"As is" Sale:

The transfer of a property to a buyer with no promises, assurances or representations by the property owner about the conditions of the property.

Abandonment:

A halt to the use of a property by the owner without the intention of either transferring the rights to the property or resuming use.

Boilerplate:

Standard language that businesses routinely include in contracts/agreements. Language to the agreement can at times be negotiated to change or remove such provisions.

Brownfield Definition:

An industrial or commercial property that remains abandoned or underutilized in part because of environmental contamination or the fear of such contamination. (Government definitions of the term "brownfield" may vary depending on the program.)

Certificate of Completion:

A written verification from a state voluntary clean-up or brownfield program that a site has been cleaned up in a manner satisfactory to the state. In some states, a certificate provides liability protection but in most states liability relief must be obtained through another mechanism such as a covenant not to sue.

Clean-up Approval Letter:

A written verification from a state voluntary clean-up or brownfield program that a site has been cleaned up in a manner satisfactory to the state.

Clean-up Standards (or Clean-up Goals):

Target concentrations of chemical contaminants that are to be reached after the implementation of clean-up. These standards are dependent on future land use and negotiated with Regulatory Agencies and are cited within the Remedial Action Plan.

Comfort Letter:

A letter issued through a state voluntary clean-up program that typically states that a site complies with the program's requirements, is clean enough for the intended use, and that no future enforcement action is expected unless conditions or uses of the site change. The letter typically does not provide legally enforceable rights such as relief from liability.

Community Development Block Grant (CDBG):

A lump-sum grant to a state or local government from the Department of Housing and Urban Development that may be used for development activities including, in some cases, brownfield revitalization.

Community Development Corporations (CDCs):

Local non-profit organizations created to promote urban redevelopment.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund):

A federal statute that governs the investigation and clean-up of sites contaminated with hazardous substances. The law establishes a trust fund that can be used by the government to clean-up sites on the National Priorities List.

Condemnation:

A legal process that allows a government entity to acquire title to property for a public purpose, which, in the case of brownfields, can include removing an unused or potentially contaminated site. Once the property has been condemned, the government entity can destroy any buildings and offer the site for private redevelopment.

Contamination:

The release of chemicals into the environment at which concentrations exceed a regulatory standard and are governed by environmental laws.

Contractor Certification:

A process for assuring that contractors meet state standards and have state approval for performing specific tasks.

Contractor-Certified Clean-ups:

Clean-ups where the state allows private contractors to make remediation decisions on behalf of the state, including no-further-action (NFA) letters. Only a small number of states use certified contractors.

Contribution Action:

A legal proceeding brought by a party that has incurred clean-up costs against other liable parties for their share of the costs incurred.

Corrective Action:

The clean-up process used to address contamination at treatment, storage, and disposal facilities regulated under the Resource Conservation and Recovery Act.

Covenant Not to Sue:

A written promise by a state government that it will not take legal action or require additional clean-up by a party that satisfactorily cleans up a property under a state brownfield or voluntary clean-up program.

Deed Restriction:

A limitation on the use of a property that is recorded on the deed to the property. The limitations on use are legally enforceable against the owner of the property, but who may enforce the limitation depends on state law.

Due Diligence:

Evaluation of the environmental condition of a parcel of land, often as part of a real estate transaction. This is required in order for a purchaser to qualify for federal liability protection as an innocent purchaser. See also Environmental Assessment.

Easement:

The right to use or limit the use of someone else's property.

Engineering Controls:

Physical mechanisms for preventing exposure to contamination. Examples include fences, pavement, and clay caps placed on contaminated soil.

Environmental Assessment:

A site evaluation or investigation conducted for purposes of determining the extent, if any, of contamination on a property. An assessment can be informal or formal, and can consist of several stages. For example, a Phase I assessment, or basic study of possible contamination at a site, is limited to collecting information about past and present site use and inspecting present conditions. A Phase II assessment would be a follow up to a Phase I assessment with sampling and analysis of suspected contaminated areas of a site. A Phase III assessment can either follow up a Phase II assessment by gathering information on the exact extent of the contamination or by preparing plans and alternatives for site clean-up.

