John Cieszkowski

Burke Lakefront Airport Site: Brownfield Information

Overview of Ohio's Voluntary Action Program

(The following information was compiled from the Ohio EPA's Division of Emergency & Remedial Response website.) Ohio's Voluntary Action Program (VAP) was created in 1994 with final administrative rules, governing all administrative and technical aspects of the program, having been adopted in December 1996. Ohio's VAP was created to provide companies with a framework to investigate possible environmental contamination and identify risk based standards for cleanup that comply with state and federal requirements. If potentially contaminated sites are cleaned according to VAP standards, certified professionals can issue promissory notes releasing the owner of the land from responsibility to do further investigation and cleanup. Ohio's VAP essentially removes the environmental and legal barriers that stall the redevelopment and reuse of contaminated property. Now, private entities can undertake a cleanup project and be assured that it meets environmental standards without direct oversight from the Ohio EPA.

The VAP maximizes private sector resources by utilizing qualified scientific professionals who are certified by the Ohio EPA. The certified professionals are responsible for verifying properties are cleaned up to the levels set forth by the program rules. In addition, the VAP requires the use of certified laboratories to analyze all samples taken during the cleanup process.

Once a certified professional feels that a site has been investigated and cleaned to the standards of the program, he or she can prepare a No Further Action Letter (NFA). The NFA includes a Phase I property assessment which contains information concerning the historical and current uses of the property. If there is reason to believe that a release of hazardous waste or petroleum has occurred on the site, a Phase II property assessment is initiated. The Phase II assessment includes collecting soil, ground water, surface water and sediment samples from the site. Once the Phase II sampling is finished, remediation of the site is done until the site is cleaned to VAP standards. Once the remediation is complete, the certified professional can issue an NFA letter for the property.

The volunteer cleanup party can choose to seek a legal release from Ohio reducing the chances of further legal action being taken by the state. In this case, the certified professional submits the NFA to the Ohio EPA for review. Technical staff reviews the NFA to determine if cleanup procedures were followed correctly and proceeds to issue or deny a covenant not to sue (CNTS). A CNTS protects the property owner and future owners from being legally responsible to the State of Ohio for further investigation and cleanup. The protection applies only when the property is used and maintained in the same manner as when the CNTS was issued. Moreover, federal authorities and third parties retain the right to sue property owners or operators regardless of the presence of a signed CNTS.

In July 2001, the State of Ohio signed a Memorandum of Agreement (MOA) with the U.S. EPA to allow sites cleaned up under Ohio's VAP to also receive comfort that the U.S. EPA would not ask for additional cleanup. The primary differences between the classic version of the VAP (described above) and the "MOA Track" of the VAP are that investigation and cleanup activities of MOA Track projects are overseen directly by the Ohio EPA and will include opportunities for public review and comment of site documents.

Eligibility Requirements for Participation in the VAP

(The following information was compiled from the Ohio EPA's Division of Emergency & Remedial Response website.) A property is deemed ineligible for participation in the Voluntary Action Plan if it meets any of the following criteria:

1. The property is listed on the National Priorities List (NPL).
2. The property is subject to the underground injection control program pursuant to the Safe Drinking Water Act.
3. The property is subject to federal or state corrective action permits issued under the Resource Conservation and Recovery Act (RCRA).
4. The property is subject to federal enforcement via judicial orders, injunction, and consent decrees.
5. The property is required to close a hazardous or solid waste facility as required under Chapter 3734 of ORC.
6. The property contains petroleum underground storage tank systems which contain or had previously contained petroleum.
7. The property is subject to the removal or remediation of oil and gas pursuant to Chapter 1509 of ORC.
8. The property is subject to a state enforcement letter.

VAP Eligibility as it relates directly to the Burke Lakefront Airport Site

A majority of the current Burke Lakefront Airport (BLA) site is eligible for participation in Ohio's VAP. At present, there is no state or federal action filed against the property as it pertains to environmental cleanup. The property does not show up on either the NPL or current RCRA lists generated by the U.S. EPA.

The BLA site does however contain underground storage tanks which fall under the jurisdiction of the Bureau of Underground Storage Tanks (BUSTR), rendering that particular portion of the property ineligible for the VAP. I spoke to a gentleman at BLA who told me that the airport site contains two 1000 gallon tanks which hold diesel and unleaded fuel for use in city vehicles. The underground storage takes are located on the western edge of the terminal property in the maintenance department.

