Reauthorization of CERCLA and the redevelopment of brownfields: who will pay the orphan’s share?

Abstract

This paper examines significant and unjustifiable differences arising under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, Pub. L. No. 96-510, 94 Stat. at Large 2767, codified as amended at 42 USC §§ 9601-9675) in the way in which the Superfund may be used to remediate “orphaned” National Priorities List (NPL) sites and “orphaned” brownfield sites. Under both the existing law and numerous proposals for the reauthorization of CERCLA, while the Superfund may be used for the remediation of orphaned NPL sites, it may not be used for the remediation of orphaned brownfield sites. In each situation, however, an absent, insolvent, defunct, bankrupt or judgment-proof party has created a situation in which remediation costs must be borne by the public. The study concludes that there is no fundamental policy reason for treating these orphans differently and presents recommendations to facilitate the remediation and redevelopment of both NPL sites and brownfield sites.