Advisories & Insights

Brownfields Redevelopment and Grants for Indian Tribes

Overview

Since its inception in 1995, the goal of the Environmental Protection Agency's (EPA's) Brownfields Program has been "to empower states, tribes, communities, and other stakeholders in economic development to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields." Respecting Our Land, Revitalizing Our Communities (Apr. 2008), EPA-560-R-08-002, available at http://www.epa.gov/brownfields/tribalreport08.pdf. Brownfields are 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. Cleaning up and reinvesting in these properties take development pressures off undeveloped open land, and both improve and protect the environment.

The federal Brownfields Program provides financial and technical assistance for brownfields revitalization, including annual competitive grants for environmental assessment, revolving loan funds (RLFs), cleanup, and job training; and noncompetitive funding for state and tribal response programs. Since the beginning of the Brownfields Program, EPA has awarded 1,255 assessment grants totaling $298.6 million, 230 revolving loan fund grants totaling $217.7 million, and 426 cleanup grants totaling $78.7 million—resulting in 11,779 properties assessed, 258 properties cleaned up, 544 properties representing 4,497 acres determined to be ready for productive reuse, and 316 properties redeveloped or with redevelopment under way. These projects have leveraged more than $11 billion in private investment and helped to attract more than 48,238 jobs. EPA Brownfields Assessment, Revolving Loan Fund and Cleanup (ARC) Grant Proposal Guidelines: Key Modifications, available at http://www.epa.gov/brownfields/publications/arc_factsheet.pdf.

The Brownfields Program was expanded in 2002, through the amendment of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) by the Small Business Liability Relief and Brownfields Revitalization Act, which boosted funding for assessment and cleanup, enhanced roles for state and tribal response programs, and clarified Superfund liability. The 2002 Brownfields amendments authorized, among other things, two main sources of funding that may assist tribes in revitalizing contaminated land in Indian country: Section 128(a) State and Tribal Response Program funding (which refers to the section of CERCLA that it falls under); and Section 104(k) competitive grant program funding.

Section 128(a) Tribal Response Program Grants

Section 128(a) Tribal Response Program grants may be used to create new or to enhance existing environmental response programs. The Brownfields amendments authorized funding for this program at $50 million per year, to be shared among states, tribes, and territories. The funding is awarded on an annual basis, with the primary goal of ensuring that response programs include, or are taking reasonable steps to include, the following four elements in their programs:

1. timely survey and inventory of brownfields sites;
2. oversight and enforcement authorities or other mechanisms and resources to ensure that a response action will protect human health and the environment;
3. mechanisms and resources to provide meaningful opportunities for public participation; and
4. mechanisms for approval of a cleanup plan and verification and certification that cleanup is complete.

Tribes use Section 128(a) Tribal Response Program funding for a variety of activities: tribal response programs that conduct assessments and provide oversight at properties, creation of codes and ordinances, development of inventories of properties, and education of their communities about the value of protecting and restoring tribal natural resources and community health.

To be eligible for Section 128(a) Tribal Response Program funding, a state or tribe must demonstrate that its response program includes, or is taking reasonable steps to include, the four elements of a response program described above, or be a party to a voluntary response program Memorandum of Agreement with EPA; and maintain and make available to the public a record of sites at which response actions have been completed within the previous year and are planned for in the upcoming year. 42 U.S.C. § 9628(b)(1)(C).

States and tribes are not required to provide matching funds for cooperative agreements under Section 128(a), with the exception of the Section 128(a) funds a state or tribe uses to capitalize a Brownfields revolving loan fund. 42 U.S.C. § 9604(k)(3).

Examples of activities being conducted by tribes with Section 128(a) funding include:

• The Native Village of Port Heiden initiated the development of a tribal response program. It focused its funding on developing an inventory of properties and a public record, obtaining technical training for staff members and conducting outreach and education to engage the community in environmental and brownfield issues.
• The Mille Lacs Band of Ojibwe Tribe assessed contamination at the former St. Croix girls camp that had for years been used as a dump site. Using its Section 128(a) funds, the tribe cleaned up the property and will return it to reuse as a school.
• The Absentee Shawnee Tribe's executive committee passed three codes to create the Office of Environmental Health (OEH) and Office of Environmental Protection (OEP): Brownfields Voluntary Redevelopment, Solid Waste, and Environmental Management.
• The Seminole Tribe of Florida provided oversight of limited soil removal at a property on the Big Cypress Seminole Indian Reservation. The property, once used for illegal dumping and vehicle storage in a rural section of the reservation, has been reopened and the tribe plans to develop a recreational resort there.
• The Yukon River Inter-Tribal Watershed Council (YRITWC) has used its Section 128(a) grant to survey environmental conditions in 37 watershed communities. YRITWC has identified and mapped more than 230 potential brownfields sites. Training is also a focus of the YRITWC grant, and it has brought together representatives from more than 30 communities, in three separate training workshops, to discuss the brownfields program, how to identify and document sites, and how to work together to establish a brownfields inventory. Finally, YRITWC has used its Section 128(a) funding to complement the watershed communities' EPA Indian Environmental General Assistance Program grants, extending services to areas that otherwise may not have brownfields funding.

