How Brown Was My Valley

Abstract

“Brownfields” in the environmental context is one of those modest success stories that come out of the environmental regulatory arena from time to time. The Brownfields Initiative is important enough that, in her recent resignation, US Environmental Protection Agency (EPA) Administrator Christine Todd-Whitman wrote that “our success in enacting long-overdue brownfields legislation is already accelerating the reclamation of abandoned parcels of land in hundreds of communities across America”. For years, critics have hammered away at the wasteful, ponderous, and punitive features of two federal laws, the 1980 Comprehensive Environmental Response, Compensation, and Liability Act and its so-called “Superfund” program, which deals with abandoned contaminated facilities, and the 1976 Resource Conservation and Regulation Act (RCRA), which regulates hazardous waste operations and sites. Begun informally in 1995, the EPA's “Brownfields Initiative” (www.epa.gov/brownfields) allowed innovative compromises to be made between those laudable but burdensome laws, and the reality of returning industrial sites to beneficial use relatively quickly. A “brownfields site” is defined as any real property whose expansion, redevelopment, or reuse may be complicated by the presence (or potential presence) of a hazardous substance, solid waste, pollutant, or contaminant. These are often abandoned industrial properties and other areas that suffered from lack of attention and no hope of redevelopment. The EPA estimates that between 500 000 and one million brownfields sites are spread across the US. Generally there is no responsible person to remediate the property, so it has to be assessed, investigated, or cleaned up by someone who is not potentially liable for cleaning it up, pursuant to some sort of arrangement with the EPA or an appropriate state or local agency. The program has received general bipartisan support both in Congress and at state level, has helped spur the redevelopment of properties that might still be festering, and has fostered inner-city restoration and renewal projects. It has also added thousands of jobs to new businesses which once steered clear of contaminated real estate, the associated difficulty of cleaning it up, and the draconian laws that might have held them liable if they took on the task. Some 40 states have now developed voluntary programs that are cleaning up hundreds of brownfield sites. In 2002, the Small Business Liability Relief and Brownfields Revitalization Act became law. It codifies many of EPA's policies regarding brownfields and provides assessment grants for community planning and the investigation of potential sites. Grants are awarded through a competitive system that ranks proposals. The law also created revolving loan grants for brownfields cleanups and job training grants for those living in such areas. Importantly, it provided certain legal exceptions from the Superfund law for innocent and adjacent landowners, prospective purchasers, and others agreeing to undertake remediation of contaminated properties. The legislation also applies to former hazardous waste treatment, storage, and disposal facilities. Finally, the law promises to streamline required cleanups and the revitalization of urban areas which heretofore remained abandoned. In addition, certain tax incentives now exist to spur cleanup and redevelopment of brownfields in distressed urban and rural areas. The EPA began the RCRA Brownfields Prevention Initiative in 1998, encouraging the remediation of some lower priority hazardous waste sites that needed cleaning up. A potential RCRA Brownfields site is a RCRA facility, or portion of such a facility, that is not in full use, where there is redevelopment potential, and where reuse or redevelopment is slowed due to real or perceived concerns about actual or potential contamination, liability, and RCRA requirements. The Brownfields program has been accompanied by a national realization that voluntary cleanups, which bring contaminants down to reasonable levels rather than zero, are the wiser, easier, and more practical course. To that degree, the Brownfields Initiative has been a nationwide success. Still, much could be done to improve it further. Financing and grants are still limited and red tape clogs projects in some states. Nevertheless, “the greenfields that we used to roam,” in the words of the folk group The Brothers Four, are now visible alongside new businesses and new opportunities unimaginable a quarter of a century ago. Douglass Rohrman