Environmental Insurance:

Environmental insurance is used to eliminate or reduce the financial risk of a brownfield transaction. In exchange for payment, an insurance company agrees to accept the risk of the owner being held liable under state or federal laws for clean-up costs or damages above a specified amount. The two types of insurance products typical of brownfield projects are Pollution Legal Liability and Remediation Stop-Loss insurance.

Environmental Law:

Any federal, state, provincial or local laws including statutes, rules, regulations, ordinances, guidance and administrative orders that are applicable to contamination.

Exaction:

A local government may be an exaction to require concessions from developers, such as the construction of sidewalks on land that will be developed. The exaction must further be a legitimate public interest.

Fixed-price Contract:

A contract whereby a contractor/consultant provides an owner a fixed price to conduct a clean-up. Sometimes these contracts are in the form of a guarantee to ensure finality in cost and outcome.

Foreclosure:

A legal action taken by a lender to take the collateral (e.g. a property) that secures the loan and to extinguish the rights of the borrower in the collateral.

Greenfield:

A property that has not been previously developed.

Hard Costs:

A term used in development projects for the amount that includes total land costs, site clearance, grading and construction costs, and landscaping.

Hot Spots:

Specific areas where the level of contamination is higher than most.

Indemnification:

An agreement that provides for one party to bear the costs, either directly or by reimbursement, for damages or losses incurred by a second party.

Infill Development:

Development on vacant or underused sites in a developed area.

Infrastructure:

The roads, utility lines, and other public amenities that support property use.

Institutional Controls:

Legal and administrative mechanisms designed to reduce exposure to contamination. Examples include deed restrictions, easements, warning signs and notices and zoning restrictions.

Landfill:

Landfills are principally disposal sites for municipal refuse and some industrial wastes. Some landfills may have accepted petroleum-contaminated wastes depending on permits. Prior to hazardous waste laws, some former landfills may have disposed hazardous wastes such as drummed spent solvents and other industrial chemicals.

Liability Relief or Liability Release:

Protection from liability for contamination provided by a state government as an incentive for brownfield clean-ups. Releases vary in scope and form, and can include “covenants not to sue” agreements, certificates of completion or some type of no-further-action letters.

Long-term Monitoring:

The measurement of media for a number of years, such as ground water, to determine the effectiveness of a remedy and to determine if residual contamination will again increase to pose higher risks, thus requiring mitigation measures.

National Priorities List (NPL):

The Environmental Protection Agency's list of the most serious uncontrolled or abandoned hazardous waste sites.

Natural Resource Damages:

Injuries caused to natural resources such as streams, wildlife, and wetlands by contamination from a site. Trustees such as Indian Tribes can in some cases compel parties responsible for the injuries to pay damages.

No-Further-Action (NFA) Letter:

A written statement by a regulatory agency that it has no present intention to take legal action or require additional clean-up by a party that satisfactorily cleans up a property under a state-sponsored brownfield or voluntary clean-up program.

Nonresidential Use Standard:

A clean-up standard, usually expressed as a numerical ratio of parts of a specific contaminant to parts of the medium of concern (e.g., 5 parts of lead per million parts of soil) that describes the maximum concentration of the contaminant in the medium that will not present an unacceptable risk to the health of humans engaging in any activity other than residential or those other activities considered to be substantially similar to residential. The non-residential use standard is usually a less strict clean-up standard than the residential-use standard, and a site that meets the non-residential standard is limited in its uses to non-residential activities.

Potentially Responsible Party (PRP):

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a party potentially liable for clean-up costs at a Superfund site.

Pro Forma:

Financial projections for a real estate project, which include an income statement and show capital costs, operating revenues and expenses, and return on investment over a period of time.

