The brownfield manifesto

Urban Lawyer

Volumn 37, Issue 1, 2005, Pages 163-190

  Opper, Richard G ^a  

^a Opper and Varco LLP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BROWNFIELD SITE; CONTAMINATED LAND; LEGISLATION; URBAN DEVELOPMENT;

EID: 19544391198     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (145)

1. U.S.C. § 9601(39)(A) (Supp. I. 2001).
2. U.S.C. §§ 9601-75.
3. "The specter of environmental liability ... has driven ... developers, and others to flee potentially contaminated urban areas...." Amy L. Edwards, An Overview of Institutional Controls, in Implementing Institutional Controls at Brownfield and Other Contaminated Sites 3 (Amy L. Edwards ed., 2003).
4. For example, the California legislature "finds and declares that real property contaminated with hazardous substances is a continuing blight on communities." Cal. Health & Safety Code § 44501(e)(1) (West Supp. 2004). In New Jersey: The Legislature finds and declares that due to New Jersey's industrial history, large areas in the State's urban and suburban areas formerly used for commercial and industrial purposes are underused or abandoned; that many of these properties, often referred to as brownfields, are contaminated with hazardous substances and pose a health risk to the nearby residents and a threat to the environment; and that these sites can be a blight to the neighborhood and a financial drain on a municipality because they have no productive use, and fail to generate property taxes and jobs.
5. N.J. Stat. Ann. § 58: 10B-1.2 (West Supp. 2003).
6. See, e.g., 3 U.S. Conference of Mayors, Recycling America's Land: A National Report on Brownfields Redevelopment (2000), available at http://www.usmayors.org/uscm/brownfields/full_report_rev3.pdf (last visited Jan. 18, 2005);
7. see also Charles Bartsch & Rachel Deane, Brownfields State of the States: An End-of-Session Review of Initiatives and Program Impacts in the 50 States (5th ed. 2002), available at http://www.nemw.org/ brown_stateof.pdf (last visited Jan. 18, 2005);
8. Charles Bartsch, Financing Brownfield Cleanup and Redevelopment, Northeast-Midwest Institute, at http://www.nemw.org/brownfin.htm (last visited Nov. 6, 2004).
9. Pub. L. No. 107-118, § 201, 115 Stat. 2360 (2001)
10. (codified at 42 U.S.C. § 9601 (Supp. I. 2001)).
11. CERCLA's purpose is to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." Pub. L. No. 96-510, 94 Stat. 2767 (1980).
12. United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d 726, 733 (8th Cir. 1986) (citations omitted).
13. See, e.g., United States v. Montrose Chem. Corp. of Cal., 883 F. Supp. 1396, 1399 (C.D. Cal. 1995) ("CERCLA is anything but a model of lucid legislation.");
14. see also CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc., 769 F. Supp. 432, 435 (D. N.H. 1991) ("Those courts which have attempted to unravel CERCLA's definitions have found no solace in either the 'plain meaning' of the statute or the reams of legislative history. Instead, in an attempt to glean legislative intent, courts seem to resort to a sort of 'Purkinje phenomenon,' hoping that if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain.").
15. Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534 (6th Cir. 2001) (citations omitted).
16. EPA, National Priority Site Fact Sheet: Love Canal, New York, (Jan. 2004), available at http://www.epa.gov/region02/superfund/npl/ 0201290c.pdf (last visited Jan. 18, 2005).
17. Senate Comm. of Env't & Pub. Works, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, S. Doc. No. 97-14, at 320 (2d Sess. 1983) (one of the statute's principal goals is "assuring that those who caused chemical harm bear the costs of that harm. ...");
18. see also United States v. Alcan Aluminum, 964 F.2d 252, 257-58 (3d Cir. 1992) (CERCLA was "designed to force polluters to pay for costs associated with remedying their pollution.").
19. 42 U.S.C. § 9605(a)(8)(B) (2000);
20. see also EPA, National Priorities List Sites in the United States, at http://www.epa.gov/superfund/sites/npl/npl.htm (last visited Nov. 5, 2004).
21. National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. pt. 300.1.
22. 42 U.S.C. § 9607(a)(4) (2000).
