Legislative Innovation in State Brownfields Redevelopment Programs (2025)

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EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship 2001 Legislative Innovation in State Brownfields Redevelopment Programs Heidi Gorovitz Robertson How does access to this work benefit you? Let us know! Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles Part of the Environmental Law Commons , and the Land Use Law Commons Original Citation + (,1 1/,1( 2 Citation: 16 J. Envtl. L. & Litig. 1 2001 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Apr 26 14:56:25 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 ARTICLES Legislative Innovation in State Brownfields Redevelopment Programs to the federal government's recent focus on the issue. However, leadership in method and approach has come, not from the fed-eral government, but from the states. States have approached of ways, some choosing to create voluntary cleanup programs, ating efficiencies in the agency oversight process. I will conclude that this innovation, in some of its existing forms, appears to be effective and efficient. However, in its most extreme form, this innovation may amount to an abrogation of government Some states have been particularly innovative in their efforts ac-cording to the intended future use of the land. This means that legislation is the linking of site cleanup standards to the intended future use of the land. Although the United States Environmen-tal Protection Agency (EPA) has been experimenting with con-sidering land use in the Comprehensive Environmental applying this model. In their efforts to remove environmental or carcinogen. However, in certain circumstances, the property owner may instead elect to seek a property-specific risk assess-ment in which the potential risks associated with the intended future use of the land will help determine the applicable cleanup standards. Although use of a property-specific risk assessment does not preclude the landowner from applying generic numeric standards, and does not prevent application of those standards following the property-specific risk assessment, the option pro-vides an opportunity for flexibility. In some circumstances, a property-specific risk assessment will be mandatory, rather than elective. This is true when, for example, exposure pathways that would accompany an intended future use present more risk than that against which the generic numeric standards protect. Similarly, in Colorado's program cleanup standards are based upon actual risk to human health and the. environment according to a set of established criteria. Prior to setting cleanup standards, Colorado considers the present and proposed uses of the site, the ability of contaminants to move in a way that would expose humans and the environment to unacceptable risk, the potential risks associated with cleanup options, and the economic and technical feasibility of cleanup alternatives. The Indiana brownfields law also provides for flexible cleanup standards, which allow the owner of a contaminated parcel to se-lect the level of cleanup desired. However, unlike in most other states with risk-based cleanup standards, in Indiana the choice of cleanup level directly affects the level of liability protection the owner will receive from the state: "The more extensive the cleanup, the more extensive the protection from future liabil-ity." At its highest level of cleanup, Indiana provides the vol-untary remediator with protection from future liability to public and private claimants with respect to the release or threatened release that was the subject of the approved voluntary remedia-tion work plan. Protection from liability, however, does not ment of Environmental Protection to institute differentiated or Massachusetts' brownfields program is similar to restrictions, called "activity and use limitations" to control future Massa-chusetts, and Colorado, as in Ohio and many other states, now vary depending on the landowner's intended future land use-for residential, commercial or industrial purposes. An important issue regarding the use of these various contamina-tion to remain on-site, these standards can sufficiently protect ture land users from harm due to exposure to remaining contaminants. To determine the existence and degree of health risk related to redevelopment of a property with contamination retained on site, one must consider several factors concurrently. The first is whether there is a toxin or hazardous substance (e.g., benzene from petroleum, lead, arsenic, PCBs) present in the soil, air or groundwater at a contaminated site. The second is whether the contamination is present in a form and concentra-tion that is dangerous to humans (e.g., 5 parts per billion for ben-zene). The third is whether there is a transmission mechanism, or pathway, by which the substance can enter the ecosystem or the human body (e.g., inhalation, dermal exposure, or ingestion by drinking or through the food chain). Finally, one must ex-amine the potential for actual contact between the human and the hazardous material (e.g., by children, the elderly, construc-tion workers, or tenants in a building). Breaking the connec-tion between any two of these factors ensures safety at the site and keeps risks low. For example, an impenetrable cap placed over residual contamination can perform this function by block-ing the pathway between the contamination and human contact. Regulators and scientists often categorize risks for carcino-genic toxins in terms of the number of cancer deaths in the popu-lation. For example, a stringent cleanup level (less risk remaining onsite, but more expensive to clean) would be one cancer death in a population of one million A more leni-ent standard (with more risk remaining on site) would be one death in 10,000 (10-). Despite flexibility in applicable standards, states argue that they have adhered to standards sufficient to protect public may include deed restrictions, restrictive covenants, use restric-tions, water use restricrestric-tions, deed notice requirements, zoning, permitting, access controls, special notice or recording requiments, contractual obligations, and financial responsibility re-quirements. These control mechanisms are expected to render the property safe for its intended use, despite less stringent cleanup standards. Institutional controls can, for example, prevent the use of con-struction methods that could damage a contamination barrier. They can prohibit the installation of water supply wells, the use of pile construction, and even the digging of foundations. Insti-tutional controls can require that a permanent cap remain on site and that the landowner maintain it. Restrictions may also limit the ability of landowners to sell their property. Institutional con-trols can provide notice of remaining contamination to subse-quent landowners, possibly increasing the likelihood that risk will remain low over time, despite the fact that contamination re-mains on site. The most common restrictions limit the future use of the land, and state brownfields programs using risk-based cleanup standards evaluate risk at a site in terms of the intended use (post-remediation) of the land. For example, petroleum or lead contamination remaining under a shopping center's landscaped area would render that site, although suitable for its current commercial use, inappropri-ate for residential use. ' A parking lot that is serving as a cap or barrier against human exposure to remaining underground con-tamination would be inappropriate for use as a residential site without further cleanup." The developer can realize substantial cost savings by keeping the contamination on site and limiting potential human exposure to it through institutional or engineer-ing controls. Because residual contamination may exceed safe levels for children playing in the dirt, a brownfields program would likely require some form of institutional control to prevent the property from being used for residential purposes in the fu-ture without further remediation. land in a certain way or for certain purposes. Restrictive cove-nants, for example, are promises by landowners either to do or not to do certain things with their land.' These are usually used in cases with multiple landowners, such that the restrictions can be enforced by and against one another. ' They can be used, for example, to prevent landowners from using the groundwater be-neath a property, drilling wells, or digging ditches. They can also be used to require landowners to maintain a fence that protects humans from exposure to on-site contamination. Covenants that run with the land are enforceable against sub-sequent owners of the same land, provided the person seeking to enforce the restriction is entitled to the benefit of the restric-tion. Equitable servitudes are similar to restrictive covenants, but are enforceable in equity rather than law. This means that rather than collecting damages for a violation of a restriction, the enforcer can force compliance. An obvious problem with using servitudes to restrict land use is that they are meaningless if the party with the right of enforcement declines or neglects to en-force them. For example, a neighboring property owner may have the right to enforce a land use restriction contained in a covenant, but may choose not to do so, instead supporting a lu-crative development. Also, if the owner of the restricted parcel were to purchase the properties of those entitled to enforce the restrictions, there would no longer be anyone left to enforce it. For these reasons, it would make some sense for enforcement authority to be held by a state agency, but in the absence of legis-lative action to the contrary, that is not the nature of common law-based controls. Like other proprietary controls, covenants and servitudes must satisfy certain formalities of creation. Restrictive covenants and equitable servitudes can be termi-nated in several ways. This may be necessary when, for exam-ple, a future landowner has remediated a restricted piece of An easement is a right to use land that belongs to someone else. Easements can be attached to, and run with the land (easement appurtenant), or be attached to a person, corporation or government entity (easement in gross). Although either type of easement might be effective as an institutional control for a brownfield, it is more likely for such easements to be "in gross." An easement, for example, could grant a right of access to land, for inspection purposes, to a government entity. The easement holder has a right to bring an enforcement action to force the landowners to allow the easement holder to take the action allowed through the easement-usually entry under a right of way. As with some other proprietary controls, this places great responsibility on the easement holder, either a per-son or an institution, to exercise its rights under the easement to protect people from contamination. Some state brownfields laws have easements, created by stat-ute, which allow the state environmental agency to enter and in-spect the property to enforce the terms upon which a Covenant states require the landowner to transfer an easement to the state agency, for the purposes of inspection and enforcement, during the course of settlement negotiations. It is early to predict how well state agencies will do with the authority their states have given them to enforce these statutory modifications on common law land use restrictions. However, the idea of enforcing land use restrictions is new to state environmental agencies, and the restrictions become weak if the agencies neglect or choose not to engage in this traditionally private matter. As a practical matter, environmental agencies do not generally have mechanisms in place to enforce land use restrictions. And, if and when they do have mechanisms in place, they may not choose to make the im-plementation of those mechanisms a priority. Because these property law based restrictions are generally de-pendant on a real estate transfer, some states have statutorily created systems whereby, in the absence of a transfer, the FAQs

