Survey - Perceived Liability as a Barrier to Brownfields Redevelopment Projects

[Kathleen Dallaire <kldallai@uci.edu>]

Original Message from Kathleen Dallaire (kldallai@uci.edu)

I am requesting your participation in a research project for a doctoral
dissertation at the University of California, Irvine, and related articles
regarding the significance of liability in the brownfields process.  The
attached Survey seeks to obtain your perceptions of liability in light of
EPA guidance/policy tools (i.e., prospective purchaser guidance, comfort
letters, etc.) to clarify liability; other state and federal government
tools and incentives; the private sector's mechanisms to reduce or transfer
potential liability risk (i.e., insurance policies and indemnity
agreements); and outside market factors.

For purposes of this study, "liability" includes remedial (cleanup)
liability, liability to repay government agencies or private parties for
costs of cleanup or oversight, tort liability (personal injuries, property
damage or other losses), or contractual liability.  "Brownfields" is
defined as any abandoned, idled, or under-used industrial and commercial
facilities where expansion or redevelopment is complicated by real or
perceived environmental contamination.

Your participation is greatly valued and shall remain confidential.  Please
forward the completed Survey AND the attached original Consent forms signed
and initialed as follows:  

	Kathleen L. Dallaire, Ph.D.c.
	4533 MacArthur Boulevard, # 541
	Newport Beach, CA 92660

If you have any questions regarding this Survey or would like to discuss
the research project, please contact me at (949) 488-8397.  We sincerely
appreciate your participation in this study.


NOTE:  There is a second important aspect to this research project.  I am
seeking participation of prospective purchasers and investors of
brownfields to learn their perception of liability risk relating to
particular sites.  The data will be collected from a 30-question survey
instrument.  To maintain confidentiality, I do not disclose the names of
parties, ask the precise location or name of the site.  I do ask the type
and extent of contamination, type of studies conducted, availability of
financing, etc., to identify patterns in the data serving as factors that
might enhance or offset concerns of potential liability. 

Your willingness to participate in this aspect of the research project is
critical to the success of the project.  Please contact me at (949)
488-8397 or by e-mail: kldallaire@uci.edu.

If you are interested in obtaining the results of the study, please contact
me.

Thank you.  







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UNIVERSITY OF CALIFORNIA IRVINE

CONSENT TO ACT AS A HUMAN RESEARCH SUBJECT

Perceived Liability as a Barrier to Brownfields Redevelopment

Kathleen L. Dallaire
Environmental Analysis & Design
(949) 488-8397


NAME OF SUBJECT: _____________________________________________________________

PURPOSE OF STUDY: To determine to what extent perceived liability is a
barrier to brownfields redevelopment. Which of the recent environmental
laws, policies, programs, and insurance mechanisms to clarify and/or reduce
liability actually increase certainty among parties? And, do these attempts
to clarify and/or reduce liability actually reduce fear and promote
brownfields redevelopment?

I have been asked to participate in a research project designed to:
Determine my perception of liability associated with the purchase of or
involvement with contaminated property.

PROCEDURES:  If I agree to participate, the following will occur: I will be
asked to complete a Survey Instrument.

RISKS: Although the Survey Instrument and related records shall remain
confidential, there is a possibility these documents could be subpoenaed in
the event of a potential claim or lawsuit.

BENEFITS: To provide environmental policy makers with knowledge relating to
perceptions of potential liability by purchasers, builder/developers, and
lenders of contaminated properties; and the effectiveness of recent
environmental laws, policies, programs, and insurance mechanisms to clarify
and/or reduce liability.

COST/COMPENSATION: None

OTHER CONSIDERATIONS: None known

If, during the course of this study, significant new information which has
been developed during the study becomes available, which may relate to my
willingness to continue to participate, this information will be provided
to me by the investigator.

I consent to participate in this study.

I understand that any information derived from this research project which
personally identifies me win not be voluntarily released or disclosed
without my separate consent, except as specifically required by law.

I have read this consent form and have been given a copy of it and Part 11
to keep. I consent to participate.


____________________________________________________________________________
___________
SIGNATURE OF SUBJECT 	DATE

____________________________________________________________________________
____________
SIGNATURE OF INVESTIGATOR 	DATE

	

CONSENT FORM - PART II


1. Participation in research is entirely voluntary. You may refuse to
participate or withdraw from participation at any time without jeopardy to
future medical care, employment, student status or other entitlements. The
investigator may withdraw you at his/her professional discretion.

