Building on brownfields: Predicted effects of new liability protections for prospective purchasers and an exploration of other redevelopment incentives

Journal of Professional Issues in Engineering Education and Practice

Volumn 130, Issue 3, 2004, Pages 212-225

  Burnham Howard, Corey E ^a  

^a Gadsby Hannah LLP   (United States)

Author keywords

Contamination; Hazardous waste sites; Laws; Legislation; Liability; Purchasing; Remedial action

Indexed keywords

FEDERAL LAWS; HAZARDOUS WASTE SITES; LIABILITY; REMEDIAL ACTION;

CONTAMINATION; FINANCE; HAZARDOUS MATERIALS; LAW ENFORCEMENT; PROTECTION; PURCHASING;

LAWS AND LEGISLATION;

EID: 14644429766     PISSN: 10523928     EISSN: None     Source Type: Journal    
DOI: 10.1061/(ASCE)1052-3928(2004)130:3(212)     Document Type: Review

References (258)

1. S. Rep. No. 107-2, at 24 (2001).
2. Small Business Liability Relief and Brownfields Revitalization Act, H.R. 2869, 107th Cong. (2001), enacted as Pub. L. No. 107-118 (codified as amended in scattered sections of 42 U.S.C.).
3. 42 U.S.C. § 9601-9675 (2002).
4. Id., § 9601 (39).
5. CERCLA was enacted into law in 1980. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (1980). The federal implementation of CERCLA is commonly referred to as "the Super fund program."
6. See infra Part IV.A. (discussing the various laws and liabilities governing contaminated property).
7. See infra Part V. (discussing briefly Prospective Purchaser Agreements and State Voluntary Cleanup Programs).
8. Steven D. Schell, Note: EPA Continues Administrative Reform of Superfund with New Guidance on Prospective Purchaser Agreements, 2 Envtl. Law 445 (1996).
9. See S. Rep. No. 107-2, at 19 (2001); see also infra Part III.
10. See S. Rep. No. 107-2, at 19 (2001); see also infra Part III.
11. H.R. 2869, tit. II, § 222 (2002). See also 42 U.S.C. §§ 9606, 9607 (2002).
12. The Senate Committee on Environment and Public Works noted that Federal "reach back" provisions were particularly important because of the lack of Federal review of State Superfund programs. S. Rep. No. 107-2, at 21 ; see also 147 Cong. Rec. S3879, S3899 (April 25, 2001) (statement of Sen. Clinton) ("The bill provides appropriate liability relief for innocent parties who want to clean up and reuse brownfield sites, while maintaining the necessary Federal safety net to address serious cleanup issues.").
13. The Senate Committee on Environment and Public Works noted that Federal "reach back" provisions were particularly important because of the lack of Federal review of State Superfund programs. S. Rep. No. 107-2, at 21 ; see also 147 Cong. Rec. S3879, S3899 (April 25, 2001) (statement of Sen. Clinton) ("The bill provides appropriate liability relief for innocent parties who want to clean up and reuse brownfield sites, while maintaining the necessary Federal safety net to address serious cleanup issues.").
14. See H.R. 2869, tit. II, § 222.
15. 147 Cong. Rec. S3879, S3887-89 (April 25, 2001) (reprinted letters commenting on S. 350). These were actually comments on S. 350, which was virtually copied in total into Title II of the Act.
16. BOMA, Boma Applauds Passage of Brownflelds Expensing Legislation (Dec. 22, 2000), at 〈http://www.boma.org/press/pre122200.htm〉
17. Letter from Richard D. Baier, President, Building Owners and Managers Association International to Sen. Smith (March 29, 2001) (printed in Cong. Reg. S3879, S3889).
18. BOMA, supra note 14.
19. NAHB, Home Builders Seek Meaningful Brownfields Reform (March 28, 2001), at 〈http://www.nahb.com/news/brownfieldsproposal.htm〉
20. Ibid. Id.
21. According to the EPA, approximately half of all brownfield sites are contaminated with petroleum, which is not considered a hazardous substance under CERCLA. Id. Petroleum products are, instead, regulated under the Resource Conservation and Recovery Act (RCRA). Id.; 42 U.S.C. §§ 6901-6992k (2001).
22. See id.
23. NAHB, supra note 17.
24. Ibid. Id.
25. See Joel B. Eisen, "Brownfields of Dreams"?: Challenges and Limits of Voluntary Cleanup Programs and Incentives, 1996 U. Ill. L. Rev. 883, at 959 n. 20 (1996).
26. Brownfields Law and Practice" § 1.10, at 1-4 (Michael B. Gerrard, ed., Matthew Bender & Company, Inc. 2001).
27. U.S. General Accounting Office, "Superfund: Barriers to Brownfield Redevelopment," GAO/RCED-96-125 (June 17, 1996) [hereinafter "U.S. GAO Superfund Report"]; U.S. EPA, "Handbook of Tools for Managing Federal Superfund Liability Risks at Brownfields and Other Sites," EPA 330-B-98-001 (Nov. 1998) [hereinafter "EPA Superfund Handbook"].