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EngagedScholarship@CSU

Law Faculty Articles and Essays

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2001

Legislative Innovation in State Brownfields

Redevelopment Programs

Heidi Gorovitz Robertson

Cleveland State University, h.robertson@csuohio.edu

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Original Citation

Heidi Gorovitz Robertson, Legislative Innovation in State Brownfields Redevelopment Programs, 16 Journal of Environmental Law &Litigation 1 (2001)

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ARTICLES

HEIDI GOROVITZ ROBERTSON*

Legislative Innovation in State Brownfields

Redevelopment Programs

INTRODUCTION

States throughout the country have created legislation and ad-ministrative programs to encourage the cleanup and redevelop-ment of urban brownfield' land.' In part, these efforts respond

* Associate Professor of Law, Cleveland-Marshall College of Law, and AssociateProfessor of Environmental Studies, Levin College of Urban Affairs, ClevelandState University. This project was supported by a grant from the Cleveland-Mar-shall Fund. I thank my research assistants, Heather L. Tonsing and Jennifer LukasJackson for their good work on this project, my J.S.D. committee at Columbia LawSchool, Professors Richard Briffault, Frank Grad, and Bradley Karkkainen, for theirextensive and thoughtful comments, and my colleague Karin Mika for her input onthis and earlier drafts. This Article was written in partial fulfillment of the require-ments for the degree of Doctor of the Science of Law, in the School of Law, Colum-bia University.

1 The term "brownfield" has been used broadly and narrowly. According to theUnited States Environmental Protection Agency (EPA), brownfields are "aban-doned, idled, or underused industrial and commercial facilities where expansion orredevelopment is complicated by real or perceived environmental contamination."USEPA web page (visited 09/26/2000) <http://www.epa.gov/swerosps/bf/glossary>.

The term "brownfield" typically describes contaminated land that is not so

contami-nated that it is at serious risk of a federal or state enforcement action. Lenders anddevelopers, however, consider even "mild" contamination too serious a liabilitythreat; for this reason, among others, brownfields tend to lie fallow rather than beredeveloped.

The definition of "brownfields" or "brownsites," however, is an area of some de-bate. This stems in part from an inability to value a contaminated site for whichthere is no useful, current market value. Further, given the broad spectrum of localeconomies and land use objectives, it is difficult to reach consensus on a definition ofthe term. Broad definitions include all contaminated former industrial propertiesthat are not available for redevelopment. Narrower definitions limit brownfields tolarge city properties that are both abandoned and large enough to support

signifi-cant redevelopment. See GENERAL ACCOUNTING OFFICE, SUPERFUND BARRIERS

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2 J. ENVTL. LAW AND LITIGATION

to the federal government's recent focus on the issue.

_However,

leadership in method and approach has come, not from the

fed-eral government, but from the states.

States have approached

the cleanup and redevelopment of contaminated land in a variety

of ways, some choosing to create voluntary cleanup programs,

others imposing mandatory cleanup programs, and still others

us-BROWNFIELDS INTO GREENBACKS 30 (1998) (using a "broad, urban definition of

brownfields"). In addition, some of the state and local laws designed to encourageredevelopment of industrial sites are not actually geared to "brownsites" any morethan any other underused or unused former industrial site. See Bernard A. Wein-traub & Sy Gruza, The Redevelopment of Brownsites, 9 NAT. RESOURCES & ENV'T,

Spring 1995, at 57.

2 See, e.g., ARZ. REV. STAT. ANN. § 49-282.05 (West 2000); ARK. CODE ANN. §

8-7-1101 et seq. (Michie 2000); CoLo. REV. STAT. § 25-16-301 et seq. (2000); CONN.

GEN. STAT. ANN. § 22a-133a et seq. (West 2000); DEL. CODE ANN. tit. 7, § 9101 etseq. (2000); FLA. STAT. § 288.107 (2000) and FLA. STAT. § 376.77 et seq. (2000); GA.CODE ANN. §12-8-200 et seq. (2000); IND. CODE. ANN. § 13-25-5-1 et seq. (West

2000); IOWA CODE ANN. § 455H.101 et seq. (West 2000); KAN. STAT. ANN. § 65-161

et seq. (1997); Ky. REV. STAT. ANN. §§ 224.01-450 to 224.01-465 (Michie 2000); LA.

REV. STAT. ANN. § 30:2285 et seq. (West 2000); ME. REV. STAT. ANN. tit. 38, § 343-E(West 2000); MD. CODE ANN., ENVIR. § 5 (2000); 1998 MASS. ACTS 206; MICH.COMP. LAWS § 324.20101 et seq. (2000); MINN. STAT. §§ 115B.01-115B.24 (2000);1998 Miss. LAWS 528; Mo. REV. STAT. § 260.565 et seq. (2000) and Mo. REV. STAT.

§ 447.700 et seq. (2000); MONT. CODE ANN. §§ 75-10-730 through 75-10-738 (2000);

NEB. REV. STAT. §§ 81-15,181 to 81-15,188 (2000); NEV. REV. STAT. ANN. § 459.610et seq. (Michie 2000); N.H. REV. STAT. ANN. § 147-F:1 et seq. (2000); 1997 N.J. LAWS

278; N.M. STAT. ANN. § 74-4G-1 et seq. (Michie 2000); N.Y. ENVTL. CONSERV. LAW§§ 56-0501 to 56-0511 (McKinney 2000); N.C. GEN. STAT. § 130A-310.30 et seq.(2000); OHIO REV. CODE ANN. § 3746 (West 2000); OKLA. STAT. ANN. tit. 27A, §

2-15 (West 2000); OR. REV. STAT. § 465.325 (2000); R.I. GEN. LAWS § 23-19.14-1 etseq. (2000); TEX. HEALTH & SAFETY CODE ANN. §§ 361.601 to 361.613 (West 2000);UTAH CODE ANN. § 19-8-101 et seq. (2000); VT. STAT. ANN. tit. 10, § 6615a (2000);

VA. CODE ANN. § 10.1-1429.1 to .3 (Michie 2000); W. VA. CODE § 22-22-1 et seq.(2000); Wis. STAT. ANN. § 292.15 (West 2000).