2. If, during the course of the study, significant new information which
has been developed becomes available, which may relate to your willingness
to continue to participate, this information will be provided to you by the
investigator.

3. Any information derived from this research project that personally
identifies you will not be voluntarily released or disclosed without your
separate consent except as specifically required by law.

4. If at any time you have questions regarding the research or your
participation, you should contact the investigator who must answer all
questions to the best of his/her knowledge. A telephone number is provided
at the top of Part I of the consent form.

5. If at any time you have comments regarding the conduct of this research
or questions about your rights as a research subject, you should contact
the UCI Office of Research Administration, 152 Administration Building,
Irvine, CA 92697-7600, (949) 824-6068 or (949) 824-2125.

For additional information regarding the items above, please telephone the
IRB Administration Office at (949) 824-6068 or (949) 824-2125.


Subject's Initials    ____________ 	Date   ___________________________



	USE FOR BEHAVIORAL SCIENCES RESEARCH PROJECTS ONLY

Revised 2/97


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	SURVEY


1.	Which of the following categories best describe your role(s) in
brownfields projects? (Check ALL that apply.)
____	Seller					____	Attorney		
____	Buyer or Prospective Purchaser	____	Real Estate Developer or Builder
____	Lessor					____	Officer of Corporation
____	Lessee					____	Stockholder of Corporation	
____	Investor/Financial Organization	____	Director of Corporation
____	Real Estate Broker			____	Envtl. Consultant/Contractor
____	Insurance Agency/Co.			____	Construction Contractor
____	Redevelopment Agency			____	Government Agency:______________
____	Other: _________________________	____	Other: _________________________


2.	Approximately how many brownfields projects have you been involved in?
_______
(By involvement we mean at least actively considering a role in some project.)


3.	In which states have the sites been located:
__________________________________________________


4.	Have you encountered property owners being reluctant to sell a facility
or site? 	____ Yes	____ No
If yes, please explain the reason why:
______________________________________________________
____________________________________________________________________________
____________________________________________________________________________
__________________


5.	In your opinion, please rate in order the five (5) most significant
barriers to brownfields projects.

1  Most significant barrier      2  Second most significant barrier	3
Third most significant barrier	   	4  Fourth most significant barrier
5  Fifth most significant barrier

____	Competition from Agreenfields@ (non-industrial or commercial clean sites)
____	Lack of available brownfields sites
____	Potential for continuing stigma of property
____	Lack of marketability of the property after redevelopment or reuse
____	Potential difficulties in securing tenants
____	Inadequate financial viability of the project
____	Lack of available financing
____	Liability issues
____	Costs associated with environmental cleanup
____	Delays due to environmental cleanup
____	Regulatory process issues
____ 	Public health concerns
____	Neighborhood opposition
____	High crime rate
____	Environmental justice issues
____	Other: __________________________________________________________________



6.	How concerned are you of becoming liable under environmental laws due to
your involvement in a brownfields project?

___ Very concerned	 ___ Concerned		___ Somewhat concerned
___ Neutral	 	___ Not concerned



7.	In your opinion, what market factors offset concern of potential
liability? (Please rate each item.  Leave item blank if unknown.)

1  Significantly offsets concerns		2 Offsets concerns	3 Significantly
offsets concerns
3  Neutral    		4  Does not offset concerns 

____	Actual/expected rise in local real-estate values
____	Favorable speculative occupancy/sales	
____	Financing acquired with favorable terms
____	Funding from EPA	
____	Good financial viability of the brownfields project
____	Good price for the property
____	No land use restrictions	
____	Prime location of site	
____	Tax incentives							
____	Other: __________________________________________________________________


8.	For non-attorneys, do you seek legal advice with respect to potential
environmental liability associated with brownfields projects?	

____  Always			____  Sometimes		____  Never


9.	Which, if any, tools were entered into with a local, state, federal
environmental agency to clarify potential environmental liability or
clarify uncertainties associated with site cleanup?  
____ Prospective Purchaser Agreement		Agency: ________________________________
____ Covenant Not to Sue				Agency: ________________________________
____ Comfort/Status Letter				Agency: ________________________________
____ No Further Action Letter			Agency: ________________________________
____ Other: __________________________	Agency:
________________________________
____ Other: __________________________	Agency:
________________________________


10.	Were indemnity agreements (or indemnity clauses in the sales agreement)
entered into between seller and buyer as part of the brownfields real
estate transactions?

