R2016-65 AUTHORIZING ACCEPTANCE OF DEED & TRANSFER OF PROPERTY - 825 N. Lowber

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contaminant." The ILEPA and USEPA have been extraordinarily helpful in this matter and the City as well as the developer believe that positive steps will be taken to address environmental issues that exist. The City should be insulated from any environmental liability or risk in this matter as will the developer. USEPA regulations and guidance provides that if a municipality or governmental entity acquires contaminated property involuntarily through foreclosure type actions, it is not liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 which is commonly referred to as "CERCLA." CERCLA establishes a strict liability system for determining who can be held liable for the costs of cleaning up contaminated properties which made many municipalities reluctant to become involved because of concerns about potential liability. As a result, USEPA clarified the regulations of municipal liability to encourage redevelopment of properties. Units of government which acquire ownership or control of property involuntarily through tax delinquency, abandonment or other circumstances in which title is acquired involuntarily by virtue of its function as sovereign are exempt from the CERCLA definition of "owner or operator" so long as the government did not cause or contribute to the environmental hazards. In addition, the City would have a "third-party" defense to CERCLA liability as a government entity which acquired the property through any involuntary transfer or acquisition. Involuntary acquisition is defined as "any acquisition or transfer in which the government's interest in, and ultimate ownership of, a specific asset exists only because the conduct of a non-governmental party as in the case of abandonment...gives rise to a statutory or common law right to property on behalf of the government." The fact that the City is required to take some affirmative action by foreclosing or accepting the deed in lieu of foreclosure does not render the City's action any less "involuntary" for purposes of CERCLA. USEPA considers the City's acquisition of this property through tax delinquency foreclosure or abandonment-even if the acquisition requires some affirmative action on our part-to be involuntary. In addition, the City and the potential developer would be insulated from environmental liability as bona fide prospective purchasers ("BFPP"). In order to qualify as BFPP, all appropriate inquiries must be performed prior to purchase, all disposals of hazardous substances must have occurred prior to acquisition and no affiliation exists with any liable or potentially liable third parties. All of these would apply. Once the tax situation is resolved with Macon County, the City will immediately transfer the property to Black Acre of Decatur, LLC limiting the time the City will hold title. USEPA has approved an Action Memorandum, authorizing the expenditure of approximately Two Million Dollars in Superfund monies for emergency removal and remedial activities on the property. This work cannot take place until the transfers outlined in the Resolution occur. That work, coupled with the work the developer intends to undertake concurrently and thereafter, will result in the very serious environmental issues at the facility and on the property being addressed expeditiously and in accordance with law. Staff believes this is an opportunity to address one of the largest Brownfields in Decatur. By facilitating the cleanup and redevelopment of this we will improve the health, environment and economic well-being of Decatur.