What Is a Brownfield?
“Brownfield” is the term applied to a current or former commercial or industrial property where redevelopment is complicated by the presence or perceived presence of contamination. In response to the Brownfields Act of 2003, the SCDHEC enhanced a program that offers a mechanism to protect buyers of contaminated properties from being held responsible for the costs or liabilities of existing contamination. This program, along with numerous tax incentives, has encouraged the redevelopment of scores of properties throughout the State that would have otherwise remained underutilized or vacant eyesores in their communities.
What Is a Brownfield Contract and Who Can Qualify?
In South Carolina, the Brownfield contract that is offered to a prospective buyer is called a “Non-Responsible Party Voluntary Cleanup Contract” or NRP-VCC. This term is often misunderstood because the buyer is typically not agreeing to perform an environmental cleanup. The Brownfield contract is a legal agreement between the State and the prospective buyer. Although a current owner may pay most or all costs associated with obtaining the contract, the contract can only be issued to the prospective buyer because it is an exclusive agreement between them and the State. Upon future sale of the property, the contract is easily transferrable to qualified buyers. Any buyer is eligible to receive Brownfield liability protection through a NRP-VCC provided they do not already occupy or own the property, were not a previous owner, and have not had a current or historical financial or familial relationship with the entity that created any existing contamination on the property. Also, eligibility may be complicated or denied if the buyer has plans to use chemicals on the property that are similar to any existing contaminants.
How Can I Obtain a Brownfield Contract in South Carolina?
To begin the process, the prospective buyer of a Brownfield property submits an application to the SCDHEC. The application must be accompanied by a current Phase I Environmental Site Assessment (ESA) so that the SCDHEC can become familiar with the past use of the property, as well as any previously-documented environmental history.
After reviewing the application, the SCDHEC issues a negotiable draft contract that typically includes detailed requirements for the assessment of soil, groundwater, and/or indoor air. The assessment is typically required to document the current presence or absence of a broad range of chemical contaminants on the property. The time period between submittal of the application and issuance of the draft contract by the SCDHEC is typically around 6 weeks but varies. After the contract is signed, it is subject to a 30-day public comment period. The prospective buyer may take ownership of the property any time after signing the contract. The new owner, although not considered to be a responsible party, must render the property safe to occupy. The actions required of the new owner may include emplacement of barries (paving, building, etc.) over impacted surface soils, disposal of on-site waste materials, or ventilation of indoor air to mitigate or prevent vapor intrusion problems.
After all requirements of the contract are fulfilled and any required deed restrictions are recorded, the SCDHEC issues a Certificate of Completion to the buyer.
Disclaimer: This sheet has been prepared by EnviroSouth, Inc. for general informational purposes only. The contents of this publication shall not be construed as legal or professional advice. Readers should consult an environmental professional before acting on the provided information.