The Small Business Liability Relief and Brownfields Revitalization Act: A Critique

Article excerpt

I. INTRODUCTION

In a sweeping attempt to facilitate the cleanup of hazardous substances released into the environment and the cleanup of inactive waste disposal sites, Congress in 1980 passed the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). (1) CERCLA's authority extends both to Superfund sites, the most hazardous sites in the country, and to brownfield sites. Brownfield sites are defined by the EPA as "abandoned or underutilized industrial or commercial properties where redevelopment is hindered by possible environmental contamination and potential liability under Superfund for parties that purchase or operate these sites." (2) CERCLA grants the Environmental Protection Agency ("EPA") the authority to regulate cleanup of Superfund and brownfield sites.

Although Superfund sites are a top priority and are in the spotlight more often than brownfields, the negative effect of CERCLA on brownfield redevelopment has stirred a great deal of debate. Criticism has been directed at CERCLA's actual approach to brown field redevelopment, its effect on the redevelopment of brownfields, and environmental, economic, and environmental justice concerns that result from its enforcement.

The most often cited problem with CERCLA's approach to brownfield redevelopment is its complex liability scheme. The liability scheme is criticized because of the unbalanced impact it has on parties who have contributed minimal contamination to a site. (3) Specifically, CERCLA holds all owners and operators of a brownfield site liable for contamination, regardless of whether or not they actually contributed to the contamination. (4) CERCLA's liability scheme is blamed for scaring off potential investors because of uncertain liability) (5) Another criticism of CERCLA is the authority it gives the EPA to intervene in state brownfield programs and demand additional cleanup conditions. (6) This frustrates both developers and states in their efforts to complete brownfield cleanups. (7)

In addition to the complaints regarding the approach CERCLA takes to brownfield liability, another problem is its negative effect on brownfield redevelopment. Landowners often choose to abandon or mothball their property and develop on greenfields instead because of the uncertain liability they may face. Mothballing results in an increase in urban sprawl and reduces tax revenues. Additionally, environmental justice issues are raised because poorer communities often feel the brunt of the mothball problem since brownfields are usually located in the more depressed communities.

Numerous stakeholders, including the EPA, the business community, community activists, individual states, and academics, have debated for a number of years about how to rework CERCLA's broad regulatory approach towards brownfields. However, these interests appear inconsistent at times. The EPA, for one, is concerned both with preserving the environment and ensuring that environmental justice issues are addressed, but the agency is also keenly aware of the economic effects of its proposals. (8) By the same token, the primary focus of business may be economic, but the pursuit of economic goals is closely linked with environmental concerns of communities where the businesses are located.

Although the EPA has tried various methods to alleviate the unwanted effect of CERCLA's provisions on brownfield redevelopment, the agency's methods have not been completely successful. In response, Congress passed the Small Business Liability Relief and Brownfields Revitalization Act (the "Act") on January 11, 2002. (9) The Act is an attempt to reform the strict regulatory approach of CERCLA and address the environmental, economic and environmental justice concerns associated with brownfields and their redevelopment. Although the changes in CERCLA's provisions have been long awaited, the effect that the Act will have is unclear.

While the changes in the Act seem to focus adequately on the economic and environmental justice issues involved with brownfield redevelopment, the changes may have come at the expense of environmental concerns. …