Academic journal article The Journal of Gender, Race and Justice

Environmental Justice and the Brownfields Revitalization Act of 2001: Brownfields of Dreams or a Nightmare in the Making*

Academic journal article The Journal of Gender, Race and Justice

Environmental Justice and the Brownfields Revitalization Act of 2001: Brownfields of Dreams or a Nightmare in the Making*

Article excerpt

I. INTRODUCTION

Congress passed the Small Business Liability Relief and Brownfields Revitalization Act of 2001 in December of 2001.1 The preamble of the Act states that the purpose of the Act is to "provide certain relief for small businesses from liability under [the Comprehensive Environmental Response, Compensation and Liability Act of 1980] and . . . to promote the cleanup and reuse of brownfields, to provide financial assistance for brownfields revitalization, [and] to enhance State response programs . . . ."2 The Brownfields Revitalization Act attempts to spur the recovery of brownfields, which the Act defines as a site that is "complicated by the presence or potential presence of a hazardous substance . . .," by providing funding for redevelopment of these sites and by exempting the sites from federal liability under certain circumstances.3 While the goals of this Act may be noble, those responsible for the execution of the brownfield revitalization under the Act must consider the tenets of environmental justice to truly be successful.

The current Brownfields Revitalization Act does not adequately consider concepts of environmental justice in three areas. First, the United States Environmental Protection Agency [hereinafter EPA] must consider concepts of environmental justice in administering the new funding provisions as required by Executive Order 13,148.4 Second, if the selection of sites under state voluntary cleanup programs is left to private developers there will be no incentive to consider environmental justice in these siting decisions. Finally, states are ill equipped to ensure that environmental justice is integrated into siting decisions.

II. KEY STATUTES

The Small Business Liability Relief and Brownfields Revitalization Act is an amendment to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, commonly referred to by its acronym, CERCLA.5 CERCLA created a means for the federal government to react to releases or threatened releases of hazardous wastes in the United States.6 The statute imposes a tax on certain industries that are involved in the creation of hazardous wastes to create a fund, commonly referred to as the Superfund, to pay for remediation of "uncontrolled hazardous waste sites."7 In addition, CERCLA creates a liability regime for individuals responsible for hazardous wastes at these sites.8

CERCLA liability has several defining elements in imposing this responsibility for hazardous wastes. First, CERCLA defines a "facility," or any area where liability may attach under the Act, very broadly, so nearly any area that is contaminated with hazardous wastes is likely to fall within its scope.9 Second, liability under the Act is cast over a broad category of entities involved with a hazardous waste site.10 Potentially liable parties include current or former owners or operators of a facility, anyone who arranged for disposal or treatment of hazardous substances at a facility, and anyone who transported hazardous substances to a facility.11 Further, CERCLA imposes strict liability on any of these "potentially responsible parties" for any release or threatened release at a site with which these parties are involved.12 Finally, CERCLA imposes joint and several liability on any potentially responsible party.13

The Small Business Liability Protection Act, the first element of the aforementioned Small Business Liability Relief and Brownfields Revitalization Act of 2001, has the goal of creating greater protections for small businesses from liability under CERCLA.14 This is largely accomplished by attempting to clarify who qualifies as a contiguous property owner, who qualifies as a prospective purchaser, what qualifies as a windfall lien, and who qualifies as an innocent landowner under CERCLA.15 This article will not attempt to analyze these aspects of the Act, and is only concerned with the Brownfields Revitalization Act.

The Brownfields Revitalization and Environmental Restoration Act of 2001, hereinafter referred to as "the Act," alters brownfield development through two main mechanisms. …

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