28. U.S. General Accounting Office, "Superfund: Barriers to Brownfield Redevelopment," GAO/RCED-96-125 (June 17, 1996) [hereinafter "U.S. GAO Superfund Report"]; U.S. EPA, "Handbook of Tools for Managing Federal Superfund Liability Risks at Brownfields and Other Sites," EPA 330-B-98-001 (Nov. 1998) [hereinafter "EPA Superfund Handbook"].
29. H.R. 2860, § 211(2001) (enacted and codified at 42 U.S.C. § 9601 (39) (2002)).
30. 42 U.S.C. § 9601(39) (2002). For funding purposes, CERCLA now also offers specific exclusions as to what the term "brownfield site" does not include. Id. § 9601(39)(B). Generally, those facilities that do not meet the definition of a brownfield site include those at which there has been or is a pending enforcement action, or at which remediation has been conducted under federal laws other than CERCLA. See id. § 9601(39)(B) for more detail as to excluded sites. The award of financial assistance is deemed inappropriate for these excluded sites and facilities. However, notwithstanding those specified exclusions, on a site-by-site basis, the President may authorize financial assistance under section 104(k) to an eligible entity at a site included in some of the listed exclusions. Id. § 9601(39)(C). Still, the President does not have discretion to give monies to the following facilities, and thus the following facilities cannot seek monies from the fund: (1) a facility listed on the National Priorities List (NPL) or proposed for listing; (2) a facility that is the subject of an unilateral administrative order, a court order, or an administrative order on consent or judicial consent decree that has been issued to or entered into by the parties under the Revitalization Act; or (3) a facility that is subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the United States, except for land held in trust by the United States or an Indian Tribe. Id.
31. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
32. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
33. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
34. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
35. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
36. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
37. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
38. "Congressional Office of Technology Assessment, State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites," 4 (June 1995) (noting estimates vary from tens of thousands to nearly 450,000) [hereinafter "OTA, State of the States 1995"]; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 (citing estimates of 150,000 to 450,000); Frona M. Powell, Amending CERCLA, to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Wash. U. J. Urb. & Contemp. L. 113, 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3; Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Andrea Lee Rimer, Environmental Liability and the Brownfields Phenomenon: An Analysis of Federal Options for Redevelopment, 10 Tul. Envtl. L.J. 63, at 68 (citing the GAO estimates to be between 150,000 and 500,000); Brownfields Revitalization and Environmental Remediation Act of 2001: Hearing on S. 350 Before the Senate Comm. on Environment and Public Works,-147 Cong. (February 27, 2001) [hereinafter Hearing on S. 350] (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
39. See "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-4; "OTA, State of the States 1995," supra note 28, at 4.
40. See "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-4; "OTA, State of the States 1995," supra note 28, at 4.
41. "OTA, State of the States 1995," supra note 28, at 4.
42. Ibid. Id.
43. See id. (noting that conditions at brownfield sites "may vary from zero, low, or moderate contamination to extremely hazardous conditions, while many sites have still not been evaluated").
44. See 42 U.S.C. §§ 9605(a)(8), 9605(c) (2002).
45. See "Brownfields Law and Practice," supra note 24, § 1.10, at 1-4; see also Douglas A. McWilliams, Environmental Justice and Industrial Redevelopment: Economics and Equality in Urban Revitalization, 21 "Ecology L. Q." 705, 715 (noting that "the actual scope of this problem is not known").
46. See "Brownfields Law and Practice," supra note 24, § 1.10, at 1-4; see also Douglas A. McWilliams, Environmental Justice and Industrial Redevelopment: Economics and Equality in Urban Revitalization, 21 "Ecology L. Q." 705, 715 (noting that "the actual scope of this problem is not known").
47. Robert I. McMurry, 2 "Brownfields," 1, "ALI-ABA Course of Study Materials: Land Use Institute Planning, Regulation, Litigation, Eminent Domain, and Compensation" (August 1996).
48. See Elizabeth Glass Geltman, "Recycling Land: Understanding the Legal Landscape of Brownfields Development," 4-5 (2000); McMurry, supra note 35, at 1.
49. See Eisen, supra note 23, at 893; "OTA, State of the States 1995," supra note 28, at 4; Rimer, supra note 28, at 69.
50. See Eisen, supra note 23, at 893; "OTA, State of the States 1995," supra note 28, at 4; Rimer, supra note 28, at 69.
51. See Eisen, supra note 23, at 893; "OTA, State of the States 1995," supra note 28, at 4; Rimer, supra note 28, at 69.
52. U.S. Conference of Mayors, "Recycling America's Land: A National Report on Brownfields Redevelopment," Volume IV, 16-17 (2003).
53. Todd S. Davis, "Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property" 7 (2d ed. 2002).
54. Eisen, supra note 23, at 893.
55. Id. at 895.
56. See Rimer, supra note 28, at 69; Eisen, supra note 23, at 895-96; "OTA, State of the States 1995," supra note 28, at 5.
57. See Rimer, supra note 28, at 69; Eisen, supra note 23, at 895-96; "OTA, State of the States 1995," supra note 28, at 5.
58. See Rimer, supra note 28, at 69; Eisen, supra note 23, at 895-96; "OTA, State of the States 1995," supra note 28, at 5.