23. Robert P. Dahlquist, Consistency with the National Contingency Plan in 2000 and Beyond, 15 J. Nat. Resources & Env't 32, 67-69 (2000).
24. I b i d.
25. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 950 n.20 (9th Cir. 2002).
26. See, e.g., Wash. Dep't of Transp. v. Wash. Natural Gas Co., 59 F.3d 793 (9th Cir. 1995).
27. Jan Paul Acton, Superfund and Transaction Costs: The Experience of Insurers and Very Large Industrial Firms 5 (1992).
28. The author recalls more than one meeting with government counsel who would repeatedly remark that "CERCLA isn't about fairness."
29. 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1363 (9th Cir. 1990) ("[CERCLA] is to be given a broad interpretation to accomplish its remedial goals.")
30. See, e.g., United States v. Fleet Factors Corp., 901 F.2d 1550 (11th Cir. 1990) (holding that lenders who did nothing more than participate "in the financial management of a facility to a degree indicating a capacity to influence the corporation's treatment of hazardous wastes" [emphasis added] could be liable as CERCLA "operators"). Congress responded with a 1996 amendment to CERCLA that significantly narrowed lender liability in this respect.
31. See, e.g., 42 U.S.C. § 9601(20)(F)(i)(II) (2000) (the mere capacity to influence does not amount to participating in management).
32. The "PRP" of CERCLA jargon is a term remarkably similar to that used by prosecutors nationwide to describe the "perp" or perpetrator of a crime.
33. Robert P. Dalquist, Making Sense of Superfund Allocation Decisions: The Rough Justice of Negotiated and Litigated Allocations, 31 ELR 11098, 11108 (2001). In the 15 years following the 1986 SARA Amendments, a substantial body of case law has emerged that "provide[s] considerable guidance concerning (1) the critical factors that will be evaluated in the allocation process, and (2) the likely range of outcomes that can now be expected in a judicially determined allocation of liability."
34. I b i d.
35. Aviall Servs., Inc. v. Cooper Indus., Inc., 263 F.3d 134 (5th Cir. 2001),
36. rev'd en banc, 312 F.3d 677 (5th Cir. 2002),
37. cert. granted, 124 S. Ct. 981 (2004).
38. See, e.g., Carpenter-Presley-Tanner Hazardous Substance Account Act (HSAA), Cal. Health & Safety Code §§ 25300-95 (West 2004);
39. Spill Compensation and Control Act, N.J. Stat. Ann. § 58: 10-23.11 (West 2004);
40. Inactive Hazardous Waste Disposal, N.Y. Envtl. Conserv. Law § 27-1301 (McKinney 2004).
41. Cooper Indus., Inc. v. Aviall Servs., Inc., 125 S. Ct. 577 (2004).
42. I b i d. at 583 (A private party who has not been sued under CERCLA §§ 106 or 107(a) may not obtain contribution under CERCLA § 113(f)(1)).
43. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001).
44. I b i d. at 875.
45. See, e.g., Croften Ventures Ltd. P'ship v. G & H P'ship, 258 F.3d 292, 298 n.3 (4th Cir. 2001).
46. Carson Harbor Vill., Ltd. v. Unocal Corp., 227 F.3d 1196 (9th Cir. 2000), reh'g granted en banc, 270 F.3d 863 (9th Cir. 2001).
47. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863,874-80 (9th Cir. 2001).
48. I b i d. at 887.
49. See, e.g., CPC Int'l, Inc. v. Aerojet-General Corp., 759 F. Supp. 1269, 1278 (W.D. Mich. 1991);
50. United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), aff'd 688 F.2d 204 (3d Cir. 1982).
51. 1996 U.S. Dist. LEXIS 22640.
52. I b i d. at *9.
53. I b i d. at *10.
54. I b i d. at *5.
55. I b i d. at *6.
56. 1996 U.S. Dist. LEXIS 22640 at *7.
57. I b i d. at *14-15.
58. I b i d. at *24.
59. This is due to both CERCLA's wide mimicry throughout the states and its growing federal jurisprudence.
60. 302 F.3d 928 (9th Cir. 2002).