3 See William W. Buzbee, Brownfields, Environmental Federalism, and Institu-tional Determinism, 21 WM. & MARY L. & POL'Y REV. 1, 2, 39 (1997) (noting that

federal, state, and local programs exist to encourage brownfields redevelopment,and that the states have been innovators in this area, whereas the federal govern-ment is usually the leader in data gathering and investigation into pollution controlstrategies).

4 See id. See also U.S. EPA-OSPS Brownfields Homepage (visited 9/26/2000)

<http://www.epa.gov/swerosps/bfl#bfini> (containing information regarding EPA'sBrownfields Cleanup Revolving Loan Fund Pilots, National Brownfields Assess-ment Pilots, among other brownfields programs). Additionally, according to thewebsite, "on August 5, 1997, President Clinton signed the Taxpayer Relief Act (HR2014/PL 105-34), which included a new tax incentive to spur the cleanup and rede-velopment of brownfields in distressed urban and rural areas." The Clinton Admin-istration also implemented the Brownfields National Partnership Action Agenda,announced in May 1997, which "outlines a comprehensive approach to the assess-ment, cleanup, and sustainable reuse of brownfields, including specific commitmentsfrom 15 Federal agencies."

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ing combinations of these approaches. Regardless of method,however, the push to clean brownfield land is grounded in awidespread desire to return that land to productive use, and alsoin the more fundamental desire to repair the environment inwhich we live and work.

This Article examines state legislative and administrative ef-forts to redevelop urban brownfield land by reducing the envi-ronmental barriers to redevelopment. I have argued in the pastthat, despite the best efforts and best intentions of citizens, legis-lators, and bureaucrats, real success will elude state brownfieldsprograms, in part, because they tend to ignore the non-environ-mental factors that present significant barriers to redevelopment,especially in urban areas.' Here, I argue that some of the legisla-tive innovations in those same state brownfields programs, al-though created to facilitate the programs' goals, may be risky orunwise without some alterations. This Article analyzes two im-portant innovations in states' efforts to encourage brownfieldsredevelopment: the application of cleanup standards determinedby the intended future use of the land, and the use of licensed orcertified environmental professionals to oversee and certify thecleanup of brownfield sites. These two innovations illustrate in-stances where legislatures or state administrative agencies at-tempted to streamline a process to facilitate the program's orlegislation's goal of reducing the environmental barriers tobrownfields redevelopment, thus facilitating cleanup andredevelopment.

The first innovation, setting cleanup standards according to thefuture use of the land, is an innovative approach to making con-taminated land more attractive to potential redevelopers. Therationale for this innovation is that reduced cleanup standardscan make the cleanup faster and less costly, thereby movingbrownfield land quickly and cost-effectively into productive use.I will conclude that although such standards certainly reduce thecleanup costs associated with choosing and redeveloping a con-taminated property, the remaining externalities render the inno-vation risky on several levels.

The second innovation, the use of private professionals to cer-tify the completion of a cleanup, is an innovative method for

cre-5 See generally Heidi Gorovitz Robertson, One Piece of the Puzzle: Why State

Brownfields Programs Can't Lure Businesses to the Urban Cores Without Finding theMissing Pieces, 51 RurGERS L. REV. 1075 (1999).

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ating efficiencies in the agency oversight process. I will conclude

that this innovation, in some of its existing forms, appears to be

effective and efficient. However, in its most extreme form, this

innovation may amount to an abrogation of government

respon-sibility that could put neighborhoods and people at risk due tothe questionable quality of oversight.

Some states have been particularly innovative in their efforts

to reduce the environmental barriers to redevelopment, therebyhoping to encourage redevelopment of brownfield land.6 In par-ticular, many states have allowed cleanup standards to vary

ac-cording to the intended future use of the land.

This means that

6 Note that many barriers to the redevelopment of contaminated urban propertiesare non-environmental, for example, the size and location of a site, the size andconfiguration of the existing building, the available infrastructure, local crime rates,or access to transportation. See generally Robertson, supra note 5.

7 See, e.g., _{BROWNFIELDS LAW AND PRACTICE, THE CLEANUP AND}

REDEVELOP-MENT OF CONTAMINATED LAND (Michael B. Gerrard, ed. 2000) [hereinafter

BROWNFIELDS LAW AND PRACTICE], AL.01[5]; ALA. CODE § 22-30A-6;AZ.01[1][e][ii]; ARIz. ADMIN. CODE R18-7-205; BROWNFIELDS LAW AND PRACTICE

CA.01[5]; CAL. HEALTH & SAFETY CODE § 25356.1.5(d) (only future use restricted

with proper institutional controls); BROWNFIELDS LAW AND PRACTICE, IL.01[2][c]-[d]; IA.01[5][c]; IOWA CODE ANN. 455H.204(2)(a) to (e); IowA ADMIN. CODE r.

567-137.6(455H); BROWNFIELDS LAW AND PRACTICE, MD.01[6] (if limited use toindustrial/commercial, then must record in land records); BROWNFIELDS LAW AND

PRACTICE, MN.01[1][h] and MN.02[6]; see MINN. POLLUTION CONTROL AGENCY

VOLUNTARY INVESTIGATION AND CLEANUP GUIDANCE DOCUMENT No. 13, PROCE-DURES FOR ESTABLISHING SOIL CLEANUP LEVELS (rev. Sept. 1994) (intended oractual use of land taken into consideration when determining cleanup levels to beachieved); BROWNFIELDS LAW AND PRACTICE, MO.01[5][a]; see Memorandum ofAgreement (MOA) Between MDNR and EPA (Sept. 5, 1996) (MOA language con-templates some flexibility depending on future use, but neither the legislation nor

the regulations address the issue); BROWNFIELDS LAW AND PRACTICE, NY.01[5];

Technical and Administrative Guidance Memorandum No. HWR-94-1046, (futureuse considered if volunteer wants to deviate from usual cleanup standards);

BROWNFIELDS LAW AND PRACTICE, OH.01[2][b]; OHIO ADMIN. CODE § 3745-300-08(B)(2)(c) (establishing three categories of future use, including residential,

com-mercial, and industrial); BROWNFIELDS LAW AND PRACTICE, OK.01[4][a]; OKLA.

