Think of Brownfields these days, and you probably conjure up the image of a dilapidated mill site or factory strewn with waste, with a witch's brew of solvents and metals in the soils and groundwater. In truth, these kinds of large sites with gross contamination make up a relatively small percentage of the overall universe of contaminated properties nationwide. The common factor in approximately 60% of the contaminated sites in New Hampshire is something more mundane — gasoline or heating oil that leaked from an underground storage tank (UST) or an aboveground storage tank (AST). Many of the petroleum-contaminated sites in the state, such as former gas stations or auto repair shops, are fairly small and located in urban or commercial areas. A combination of factors, including the presence of an out-of-service or leaking UST, possibly other housekeeping problems leading to surface contamination, and the uncertainties that potential environmental contamination creates, has caused these properties to fall into disuse, disrepair, or to simply be abandoned. And, thus, an "USTfield" is born.
New Hampshire has made major strides in identifying and redeveloping USTfields through a combination of tools and techniques. The successful redevelopment of an USTfield often involves the active melding of several approaches and programs because the type of contamination and the financial aspects of remediating smaller properties presents a somewhat unique set of challenges, opportunities and rewards. In New Hampshire, the Department of Environmental Services (DES), private parties, and public-private partnerships are successfully redeveloping USTfields.
Gary Lynn, the Supervisor of the Petroleum Remediation Section in the DES Waste Management Division, points out that, "Many USTfields have such low fair market values that the private sector can't justify spending more money to remediate them than they would likely be worth once the remediation was completed." However, the availability in New Hampshire since July 1988 of the state's Oil Discharge and Disposal Cleanup Fund (ODDC Fund) and three similar funds (state-administered insurance funds for the cleanup of eligible UST and aboveground storage tank sites) has greatly enhanced the prospect of remediating and redeveloping a large number of sites that otherwise would have limited reuse potential. But these state funds are only part of the story. Other tools available to the DES include: the Oil Pollution Control Fund (OPCF) that can be used to pay for site investigations and cleanups (with the right to recover costs from liable parties); the authority under limited circumstances to use state funds to pay for tank removals; USTfield grants from EPA, and; the ability and willingness to foster collaboration among various programs and parties.
Since 2001, the DES has received approximately $235,000 from EPA's LUST (Leaking UST) Trust Fund for USTfield pilot projects. The DES has used these grants to help address approximately 14 USTfields across the state, ranging from former gas station properties to a large manufacturing facility. In most instances, the grant money was used as a gap filler to pay for work that wasn't eligible under other state or federal funding programs. For example, tank removals at several sites were paid for from EPA grant money, thereby triggering eligibility of those sites for cleanup cost reimbursement under the ODDC Fund. At other sites, USTfield grant funds have paid for site investigations or groundwater monitoring. And at two sites these funds were used for bioenhancement remedies.
At small USTfields a single program's resources are often enough to restore the property to more productive use. For example, by simply removing the tanks at several sites using USTfields pilot funds and determining that there was no associated soil or groundwater contamination, the DES was able to close those sites and effectively remove any stigma associated with the suspicion of contamination. Expenditures of nearly $100,000 from the OPCF have enabled site investigations and soil removal at a former gas station site in Twin Mountain. A sale of that property is now pending. The OPCF monies were subsequently recovered by the DES under an arrangement whereby an out-of-state firm that owned the USTs agreed to trigger ODDC Fund coverage for the site based on the work done by the DES's contractor.
With respect to larger sites, Gary Lynn points out that, "Collaboration among programs by combining various tools can often provide the maximum benefits." For example, the former East Coast Steel site in Greenfield involved the use of USTfield pilot project funds to pay for a tank removal, thereby triggering state petroleum reimbursement funds, which were used by the Town to cover soil removal costs. The DES also used EPA brownfields targeted site assessment funding to complete a site investigation. The Town matched these efforts with money for removal of waste drums and site development funding. The result is a town green that also serves as a community leach field to address septic system failures at numerous nearby homes, and further brownfields redevelopment work with other funding sources may follow. A similar initial sequence of tank removal to trigger ODDC Fund eligibility was followed at the Whitney Screw project in Nashua, where redevelopment by private parties of a former metal screw manufacturing facility into commercial space also involved a loan from the state's Brownfields Cleanup Revolving Loan Fund to cover non-petroleum contamination cleanup, as well as a $2.8 million construction loan.
It's not just the DES and municipalities that are successfully redeveloping USTfields. In fact, while those projects get a lot of the press, they are probably far exceeded in number by private sector initiatives. For example, in a project commenced recently in the seacoast area, ODDC Fund coverage will enable the cleanup of two separate releases of petroleum products from an UST and an AST at a former small-scale metal fabrication facility. The remediated portion of the property will underlie the landscaped entrance and access road to a new commercial office campus that is expected to provide jobs and increase the community's tax base. A "comfort letter" issued by the DES helped provide the parties to the transaction with the certainty that ODDC Fund coverage could be transferred from seller to buyer in a manner that would enable the transaction to go forward and position the buyer to be able to coordinate site investigation and remediation work with site development work. In a smaller scale project, a long abandoned gas station site near a major intersection in downtown Concord will soon be converted into a "quick lube" oil change center.
While Gary Lynn estimates that New Hampshire has only about 50 known, true USTfields in the sense of being abandoned or highly distressed properties due to USTs, he also points out that there are probably many more sites at which USTs haven't yet been discovered or where the USTs aren't known to have caused any problems. New Hampshire currently has approximately 1400 known petroleum contamination sites, of which over 800 involve USTs and over 300 involve ASTs. Fortunately, approximately 75% of the 1400 petroleum sites are eligible for cleanup cost insurance coverage under the ODDC and related funds.
New Hampshire's success with USTfield redevelopment is attributable to a range of factors, including the ODDC and related funds, and a willingness to take creative approaches. A 2002 study entitled, "Recycling America's Gas Stations: The Value and Promise of Revitalizing Petroleum Contaminated Properties," and published by the Northeast-Midwest Institute and the National Association of Local Government Environment Professionals showcases a number of successful USTfields projects in the Granite State. As Gary Lynn states in that publication, "New Hampshire has shown how public resources can leverage private sector and municipal investment to resolve USTfields sites that would otherwise sit dirty and abandoned." To paraphrase from the old Beatles song, USTfields need not be USTfields forever.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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