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Brownfields
The Small Business Liability Relief and Brownfields Revitalization Act of 2001 (Public Law 107-118) defines a Brownfields site as "real property, the expansion redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant." This definition supercedes the previous definition established by EPA which stated, "EPA defines brownfields as abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination". The cleanup of contaminated property, including brownfields, and the clarification of federal environmental cleanup liability, are the building blocks to sustainable reuse of previously-used property. By fostering the cleanup and appropriate use of brownfields, EPA fulfills its mission to protect human health and the environment as well as to conserve greenfields from development that may lead to environmental degradation.
For general program information, EPA's Brownfields page contains information about:
BackgroundReal property is one of the most valuable economic assets in the United States. While most real property is put into productive use, some properties lie abandoned or idled. These properties, called "brownfields," may remain unused or underutilized because of actual contamination from past commercial or industrial use, or because people fear the property's previous use may have left contamination. This fear may result in relatively clean property remaining idle because parties, who otherwise would redevelop brownfields, may search out unused property, or "greenfields," to avoid the costs associated with the cleanup of contamination. EPA recognizes that some private parties believe federal environmental laws and policies have created roadblocks to reusing property. The federal environmental laws that most affect the cleanup and reuse of brownfields are the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA," or "Superfund"), and the Resource Conservation Recovery Act ("RCRA"). The cleanup provisions of these laws require EPA to focus its attention on cleaning up the nation's most hazardous waste sites in order to protect human health and the environment. Under CERCLA or RCRA, the current owner or operator of a contaminated property may be held responsible for the cleanup. Although potential liability is a valid and serious concern for landowners, it is important to keep this concern within context. For example, in January 2000, the U.S. Conference of Mayors estimated that 600,000 brownfields exist nationwide. At least 99% of all the potential brownfields properties across the country will not require federal EPA action. Although the existence and applicability of federal environmental cleanup laws and regulations could have an impact on development, the reality is that EPA has taken action at very few brownfields properties. Additionally, EPA and Congress developed mechanisms that can help parties minimize and manage the risks of reusing brownfields. Before developing a brownfields property, a party should collect and consider information on past uses and potential contamination. The party should next identify which level of government to consult about cleanup and liability protection, if needed. Most parties will find that they can proceed directly to their reuse activities. Others may want to pursue private mechanisms such as indemnification or insurance, or work at the state level and make use of existing state tools. If the contamination at the property warrants EPA's attention under CERCLA or RCRA, the party should first determine if EPA or the state is taking or plans to take action at the property. After determining where the property fits in the federal or state cleanup pipeline, parties may choose to use an appropriate tool to help manage their federal CERCLA or RCRA liability risks. The following sections summarize the policy and guidance documents most useful in managing environmental cleanup liability risks associated with brownfields and other sites.
Prospective PurchasersNote: The Small Business Liability Relief and Brownfields Legislation (commonly referred to as the "Brownfields Legislation") generally exempts from liability people that purchase contaminated property if their only basis for liability is as the current owner of a Superfund site. The new Brownfields legislation is intended to provide those who purchase contaminated property after the date of enactment the same sort of protection from liability that was previously afforded by Prospective Purchaser Agreements ("PPAs"). For further details about the new Brownfields legislation see:
Prospective Purchaser Agreements ("PPAs") are settlement mechanisms used to provide liability relief to a purchaser of Superfund property prior to acquisition, thus allowing the purchaser to avoid becoming a potentially responsible owner under the Superfund liability scheme. EPA first published its policy on prospective purchaser agreements in 1989, and issued a revised PPA policy in 1995 that includes a Model Agreement. In a PPA, the purchaser agrees to provide EPA with substantial benefits, and in return the purchaser receives a covenant not to sue from the United States on behalf of EPA. The most common prospective purchaser agreements provide EPA with a cash payment that goes to partially satisfy EPA's response expenditures at the property. Other PPAs may provide some specific response activity such as operation and maintenance or site monitoring, including an agreement for access and cooperation and exercise of due care. PPAs are complex site-specific agreements, and although a model agreement exists, it often take several months to complete, along with the customary thirty-day public comment period. Such agreements have been entered into at National Priority List (NPL) and non-NPL sites. (The National Priorities List or NPL is the list of approximately 1200 of the nation's most highly contaminated sites). However, PPAs have not been available at more routine, lightly contaminated brownfields sites where there has been no federal response action undertaken. At the latter category of site, the usual recommendation involves comfort letters, or referral to a state voluntary cleanup program. While EPA has entered into more than 160 CERCLA PPAs, there has been only one recent PPA under RCRA. The Agency is prepared to consider other such RCRA PPAs where appropriate. Comfort/Status LettersSome properties may remain unused or underutilized because potential property owners, developers, and lenders are unsure of the properties' environmental status. EPA helps these interested parties better understand EPA's involvement, or likely involvement, at a potentially contaminated property through a comfort/status letter. Although EPA tries to avoid involvement in private real estate actions, EPA is willing to provide a comfort/status letter when appropriate. A comfort/status letter clarifies the likelihood of EPA involvement at a property; identifies the applicability of a statutory provision or EPA policy toward a specific party or property; or, describes the cleanup progress at a Superfund or RCRA site. If EPA is not involved at the property, the letter may refer the party to the appropriate state agency. Comfort letters address a particular set of circumstances and provide whatever releasable information is contained within EPA's databases. Questions typically addressed by comfort letters include:
The Agency uses sample letters to respond to requests. Language from any of these letters may be used together to create a site-specific letter. Environmentally Responsible Redevelopment and Reuse (ER3) InitiativeThe primary goal of EPA’s cleanup programs is to ensure a cleanup provides for the protection of human health and the environment. Redevelopment and reuse of contaminated properties can not only help accomplish this goal but can also have positive economic and social effects on a community. EPA has the opportunity to foster through its policies, practices, and guidance, economic development that has environmental benefits. As part of the next generation of protecting human health and the environment, EPA is encouraging, through an OECA led initiative, the incorporation of principles and practices of environmentally responsible redevelopment and reuse (ER3) at contaminated sites. Responsible environmental performance means the integration of the best sustainable environmental practices in the redevelopment and reuse of a previously contaminated facility. These principles and practices include green building design, construction, and operation; energy efficiency; use of renewable energy sources; environmental management systems; storm water and wastewater management; pollution prevention; waste minimization and recycling; healthy building; design for the environment; industrial ecology; sustainability; and smart growth. The components of the ER3 Initiative are
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