STAT. ANN. tit. 27A.§ 2-14-304(B) (the Brownfields Act explicitly provides that theremediation or no action necessary proposal must be based on the potential risk tohuman health and safety and to the environment posed by the environmental con-tamination, taking into account the proposed use of the brownfield as industrial!commercial, agricultural or residential); BROWNFIELDS LAW AND PRACTICE,

SC.01[5] (less stringent cleanup standards for VCP sites where a non-responsibleparty has agreed to undertake the cleanup, as long as the proposed cleanup is suffi-cient for and consistent with the proposed future use of the site and does not inter-fere with or preclude additional state-ordered remedial activity by a responsibleparty. The South Carolina Dept. of Health and Environmental Control requiresnon-responsible party to enter into a restrictive covenant with DHEC, which im-poses land use restrictions commensurate with the extent of the cleanup);

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cleanup standards applicable to sites slated for industrial use areless stringent than those which would apply to sites intended forresidential or commercial use. States have also become moreflexible with respect to the cleanup methods or remediationmethods they allow.8

BROWNFIELDS LAW AND PRACTICE, UT.01[5]; UTAH CODE ANN. § 19-8-114(2) (af-ter considering the proposed future use of the property, UDEQ may approvecleanup plans that do not require removal of all releases on the property if the re-sponse action will be completed in a manner that protects human health and theenvironment, among other things); BROWNFIELDS LAW AND PRACTICE,

WA.01[4][b].

8 See, e.g., IOWA CODE ANN. § 455H.205 (West Supp. 1999); GA. COMP. R. &REGS. r. 391-3-19.07 (1998) generally and GA. CoMP. R. & REGs. r. 391-3-19.07(10)(a) (1999) (specifically authorizing engineering controls, such as capping,point of use treatment, and slurry walls, as part of plans to reduce or eliminate thepotential for human exposure to contaminants at a site). Some states allow the useof deed restrictions on brownfield properties as a way to control the future use ofland, thereby reducing the risk of human exposure to remaining contaminants. SeeOHIO REV. CODE ANN. § 3746.05 (West 2000). For a thorough analysis of the use of

institutional controls in cleanup programs, see John Pendergrass, Use of InstitutionalControls as Part of a Superfund Remedy: Lessons from Other Programs, 26 ENVTL.

legislation is the linking of site cleanup standards to the intended

future use of the land. Although the United States

Environmen-tal Protection Agency (EPA) has been experimenting with

con-sidering land use in the Comprehensive Environmental

Response, Compensation and Liability Act's (CERCLA) rem-edy selection process, the states have been the real pioneers in

applying this model.

In their efforts to remove environmental

barriers to brownfields redevelopment, states have begun depart-ing from the traditional rigid health-based standards.14 Severalstudies and reports have supported these efforts, finding a gen-eral belief that cleanup standards should be based on actualthreats to human health and the environment.15 The goal of pro-grams with risk-based standards is to assign cleanup standardsthat are sufficiently stringent to make properties safe for theowners' intended future use, but no more so. This is an effort tomake cleanups satisfactory yet cost efficient, thereby encourag-13 See Memorandum from Elliott P. Laws, Assistant Administrator, Land Use inthe CERCLA Remedy Selection Process, OSWER DIRECTIVE No. 9355.7-04 (May

25, 1995). However, it is questionable to assume that states will be able to executethis more effectively that the federal government. See Warren L. Ratliff, The

De-Evaluation of Environmental Organization, 17 J. LAND RESOURCES & ENVTL. L. 45

(1997). See also Robert R. Kuehn, The Limits of Devolving Enforcement of Federal

Environmental Laws, 70 TUL. L. REV. 2373, 2386-87 (1996). For example, research

indicates that in environmental law, the devolution of federal powers to the states isrisky to public health and the environment. Rena I. Steinzor, Devolution and the

Public Health, 24 HARV. ENVTL. L. REV. 351 (2000).

14 It is questionable that states will do any better with flexible standards than they

have done with rigid standards.

15 See PENNSYLVANIA ENVIRONMENTAL COUNCIL REPORT OF REUSE OF

INDUS-TRIAL SITES ROUNDTABLES, at 2 [hereinafter PENNSYLVANIA ENVIRONMENTAL

COUNCIL REPORT]. Stakeholders believe it appropriate to develop generic health-based standards for particular substances to be applied to any site, but this shouldnot preclude cleanups to site-specific standards based on actual risks determined byfuture land use. Id. at 4. See also UNITED STATES CONFERENCE OF MAYORS,

BROWNFIELDS REDEVELOPMENT ACTION AGENDA: INITIAL FRAMEWORK (1996).

In its five recommendations to the President and Congress, the U.S. Conference ofMayors states that "the selection of cleanup standards based on a property's end usecan result in significant savings for the developer and enhance the likelihood that afacility will be remediated and redeveloped." Therefore, the Mayor's report recom-mends that the federal government push to expedite brownfields redevelopment byrecommending cleanup standards based on the future end-use of the land. Id.

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ing businesses and others to clean and redevelop contaminatedproperties.1 6

The question of how stringent cleanup standards must be, or"how clean is clean," has plagued legislators, administrators andthe regulated community at the state and federal levels since theinception of Superfund-type laws.17 There are several generalnotions about what constitutes sufficiently clean. Under the firstnotion, a cleanup standard should require a landowner to returna property to its pre-release, or pristine condition. The secondidea is that cleanup standards should require landowners to cleanall contaminated properties to a residential-use standard so thatcurrent or future owners could use land for any purpose, up toand including residential use. The third theory is that cleanupstandards should require landowners to clean contaminatedproperty only to the level necessary for its intended future use,whether residential, commercial, or industrial. It is this third no-tion that may be called a risk-based, flexible, variable, or tieredsystem.

States offering such systems of standards tend to offer one ormore of the following as options for program participants:cleanup to background conditions,18 cleanup to generic numericstandards,1 9 or cleanup to site-specific, risk-based standards.2" In

16 See GEORGE V. VOINOVICH, OHIO'S VOLUNTARY CLEANUP AND

REDEVELOP-MENT, A REPORT FROM GOVERNOR GEORGE V. VOINOVICH (Spring 1998) [herein-after GOVERNOR'S REPORT], at 1.

17 See Pendergrass, supra note 8, at 10,109. See also Donald A. Brown, EPA'sResolution of the Conflict Between Cleanup Costs and the Law in Setting CleanupStandards under Superfund, 15 COLUM. J. ENVTL. L. 241 (1990).

18 See Clement Dinsmore, Financial Barriers and Incentives to BrownfieldsCleanup and Reuse 40 (Jan. 1996) (unpublished manuscript, on file with the author).The definition of the term "background" varies among states, but can mean thenatural and/or manmade condition of the site, minus those conditions attributable tothe contamination at issue. Id. Background standards have been defined as pris-tine, pre-industrial conditions set by the state agency. Joanne R. Denworth, UseRestricted-Use Standards Sparingly, THE ENVrL. FORUM, May-June 1995 at 28, 30.19 These are health-based standards established for various toxic and carcinogenicsubstances, largely based on EPA standards. See Denworth, supra note 18, at 30.See also Dinsmore, supra note 18, at 40. Here, the states establish risk assumptionsto which the remediating party can make limited modifications. See Dinsmore,supra note 18, at 40.

20 These standards are based on the anticipated future use of the site, for example,limited close exposures for workers at industrial or commercial sites. See Denworth,supra note 18, at 30. See also Dinsmore, supra note 18, at 40. Here, the volunteerremediator can choose to engage in a more exhaustive analysis of site conditionsthan may be applicable under other systems of standards. See Dinsmore, supra note18, at 40.

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J. ENVTL. LAW AND LITIGATION

allowing these options, specifically with respect to this third cate-gory, states hope to accept reduced cleanup standards, or partialcleanups, in exchange for efficient redevelopment.