59. Hearing on S. 350, supra note 28 (testimony of Alan Front, Senior Vice President, The Trust for Public Land).
60. "OTA, State of the States 1995," supra note 28, at 5.
61. Eisen, supra note 23, at 896; see Rimer, supra note 28, at 69-70.
62. Eisen, supra note 23, at 896; see Rimer, supra note 28, at 69-70.
63. Sce Hearing on S. 350, supra note 28 (testimony of Robert D. Fox, Esq., Manko, Gold & Katcher, LLP). Of course, although the cost of the real property itself may be very affordable, the unknown liability may be extremely costly - a risk that many developers are unwilling to take.
64. See id. (testimony of Robert D. Fox, Esq., Manko, Gold & Katcher, LLP).
65. U.S. Conference of Mayors, supra note 38, at 16-17.
66. Ibid. Id.
67. White House Press Release, President Signs Legislation to Clean Environment & Create Jobs (Jan. 11, 2002) (citing EPA estimates of the number of brownfields at "between 500,000 and one million").
68. Wendy E. Wagner, Overview of Federal and State Law Governing Brownfields Cleanup, in "Davis," supra note 39, at 15-16.
69. See id. at 16.
70. "OTA, State of the states 1995," supra note 28, at 6-7.
71. See Daniel P. Selmi and Kenneth A. Manaster, "State Environmental Law," chapter 9 (1989) (providing a comprehensive overview of state supplemental approaches to CERCLA).
72. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1387 (2001).
73. Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 to 2761 (2001).
74. Safe Drinking Water Act, 33 U.S.C. §§-(2001).
75. Toxic Substances Control Act, 15 U.S.C. §§ 2601 to 2692 (2001).
76. Many states have laws that are equivalent to CERCLA and RCRA. Other state laws may also be applicable and govern contaminated property.
77. For example, the common law theories of nuisance and trespass may apply.
78. See "Brownfields Law and Practice," supra note 24, § 1.03[2][b][i], at 1-8.
79. Pub. L. 99-499.
80. See "Brownfields Law and Practice," supra note 24, § 1.03[2][b][i], at 1-8.
81. "OTA, State of the States 1995," supra note 28, at 7.
82. See "Brownfields Law and Practice," supra note 24, § 3.01[3][b].
83. S. Rep. No. 107-2, at 2 (2001).
84. 42 U.S.C. §§ 9607(a) (2002).
85. Id. § 9607.
86. Ibid. Id.
87. Id. § 9601(14); see also 40 C.F.R. § 302.4 (providing a list of hazardous substances, and providing a definition for additional, unlisted hazardous substances under CERCLA).
88. Id. § 9607(a)(4).
89. 42 U.S.C. §9607(a).
90. Ibid. Id.
91. See id.
92. Id. 9613(f)(1); see Aviall Servs., Inc. v Cooper Industries, Inc., 263 F.3d 134, 137 (5th Cir. 2001)
93. Small Business Liability Relief and Brownfields Revitalisation Act, H.R. 2869, 107th Cong. (2001).
94. Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. 107-118, 115 Stat. 2356 (2002) (codified as scattered subsections of 42 U.S.C. §§ 9601-9657).
95. Brownfields Revitalization and Environmental Restoration Act of 2001, S. 350, 107th Cong. (2001). S. 350 was introduced in the Senate on February 15, 2001 by Senators Chaffee, Smith, Reid, Boxer, Warner, Baucus, Specter, Graham, Campbell, Lieberman, Grassley, Carper, Clinton, Corzine, and Wyden. S. Rep. No. 107-2, at 3 (2001). S. 350, the Brownfields Revitalization and Environmental Restoration Act of 2001 contained three titles providing for funding and liability limitations associated with brownfields revitalization efforts. It passed the Senate by a vote of 99-0.
96. Brownfields Revitalization and Environmental Restoration Act of 2001, S. 350, 107th Cong. (2001). S. 350 was introduced in the Senate on February 15, 2001 by Senators Chaffee, Smith, Reid, Boxer, Warner, Baucus, Specter, Graham, Campbell, Lieberman, Grassley, Carper, Clinton, Corzine, and Wyden. S. Rep. No. 107-2, at 3 (2001). S. 350, the Brownfields Revitalization and Environmental Restoration Act of 2001 contained three titles providing for funding and liability limitations associated with brownfields revitalization efforts. It passed the Senate by a vote of 99-0.
97. Brownfields Revitalization and Environmental Restoration Act of 2001, S. 350, 107th Cong. (2001). S. 350 was introduced in the Senate on February 15, 2001 by Senators Chaffee, Smith, Reid, Boxer, Warner, Baucus, Specter, Graham, Campbell, Lieberman, Grassley, Carper, Clinton, Corzine, and Wyden. S. Rep. No. 107-2, at 3 (2001). S. 350, the Brownfields Revitalization and Environmental Restoration Act of 2001 contained three titles providing for funding and liability limitations associated with brownfields revitalization efforts. It passed the Senate by a vote of 99-0.
98. Small Business Liability Protection Act, H.R. 1831, 107th Cong. (2001). Not long after the passage of S. 350 in the Senate, the House of Representatives passed H.R. 1831, the Small Business Liability Protection Act by a vote of 419-0. H.R. 1831 exempted from CERCLA liability certain contributors of de micromis amounts of hazardous substances.