61. I b i d. at 956 ("We conclude, however, that two provisions of MERLO-regarding the burden of proof for PRPs for establishing a defense to liability and that allow Lodi to require abatement procedures more stringent than the NCP-are preempted under the doctrine of conflict preemption.").
62. MERLO, an acronym that suits its wine country origin, is a municipal ordinance modeled after CERCLA granting the city unilateral authority to investigate and remediate environmental nuisances.
63. Fireman's Fund, 302 F.3d at 946, 948.
64. I b i d. at 947.
65. I b i d. at 949.
66. I b i d. at 951.
67. I b i d. at 957.
68. Fireman's Fund, 302 F.3d at 952. [W]e see no reason why California cities may not enact municipal environmental response ordinances keying cleanup to standards other than the NCP.... So long as a local ordinance does not come into conflict with CERCLA or HSAA ... a city may borrow or adapt the NCP as it sees fit-or use some other procedure for making cleanup decisions.... Local environmental legislation may be particularly useful to California cities in dealing with smaller, marginally contaminated sites that do not attract state or federal involvement, and for which the extensive procedural requirements of the NCP may unnecessarily prolong cleanup and raise its costs. A city may compel a recalcitrant landowner to cleanup such sites using standards that made sense under the circumstances.
69. I b i d. at 951-52. ... Congress has recognized that "local governments have developed and implemented innovative and effective brownfields programs." S. Rep. No. 107-2, at 2 (2001). The Brownfields Revitalization and Environmental Restoration Act of 2001 not only recognizes these programs, but specifically recognizes the need to provide federal funding without compelling compliance with some burdensome and needless NCP requirements.
70. I b i d. at 952 n.25.
71. See United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1454 (6th Cir. 1991) (stating CERCLA sets a floor but not a ceiling for environmental protection).
72. Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, § 1, 100 Stat. 1613 (codified as amended at 42 U.S.C. §§ 9601-75 (2000)).
73. (codified as amended at 42 U.S.C. §§ 9601-75 (2000)).
74. Charles Bartsch, Northeast-Midwest Institute, Guide to Federal Brownfield Programs 5-6 (rev. 2000);
75. see also U.S. Conference of Mayors, supra note 5.
76. S. Rep. No. 107-002, at 11-12 (2001). Fear of potential Superfund liability is frequently cited as a barrier to redevelopment of contaminated sites. EPA has attempted to address this problem on a case-by-case basis with so-called prospective purchase agreements. The process of negotiating these agreements, however, is cumbersome and resource-intensive. The new provisions add a definition of 'bona fide prospective purchaser' to CERCLA's definitions. Section 107 would be amended to exclude persons who qualify as bona fide prospective purchasers from liability under CERCLA.
77. I b i d. at 11.
78. Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-118, 115 Stat. 2356 (codified as amended in scattered sections of 42 U.S.C. (Supp. I 2001)).
79. 42 U.S.C. § 9607 (o)-(r) (Supp. I 2001).
80. 42 U.S.C. § 9628 (Supp. I 2001).
81. BFPPs are the "new money" unrelated to the property's current ownership, who are presumably PRPs as a result of that status.
82. 42 U.S.C. § 9601(40).
83. 42 U.S.C. § 9601(35).
84. 42 U.S.C. § 9601(35)(B)(i)(I), (40).
85. See Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 882-83 (9th Cir. 2001). Were we to adopt an interpretation of "disposal" that encompassed all subsoil passive migration, the innocent landowner defense would be essentially eliminated.... [I]n all but a tiny fraction of cases, [citation omitted] such an interpretation would lead to the conclusion that disposal is a never-ending process, rendering liable every landowner after the initial disposal. For those subsequent landowners, the innocent landowner defense would be available only if one could show that the land was purchased after the hazardous substances were "placed" there, Thus, the defense would only be available to a small portion of the landowners who have no actual culpability in the disposal of the hazardous substances.
86. I b i d.
87. See also Bob's Beverage, Inc. v, Acme Inc., 264 F.3d 692 (6th Cir. 2001) (holding owner's failure to prevent passive migration of hazardous substances is not a disposal within the meaning of CERCLA and does not create liability).