There are several problems with these risk-based approaches,however. First, a danger in tying cleanup standards to the in-tended future land use is that the future land use may not beeternally controllable, thereby placing future land users at riskfrom exposure to remaining contamination. If, for example, theland use of a contaminated industrial site changed to residentialuse, without additional cleanup, there would be a threat to publichealth.2 Many programs attempt to alleviate or reduce this con-cern by employing institutional controls, such as restrictions onland use, to reduce the risks of exposure to remainingcontamination.

There are also several externalized effects that remain when acleanup is completed at less than the most stringent standards.First, in many instances risk-based standards provide a mecha-nism for allowing groundwater contamination to remain in place.This is problematic because science does not provide preciseknowledge of groundwater migration. Second, although environ-mental justice concerns have gained significant exposure in thepast decade, most programs using risk-based standards do notaddress those concerns; that is, risk-based standards often ignorethe fact that many poor and minority communities host aban-doned industrial sites that are being remediated to reducedcleanup standards under state brownfields programs. As such,these communities become neighbors to sites cleaned up to lesserstandards, and, due to their proximity to the site, may be at riskfor exposure to remaining contamination. Finally, the fact thatcurrent landowners can use the land now, but place restrictionson future use effectively shifts much of the true cost of remedia-tion and the reduced value of the land to future landowners andeven to future neighboring landowners.

A. A Variety of Approaches Using Risk-Based Standards

In Ohio, a landowner who volunteers to participate in thestate's brownfields program can choose to clean up the propertyto generic numeric standards, which are health-based standardsdetermined according to the human health risk of the chemical

21 See PENNSYLVANIA ENVIRONMENTAL COUNCIL REPORT, supra note 15, at 4.

or carcinogen.

However, in certain circumstances, the property

owner may instead elect to seek a property-specific risk

assess-ment in which the potential risks associated with the intended

future use of the land will help determine the applicable cleanup

standards.

Although use of a property-specific risk assessment

does not preclude the landowner from applying generic numeric

standards, and does not prevent application of those standards

following the property-specific risk assessment, the option

pro-vides an opportunity for flexibility. In some circumstances, a

property-specific risk assessment will be mandatory, rather than

elective. This is true when, for example, exposure pathways that

would accompany an intended future use present more risk than

that against which the generic numeric standards protect.

Similarly, in Colorado's program cleanup standards are based

upon actual risk to human health and the. environment according

to a set of established criteria. Prior to setting cleanup standards,

Colorado considers the present and proposed uses of the site, the

ability of contaminants to move in a way that would expose

humans and the environment to unacceptable risk, the potential

risks associated with cleanup options, and the economic and

technical feasibility of cleanup alternatives.

The Indiana brownfields law also provides for flexible cleanup

standards, which allow the owner of a contaminated parcel to

se-lect the level of cleanup desired. However, unlike in most other

states with risk-based cleanup standards, in Indiana the choice of

cleanup level directly affects the level of liability protection the

owner will receive from the state: "The more extensive the

cleanup, the more extensive the protection from future

liabil-ity."

'26

At its highest level of cleanup, Indiana provides the

vol-untary remediator with protection from future liability to public

and private claimants with respect to the release or threatened

release that was the subject of the approved voluntary

remedia-tion work plan.

Protection from liability, however, does not

ex-22 See OHIO ADMIN. CODE § 3745-300-09(B) (2000). See also Dinsmore, supra

note 18, at 40.

2 3

See OHIO ADMIN. CODE § 3745-300-09(B)(1).24

See OHIO ADMIN. CODE § 3745-300-09(B)(2).

25 See COLO. REV. STAT. ANN. § 25-16-305 (West 2000).

26 Georgette C. Poindexter, Addressing Morality in Urban Brownfield Redevelop-ment: Using Stakeholder Theory to Craft Legal Process, 15 VA. ENVTL. L.J. 37, 53

(1995).

27 IND. CODE ANN. § 13-25-5-18(a), (b) (West 2001). After the volunteer and theDepartment of Environmental Management have signed a voluntary remediation

(14)

tend to a pre-existing condition on the site that the state agencywas not aware of when it issued the certificate of completion.2 8Significantly, after the volunteer remediator and the departmenthave signed a voluntary remediation agreement, no person29 _maybring an action related to any release that is the subject of theagreement, including an administrative action, against the volun-teer remediator.3 °

Similar to other states with flexible cleanup standards, Penn-sylvania's brownfields law provides for compliance with one ormore cleanup levels which include background standards,3 1 state-wide health-based standards,3 2 and/or site-specific standards.33 If

a volunteer remediator pursues the background standards for allregulated substances, or statewide health-based standards forresidual exposure factors, the "[s]ites are rewarded with exemp-tion from deed notice requirements. . . .Consequently, subse-quent transfer[s] of remediated property [are] not subjected tothe stigma of being a formerly contaminated site."'34

Before 1994, Connecticut required that participants in thatstate's cleanup program clean contaminated sites to pristinelevels.3 5 But in its brownfields redevelopment law Connecticutadopted a more flexible system. Despite an uneasiness with theidea, the Connecticut legislature authorized the state

Depart-agreement, no person may bring an action, including an administrative action,against the volunteer or any other party acting under the agreement on behalf of thevolunteer for any cause of action related to any release or threatened release of anyhazardous substance or petroleum that is the subject of the agreement. IND. CODE

ANN. § 13-25-5-18(e).

28 IND. CODE ANN. § 13-25-5-18(c).

29 IND. CODE ANN. § 13-11-2-158(a). "Person," for purposes of environmental

management laws "means an individual, a partnership, a copartnership, a firm, acompany, a corporation, an association, a joint stock company, a trust, an estate, amunicipal corporation, a city, a school city, a town, a school town, a school district, aschool corporation, a county, any consolidated unit of government, political subdivi-sion, state agency, a contractor, or any other legal entity."

30 IND. CODE ANN. § 13-25-5-18(e).

31 PA. STAT. ANN. tit. 35, § 6026.302 (West 2000).

32 PA. STAT. ANN. tit. 35, § 6026.303.

33 PA. STAT. ANN. _{tit. 35, § 6026.304.}

34 _{R. Michael Sweeney, Brownfields Restoration and Voluntary Cleanup}Legisla-tion, 2 ENVTL. L. 101, 104 (1995).

35 See Terry J. _{Tondro, Reclaiming Brownfields to Save Greenfields: Shifting the}Environmental Risks of Acquiring and Reusing Contaminated Land, 27 CONN. L.

REV. 789, 797 (1995).

(15)

ment of Environmental Protection to institute differentiated or

flexible standards based on proposed future uses of a site.36

Massachusetts' brownfields program is similar to

Connecti-cut's, as it applies different cleanup standards to properties ac-cording to the intended future use of the land, and uses land use

restrictions, called "activity and use limitations" to control future

use.37 _{Cleanup standards for brownfields in Connecticut,}

Massa-chusetts, and Colorado, as in Ohio and many other states, now

vary depending on the landowner's intended future land

use-for residential, commercial or industrial purposes.

An important issue regarding the use of these various

risk-based cleanup standards is whether, when they allow

contamina-tion to remain on-site, these standards can sufficiently protect

fu-36 See id. at 797.