Prospective Purchaser Agreement:

An agreement between the Environmental Protection Agency (EPA) and the prospective buyer of a Superfund site that protects the prospective buyer from certain liabilities for contamination that is already on the site, usually in exchange for a payment of money and other commitments by the prospective purchaser. States may also have similar agreements as part of their voluntary clean-up or brown fields programs.

Redevelopment Agency (RDA):

Also called Local Re-use Authority (LRA), an agency set up by municipalities to manage designated redevelopment zones within city limits or other properties conveyed by the Federal Government (i.e. Department of Defense) or by Eminent Domain.

Reopener Provisions:

Expressed exceptions to liability releases or agreements that reserve the government's right to require further clean-up under certain conditions. These conditions typically include fraud by parties responsible for the clean-up, discovery of previously unknown contamination, and discovery that contamination remaining on the site is significantly more toxic than originally believed.

Remedial Action Plan:

A Remedial Action Plan (RAP) documents the scope of work of a selected remedy to be implemented for the clean-up of known contamination at a brownfield site. A RAP is reviewed and approved by an oversight regulatory agency.

Regulatory Agency:

Federal, State or Local agency mandated to implement environmental laws, approve remedial action and oversee clean-ups at contaminated sites.

Representations and Warranties:

Statements of fact (representations) and promises (warranties) that a seller makes to a buyer in a real estate transaction.

Request-for-Proposals (RFPs):

A document that asks developers for a detailed proposal on development of a site. Proposals may include discussion of the developer's experience and qualifications and project-specific information on market feasibility, urban design, architecture, community appropriateness, and projected financial performance.

Residential Use Standard:

A clean-up standard, usually expressed as a numerical ratio of parts of a specific contaminant to parts of the medium of concern (e.g., 5 parts of lead per million parts of soil) that describes the maximum concentration of the contaminant in the medium that will not present an unacceptable risk to the health of humans residing on the site, or engaging in activities on the site that are considered to be substantially similar to residing on the site. The residential use standard is usually the strictest clean-up standard, and a site that meets this standard can usually be used for any purpose.

The Resource Conservation and Recovery Act (RCRA):

A federal statute that regulates the generation, transportation, storage, treatment and disposal of hazardous waste. RCRA programs include the Corrective Action and Underground Storage Tank Programs.

Restrictive Covenant:

A specific type of deed restriction. For example, a restrictive covenant could prohibit commercial uses.

Risk Assessment:

A study or evaluation that identifies and in many cases, quantifies the potential harm posed to human health and the environment by contamination on a property.

Running with the Land:

An obligation or right that attaches to a property and passes to the new owner after the land is sold.

Soft Costs:

A term used in development projects for the amount that includes but is not limited to engineering/architectural fees, legal fees, taxes, overhead and appraisal costs.

Superfund:

See the Comprehensive Environmental Response, Compensation, and Liability Act.

Tax Increment Financing (TIF):

A mechanism that allows local governments to use future projected taxes to finance current infrastructure investments.

Tax Credit:

Incentives to invest in a development that reduce liability for taxes that otherwise would be incurred.

Toxic Tort Action:

A legal proceeding brought to seek damages for personal injury or property damage incurred as a result of exposure to a hazardous substance.

Uncertainty Premium:

The amount that the buyer of a property subtracts or discounts from the purchase price to reflect the risk of unexpected environmental assessment and clean-up costs.

Use Permit:

A type of variance that authorizes an otherwise unacceptable use on a property without changing its zoning.

Vapor Barrier:

A barrier placed within the foundation of a new building that prevents the intrusion of contamination vapors from the subsurface into buildings. This is considered an engineering control and is often encountered in brownfield redevelopment projects.

Vapor Intrusion:

The effect of contamination vapors migrating from the subsurface into buildings thus posing a risk to human health via inhalation.

Variance:

An individual exception to a land-use restriction or other legal standard granted because of special circumstances.

Voluntary Clean-ups:

Clean-ups of identified contamination that are not court or agency ordered. Most states have voluntary clean-up programs that encourage voluntary clean-ups and that may provide benefits if volunteers meet specified standards.