A brownfield site means 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. It can include old factories, meth labs, mine-scarred lands, abandoned gas stations and former dry cleaning establishments.
2. How many brownfields are there in the Commonwealth of Kentucky?
While an exact number is unknown, it is estimated that there are about 8,000 brownfield sites in the Commonwealth of Kentucky.
3. What steps should I take if I am considering purchasing a property that potentially has environmental contamination?
The first step is to hire an environmental professional to conduct all appropriate inquiries (see question 12) . This will begin the process of providing you with liability protection as a bona fide prospective purchaser. Many financial institutions will require the inquiry before lending money on a property. It will also identify what contamination may be present on the property. If All Appropriate Inquiries indicate possible contamination, the prospective purchase should have the environmental professional conduct sampling to confirm or deny the actual presence of contamination, its extent, the options for cleanup or management and the potential cost. Based on this information and the available incentives, the purchaser can then determine if he or she wishes to proceed with the project.
4. What is "all appropriate inquiries"?
All Appropriate Inquiries, also known as a Phase I Environmental Site Assessment, refers to the requirements for assessing the environmental conditions of a property prior to purchase or acquisition for the purposes of establishing certain landowner liability protections. These landowner liability protections require that a person perform "all appropriate inquiries" into the previous ownership and uses of a property before acquiring title to the property.
On Nov. 1, 2006, the all appropriate inquiry final rule became effective. The U.S. Environmental Protection Agency (EPA) has established that the revised ASTM E1527-13 standard is consistent with the requirements of the final rule for all appropriate inquiries and may be used to comply with the provision of that rule.
In the case of a facility purchased for residential use by a person who is not a government or commercial entity, a facility inspection and a title search satisfy the appropriate inquiry requirement. For additional details, see the EPA Web page regarding all appropriate inquiries
5. Are environmental consultants required to be licensed in the Commonwealth of Kentucky?
There are no current requirements for licensing environmental consultants in Kentucky. However, to qualify for liability protection as a bona fide prospective purchaser, a brownfield developer must conduct all appropriate inquiries as specified by the EPA. The rules for all appropriate inquiries specify educational and experience requirements
for the environmental professional who performs or oversees the inquiry.
6. How can I find an environmental consultant?
We are unable to recommend consultants. The following sources are provided as a convenience. The appearance or absence of a consultant on either list should not be construed to reflect on the qualifications of the consultant. Use the same care to select the consultant as you would in hiring any professional. If you are seeking bona fide prospective purchaser liability protection, make sure that all appropriate inquiries will be conducted or overseen by an individual who meets the requirements of an environmental professional, as described in Question 5. The Kentucky Pollution Prevention Center maintains a list of consultants
that can be sorted by the types of services provided. For brownfield work, the most relevant services are "Environmental Consulting or Eng" or "Site Remediation."
7. What cleanup tracks are available?
There are several cleanup options available
. These differ in complexity, level of liability protection provided, degree of public involvement and who is eligible. Some incentives are also restricted to certain tracks.
8. What are Kentucky's cleanup standards?
9. What are the options if contamination is found?
Kentucky Revised Statute 224.01-400 (18) provides four options:
1. Demonstrating that no action is necessary to protect human health, safety and the environment.
2. Managing the release in a manner that controls and minimizes the harmful effects of the release and protects human health, safety and the environment, provided that the management may include existing or proposed engineering or institutional controls and the maintenance of those controls.
3. Restoring the environment through the removal of the hazardous substance, pollutant or contaminant, or
4. Any combination of paragraphs (1) to (3) of this subsection. Option 1 requires that a person demonstrate that contamination is below levels that pose unacceptable risks.
Option 2 involves managing waste in place. This may involve engineering controls, such as installing and maintaining an asphalt cover over the contamination. There would generally be an institutional control placed on the deed to ensure that the engineering control is maintained. There may also be institutional controls to regulate activities on the property, such as a requirement that the property never be used for residential development or to prohibit the use of groundwater from below the property.
Option 3 involves removing or destroying the contamination. The contamination may be dug up and sent to a landfill designed to contain it. The contamination may also be destroyed on-site, through chemical, biological or other processes.
Option 4 involves some combination. Commonly, the person will remove the most contamination (Option 3) and then use engineering and/or institutional control (Option 2) to address the remaining contamination.
10. How can I obtain environmental records on a property in Kentucky?
State environmental records on individual properties can be found through an open records request, also known as a Freedom of Information Act Request or FOIA request. Information and instructions on how to make a request can be found at the Energy and Environment Open Records