LIABILITY PROTECTIONS AND THE VIRGIN ISLANDS VOLUNTARY CLEANUP PROGRAM

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LIABILITY PROTECTIONS AND THE VIRGIN ISLANDS
VOLUNTARY CLEANUP PROGRAM

• Jennifer Jones, Esq.
• Virgin Islands Brownfield Conference
• St. John Virgin Islands
• July 30, 2008

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What Does it Really Mean to Me?

• Liability Protection, if you qualify.
• Investment opportunity.
• Increased certainty for property owners,
  developers,
• lenders.
• Productive use of property.
• Reduce blight.
• Increased economic activity (jobs, increased tax
• revenues).
• More protection of environment and human health.
• Amnesty for bad actors.

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How do Liability Protections Help?

• If you are a new or existing owner of
  contaminated property who did not cause it, you
  may still be liable under CERCLA to the same
  extent as the person who did.
• If a neighboring property has contamination that
  migrates to your property, you wont be liable
  for clean-up.
• If you are a bank or government agency that
  obtains contaminated property by tax sale,
  foreclosure, condemnation etc., you can get
  protection from liability.
• Each person must meet the qualifications.

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Qualifications for Bonafide
Prospective Purchaser

• Knowledge of real or perceived environmental
  issues
• No affiliation between seller and buyer
• Buyer performs environmental due diligence (AAI)
• Buyer agrees to exercise appropriate care
• Common sense steps to protect human health and
  the environment

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WHAT CAN THE PROGRAM GIVE ME?

• Comfort letter (persons who qualify for liability
  protection).
• Help and Guidance in the development of
  remediation plans.
• Technical Assistance.
• Expedited Approvals.
• Help with Marketing the Property.

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HOW WILL THE PROGRAM WORK?

• QUALIFICATION
• INVESTIGATION
• REMEDIATION/CLEAN-UP OR ENGINEERING CONTROL
  (EC) PLANNING
• APPROVAL/AGREEMENT
• REMEDIATION/CLEAN-UP
• MONITORING/REPORTING
• NO FURTHER ACTION LETTER AND
• INSTITUTIONAL CONTROLS (IC)
• RE-OPENERS

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How do I Know When Clean is Clean?

• Risk based- Site Specific Standards.
• Typically Three-tiered Systems.
• - Background standard
• - State established maximum levels for specific
  contaminants.
• - Developer gets to develop its own standards
  using guidelines.
• Risk-Based Corrective Actions (RBCA).
• - Certain rule criteria for different
  types of sites.
• - Developers propose ECs that must be
  technically
• appropriate.

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Key Brownfield Concepts

• Brownfield projects are real estate deals with
  an
• environmental component developers
  perspective
• Leveling the financial playing field between
• greenfields and brownfields is a must
  market reality
• Economic development is the central objective
  local governments perspective
• DEP seeks enhanced environmental outcomes
• DEPs perspective
• ALL MUST WORK TOGETHER TO MAKE THE PROJECT
  HAPPEN

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PROGRAM GOALS

• Strong agency commitment
• DEP Seen as a business partner
• Attitude of being helpful
• Facilitate, not just regulate
• Earn trust and credibility with partners
• DEPs customers success DEPs
• success

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Additional Incentives

• Economic Development Authority
• Tax Credits
• Assessment Grants
• Low Interest Loans
• Technical Assistance (Low Cost)
• Insurance

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The End