88. 42 U.S.C. § 9601(39)(D)(ii)(II)(aa) (Supp. I 2000).
89. 42 U.S.C. § 9601(14) (2000).
90. 42 U.S.C. § 9604(k)(5)(A)(i)(II) (Supp. I 2000).
91. See, e.g., Fireman's Fund Ins. Co., 302 F.3d at 949-51 ("To the extent that MERLO § 8.24.030(A)(5) permits Lodi to order abatement that is more stringent than the NCP, we find that it is preempted....").
92. Cal. Health & Safety Code § 25356.1.5(a)(1) (West Supp. 2004).
93. 42 U.S.C. § 9621(d)(1) (2000);
94. see also 40 C.F.R. § 300.5 (2004) (defining "removal action.").
95. Eugene Smary, Remarks at the Opening Plenary Session of the Brownfields 2002 Conference in Charlotte, North Carolina (Nov. 13, 2002), notes on file with the author;
96. see also, Eugene Smary, Remarks at the Panel Discussion of the Brownfields 2004 Conference, St. Louis, Missouri (Sept. 20, 2004), notes on file with author. Mr. Smary, Esq., was the 2002 Chair of the ABA's Section on Environment, Energy and Resources.
97. U.S. Gen. Accounting Office, GAO/RCED-95-172, Community Redevelopment: Reuse of Urban Industrial Sites 3 (1995).
98. Establishment and Meeting of the Negotiated Rulemaking Committee on All Appropriate Inquiry, 68 Fed. Reg. 10,675 (Mar. 6, 2003) (to be codified at 40 C.F.R. ch 1).
99. Innocent Landowners, Standards and Practices for All Appropriate Inquiries, 69 Fed. Reg. 52,541 (proposed Aug. 26, 2004) (to be codified at 40 C.F.R. pt. 312), available at http://www.epa.gov/ brownfields/aai/proposed_rule.htm (last visited Jan. 18, 2005).
100. 42 U.S.C. § 9601(35)(B)(i)(I) (Supp. I 2000) (defining "all appropriate inquiry");
101. see also 40 C.F.R. § 312.2 (2004).
102. Gregg W. Kettles, Bad Policy: CERCLA's Amended Liability for New Purchasers, 21 UCLA J. Envtl. L. & Pol'y 1, 10 (2002/2003).
103. I b i d. at 10-15.
104. I b i d. at 16-30.
105. I b i d. at 36-38.
106. I b i d.
107. World Comm'n on Env't and Dev., Our Common Future (The Brundtland Report) 8 (1987).
108. For example, the population in the San Diego County Region, for example, is expected to grow 37% by 2030. San Diego Regional Planning Agency, Fast Facts: San Diego Region, SANDAG, at http:/ /www.sandag.org/resources/demographics_and_other_data/ demographics/fastfacts/regi.htm (last visited Jan. 18, 2005).
109. See City of Modesto Redev. Agency v. Superior Court, 119 Cal. App. 4th 28, 37-38 (Cal. Ct. App. 2004) (court applied traditional nuisance causation liability theory to determine liability).
110. See Redev. Agency v. Salvation Army, 103 Cal. App. 4th 755, 764-67 (Cal. Ct. App. 2002) (comparing differences between California's Polanco Redevelopment Act, with a liability scheme based on CERCLA, to CERCLA itself).
111. See, e.g., Hope Whitney, Cities and Superfund: Encouraging Brownfield Redevelopment, 30 Ecology L.Q. 59, 84 (2003) ("Some courts have been unwilling to [expressly recognize the innocent plaintiff exception], fearful of undermining a rule that supposedly 'protects the strict liability scheme created by the statute.'" (citation omitted)).
112. See, e.g., Cal. EPA, Fact Sheet No. 2: PG&E Chico Former Manufactured Gas Plant Site 1 (March 2001), available at http:// www.dtsc.ca.gov/sitecleanup/PGEChicoFactsheet.pdf (last visited Jan. 18, 2005). "The principal chemicals of concern contained in gas plant residues are polynuclear aromatic hydrocarbon compounds (PNAs). PNAs are organic chemicals formed when organic materials such as coal, oil, petroleum fuels, or even foods are not completely burned (that is, PNAs are products of incomplete combustion)."
