Brownfields Property Management Branch

Once the Notice of Brownfields Property is recorded with the County’s Register of Deeds, it contains liability protections and land use restrictions that “run with the land” for all future owners.   Each subsequent owner, who we refer to as a “follow-on owner,” has the same protections, rights, and obligations as the original Prospective Developer.  As owner of the property, these protections, rights, and obligations pass to you automatically.  There is no “application” process.

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You will need to submit a Land Use Restriction Update (LURU) to us each year certifying that the LURs are being complied with.  But, first things first…you need to become familiar with your Notice of Brownfields Property and all of the protections, rights, and obligations it describes.  We are happy to help and answer any questions you may have about your property and Notice of Brownfields Property.  However, we ask that you, first and foremost, please locate and thoroughly review your Notice of Brownfields Property and Brownfields Survey Plat.  What is the Notice of Brownfields property, you ask?  This is the document which is recorded at the County Register of Deeds and outlines the Land Use Restrictions specific to your Brownfields Property.  It generally contains the following attachments:

• Exhibit A (signed Brownfields Agreement),   
  • Exhibit 1 (Site Location Map), 
  • Exhibit 2 (environmental data tables)
• Exhibit B (8 ½ x 11 reduction of the plat),  
• Exhibit C (Legal Description of the property)

Many of the newer Brownfields Properties have files which are entirely electronic.  These files can be accessed using Laserfiche with the Brownfields Project Number.  Simply go to this website: https://edocs.deq.nc.gov/WasteManagement/Search.aspx?cr=1 and type in the Brownfields Project Number into the top center search bar.  The Brownfields Project Number format is five digits – two digits –three digits, or #####-##-###).  For ease of reference, the documents can be sorted by date.  If you are unable to locate the files on Laserfiche and you know the project to be older, please feel free to contact us.  Many files may be available in paper copy in our Raleigh office.  We can direct you to what may be available and how to access it.  Generally, paper copies are not available at the Regional Offices.  

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Specific notification requirements or required submittals vary by agreement and will be found in your Notice of Brownfields Property and associated attachments, including the Brownfields Agreement.  Please review them thoroughly.  When selling a Brownfields Property there is a specific statement which is required to be in every instrument that transfers an interest in the Brownfields Property.  This includes deeds, but also leases and other documents that convey a property interest to another party.  In general, the current version of the required language looks similar to the following:

“This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the [INSERT NAME] County land records, Book ____, Page ____.”

Even if you are a follow-on owner of the property, it is important when you sell the property that this statement be in the deed, in fact it is your obligation to ensure this is done.  Your title searcher and real estate attorney will likely be aware of this, but you may wish to check with them on this to make sure the deed, or any other instrument transferring an interest in the property, contains this required statement.

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For a brownfields property that is undergoing redevelopment, expansion, or other work that may move soil or expose groundwater, an Environmental Management Plan (EMP) is a document that outlines how work is to be conducted in order to maintain public health protections at the property. For example, soil excavations that may expand a building footprint, digging a trench or cutting a hole in a slab for laying utilities. Your NBP likely requires an EMP for most site work at a Brownfields Property.  As stated above, site work is generally defined as any soil disturbance (unless specifically excluded by the Brownfields Agreement).  The EMP is not onerous to prepare, and is currently a template form document that provides the program with knowledge about your planned work and ensures lines of communication are open should you find something unexpected during the work. The EMP essentially requires that the environmental consultant, in coordination with the developer and contractor, consider the environmental risk as it relates to site work.  In addition, EMPs provide contingency scenarios for the proposed development in order to limit the amount of delays due to environmental concerns.  For example, the EMP will outline what to do if newly identified impacts are found, how to manage previously undiscovered tanks, or what to do if there is groundwater found in an excavation.  In these ways, an EMP is not only protective of the public health at a site it is also preserves the owner’s liability protections provided under a brownfields agreement.

Completion of an EMP for site work is now the standard practice prior to development of a Brownfields Property.  While older agreements may not have a Land Use Restriction (LUR) that specifically requires the use of an EMP, there are many other LURs that may be comparable.  Some of those LURs may require notification for disturbance of a certain area of a property; while others require a “Soil Management Plan”.  Regardless, completion of an EMP will be considered best practice and the current method of programmatic compliance for these other comparable LURs. Therefore, even though an EMP may not explicitly be required in all (especially older) Brownfields Agreements, DEQ Brownfields highly recommends the completion of the EMP prior to site work.  The EMP form, along with other program guidance, can be found here on our website: https://deq.nc.gov/about/divisions/waste-management/bf/statutes.  

If you need additional guidance on what it takes to complete an EMP, or if you’re required to have one, please email BFpropertymanagement@ncdenr.gov.

Please note that submittal of an EMP may only be a part of your planning process. An EMP approval by DEQ Brownfields does not grant approval for other federal, state and local permits that may be required during construction or redevelopment. A prime example are sediment and erosion control permits. If you need help determining if other permits may be required for your project, please check with our colleagues in the Division of Environmental Assistance and Customer Service! https://deq.nc.gov/permits-rules/permit-assistance-and-guidance/permit-assistance.

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We try to make the process of filling out and submitting a LURU as easy and painless as possible. We have prepared helpful LURU forms customized to each brownfields property. Your task is to download your form, fill it out, have your signature notarized, and return the form to the Brownfields Program staff. Please see the Land Use Restriction Update Information Page for detailed instructions.

Need a reminder to submit your LURU? We can help!  Signup for a LURU Reminder email every year!

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As defined by the Environmental Protection Agency, “Vapor intrusion occurs when there is a migration of vapor-forming chemicals from any subsurface source into an overlying building”.  You are probably familiar with the well-known problem of radon entering buildings through their contact with the soil.  Radon is a naturally occurring radioactive gas.  Vapor intrusion is similar, however the gasses entering the building come from soil or groundwater that is contaminate with vapor forming chemicals.  When these vapors enter an overlying building, occupants of that space can be directly exposed to the contaminant of concern.  The science surrounding vapor intrusion assessment and remediation is relatively new and is constantly changing as more research is conducted.  As a result, assessments conducted today are more accurate and thorough than they have been historically.  There are Brownfields Properties which may not have had sufficient assessment of vapor intrusion risk during development of those early Brownfields Agreements.  Therefore, it is a goal of the Property Management unit to screen Brownfields properties for potential Vapor Intrusion risk. 

The North Carolina Department of Environmental Quality, Division of Waste Management has issued a Vapor intrusion Guidance document as well as screening levels, which are available at this website: DWM VI Guidance  All Brownfields VI Evaluation and Vapor Mitigation Designs are to be conducted in accordance with this document. 

Additional general information about vapor intrusion may be found at the following sources: 
EPA: https://www.epa.gov/vaporintrusion/what-vapor-intrusion  or  ITRC:  https://www.itrcweb.org/Team/Public?teamID=22 

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According to the statute, if a Land Use Restriction is violated the owner of the brownfields property shall be subject to loss of the liability protections afforded by the statute and liable for remediation to unrestricted use standards. In certain circumstances, this loss of liability protection is specified statutorily as the violator of the LUR may be required to clean up the site to unrestricted use standards. In practice, in most cases, DEQ Brownfields provides the ability to collegially regain compliance by conducting such work as is needed to protect public health and the environment as stated in the original Notice of Brownfields Property and brownfields agreement.

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