July 25, 2002
New brownfields law comes with big changes
By CHUCK WOLFE
Foster Pepper & Shefelman
The bill represents the most significant changes to the federal cleanup law since the 1986 Superfund Amendments and Reauthorization Act, and reflects years of effort to achieve legislative amendments.
The new law was endorsed by many major real estate and local governmental groups, supports the continued use of state voluntary cleanup programs and provides additional federal grant monies to address the contamination of brownfields sites.
Enhanced Brownfields Revitalization Grant Funds and State Response Program Grant provisions double congressional funding of brownfields grants and provide new monies for qualifying state or tribal cleanup programs.
More specifically, the new law provides enhanced federal liability protection for developers of brownfields sites:
Although the government cannot recover remediation costs from these purchasers, a lien may be recorded on the property if its unrecovered cleanup costs resulted in an increase of the property’s market value.
Because petroleum-derived contamination is exempted from the federal cleanup law, the new protection may have limited applicability locally. Such contamination is considered a “hazardous substance” under Washington’s Model Toxics Control Act, which covers most of the brownfields sites in the state. Washington law retains “reopeners,” which allows the state Department of Ecology to require prospective purchasers to clean up property at a later date if changed conditions so warrant.
In rare and limited cases, such as where contamination is migrating across state lines, where the release or threatened release poses an imminent or substantial endangerment environment of public health, and where the EPA determines that there is new information, the federal government could take an enforcement action against an owner who completes a cleanup under a state VCP.
The new law also reforms historic Superfund liability to exempt from liability three classes of smaller parties who Congress felt had been unfairly subject to strict, joint and several liability over the years. The three classes include small quantity “de micromis” contributors of hazardous substances, certain generators of small quantities of municipal solid waste and contiguous property owners as described above.
The new law is unclear and regulators and affected parties alike are in the process of understanding implementation details.
As noted above, state cleanup programs will still control many cleanup efforts, without the level of protection now provided by the federal government. Nonetheless, the new law provides a sea of change in the governmental approach to contaminated properties that may create a significant impact for years to come.
For more information on the new law, consult EPA’s resources at www.epa.gov/swer osps/bf/index.html.
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