Brownfield Information as it relates directly to the Burke Lakefront Airport Site

(The following information was compiled by Mr. Ted Esborn, Shareholder, McDonald, Hopkins, Burke & Haber Co., L.P.A, from public record and reused with his permission.)

Mr. Esborn was hired in 1993 as legal council for the City of Cleveland to aid in securing permits under Rule 13 of the Ohio EPA to excavate land located on the BLA site for inspection of underground utility lines. Part of Mr. Esborn's work included retrieval of facts about the creation of the current BLA site which amounts to essentially a Phase I assessment of the property under Ohio's VAP, highlighting the historic and current uses of the property.

In 1946, Cleveland City Council passed legislation amending the current Lakefront Plan to include an airstrip. Ordinance No. 2705-45 called for a relocated U.S. harbor line around a newly constructed portion of filled land in the eastern basin of the harbor running from the center line of East 13th Street to the center line of East 26th Street. From 1946 to 1953, Cleveland City Council passed legislation authorizing contracts with Cleveland Slag Company and L.A. Wells Construction Company for the construction of a bulkhead into the eastern basin of the harbor between East 13th and East 26th Street. The bulkhead was to be filled with dredging from the Cuyahoga River, the harbor basin and shipping lanes of Lake Erie. Approximately 5 million cubic yards of dredge material was placed within the slag bulkhead to create approximately 111 acres of land between East 13th and East 26th Street north of the shoreway for a new airfield.

In 1953-54 the City began burning and subsequently disposing of collected trash at a lakefront site directly east of East 26th Street. This burned trash and ash were used by the City to construct additional land for the BLA site east of East 26th Street. According to newspaper accounts, the cover soil for the newly created land between East 13th and East 26th Street was brought in from nearby highway projects, and the excavation of the new site for the Cleveland Press Building. Following a number of lawsuits, the City was ordered to cease using the lakefront location for the burning and dumping of trash by December 31, 1957. The City of Cleveland sought and received a 60-day extension on the deadline to cease dumping activities along the lakefront. During this period the City was permitted to bring trash to the lakefront site, but was required to bury the trash in excavated trenches rather than commence burning operations. (It is in this area (approximately 22 acres) that Mr. Esborn advised that we refrain from excavating the soil for future development.) On March 2, 1958, trash disposal ceases at the BLA site.

Following March 1958, land creation activities continued for the BLA site eastward toward East 40th Street. This land consists of construction and demolition material generated from the urban renewal project underway in Cleveland at the time. The northeast portion of the current BLA site consists of contained dike facility 10A, constructed by the Army Corp of Engineers in the 1970's, to receive dredging deposits from the Cuyahoga River, inner harbor and surrounding shipping lanes. Presently, contained dike facility 10B is being pumped full of dredging to create additional land to the north of the outer runway of the BLA site.

I tried to retrieve specific sampling information regarding the dredge fill for the current BLA site, but was unable to secure any information due to monetary constraints. (The information is available by filing a Freedom of Information Action Request with the EPA and Army Corps of Engineers (ACE). The ACE samples dredge fill every 5 years and tests various contaminant levels, ranging from PCB's to heavy metals, comparing the test values to acceptable background levels. If the tested material is determined to be above acceptable levels, the material is then required to be placed in confined disposal facilities.) However, I did speak at length with Mr. Esborn regarding the risk assessments that the EPA conducted when he started his research in 1993. The EPA conducted risk assessments for recreational uses of the site (visitors for special events such as the air show or Cleveland Grand Prix), on-site employees, and young children with approximately 9 days of exposure to the site. The results of the assessments showed that the risk levels associated with the property, for the above users and usage patterns, fell well below the acceptable state and federal standards. This information supports the belief that park/open space could safely be developed on the BLA site. To this point, there has been no risk assessment done for residential uses of the property. In Mr. Esborn's opinion, there may be the possibility for the site to safely support condominium type development that would limit the size of yards, therefore reducing the potential exposure of residents to contaminants. Depending on what the risk assessment for residential uses reveals, it is possible to remove contaminated portions of the soil and restrict certain residential uses on the property. Restrictions could be placed on gardening activities that would potentially put residents in direct contact with the soil. Until a long-term risk assessment for residential uses is completed, it is purely speculation as to what can safely be developed on the BLA site.

