Building on Brownfields: Predicted Effects of New Liability Protections for Prospective Purchasers and an Exploration of Other Redevelopment Incentives

Abstract

On January 11, 2002, H.R. 2869, the Small Business Liability Relief and Brownfields Revitalization Act (the Act or Revitalization Act) was signed into law. This Act, which amends portions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) seeks to promote the redevelopment of brownfield sites through federal funding and certain federal liability relief. Brownfields are parcels of real property that were once used for industrial or commercial use, the redevelopment of which is now complicated by hazardous waste contamination and constrained by associated uncertainty and liability. With a focus on the liability relief that the Act provides to prospective purchasers of brownfields, this paper explores remaining liabilities under state and federal laws and, in doing so, determines that remaining broad liability and a lack of finality will limit the success of the prospective purchaser’s liability limitations under the Act in furthering the redevelopment of brownfields. Three critical components for a successful brownfields revitalization effort are highlighted, and a three-part solution is proposed.