When Presumption Becomes a Barrier: Rethinking EPA’s Eligibility for Petroleum Brownfields

Contributed by Trey Hess P.E., Brownfield Groundbreaker, PPM Consultants

As the 2025 National Brownfields Conference approaches, I find myself reflecting on the momentum we’ve built in the brownfield redevelopment field and the milestones that got us here. At the 2023 National Brownfields Conference, I had the honor of receiving the 2023 Phoenix Award as a “Browndbreaker” — a Brownfield Groundbreaker. This award recognized individuals who have evolved the understanding and practice of brownfield redevelopment by retooling its goals, processes, and outcomes. The Browndbreaker champions new practices and game-changing policies across a broad spectrum of activities — from stakeholder engagement and assessment to remediation, planning, policy, finance, and law. The award celebrated not only leadership, but the ability to make a visible difference in a community’s brownfield project and contribute to the sharpening of our collective practice.

With that spirit in mind — and in keeping with the transformative potential of this work — I offer a policy idea that addresses a persistent issue hindering the effectiveness of EPA’s Brownfields Program: the overly cautious exclusion of petroleum brownfield sites based solely on presumed responsibility in the absence of evidence.

The United States Environmental Protection Agency’s (EPA) Brownfield Grant Program was designed to empower communities, developers, and local governments to revitalize underutilized properties burdened by the perception or reality of environmental contamination. Yet, a fundamental disconnect between program intent and policy execution has emerged, especially in the treatment of sites with underground storage tanks (USTs) closed before the 1988 federal UST upgrade requirements or similarly defined “petroleum brownfields.”

The central concern is this: Can a party be considered a viable responsible party (VRP) — and thus disqualify a property from EPA Brownfield assessment grant funding — when no contamination is known to exist?

Let’s explore this issue through a common real-world example that underscores why a more measured and equitable approach is needed in EPA policy.

The Site: A Pre-1988 UST Closure with No Known Release

Imagine a parcel of commercial land in Mississippi that once operated as a service station. The site had three steel USTs, which were closed in place before 1988, long before EPA’s UST regulations required leak detection, corrosion protection, or spill and overfill prevention. At the time of closure, there was no requirement for environmental sampling or closure reporting, and no documentation exists that any contamination was ever detected.

The entity that owned and operated the service station — let’s call it Gulf River Petroleum Co. — dispensed fuel at the site through the early 1980s. In the decades since, the site is now underutilized, generating interest from a prospective purchaser interested in redevelopment.

The local municipality, a recipient of a federal EPA Brownfield Assessment Grant, is approached by the prospective purchaser for help. The purchaser would like the city — as the grantee — to use grant funds to conduct:

• A Phase I Environmental Site Assessment (ESA) to identify any recognized environmental conditions (RECs), and
• A Phase II ESA, if warranted, to evaluate whether petroleum contamination is present.

Due Diligence and Legal Conditions Met

To facilitate this process:

• The current property owner (Gulf River Petroleum) grants full access to the property,
• The purchaser and Gulf River Petroleum have no affiliation with the grant recipient, and
• The contract includes a standard 90-day due diligence period, aligning with common commercial real estate practices.

A Qualified Environmental Professional (QEP) performs the Phase I ESA and identifies a REC — not because of a known release, but because:

• The tanks were closed in place before modern standards existed,
• There is no documentation of how they were closed, and
• There is potential that contamination could exist, even if none is known or suspected with certainty.

This is where the problem begins.

EPA’s Position: Presumed Liability Based on Past Ownership Alone

Under EPA Brownfield Grant policy, petroleum-contaminated sites are only eligible for assessment funding if:

• There is no viable responsible party (VRP), and
• The site is not being cleaned up with federal LUST Trust Fund dollars or under enforcement.

However, EPA may determine that the former operator — Gulf River Petroleum — is a viable responsible party simply because it owned the USTs when fuel was dispensed. The presence of a REC (even without a release) becomes the basis for presumed liability.

