built, what will be approved

• Permit friendly, or no?• Zoning designation• Pre-approval




3. Economic Incentives

Tax breaksMunicipal Bonds•Ability to secure capital at low interest ratesInfrastructure Support




4. Incentive Zoning

For example:

Offer an incentive in exchange for environmental cleanup

• Increased Floor Area Ratio (FAR) or building height




Wrap All This Up in a Single Package

• Put all of this information into a portfolio

• Designate a single individual as a facilitator that can reach back into the municipality on behalf of the potential developer



Chemistry Station Park – Waltham, MA

Former Railroad Station in a Former Industrial Area




Active rail line in the area of the former Newton Chemical Company

Maker of sulfuric acid and dyes from 1825 to after the Civil War




The City wanted to redevelop the property into recreational greenspace in what is now a residential neighborhood

Environmental Issues:•Arsenic and lead•Pesticides•Coal and coal ash




The design included: •A planting corridor, where soil was also excavated and placed under an engineered barrier, and replaced with a planting mixture to facilitate forthcoming landscaping




Wicked Local Waltham – August 16, 2012

“It is a quiet summer afternoon; the air is dry, hot, and sweet. The neatly cut grass is rich green, and there are borders of shrubs; tall shade trees; a patch of Queen Anne’s lace; and newly planted magnolias. The brick walkway in the long, narrow park is designed to look like train tracks, in their original location. The simulated rails are made of light tan bricks, on a background of darker ones. There are benches, game stations, and a covered area created to look like the old train station.”



Kendall Square circa 1925



Cambridge Research ParkKendall Square, Cambridge, MA



Master Plan Drivers

Maximize Density: FAR of 3.0 + Bonus Housing for total of 1,376,000 SF of Mixed Use Development

Below Grade Parking: 2,000 Vehicles

Aesthetics andIntegrated Design: Contemporary, Class “A” Architecture

Complementary Open Space with Public Amenities



Master Plan

• Building A: 247,000 SF lab (Vertex) • Building B: 223,000 SF lab (TBD) • Building C: 85,000 SF Performing Arts

(Constellation) • Buillding D: 273,000 SF Office (Genzyme)• Building E1: 110,000 SF Hotel (TBD)• Building E2: 330,000 SF Residential (Twining)• Building G: 50,000 SF Mixed Use (res./retail/office)• Parking: Two Below Grade Facilities for 2,000

Vehicles (beneath Building B and Buildings E1/E2/G)



Soil Excavation for Underground Parking



Remediation Challenges

• Off-Site Disposal Facility Capacity for 417, 000 Tons of Material:

– Unregulated, Instate Unlined Landfill, Instate Lined Landfill, Out of State Disposal/Recycling Facilities for Solid Waste and RCRA Hazardous.

• Material Management– 12,000 Truck Loads– Excavation By Grid– Water Management– 45 Ft Deep x 580 Ft x 220 Ft – Adjacent to Broad Canal

• Neighborhood Impact– Truck Traffic– Odor & Dust– Noise



Summary of Remedial Program

• Remedial Drivers– Permanent Solution– Neighborhood Impacts– Cost & Schedule– Compatibility – Ability to Obtain Financing

• Environmental Liability Insurance– Kemper (1st & 3rd Party

Coverage w/ Re-opener)– $20 MM/10 Yr Term

• Phase I Remediation– $11 MM Soil Premium– No deed restriction (Activity

and Use Limitation)

• Phase II Remediation– $8 Million for In situ

Stabilization– Five pRAOs filed– Four AULs filed– $6.5 Million Premium for Soil

Disposal on Building B Garage



Genzyme Building



Landscaping ProgramNorth Plaza

– Open Air Performance Art Space

– “Theater-in-the-Round”– Lighting and PA System

South Plaza– Summer : seating for

outdoor dining and recreation

– Winter: public skating rink w/ skate rentals

Broad Canal– Canoe and kayak rental– Car-top boat access to the

Charles River

Real Estate

SNEAPA 2013 Thursday d2 3_30_converging_blight