99. Title I of the Act limits the liability of persons under CERCLA with respect to response costs at facilities on the National Priorities List if (1) their liability is based solely on their arrangement for or transport for the disposal or treatment of de micromis amounts of hazardous wastes, or (2) if the person arranged for the disposal of municipal solid wastes at a facility and can meet the burden of proof as to certain criteria.. H.R. 2869.
100. U.S. E.P.A., Summary of the Small Business Liability Relief and Brownfields Revitalization Act, at 〈http://www.epa.gov/ swerosps/bf/html-doc/2869sum.htm〉 Because this paper primarily focuses on Title II of the Act, which is almost virtually identical to S. 350, the two are interchangeably referred to in this paper.
101. Because Title II of the Act is virtually identical to S. 350, the two will be discussed interchangeably when references are made to the history of the Act.
102. S. Rep. No. 107-2, at 3 (2001).
103. Ibid. Id.
104. H.R. 2869.
105. 42 U.S.C. § 9601(40) (2002).
106. Id. §9607(r).
107. Id. §9601(40).
108. Id. § 9607(r).
109. H.R. 2869 (codified at 42 U.S.C. §§ 9601(40), 9601 (r) (2002)).
110. See id. §§ 9601(40), 9607(r).
111. Id. §§ 9601(40), 9628.
112. Id. §9601(40)(D).
113. Ibid. Id.
114. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
115. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
116. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
117. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
118. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
119. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
120. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
121. See "OTA, State of the States 1995," supra note 28, at 4; "Brownfields Law and Practice," supra note 24, § 1.02[1], at 1-5 5 (citing estimates of 150,000 to 450,000); Powell, supra note 28, at 114 (noting estimates range up to 650,000 sites) (citing Multiple Factors Should Shape Choice of Technology for Brownfields, 27 Env't Rep. (BNA) No. 48, at 2489 (April 11, 1997)). The GAO estimates the number of potential brownfields to be 450,000. "U.S. GAO Superfund Report," supra note 25, at 3. Hearing on Brownfields Economic Development Initiative Before the Senate Comm. on Environment and Public Works, 143 Cong. (March 4, 1997) (statement of Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response). But see Rimer, supra note 28, at 68 (citing the GAO estimates to be between 150,000 and 500,000). See also Hearing on S. 35, supra note 28 (testimony of J. Christian Bollwage, Mayor of Elizabeth, New Jersey) (citing 210 cities estimating more than 21,000 brownfield sites, consuming more than 8,100 acres of land).
122. See 42 U.S.C. § 9601(14) (specifically excluding petroleum from the hazardous waste definition provided under CERCLA).
123. See 42 U.S.C. §§ 6972, 6973 (2001).
124. See 40 C.F.R. § 261; see also Susan E. Bromm, Life After RCRA - It's More Th0an a Brownfields Dream, 28 Envtl. L. Rep. 10031, 10033 (1998). The EPA may also impose cleanup requirements at facilities with an "interim status." See 42 U.S.C. § 6928(h); Bromm, supra at 10033.
125. See 40 C.F.R. § 261; see also Susan E. Bromm, Life After RCRA - It's More Than a Brownfields Dream, 28 Envtl. L. Rep. 10031, 10033 (1998). The EPA may also impose cleanup requirements at facilities with an "interim status." See 42 U.S.C. § 6928(h); Bromm, supra at 10033.
126. See 40 C.F.R. § 261; see also Susan E. Bromm, Life After RCRA - It's More Than a Brownfields Dream, 28 Envtl. L. Rep. 10031, 10033 (1998). The EPA may also impose cleanup requirements at facilities with an "interim status." See 42 U.S.C. § 6928(h); Bromm, supra at 10033.
127. See 40 C.F.R. § 261; see also Susan E. Bromm, Life After RCRA - It's More Than a Brownfields Dream, 28 Envtl. L. Rep. 10031, 10033 (1998). The EPA may also impose cleanup requirements at facilities with an "interim status." See 42 U.S.C. § 6928(h); Bromm, supra at 10033.
128. See 40 U.S.C. §§ 6921-6939(e); 40 C.F.R. § 261; see also Bromm, supra note 98, at 10033.
129. See 40 U.S.C. §§ 6921-6939(e); 40 C.F.R. § 261; see also Bromm, supra note 98, at 10033.
130. See 40 U.S.C. §§ 6921-6939(e); 40 C.F.R. § 261; see also Bromm, supra note 98, at 10033.
131. 42 U.S.C. § 6972(a)(1)(A); see also H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 119 (1984) (discussing liability under RCRA and noting that liability under section 7003 applied "regardless of fault or negligence"); H.R. Rep. No. 198 (Part I), 98th Cong., 2d Sess. 47-49 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5606-09 (discussing liability under RCRA).
132. 42 U.S.C. § 6972(a)(1)(A); see also H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 119 (1984) (discussing liability under RCRA and noting that liability under section 7003 applied "regardless of fault or negligence"); H.R. Rep. No. 198 (Part I), 98th Cong., 2d Sess. 47-49 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5606-09 (discussing liability under RCRA).