In addition to added risk assessments for the property, a geotechnical analysis should be done to determine the bearing capacity of the dredge filled portions of the property. This information will tell exactly how stable the fill material is and what type of structures can be safely supported. I spoke to personnel at the Army Corps of Engineers and they informed me that geotechnical testing of dredge fill is not completed until there are formal requests to develop a fill site. The current terminal for BLA was constructed on pre-1946 infilled land which is composed of solid material, most likely construction debris, which tends to be more stable than dredge fill.

Environmental Information for Areas in Close Proximity to Burke Lakefront Airport

There are several environmental characteristics surrounding the BLA site that could pose potential development difficulties in the future. Burke Lakefront Airport, Aviation High School and the Business Aircraft Center, all located on the BLA site, are listed as hazardous waste handlers by the U.S. EPA. There are 7 CERCLIS sites and approximately 126 leaking underground storage tanks, listed in the EPA Enviro-facts Warehouse, present within 4 miles of BLA. The following information is listed by the EPA as being present in the 44114 zip code which contains the BLA site: 21 facilities that produce and release air pollutants; 13 facilities that have reported toxic releases; 144 facilities that have reported hazardous waste activities. (12 Large Quantity Generators, 61 Small Quantity Generators and 7 Transporters); and 3 potential hazardous waste sites that are part of the Superfund Program.

Environmental Concerns Associated with Airport Operations

(The following information was compiled from various web-based sources discussing airports across the United States)

There are a number of environmental factors to take into consideration when planning development in close proximity to airport facilities. Noise pollution is a serious physiological and psychological health hazard. Noise interferes with sleep patterns and one's ability to achieve relaxed states of being. Although the short term effects of noise pollution may be minor, there is no telling the long term effects of inaudible low-frequency and high-frequency sound waves associated with airport operations.

Even more alarming are the massive amounts of hazardous and toxic emissions associated with large and small aircraft. There are upwards of 80 hazardous, cancer causing compounds emitted by small and large aircraft. Chicago's O'Hare airport, historically the world's busiest, is possibly the largest point-source of man-made pollution in the world. Unfortunately, airports are under little or no environmental regulation and need not adhere to most Clean Air Act standards. The Federal Aviation Administration is the governing body for airports across the county and they require very little environmental regulation.

Brownfield Funding Options

(The following information was compiled from the U.S. EPA and Ohio EPA websites.) There are several funding mechanisms, available at the federal and state level, which can be used to help redevelop brownfields. The following is a list of funding options that is by no means complete and absolute. Funding options tend to change continuously as old legislation is amended and new legislation is created.

1. VAP Tax Abatements: Upon issuance of a CNTS from the director of Ohio EPA, the Department of Taxation will grant a tax abatement to the property. The abatement lasts for 10 years and covers the increase in the assessed value of land and the increase in the assessed value of improvements, buildings, fixtures and structures.
2. Brownfields Tax Incentive: This allows environmental cleanup costs to be fully deductible in the year that they are incurred, rather than having to be capitalized.
3. Revolving Loan Funds: A source of money which provides loans to specified parties. The parties reimburse the fund for the loan amount plus interest. Through payback of principal and interest, the fund is able to maintain the same or increased levels of funding. Examples include: the Water Pollution Control Loan Fund (WPCLF) is available for any remediation that will result in water quality benefits; the Ohio Water Development Authority (OWDA) Loan Program, is available for property owned either publicly or privately that will ultimately be used for a public purpose.
4. Pilot Programs: The federal government has made available a large amount of money through the Brownfields Economic Redevelopment Initiative. There are currently pilot programs accepting applications in the following areas: Brownfield Assessment Demonstration Pilot (up to $200,000 each for a two-year period); Clean Air/Brownfields Pilots Partnership; and the RCRA/Brownfields Prevention Pilots.
5. Real Estate Investment Trust (REIT): REIT's are funds comprised of revenues from private investors. When applied to brownfields, the REIT acts as the owner, thereby shielding investors from liability in excess of the investors' initial monetary input.
6. Tax Increment Financing: Tax increment financing is created through a local government's assessment of property values. Special assessments are made on properties that are expected to accrue particular benefits from an environmental cleanup. The incremental difference in tax revenues between the original assessment rate and the new, higher assessed rate is then used to finance the cleanup.
7. State Grants

Even though the following funds are not dedicated for use at brownfields projects, potential sources of additional funding for similar types of activities within the Federal government include:

· Department of Housing an Urban Development, such as the Empowerment Zone/Enterprise Community program.
· Department of Transportation, such as the Livable Communities program.
· Department of Commerce, such as the Economic Development Administration.
· Department of the Interior, such as the National Park Service.