37 _{For example, the Massachusetts regulations identify sites according to current}

use and the intended future use and categorizes them accordingly. MASS. REGSCODE tit. 310 § 40.0923 (1998) provides:

The documentation of the Risk Characterization shall identify and describethe Site Activities and Uses associated with the disposal site and the sur-rounding environment...

(1) The Site Activities and Uses shall include all current and reasonablyforeseeable uses and activities occurring at the disposal site or in thesurrounding environment which could result in exposure to oil and/or hazardous material by Human or Environmental Receptors. ...

(2) The current Site Activities and Uses associated with the land itself,with structures in and on the land, and with the groundwater, surfacewater, soil, sediment or other medium which could result in exposureof Human or Environmental Receptors to oil and/or hazardous ma-terial shall be identified and described. ...

(3) The reasonably foreseeable Site Activities and Uses shall includeany possible activity or use that could occur in the future to the ex-tent that such activity or use could result in exposures to Human orEnvironmental Receptors that are greater than the exposures associ-ated with current Site Activities and Uses, except that:

(6) Examples of Site Activities and Uses associated with Human Recep-tors include, without limitation:

(a) the use of a building as an office, store or residence;

(b) the use of water as drinking water, for washing floors or water-ing lawns;

(c) the cultivation of fruits and vegetables destined for human con-sumption (e.g., gardening or farming) and the cultivation of orna-mental plants;

(d) the excavation of soil;

(e) recreational activities, such as playing baseball, swimming, fish-ing and hikfish-ing;

(16)

ture land users from harm due to exposure to remaining

contaminants. To determine the existence and degree of health

risk related to redevelopment of a property with contamination

retained on site, one must consider several factors concurrently.

The first is whether there is a toxin or hazardous substance (e.g.,

benzene from petroleum, lead, arsenic, PCBs) present in the soil,

air or groundwater at a contaminated site.

The second is

whether the contamination is present in a form and

concentra-tion that is dangerous to humans (e.g.,

5 parts per billion for

ben-zene).

_{The third is whether there is a transmission mechanism,}

or pathway, by which the substance can enter the ecosystem or

the human body (e.g., inhalation, dermal exposure, or ingestion

by drinking or through the food chain).

4 0

_{Finally, one must}

ex-amine the potential for actual contact between the human and

the hazardous material (e.g., by children, the elderly,

construc-tion workers, or tenants in a building).

_{Breaking the}

connec-tion between any two of these factors ensures safety at the site

and keeps risks low. For example, an impenetrable cap placed

over residual contamination can perform this function by

block-ing the pathway between the contamination and human contact.

Regulators and scientists often categorize risks for

carcino-genic toxins in terms of the number of cancer deaths in the

popu-lation. For example, a stringent cleanup level (less risk

remaining onsite, but more expensive to clean) would be one

cancer death in a population of one million

(10-6).42

A more

leni-ent standard (with more risk remaining on site) would be one

death in 10,000 (10-).

Despite flexibility in applicable standards, states argue that

they have adhered to standards sufficient to protect public

health, particularly from cancer risk.4 3 This is primarily because

38 See AMERICAN CHEMICAL SOCIETY, UNDERSTANDING RISK ANALYSIS-ASHORT GUIDE FOR HEALTH, SAFETY, AND ENVIRONMENTAL POLICY MAKING 7(1998) [hereinafter UNDERSTANDING RISK ANALYSIS].

3 9

See Junius C. McElveen, Jr., Risk Assessment in the Federal Government: Tryingto Understand the Process, 5 TUL. ENVTL. L. J. 45, 56 (1991).

40 See UNDERSTANDING RISK ANALYSIS, supra note 38, at 9. See also McElveen,supra note 39, at 67.

41 See Amy L. Edwards, ASTM Task Group Developing Guide on InstitutionalControls, ENVIRONMENTAL COMPLIANCE AND LITIGATION STRATEGY, Dec. 1997;

UNDERSTANDING RISK ANALYSIS, supra note 38, at 9.4 2

See UNDERSTANDING RISK ANALYSIS, supra note 38, at 8. See also McElveen,supra note 39, at 62-67.

43 See Dinsmore, supra note 18, at 40.

(17)

they have put mechanisms in place to prevent human exposure tocontaminants remaining on brownfield sites. The mechanismsvary, but as a group, are called institutional controls.

B. Protecting People from Remaining ContaminationThrough the Use of Institutional Controls4 4

To protect public health by ensuring that future land ownersand land users do not use land cleaned to an industrial standardfor residential use, reduced cleanup standards are usually accom-panied by restrictions on the future use of the land. State envi-ronmental agencies attempt to control future land use throughvarious forms of institutional controls.4 5 Institutional controlscan reduce the likelihood that contaminated land will beredeveloped to a higher use, for which risks to human healththrough exposure to remaining contamination would be greaterthan for the current use. Although institutional controls oncewere merely an interim measure used to protect people from ex-posure until a site cleanup was complete, these controls are nowused to provide long term protection from exposure, when totalsite remediation is not contemplated.4 6

Institutional controls either prohibit certain kinds of site uses,or at a minimum, notify potential owners or land users of hazard-ous substances remaining on site and of conditions that are notprotective of all uses.47 An institutional control, for example,

44 See Robert A. Simons and Heidi Gorovitz Robertson, Deed Restrictions andOther Institutional Controls as Tools to Encourage Brownfields Redevelopment, 7ENavL. L. & PRAC. 31-38 (1999).

45 See Simons and Robertson, supra note 44. See also Pendergrass, supra note 8;Larry Schnapf, Protecting Health and Safety with Institutional Controls, 14 NAT.

RE-SOURCE & ENv'T 251 (2000).

4 6 _{See Amy L. Edwards and Karis Lynn North, Institutional Controls Minimize}

Risks at Restored Brownfields, LEGAL TIMES, June 16, 1997, at S40.

47 See Laws, supra note 13. See also 40 C.F.R. § 300.430(a)(1)(iii)(D).EPA expects to use institutional controls such as water use and deed re-strictions to supplement engineering controls as appropriate for short- andlong-term management to prevent or limit exposure to hazardous sub-stances, pollutants, or contaminants. Institutional controls may be usedduring the conduct of the remedial investigation/feasibility study (RI/FS)and implementation of the remedial action and, where necessary, as a com-ponent of the completed remedy. The use of institutional controls shall notsubstitute for active response measures (e.g., treatment and/or containmentof source material, restoration of ground waters to their beneficial uses) asthe sole remedy unless such active measures are determined not to be prac-ticable, based on the balancing of trade-offs among alternatives that is con-ducted during the selection of remedy.

(18)

may include deed restrictions, restrictive covenants, use

restric-tions, water use restricrestric-tions, deed notice requirements, zoning,

permitting, access controls, special notice or recording

requiments, contractual obligations, and financial responsibility

re-quirements.

These control mechanisms are expected to render

the property safe for its intended use, despite less stringent

cleanup standards.

Institutional controls can, for example, prevent the use of

con-struction methods that could damage a contamination barrier.

They can prohibit the installation of water supply wells, the use

of pile construction, and even the digging of foundations.

Insti-tutional controls can require that a permanent cap remain on site

and that the landowner maintain it.