133. 42 U.S.C. § 6972(a)(1)(A); see also H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 119 (1984) (discussing liability under RCRA and noting that liability under section 7003 applied "regardless of fault or negligence"); H.R. Rep. No. 198 (Part I), 98th Cong., 2d Sess. 47-49 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5606-09 (discussing liability under RCRA).
134. See United States v Conservation Chem., 619 F. Supp. 162, 220-22 (W.D. Mo. 1985) (finding that as a codification and expansion of common law public nuisance, it must have been intended that RCRA section 7003 apply jointly and severally); see also Aurora Nat'l Bank, v Tri Star Mktg., Inc., 990 F. Supp. 1020, 1028 (N.D. Ill. 1998); United States v Ottati & Goss, Inc., 630 F. Supp. 1361, 1401 (D.N.H. 1985).
135. Memorandum from Steven a Herman, EPA, Assistant Administrator, Office of Enforcement and Compliance Assurance to [Addressees], "Transmittal of 'Guidance on the Use of Section 7003 of RCRA'" (Oct. 20, 1997) [hereinafter RCRA Section 7003 Guidance] (citing United States v Bliss, 667 F. Supp. 1209, 1313 (E.D. Mo. 1987)); see also 42 U.S.C. § 9673(a).
136. Memorandum from Steven a Herman, EPA, Assistant Administrator, Office of Enforcement and Compliance Assurance to [Addressees], "Transmittal of 'Guidance on the Use of Section 7003 of RCRA'" (Oct. 20, 1997) [hereinafter RCRA Section 7003 Guidance] (citing United States v Bliss, 667 F. Supp. 1209, 1313 (E.D. Mo. 1987)); see also 42 U.S.C. § 9673(a).
137. See United States v Aceto Agric. Chem. Co., 972 F.2d 1373, 1383 (8th Cir. 1989); United States v Northeastern Pharm & Chem. Co., 810 F.2d 726, 749 (8th Cir. 1986); United States v Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984); United States v Price, 688 F. 2d 204, 214 (3d Cir. 1982); United States v Valentine, 856 F. Supp. 637 (D. Wyo. 1994); United States v Ottati & Goss, Inc., 630 F. Supp. 1400 (D.N.H. 1985); United States v Conservation Chem. Co., 619 F. Supp. 162, 201 (W.D. Mo. 1985).
138. See Margi Lifsey, Comment, Prospective Purchaser Agreements: EPA's New Outlook on Landowner Liability, 30 Envtl. L. 177, 206-09 (2000); see also RCRA Section 7003 Guidance, supra note 102. In its guidance on RCRA Section 7003, the EPA discusses the meaning of "handling, storage, treatment, transportation, or disposal." RCRA Section 7003 Guidance, supra note 102. It defines "handling" of waste to mean "'to deal with or have responsibility' for something." Id. Treatment is defined as "any method, technique, or process objectively designed to change the physical, chemical, or biological character or composition of any solid waste...." Id. "Disposal" includes both intentional and unintentional disposal practices. Id.
139. See Margi Lifsey, Comment, Prospective Purchaser Agreements: EPA's New Outlook on Landowner Liability, 30 Envtl. L. 177, 206-09 (2000); see also RCRA Section 7003 Guidance, supra note 102. In its guidance on RCRA Section 7003, the EPA discusses the meaning of "handling, storage, treatment, transportation, or disposal." RCRA Section 7003 Guidance, supra note 102. It defines "handling" of waste to mean "'to deal with or have responsibility' for something." Id. Treatment is defined as "any method, technique, or process objectively designed to change the physical, chemical, or biological character or composition of any solid waste...." Id. "Disposal" includes both intentional and unintentional disposal practices. Id.
140. See Margi Lifsey, Comment, Prospective Purchaser Agreements: EPA's New Outlook on Landowner Liability, 30 Envtl. L. 177, 206-09 (2000); see also RCRA Section 7003 Guidance, supra note 102. In its guidance on RCRA Section 7003, the EPA discusses the meaning of "handling, storage, treatment, transportation, or disposal." RCRA Section 7003 Guidance, supra note 102. It defines "handling" of waste to mean "'to deal with or have responsibility' for something." Id. Treatment is defined as "any method, technique, or process objectively designed to change the physical, chemical, or biological character or composition of any solid waste...." Id. "Disposal" includes both intentional and unintentional disposal practices. Id.
141. 42 U.S.C. § 6972(a)(1)(B) (2001).
142. Id.; RCRA Section 7003 Guidance, supra note 102; see also Lifsey, supra note 104, at 220 (discussing the potential liability under RCRA section 7002 for prospective purchasers who enter PPAs).
143. Id.; RCRA Section 7003 Guidance, supra note 102; see also Lifsey, supra note 104, at 220 (discussing the potential liability under RCRA section 7002 for prospective purchasers who enter PPAs).
144. See, e.g., Triffler v Hopf, No. 92-C-7193, 1994 U.S. Dist. LEXIS 16158, *17-20 (N.D. Ill. Oct. 31, 1994) (finding liability under section 7002 did not extend to "passive prior owners of property whose only 'contribution' to the disposal was an innocent failure to discover the occurrence during their period of ownership"); First San Diego Properties v Exxon Corp., 859 F. Supp. 1313, 1314 (S.D. Cal. 1994) (holding mere ownership of contaminated site not sufficient to impose Section 7002(a)(l)(B) liability).