____ Yes always	 		____ Yes in some	____ No


11.	Which, if any, types of insurance were purchased for brownfields projects:
____	Professional liability (errors and omissions by public agencies or
private firms that manage or deal with contaminated land)
____	Owner/operator liability (covers firms or agencies working on the site)
____	Cleanup cost-cap/stop loss (places upper limit on the cleanup costs
for site redevelopers)
____	Legal defense (covers lawsuits associated with liability claims)
____ 	Re-opener or regulatory action (covers costs associated with any
future government actions that require further site cleanup)

____  	Other:
__________________________________________________________________
____	None



12.	Please rate your concerns regarding uncertainty associated with
potential risk of liability with brownfields projects.   (Please rate each
item.  Leave item blank if unknown.)

1 Very concerned    2 Concerned   3 Somewhat concerned    4 Neutral    5
Not concerned

____	Future EPA enforcement under CERCLA	
____	Classified as AOwner/Operator@ under CERCLA
____	Classified as AArranger@ under CERCLA
____	Future enforcement under non-CERCLA federal liability
____	Future claims by private or third-parties
____	Future enforcement to more stringent levels of cleanup
____	Future detection of previously undisclosed contamination
____	Future enforcement caused by changes in environmental laws,
regulations or technology
____	Other: _________________________________________________________________


13.	In your opinion, to what extent would the following reduce uncertainty
relating to environmental risk?
(Please rate each item.  Leave item blank if unknown.)

1  Significantly reduces risk      2  Reduces risk	3  Somewhat reduces risk	
  				4  Neutral  		5  Does not reduce risk

____	Purchase of insurance policies
____	Entering into indemnity agreement
____	Disclosure laws (Seller/Broker to Buyer)
____	Creation of limited liability company/partnership, or equivalent
company structure 
____	Due Diligence: Phase I Environmental Site Assessment and further
investigation
____  	Entering into voluntary cleanup program with state environmental agency
____	Site closure letter from state regulatory agency
____	Prospective Purchaser Agreement with state regulatory agency (without
signed State Memorandum of Agreement (SMOA) with EPA)
____	Site closure letter from EPA
____	Prospective Purchaser Agreement with EPA
____	Comfort/Status Letter from EPA
____	Elimination of re-opener clause in agreements with environmental agency
____	State Memorandum of Agreement (SMOA) signed with EPA
____	Reauthorization of Federal Superfund law (CERCLA) to clarify and
reduce liability for prospective purchasers, innocent third parties, and
others
____	Other: _________________________________________________________________


14.	Please identify all the statutes, government liability guidance
policies and private mechanisms for managing liability risks that, in your
opinion, have been effective in overcoming perceived risks from
uncertainties about liability and cleanup costs?  (Please rate each item.)

1 Very effective		2   Effective		3 Somewhat effective   
4  Not at all effective    		5  No knowledge

____	Insurance policies
____	Indemnity agreements

____	Third party and innocent landowner defenses
____	Prospective purchaser policy
____	Policy on Comfort/Status letters
____	Removal of site from federal CERCLIS database 
____	Owners of property containing contaminated aquifers guidance
____	Lender liability rule for underground storage tanks
____	Asset Conservation, Lender Liability and Deposit Insurance Protection
Act that clarifies liability for lenders
____	Other: __________________________________________________________________
____	Other: __________________________________________________________________

15.	Please rate your concern of the types of potential liability associated
with brownfields projects.  (Please rate each item.  Leave item blank if
unknown.)
 
1 Very concerned		2   Concerned		3 Somewhat concerned   
4  Neutral    		5  Not concerned

____	Strict liability under CERCLA (liability without fault)
____	Joint and several liability under CERCLA (any party may be liable for
the full cost of cleanup if other parties cannot be found or are without
resources)
____	Retroactive liability under CERCLA
____	Liability under other federal environmental statutes (i.e., RCRA, CWA,
etc.)
____	Liability under state environmental statutes
____	Liability under common law causes of action such as trespass,
nuisance, and negligence (i.e., torts such as personal injury, property
damage)
____	Contractual liability between Buyer and Seller, and other contractual
relationships
____	Other: __________________________________________________________________



	Please return this Survey with the signed and initialed Consent forms as
follows:

Kathleen L. Dallaire, Ph.D.c.
4533 MacArthur Boulevard, #541
Newport Beach,  CA 92660



Thank you!




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