5°

Restrictions may also limit

the ability of landowners to sell their property. Institutional

con-trols can provide notice of remaining contamination to

subse-quent landowners, possibly increasing the likelihood that risk will

remain low over time, despite the fact that contamination

re-mains on site. The most common restrictions limit the future use

of the land, and state brownfields programs using risk-based

cleanup standards evaluate risk at a site in terms of the intended

use (post-remediation) of the land.

For example, petroleum or lead contamination remaining

under a shopping center's landscaped area would render that

site, although suitable for its current commercial use,

inappropri-ate for residential use.

_{' A parking lot that is serving as a cap or}

barrier against human exposure to remaining underground

con-tamination would be inappropriate for use as a residential site

without further cleanup."

The developer can realize substantial

cost savings by keeping the contamination on site and limiting

potential human exposure to it through institutional or

engineer-ing controls. Because residual contamination may exceed safe

levels for children playing in the dirt, a brownfields program

would likely require some form of institutional control to prevent

the property from being used for residential purposes in the

fu-ture without further remediation.

48 Id. See, e.g., ALASKA ADMIN. CODE tit. 18 § 78.995(59) (1997).

49 See Institutional Controls, 24.02[2][a] in BROWNEIELDS LAW AND PRACTICE,supra note 7.

50 Id.

51 See John Pendergrass, Sustainable Redevelopment of Brownfields: Using Insti-tutional Controls to Protect Public Health, 29 ENVTL. L. REP,. 10,243 (1999).

(19)

Less stringent cleanup standards cost less but imply importanttrade-offs. Primary among those trade-offs is the genuine con-cern regarding whether deed restrictions will suffice in the longterm to protect future land users from the contamination remain-ing at the site.3

This question, whether institutional controls can provide suffi-cient protection for humans from remaining contamination, de-pends very much on the mechanism by which the control isimposed. Institutional and engineering controls generally fallinto two broad categories, first, those that derive from propertylaw, and second, those that derive from governmental author-ity.5 4 _{The controls that lie in common law property law,}some-times called proprietary controls, are essentially contractualarrangements in deeds or other instruments of property trans-fer.5 Restrictions can generally be placed on the property onlyin conjunction with a conveyance. Therefore, it is difficult to cre-ate a restriction, at least of the proprietary form, when a cleanuphas occurred outside the context of a real estate transfer.5 6 _Theseforms of restriction also must satisfy certain formalities to beeffective.5 7

The types of restrictions that a landowner may create in con-nection with a transfer of an interest in land include restrictivecovenants, easements, reversionary interests, and equitable servi-tudes. 8 Deed restrictions, although not a term used in tradi-tional property law, are any of the above described mechanismsby which a landowner promises either to use, or not to use the

53 One danger left by deed restrictions and other institutional controls is the re-duction in the value of the property with limited future use. And the more protec-tive the measure, the more expensive, in terms of the reduction of the future valueof the land, the restriction becomes. Further, the valuable possibility of using re-stricted land for "higher" land uses creates a temptation to manipulate the adminis-trative record.

54 See Schnapf, supra note 45. See also Pendergrass, supra note 51.55 See Schnapf, supra note 45, at 252.

56 See Schnapf, supra note 45, at 252.

57 See Schnapf, supra note 45, at 252. "There must be a written instrument thatsatisfies the applicable statute of frauds, the parties must intend that the deed re-striction attach to the land, it must 'touch and concern' the land, and there must be'privity of estate."' Schnapf, supra note 45, at 252. This means, as with the otherproprietary forms of control, that deed restrictions must usually be created in con-nection with a transfer of land. For the restriction to remain attached to the prop-erty for multiple transfers, the restriction must continue to be recorded with the

deed.

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land in a certain way or for certain purposes.

5 9

_Restrictive

cove-nants, for example, are promises by landowners either to do or

not to do certain things with their land.' These are usually used

in cases with multiple landowners, such that the restrictions can

be enforced by and against one another.

' They can be used, for

example, to prevent landowners from using the groundwater

be-neath a property, drilling wells, or digging ditches. They can also

be used to require landowners to maintain a fence that protects

humans from exposure to on-site contamination.

Covenants that run with the land are enforceable against

sub-sequent owners of the same land, provided the person seeking to

enforce the restriction is entitled to the benefit of the

restric-tion.

Equitable servitudes are similar to restrictive covenants,

but are enforceable in equity rather than law.

6 3

_{This means that}

rather than collecting damages for a violation of a restriction, the

enforcer can force compliance. An obvious problem with using

servitudes to restrict land use is that they are meaningless if the

party with the right of enforcement declines or neglects to

en-force them. For example, a neighboring property owner may

have the right to enforce a land use restriction contained in a

covenant, but may choose not to do so, instead supporting a

lu-crative development. Also, if the owner of the restricted parcel

were to purchase the properties of those entitled to enforce the

restrictions, there would no longer be anyone left to enforce it.

For these reasons, it would make some sense for enforcement

authority to be held by a state agency, but in the absence of

legis-lative action to the contrary, that is not the nature of common

law-based controls. Like other proprietary controls, covenants

and servitudes must satisfy certain formalities of creation.

Restrictive covenants and equitable servitudes can be

termi-nated in several ways.

6 5

_{This may be necessary when, for}

exam-ple, a future landowner has remediated a restricted piece of

59 See Schnapf, supra note 45, at 252.

60 See ROGER A. CUNNINGHAM, ET. AL., THE LAW OF PROPERTY § 8.13 (2nd ed.

1993).

61 See Pendergrass, supra note 51, at 10,248.62 See Cunningham, supra note 60, at 468.63 See Cunningham, supra note 60, at 469.

6 4 _{See Schnapf, supra note 45, at 252. These must be created in writing, be}

in-tended to restrict the uses of the land rather than restricting a person from taking aparticular action, and the new owner must take the land with actual or constructivenotice of the restriction. See Schnapf, supra note 45, at 252.

65 See Cunningham, supra note 60, at 481.

(21)

former brownfield land such that a restriction on future land useno longer makes sense. In this situation, the court would find thatconditions have changed so much since the creation of the agree-ment that the purpose for it no longer exists. Covenants and ser-vitudes may terminate on their own terms, if, for example, theywere written only to apply for a certain number of years or incertain circumstances. A court may terminate them upon a find-ing of acquiescence, that is, that the party entitled to enforce theagreement has failed to enforce it, or agreements like it, againstother parties.6 6 Courts also will terminate these agreements, onrare occasion, upon a finding of relative hardship, when the harmthat would be caused to the defendant by enforcement outweighsthe benefit enforcement would provide to the plaintiff.6 7

Reversionary interests are another form of property law-basedcontrol that one landowner may impose on those holding otherinterests in the same land. For example, if a landowner conveys apiece of contaminated property, but retains a right of re-entry, orsome other reversionary interest, the landowner might exercisethat right and retake the property if the holder of the possessoryinterest violates restrictions or conditions contained in the con-veyance.68 Thus, if the landowner transferred the present posses-sory interest in the land with a condition that the land be used forindustrial purposes only, and retains a reversionary interest inthe land, that landowner can enforce the condition. However,several problems exist with this form of control. First, it leavesthe original landowner, and possibly that landowner's heirs, re-sponsible for enforcing the condition when that may not be a rolethose parties are willing to play. Second, the remedy for failureto abide by the applicable condition is for the estate to revert tothe holder of the reversionary interest.6 9 This party, who maywell be the heir to the original landowner, may want nothing todo with the contaminated property. The new holder of the rever-sionary interest may not be interested in the problem of remain-ing contamination. Again, enforcement authority would moreusefully be held by a state agency.