145. 33 U.S.C. § 1251 to 1387 (2001).
146. Id. §§ 2701 to 2761 (2001).
147. Id. §§ 300f to 300j-26 (2001).
148. 15 U.S.C. §§ 2601 to 2692 (2001).
149. 33 U.S.C. § 1311(f)(2). The definition of "navigable waters" includes interstate waters, waters that may be used in interstate or foreign commerce or that could affect such commerce, and wetlands adjacent to such waters. See id. § 1362(7); see also United States v Earth Scis., Inc., 599 F.2d 368 (10th Cir. 1979); United States v Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United States v Ashland Oil & Transp. Co., 504 F.2d 1317, 1325 (6th Cir. 1974); P.F.Z. Properties, Inc. v Train, 393 F. Supp. 1370, 1380-81 (D.D.C. 1975).
150. 33 U.S.C. § 1364.
151. W. §§ 2701(21), (32).
152. "Brownfields Law and Practice," supra note 24, § 5.01[3], at 5-14.
153. 42 U.S.C. 300f to 300j-26.
154. Id. § 300i(a).
155. Ibid. Id.
156. 15 U.S.C. § 2607.
157. Id. § 2606.
158. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
159. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
160. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
161. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
162. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
163. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
164. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
165. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 §§ 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
166. "Brownfields Law and Practice," supra note 24, § 5.02[2][c], at 5-17; see, e.g., Ga. Code § 12-8-92(9); 415 111. Comp. Stat. 5/22.2(f); La. Rev. Stat. § 30:276(A); Mass. Gen. Laws eh. 21E, § 5(a); Mich. Stat. Ann. § 324.20126; N.C. Gen. Stat. § 130A-310.7; Pa. Stat. Ann. tit. 35 § 6020.103, 6020.701; Wash. Rev. Code § 70.105D.040(1).
167. See, e.g., Mass. Gen. Laws eh. 21E, § 5(a); N.J. Rev. Stat § 58:10-23.11g.
168. See, e.g., Mass. Gen. Laws eh. 21E, § 5(a); N.J. Rev. Stat § 58:10-23.11g.
169. See, e.g., Mass. Gen. Laws eh. 21E, § 5(a); N.J. Rev. Stats. § 58:10-23.11g; Pa. Stat. Ann. tit. 35, § 6020.507.
170. See, e.g., Mass. Gen. Laws eh. 21E, § 5(a); N.J. Rev. Stats. § 58:10-23.11g; Pa. Stat. Ann. tit. 35, § 6020.507.
171. See, e.g., Mass. Gen. Laws eh. 21E, § 5(a); N.J. Rev. Stats. § 58:10-23.11g; Pa. Stat. Ann. tit. 35, § 6020.507.
172. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
173. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
174. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership
175. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
176. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
177. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
178. See, e.g., 415 111. Comp. Stat. § 5/22.2(k) (punitive damages); Mass. Gen. Laws eh. 21E, § 5(a) (property damages); N.J. Rev. Stat. § 58:10-23.11g (property damages and lost income); Pa. Stat. Ann. tit. 35, § 6020.507(c) (punitive damages). Many states now also have transfer laws governing disclosure and compliance with other requirements when contaminated property is transferred, which, cause prospective purchasers to assume certain liability. These disclosure laws may also be triggered by the sale of controlling assets, the issuance or transfer of stock in the form of a statutory merger or consolidation, a change in corporate identity, a financial reorganization, a bankruptcy order, a transfer of trusts, a change in ownership approved by a Probate Court, the execution of leases of certain duration, the execution of leases with the option to purchase, or the "closing of operations." See Conn. Gen. Stat. Ann. § 22a-134(1) (West 1995 & Supp. 2001); N.J. Stat. Ann. § 13:lK-8 (West 2001); Ind. Code § 13-11-2-234 (2001).
179. See "Brownfields law and Practice," supra note 24, § 5.03[1], at 5-19 to 5-20 (discussing common law liability for contaminated property).
180. See Brian C. Walsh, Seeding the Brownfields: A Proposed Statute Limiting Environmental Liability for Prospective Purchasers, 34 Harv. J. on Legisl. 191, at 201-02 (1997).
181. Rimer, supra note 28, at 85-86.
182. Id. at 86.
183. Ibid. Id.
184. United States v Fleet Factors Corp., 901 F.2d 1550, 1558 (11th Cir. 1990).
185. Rimer, supra note 28, at 13.
186. "EPA Superfund Handbook," supra note 25, at 11; see 42 U.S.C. § 9601(20)(A)(2002).
187. "EPA Superfund Handbook," supra note 25, at 11; see 42 U.S.C. §§ 9601(20)(A)(2002).
188. 42 U.S.C. §§ 9601(20)(E)-(G); see also "U.S. EPA, Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities" (June 30, 1997).
189. 42 U.S.C. §§ 9601(20)(E)-(G); see also "U.S. EPA, Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities" (June 30, 1997).
190. 42 U.S.C. §§9607(a)(3), (4).
