Page 18 - 2018 October Bar Journal

BarJournal ENVIRONMENTAL LAW

JULY/AUGUST 2015
fEaTUrE Building Upon the Brownfield Program

The Brownfield Utilization, Investment,

and local development act of 2018

BY ERIN M. MCDEVITT-FRANTZ & LAuRYN KITCHEN

uried within the Consolidated codified the Brownfield Program and and community development entities now
Appropriations Act of 2018, the attempted to soften CERCLA’s liability are eligible to receive additional brownfield
Brownfield Utilization, Investment, scheme in order to encourage redevelopment funding. §104(k)(1)(I)-(L). Also, public
and Local Development Act of 2018 of contaminated properties. entities and other eligible entities (who are
B(the BUILD Act or Act) is the first US EPA touts the accomplishments of not responsible for the contamination)
major legislative change to the Comprehensive the Brownfield Program by citing dollars that acquired property before the 2002
Environmental Response, Compensation, and leveraged, jobs leveraged, location efficiency amendments are potentially eligible for
Liability Act (CERCLA), 42 U.S.C. §9601, et seq., that reduces vehicle miles and associated brownfield grants. §104(k)(2)(C). The Act
since 2002. Major changes include additional greenhouse gases, reduced stormwater runoff, simplifies the process for obtaining funding
liability protections and changes to the United increased local residential property values, for sites with petroleum contamination.
States Environmental Protection Agency (US increased local tax revenue, and even crime As one might imagine, potential liability is
EPA) brownfield grant program. These changes reduction (based on anecdotal surveys). These a major barrier to prospective developers and
provide great opportunity in the brownfield are impressive results. Yet, brownfields remain purchasers of brownfield sites. Past, present,
redevelopment arena, but property owners, a technically and legally complicated problem and future owners and users of a site could all
government leaders, and developers need to that deters redevelopment of those sites. be held liable for clean-up under CERCLA.
understand the “who,” the “what,” and the “how” §107(a)(1)-(4). The 2002 Brownfield Law
of the changes in order to benefit. The BUILD Act added liability protections to bona fide
On March 23, 2018, President Trump prospective purchasers and contiguous
Background signed a 2,232-page omnibus spending bill, property owners, but “potentially responsible
Redeveloping these brownfield sites is a win- the Consolidated Appropriations Act of party” remained an expansive concept.
win for the environment and the economy. 2018, which included the BUILD Act. The Importantly, the BUILD Act includes
US EPA estimates that there are 450,000 BUILD Act expands liability protections and expanded liability protections. The definition
brownfield sites across the country. Cleaning enhances the Brownfield Program by adding of “owner or operator” now excludes state
up contaminated properties creates jobs, boosts new grant programs and increasing available and local governments that acquire property
local economies, revitalizes neighborhoods funds. This is the first update to CERCLA through any law enforcement activity, not just
and provides important human health and in 16 years and, to the extent it is funded, involuntarily. §101(20)(D). The Act codifies
environmental benefits. represents a significant federal investment US EPA policy on tenants and lessees that
Congress has attempted to foster brownfield in promoting brownfield redevelopment. operates to lessen the burden of establishing
cleanup projects for decades. At first, in 1980, With the proper expertise, property owners, “bona fide prospective purchaser” status.
the government tried to do it on its own under local governments, and potential developers Accurately analyzing eligibility and liability can
CERCLA, commonly known as Superfund, can harness this investment, along with facilitate an efficient redevelopment strategy.
by creating a trust fund for cleaning up other federal and state programs, to leverage
abandoned or uncontrolled hazardous waste significant benefits. The What: Encourage Redevelopment
sites. Under this program, US EPA completed US EPA will develop policy and guidelines in The BUILD Act incentivizes and encourages
cleanup work using Superfund money, then connection with the Act. 83 F.R. 29782. These brownfield redevelopment generally and
sought recovery of those costs from responsible guidelines are anticipated in October (instead of includes specific provisions that focus funds to
parties. CERCLA §107(a). September, as usual), so the Agency can consider revitalize communities.
In the mid-1990s, US EPA started its the options provided by the new programs. The small community grant program
Brownfield Program by offering grants to added to the State Response Program
support local cleanup and redevelopment of The Who: Expanded Eligibility and Liability component of CERCLA authorizes US
brownfield sites. Yet, CERCLA’s expansive Protection EPA to make grants to states and tribes to
liability provisions limited the effectiveness The BUILD Act expands grant eligibility provide technical or research assistance
of the Program. In 2002, the Small and removes barriers to participation that to support small communities, Indian
Business Liability Relief and Brownfields existed previously. Pursuant to express tribes, rural areas, or disadvantaged areas.
Revitalization Act (the Brownfield Law) provisions, certain nonprofit organizations §128(a)(1)(B)(ii)(III). A community with
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