113. I b i d.
114. "PNAs tend not to move in the environment because they adhere to soil and do not readily dissolve in water."
115. I b i d.
116. Cleanup Loans and Environmental Assistance to Neighborhoods ("CLEAN") Program, 2000 Cal. Stat. 912.
117. I b i d.
118. Cal. EPA, Program Fact Sheet: Cleanup Loans and Environmental. Assistance to Neighborhoods (CLEAN) 1 (Oct. 2002), available at http://www.dtsc.ca.gov/SiteCleanup/Brownfields/index.html (last visited Jan. 18. 2005).
119. 40 C.F.R. pt. 300.5;
120. see also 42 U.S.C. § 9601(23) (defining removal).
121. 42 U.S.C. § 9601(23) (2000).
122. For example, EPA's goal to complete the NCP Remedial Investigation/ Feasibility Study process for a normal CERCLA project is two years 55 Fed. Reg. 8,705 (EPA Mar. 8, 1990).
123. 42 U.S.C. § 9604(k) (Supp. I 2001).
124. See generally EPA, Nat'l Center for Environmental Assessment, Summary of the U.S. EPA Workshop on the Relationship Between Exposure Duration and Toxicity EPA/600/R-99/081 (1999) (discussing dosimetry and risk assessment).
125. For example, a cancer "curve" is a mathematical model.
126. Risk is presented in terms of how likely an adverse health occurrence is per thousands of exposures.
127. Grant Trigger, Esq., Presentation at the ABA Section on Government Law Annual Meeting (1999) (relating analysis extrapolated from data from Richard Wilson, Comments at the 6th Int'l. Symposium on Chemical and Toxicological Aspects of Environmental Quality (1979)) (on file with author).
128. I b i d.
129. I b i d.
130. This is commonly done in California where the Prop. 65 "warnings" require signs on almost every garage in the state to advise people that the level of known carcinogens is elevated.
131. Although environmental industry myth has it that a few folks at U.S. EPA were in a conference room trying to work this out and just seized upon this level as "sounding right."
132. All of these elements are present at a site in the center of Los Angeles' historic Goodyear Tract, once the largest industrial development in the city, located in what is now known as South Central Los Angeles. Miguel Bustillo, Cleanups Fuel Debate: How Much Is Enough, L.A. Times, Dec. 16, 2003, at A1.
133. I b i d.
134. 42 U.S.C. § 9601(40) (Supp. I 2001).
135. Standards and Practices for All Appropriate Inquiries, 69 Fed. Reg. 52,541 (Aug. 26, 2004) (codified at 40 C.F.R. pt. 312), available at http://www.epa.gov/brownfields/aai/proposed_rule.htm (last visited Jan. 18, 2005).
136. See EPA, NPL Fact Sheet: San Fernando Valley (AREA 1), EPA ID no. CAD980894893 (May 5, 2004);
137. EPA, NPL Fact Sheet: San Fernando Valley (AREA 2), EPA ID no. CAD 980894901 (May 5, 2004);
138. EPA, NPL Fact Sheet: San Fernando Valley (Area 3), EPA ID no. CAD980894984 (May 5, 2004);
139. and EPA, NPL Fact Sheet: San Fernando Valley (Area 4), EPA ID no. CAD980894976 (May 5, 2004). All are on file at the Burbank Public Library, Central Library, 110 North Glen Oaks Boulevard, Burbank, CA 91502, and are also available at EPA's website at http://www.epa.gov/ superfund/sites/query/basic.htm (last visited Jan. 18, 2005).
140. I b i d.
141. I b i d.
142. Although sometimes redevelopment does provide an opportunity for more "source removal" than would otherwise be possible.
143. See, e.g., Cal. Land Reuse and Revitalization Act of 2004, 2004 Cal. Stat. 705.
144. Cal. Water Code § 13304 (West 2004).
145. Cal. Water Code §§ 13000, 13304.1 (West 2004).