191. Id. § 9604(k).
192. See Rimer, supra note 28, at 67-68.
193. See Kaiser Aluminum and Chemical Corp. v Catellus Development Corp., 976 F.2d 1338 (9th Cir. 1992) (finding a contractor who was moving contaminated soil from one place to another on the construction site was an "operator" and "transporter" for liability purposes). But see also Interstate Power Co. v Kansas City Power & Light Co., 909 F. Supp. 1284 (N.D. Iowa 1994) (finding contractor who moved contaminated soil into an unlined pond on the property not to be an "operator" or "transporter" because it's activities were directly controlled by another entity).
194. For more information on the environmental risks to sureties, see Donald G. Gavin and Robert M. Wright, Eds., "The Most Important Questions a Surety Can Ask About the Surety's Environmental Risk" (ABA, 1997) (providing a detailed analysis of the liabilities and defenses applicable to sureties involved in work on contaminated properties).
195. See id. at 300.700(c)(3)(i); see also William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 Minn. L. Rev. 35, 58, n. 64 (1995) (citing Channel Master Satellite Sys., Inc. v JFD Elec. Corp., 748 F. Supp. 373, 381 (E.D. N.C. 1990) (holding consistency with the NCP required for private cost recovery); Amland Properties Corp. v Aluminum Co. of Am., 711 F. Supp. 784, 793-801 (D.N.J. 1989) (allowing private party to recovery the portion of money expended consistent with the NCP but denying recovery for remaining costs not in compliance with NCP); Artesian Water Co. v Government of New Castle County, 659 F. Supp. 1269, 1291 (D. Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988) (ruling that consistency with NCP is an element of a prima facie case for cost recovery under section 107 of CERCLA)).
196. See id. at 300.700(c)(3)(i); see also William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 Minn. L. Rev. 35, 58, n. 64 (1995) (citing Channel Master Satellite Sys., Inc. v JFD Elec. Corp., 748 F. Supp. 373, 381 (E.D. N.C. 1990) (holding consistency with the NCP required for private cost recovery); Amland Properties Corp. v Aluminum Co. of Am., 711 F. Supp. 784, 793-801 (D.N.J. 1989) (allowing private party to recovery the portion of money expended consistent with the NCP but denying recovery for remaining costs not in compliance with NCP); Artesian Water Co. v Government of New Castle County, 659 F. Supp. 1269, 1291 (D. Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988) (ruling that consistency with NCP is an element of a prima facie case for cost recovery under section 107 of CERCLA)).
197. See 40 C.F.R.330.1 (1994).
198. Philip E. Karmel, Achieving Radical Reductions in Cleanup Costs, in "New Solutions to Environmental Problems in Business & Real Estate Deals 2002," 332 (Practicing Law Institute, Real Estate and Practice Course Handbook Series, Nov. 2002).
199. Ibid. Id.
200. Ibid. Id.
201. See Karmel, supra note 141, at 333-43.
202. Buzbee, supra note 139, at 59.
203. 42 U.S.C. § 9621(d).
204. Karmel, supra note 141, at 341.
205. Ibid. Id.
206. Ibid. Id.
207. Ibid. Id.
208. See id. at 347-54.
209. Id. at 350-54.
210. National Envtl. Policy Inst., How Clean is Clean?: White Paper on Brownfields, 6 (1995); Eisen, supra note 23, at 907.
211. National Envtl. Policy Inst., How Clean is Clean?: White Paper on Brownfields, 6 (1995); Eisen, supra note 23, at 907.
212. Announcement and publication of Guidance on Agreements with Prospective Purchasers of Contaminated Property and Model Prospective Purchaser Agreement, 60 Fed. Reg. 34792 (July 3, 1995); U.S. EPA, Guidance on Agreements with Prospective Purchasers of Contaminated Property (May 24, 1995), available at 〈http://es.epa.gov/oeca/osre/950524-2.html〉. "U.S. EPA Superfund Handbook," supra note 25, at 27.
213. Announcement and publication of Guidance on Agreements with Prospective Purchasers of Contaminated Property and Model Prospective Purchaser Agreement, 60 Fed. Reg. 34792 (July 3, 1995); U.S. EPA, Guidance on Agreements with Prospective Purchasers of Contaminated Property (May 24, 1995), available at 〈http://es.epa.gov/oeca/osre/950524-2.html〉. "U.S. EPA Superfund Handbook," supra note 25, at 27.
214. Announcement and publication of Guidance on Agreements with Prospective Purchasers of Contaminated Property and Model Prospective Purchaser Agreement, 60 Fed. Reg. 34792 (July 3, 1995); U.S. EPA, Guidance on Agreements with Prospective Purchasers of Contaminated Property (May 24, 1995), available at 〈http://es.epa.gov/oeca/osre/950524-2.html〉. "U.S. EPA Superfund Handbook," supra note 25, at 27.
215. United States Environmental Protection Agency, Voluntary Cleanup Programs, available at 〈http://www.epa.gov/superfund/states/stsi/vol. htm〉
216. Although financial incentives may also be considered a necessary component for the success of brownfields redevelopment, this paper focuses only on liability and, therefore, does not discuss financial incentives in detail.