Other tribes that have leveraged their Section 128(a) funding with other funding sources to build upon the success of established programs include the following:

• The Gila River Indian Community used Section 128(a) funding to assess a 160-acre property found to have soil and groundwater contamination, and then, with assistance from an EPA Brownfields cleanup grant, remediated the property, which is now home to a diabetes education and research center.
• The Spirit Lake Nation used EPA Brownfields grants to assess and clean up four idle properties, using the environmental expertise of tribal graduates from an EPA-funded Brownfields job training program.
• The Rosebud Sioux Tribe leveraged additional grants to supplement its Section 128(a) funding and complete several brownfields projects. They developed a brownfields inventory of 63 properties with Section 128(a) funding and then cleaned up 32 of those properties with an open dump grant from the Bureau of Indian Affairs (BIA).

Assessment, Revolving Loan Fund, and Cleanup Grants (ARC Grants)

The 104(k) competitive grants also are awarded through an annual competition. Most federally recognized tribes are eligible to apply for this funding, although in Alaska, only the Metlakatla Indian Community and an Alaska Native Regional Corporation or Alaska Native Village Corporation, as those terms are defined in the Alaska Native Claims Settlement Act, are eligible. 42 U.S.C. § 9604(k)(1).

ARC grants may be used to address sites contaminated by petroleum and hazardous substances, pollutants, or contaminants (including hazardous substances commingled with petroleum). Opportunities for funding consist of Brownfields assessment grants (each funded up to $200,000 over three years), Brownfields revolving loan fund grants (each funded up to $1,000,000 over five years), and Brownfields cleanup grants (each funded up to $200,000 over three years).

In 2008, EPA modified key areas of its ARC grant proposal guidelines to create additional funding opportunities for communities, improve applicants' potential for success by permitting coalitions to apply for assessment grants, streamline guidelines, and help ensure grantee success through new proposal requirements.

Job training grants, competitively awarded on an annual basis, are also available to most federally recognized tribes. EPA initiated these grants to help residents located in areas affected by brownfields take advantage of jobs created by the assessment and cleanup of those properties. Among other things, the grant funds may be used for:

• training residents in the handling and removal of hazardous substances, including training for jobs in sampling, analysis, and site remediation; 
• training in the management of facilities at which hazardous substances, pollutants, contaminants, or petroleum contamination are located;
• training for response activities often associated with cleanups such as landscaping, demolition, and groundwater extraction; 
• development/refinement of existing curricula for the training described in this section; and 
• training participants in the techniques and methods for cleanup of leaking underground storage tank sites and other sites contaminated by petroleum products, asbestos abatement, or lead abatement where these topics are a component of a more comprehensive hazardous waste management training course or environmental technology training course.

Conclusion

As Congress recognized in the legislative history of the brownfields law, "The vast majority of contaminated sites across the nation will not be cleaned up by the Superfund program. Instead, most sites will be cleaned up under State authority." Unfortunately, tribal communities often lack funding to sustain environmental program capacity building and continue to need technical assistance and expertise. Additionally, many tribes seeking to address brownfields in their communities face problems that are found in many small or rural areas in the United States: rural locations typically do not have the technical resources that many larger communities have, nor the economic drivers associated with more dense populations that might spur cleanup and reuse. While the benefits of reusing existing buildings and infrastructure may be apparent, the funding to make the cleanup and reuse possible often is not present. Tribes may seek to return contaminated land to a noneconomic reuse (e.g., returning land to a culturally beneficial reuse), which often must be funded by the public sector or tribal government and which may not attract the interest of those with private cleanup dollars.

Despite the challenges, revitalization of contaminated lands is a challenge being addressed successfully in Indian country. With the assistance of grants and other resources available through EPA's Brownfields Program and through state and tribal programs, tribes can clean up and return contaminated land to productive use. By using the grants and tools available, tribes address their fundamental environmental and revitalization goals, enrich the health and welfare of their communities, and allow for the sustainable reuse of tribal land in a manner determined by the tribes themselves, rather than by the long-ago polluter who abandoned the site and left the tribe to deal with the legacy of contamination. The continued demand for brownfields cleanup and redevelopment in communities throughout the country, during economic times of increasingly limited state and tribal resources, makes access to federal funding critical.

Connie Sue Martin is of counsel with the Seattle office of Bullivant Houser Bailey PC, where she leads the firm's Indian Law practice group. Connie Sue's practice includes counseling Indian tribal governments and private parties regarding environmental cleanup and brownfields redevelopment. She is the chair of the Superfund and Natural Resource Damages Litigation Committee of ABA's Section of Environment, Energy, and Resources.

Related Practice Areas

• Environmental