This triggers a denial of assessment grant funding, despite the fact that:

• There is no known contamination,
• No enforcement actions or cleanup orders exist,
• The current owner and purchaser are fully cooperative,
• And the grant recipient has followed all procedural and legal requirements.

In essence, the presumption of responsibility blocks even the possibility of determining whether the site is actually contaminated — which is precisely what the Phase II ESA would reveal.

The Policy Flaw: When Overprotection Undermines the Purpose of Brownfields Funding

Overly cautious application of eligibility rules — like bubble-wrapping the Brownfield Grant Program — may shield it from risk, but it also stifles its core purpose. This approach fundamentally contradicts the intent of the Brownfield Program: to investigate, remove stigma, and catalyze reuse where contamination is real or merely perceived. Instead, EPA policy introduces a catch-22:

• The site can’t be assessed without proof that it is clean,
• But the grantee can’t use grant funds to investigate whether contamination exists,
• Because EPA presumes the existence of a liable party in the absence of environmental data.

This interpretation:

• Ignores the difference between ownership and culpability,
• Treats RECs as de facto evidence of contamination,
• Discourages redevelopment of historically significant sites (many of which pre-date environmental regulation),
• And undermines local efforts to responsibly reuse idle land.

A Better Path: Reasonable Policy Reforms

EPA can and should address this issue through a set of reasonable, easily implementable policy changes that preserve the integrity of the Brownfield Grant Program while promoting fairness, clarity, and redevelopment.

🔹 1. Fully Delegate “Viable Responsible Party” Determinations to the State

Each state’s environmental agency, such as the Mississippi Department of Environmental Quality (MDEQ), is far better positioned to evaluate the nuances of petroleum site histories and ownership. EPA should defer to the State’s petroleum eligibility determination, especially where:

• The site is not under enforcement,
• No Federal Leaking Underground Storage Tank (LUST) Trust Fund dollars have been used,
• And a REC is based on lack of data, not affirmative evidence of harm.

A number of States take the position that there is no responsibility to assign — and thus no viable “responsible party” exists — until a petroleum release is actually documented. This approach emphasizes that liability should be based on confirmed environmental impact, not merely on the potential for contamination.  Allowing the State to issue a petroleum determination letter ensures a ground-level assessment based on fact and context — not default federal presumption.

🔹 2. Decouple Assessment Funding from VRP Presumption When No Release is Documented

EPA should revise its guidance to clarify:

“In the absence of documented contamination or a confirmed release, past ownership alone shall not constitute viable responsible party status.”

This change would ensure that grant funds can be used to evaluate sites where the environmental condition is unknown — the precise purpose of the Brownfields Assessment grant program.

🔹 3. Allow Post-Assessment Determination of Responsibility

Instead of preemptively disqualifying sites, EPA could allow:

• Use of grant funds for Phase I and II ESAs where there is no evidence of a release, and
• A determination of VRP status to follow, only if and when contamination is confirmed.

If the Phase II ESA reveals petroleum contamination that originated during the tenure of the former UST operator, then and only then would further Brownfields funding be restricted — a fair and factual approach. This State-led process has been in place since inception of the State UST Programs and should simply be followed.  These are not Superfund sites under the purview of EPA, but petroleum sites where further assessment and enforcement are managed by the States.

Conclusion: Reinforce the Brownfield Program’s Purpose

The EPA’s Brownfield Grant Program is a vital tool for redevelopment — but its effectiveness is hindered when presumption replaces investigation. A prospective purchaser who is unaffiliated with a former UST operator should not be denied assessment grant funding support simply because EPA assumes liability where no environmental data exists.

In the case of pre-1988 UST closures, the lack of closure documentation should prompt investigation, not exclusion. The presence of a REC does not prove a release, and former ownership — without evidence of misconduct or contamination — should not disqualify a property from critical assessment funding.

It is time for EPA to realign its policies with the original mission of the Brownfields program: to encourage the safe reuse of properties, support community revitalization, and foster partnerships between private developers, local governments, and regulators. By entrusting states with greater authority, applying eligibility standards based on evidence, and allowing assessments to inform — not be blocked by — policy, EPA can ensure the program remains equitable, effective, and future-ready.