217. See Rimer, supra note 28, at 101-02.
218. United States Environmental Protection Agency, Voluntary Cleanup Programs, available at 〈http://www.epa.gov/superfund/states/stsi/vol. htm〉
219. Id. at 3.
220. Some of the earliest VCPs were implemented in the late 1980s and early 1990s, and some were initiated as recently as 2000. See Charles Bartsch et al., "Brownfields State of the States: An End of the Session Review of Initiatives and Program Impacts in the 50 States" (Northeast-Midwest Institute, 4th Ann. Ed., Nov. 2001) [hereinafter "State of the States 2001"].
221. "United States General Accounting Office, Report to Congressional Requesters, Superfund: State Voluntary Programs Provide Incentives to Encourage Cleanups," 13 (April 1997).
222. Id. at 21.
223. Forty-eight states plus Puerto Rico have some form of VCP. See generally "State of the States 2001," supra note 160; "State of the States 2002," supra note 167. The states of North Dakota and South Dakota are the only states reporting that they currently have no VCP. Id. at 71, 88. Among the states with the greatest number of sites participating in VCPs are Wisconsin with 14,000 sites that have completed cleanup, id. at 105, Illinois with 1003 sites completed, id. at 27, Pennsylvania with 1,097 sites completed, id. at 80, Minnesota with 1,366 sites completed through that state's VCP, id. at 50, Texas with 1,407 sites that have entered that state's VCP, id. at 93, and New Jersey, where in 2001 alone, 2,444 VCP agreements were entered into, id. at 64.
224. Forty-eight states plus Puerto Rico have some form of VCP. See generally "State of the States 2001," supra note 160; "State of the States 2002," supra note 167. The states of North Dakota and South Dakota are the only states reporting that they currently have no VCP. Id. at 71, 88. Among the states with the greatest number of sites participating in VCPs are Wisconsin with 14,000 sites that have completed cleanup, id. at 105, Illinois with 1003 sites completed, id. at 27, Pennsylvania with 1,097 sites completed, id. at 80, Minnesota with 1,366 sites completed through that state's VCP, id. at 50, Texas with 1,407 sites that have entered that state's VCP, id. at 93, and New Jersey, where in 2001 alone, 2,444 VCP agreements were entered into, id. at 64.
225. Ibid. Id.
226. See generally "State of the States 2001," supra note 160.
227. See generally id.
228. For a thorough discussion on each of the various state VCPs, see id; see also Charles Bartsch et al., "Brownfields 'State of the States:' An End of the Session Review of Initiatives and Program Impacts in the 50 States" (Northeast-Midwest Institute, 5th Ann. Ed., Dec. 2002) [hereinafter "State of the States 2002"].
229. Buzbee, supra note 139, at 111.
230. See Rimer, supra note 28, at 109.
231. See infra Part V.B.1, discussing "institutional controls" in more detail.
232. See id. at 106-07.
233. Id. at 105-06.
234. Approval by the federal government of the state VCP will, in and of itself, serve a capacity similar to that of a Comfort Letter, providing some security and incentive to prospective purchasers. However, unlike a Comfort Letter that must be evaluated and provided on a case-by-case basis, a federal certification program would only need to evaluate the state program as a whole, thereby utilizing much fewer resources.
235. See H.R. 2869, § 231 (2002) (amending 42 U.S.C. § 9628 (2002)).
236. 42 U.S.C. § 9628(b)(l)(A) (2002).
237. Id. § 9628(b)(l)(B).
238. Id. § 9628(b)(1)(D).
239. In fact, the Clinton administration's 1994 Superfund Reform Bill proposed the establishment of such cleanup levels for certain contaminates based on anticipated future land use at the site. Rimer, supra note 28, at 92 (citing S. 1834, 502(d)(l), 103 Cong. (1994)).
240. Id. at 109.
241. See Amy L. Edwards, Institutional Controls: The Converging Worlds of Real Estate and Environmental Law and the Role of the Uniform Environmental Covenant Act, 35 Conn. L. Rev. 1255, 1259-60 (Spring 2003) (discussing state statutory institutional controls).
242. Ibid. Id.
243. "United States Environmental Protection Agency, Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups," 2 (Sept. 2000).
244. Edwards, supra note 180, at 1260 (citing ASTM Standard Guide for Use of Activity and Use Limitations, Including Engineering and Institutional Controls, E 2091-00).
245. John Pendergrass, Institutional Controls in the States: What Is and Can Be Done to Protect Public Health at Brownfields, 35 Conn. L. Rev. 1303, 1303 (Spring 2002).
246. Edwards, supra note 180 at 1261-63.
247. Kurt A. Strasser and William Breetz, The Benefits of a Uniform State Law for Institutional Controls, in-at 1 (forthcoming).
248. Uniform Environmental Covenants Act (National Conference of Commissioners on Uniform State Laws, August 2003) (hereinafter UECA), available at 〈http://www.law.upenn.edu/bll/ulc/ueca/2003final.htm.〉
249. Strasser & Breetz, supra note 186 at 2.
250. Ibid. Id.
251. Ibid. Id.
252. Edwards, supra note 180, at 1271.
253. UECA, supra note 187, at § 5.
254. Ibid. Id.
255. UECA, supra note 187, at § 9.
256. UECA, supra note 187, at Prefatory Note.
257. Ibid. Id.
258. 42 U.S.C. § 9628(b)(l)(B) (2002).