Evolution of Brownfield Programs

A large and increasing number of properties were being abandoned as a result of real or perceived environmental impairments and legal liabilities which were for many years difficult or impossible to address. In response, public policies crafted since 1995 prompted a significant shift in the application and administration of federal and state environmental cleanup laws. In January 1996, the United States Environmental Protection Agency (“EPA”) issued its first Brownfields Action Agenda intended to foster a new climate in which environmental regulators became far more flexible and willing to commit to the policy goal of returning contaminated properties back into productive use. About the same time, many states were enacting new statutes and developing voluntary cleanup programs designed to facilitate redevelopment of contaminated sites. These and subsequent brownfields initiatives encourage the cleanup and redevelopment of contaminated sites with minimal use of public funds. The means that are commonly used to achieve these goals combine legal authorities and regulations permitting containment or partial cleanup to standards based upon sound science and the future use of the property. This process also includes binding assurances from environmental regulatory authorities that once a remedial action is approved and completed, further remediation will not be required. These environmental remedies are generally referred to as “risk-based” or site-specific remedies.

Emergence of Land Use Controls and Engineering Controls

Land use controls (“LUCs”), also known as institutional controls, and engineering controls (“ECs”) are essential components in the risk-based remediation processes under state and federal statutes and are relied upon to assure sustainable environmental remedies that are protective of human health and the environment. These controls are designed to prevent exposure to residual contamination in a manner that is protective of human health and the environment. ECs address exposures to contamination through caps, covers, groundwater pump and treat systems and other physical barriers. LUCs provide additional layers of protection through the application of land use restrictions, easements, covenants, zoning ordinances and local government approvals, and are often used to compliment engineering controls. Deed restrictions also are relied upon as tools for notifying subsequent property owners and others as to the environmental conditions and land use limitations associated with a site. A growing number of government-approved environmental remedies performed under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”) and comparable state laws in recent years are risk-based and depend upon the proper implementation and stewardship of LUCs and ECs for sustainability and long-term remedy effectiveness. Accordingly, state and federal environmental programs have had to adapt and evolve to meet the growing demand for reliable options to effectively manage and track an ever-increasing number of properties subject to LUCs and ECs. The environmental protection afforded by well-planned remedial strategies would be severely compromised if the LUCs and ECs that serve as the lynchpin for those strategies prove ineffective or ephemeral. Such a result could launch an unwanted retreat toward more traditional remedial measures, bringing with it a return to the economic stagnation and blight that motivated the more enlightened approaches to developing risk-based remedies that are protective of human health and the environment.

Lack of National Uniformity

There is little consistency in the application and administration of LUCs and ECs from state, regional and national perspectives. Moreover, because state laws and resources vary dramatically, and because the enforceability of most LUCs are a function of state real estate law, it is difficult for federal environmental officials to develop national standards and practices for LUCs. As important, there is concern that environmental officials may not be able to enforce LUCs over the long term because the agencies lack the legal standing to initiate actions against subsequent owners and/or lessees that may breach an LUC. Indeed, it is currently unclear what enforcement actions, if any (and by whom), could be brought in the event an LUC is violated. From a funding perspective, it is also sometimes unclear who is responsible for paying the costs and expenses of implementation and maintenance of LUCs and ECs. There is also an identified lack of coordination among state and local officials in methods of gathering and disseminating important information related to LUCs and ECs. Environmental officials at the federal and state levels, as well as members of the private sector, have expressed concern that public confidence in the effectiveness of risk-based cleanup programs will quickly erode if projects involving LUCs and ECs fail and environmental or public health concerns result.