6 6

JOSEPH W. SINGER, PROPERTY LAW, RULES, POLICIES, AND PRACTICES 512 (2ded. 1997)._{6 7}

1d. See also Mary R. English and Robert B. Inerfeld, Institutional Controls forContaminated Sites: Help or Hazard?, 10 RISK: HEALTH, SAFETY & ENV'T 121, 126(1999).

68 See Pendergrass, supra note 51, at 10,248.69 See Pendergrass, supra note 51, at 10,248.

(22)

An easement is a right to use land that belongs to someone

else.

_{Easements can be attached to, and run with the land}

(easement appurtenant), or be attached to a person, corporation

or government entity (easement in gross).

7 1

_{Although either}

type of easement might be effective as an institutional control for

a brownfield, it is more likely for such easements to be "in

gross."

' 72

An easement, for example, could grant a right of access

to land, for inspection purposes, to a government entity. The

easement holder has a right to bring an enforcement action to

force the landowners to allow the easement holder to take the

action allowed through the easement-usually entry under a

right of way.

_{As with some other proprietary controls, this}

places great responsibility on the easement holder, either a

per-son or an institution, to exercise its rights under the easement to

protect people from contamination.

Some state brownfields laws have easements, created by

stat-ute, which allow the state environmental agency to enter and

in-spect the property to enforce the terms upon which a Covenant

Not to Sue, or No Further Action letter was issued.74 _Other

states require the landowner to transfer an easement to the state

agency, for the purposes of inspection and enforcement, during

the course of settlement negotiations. It is early to predict how

well state agencies will do with the authority their states have

given them to enforce these statutory modifications on common

law land use restrictions. However, the idea of enforcing land

use restrictions is new to state environmental agencies, and the

restrictions become weak if the agencies neglect or choose not to

engage in this traditionally private matter. As a practical matter,

environmental agencies do not generally have mechanisms in

place to enforce land use restrictions. And, if and when they do

have mechanisms in place, they may not choose to make the

im-plementation of those mechanisms a priority.

Because these property law based restrictions are generally

de-pendant on a real estate transfer,

some states have statutorily

created systems whereby, in the absence of a transfer, the

pro-70 See Cunningham, supra note 60, at 436-37.71 See Cunningham, supra note 60, at 441.72 See Pendergrass, supra note 51, at 10,250-51.

73 _{See Cunningham, supra note 60, at 436-41. See also Schnapf supra note 45, at}

252.

74 _{See Schnapf, supra note 45, at 253.}75 See Pendergrass, supra note 51, at 10,249.

(23)

gram participant would unilaterally record the required restric-tion with the deed.76 In fact, some states use restrictions that aresimilar to the property law based forms of land use control, butthat are based in statute rather than common law. For example,in addition to its "activity and use limitations," Massachusetts hascreated statutory easements that are exempt from the commonlaw limitations that would limit the effectiveness of their com-mon law counterparts.7 7 In Arizona, when a soil cleanup doesnot satisfy a residential use standard, the statute requires that an''environmental mitigation use restriction" be recorded in theproperty records.78 Michigan, Ohio, and California have statuto-rily created various forms of restrictive covenants that run withthe land.79

Connecticut, which has created "environmental land use re-strictions" that run with the land, has also provided a statutoryback-up plan.8" If a court finds that the statutory restrictions areunenforceable, the statute provides that the landowner mustabate the remaining pollution to standards acceptable for resi-dential or recreational uses.8 1 In New Hampshire, remediatedbrownfield sites must maintain a record of any use restrictionplaced on the property, those use restrictions must run with theland, and if they are violated, the site's release from liability tothe state is voidable.82 Further, New Hampshire has made somestatutory changes in brownfield restrictions that remove somecommon law limitations. Specifically, New Hampshire has legis-lated that the traditional property law rule against perpetuitiesand rules against unreasonable restraints on alienation do not ap-ply to these restrictions.8 3 Without these statutory modifications,the common law property rules would make it difficult, if notimpossible, to enforce some restrictions over the long term.

Be-76 See Pendergrass, supra note 51, at 10,249.77 _{See English and Inerfeld, supra note 67, at 131.}

78 See Pendergrass, supra note 51, at 10,249, citing ARIZ. REV. STAT. § 49-152B(1997).

79 _{See English and Inerfeld, supra note 67, at 131 (citing Susan C. Borinsky, The}Use of Institutional Controls in Superfund and Similar State Laws, 7 FORDHAMENVW'L L.J. 1 (1995)).

80 See Pendergrass, supra note 51, at 10,249, citing CorN. GEN. STAT. § 22a-133a-133k(a)(3) (1995).

81 See English and Inerfeld, supra note 67, at 131.

82 See Pendergrass, supra note 51, at 10,250, citing N.H. REV. STAT. ANN. § 147-B-F:6 (1996).

83 See Pendergrass, supra note 51, at 10,250, citing N.H. REV. STAT. ANN. § 147-B-F:6 VI(b)(c) (1996).

Legislative Innovation in State Brownfields Redevelopment Programs (2025)

FAQs

What did the brownfields legislation pass to protect? ›

Brownfields are defined as, "A former industrial or commercial site where future use is affected by real or perceived environmental contamination." The Brownfields Law amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) by providing funds to assess and clean up ...

What is the brownfield redevelopment designed to do? ›

EPA's Brownfields Program is designed to empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields.

Learn More ›

What are the benefits of redevelopment of brownfields? ›

When owners or developers clean up brownfields and put them to new uses, many people benefit. Cleanups address environmental problems. Redevelopment can bring new jobs and higher tax revenues. Revitalized brownfields can breathe new life into neighborhoods.

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What are two ways brownfields can be redeveloped? ›

Brownfields can be redeveloped by private developers, local governments or through public-private partnerships. Opportunity and risk are inherent in every real estate transaction. Developers must invest their resources to evaluate whether the development opportunity outweighs the risk.

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What are the two major provisions of the brownfields Revitalization Act? ›

What are the two major provisions of the Brownfields Revitalization Act? Provide incentives for the purchase and revitalization of brownfield and making the innocent landowner defense more feasible.

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What is the purpose of the brownfields legislation that became law in 2002? ›

Small Business Liability Relief and Brownfields Revitalization Act. This 2002 act amended the Comprehensive Environmental Response, Compensation and Liability Act by providing funds to assess and clean up brownfields, clarifying liability protections and providing funds to enhance State and Tribal Response Programs.

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Why are many developers reluctant to redevelop brownfield areas? ›

Brownfield sites can be derelict and even dangerous and potential developers and investors are often hesitant to purchase these sites. While the land is typically cheaper than greenfield sites, there may be significant redevelopment costs and time delays in construction.

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Why do cities want to redevelop brownfields? ›

Redeveloping brownfields in infill locations can transform abandoned or underused sites into community and economic assets and help preserve natural lands.

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What is the remediation of brownfields brownfield redevelopment? ›

Brownfield remediation is the removal or sealing off of that contaminant so that a site may be used again without health concerns. There are hundreds of thousands of brownfields in the United States, including many prime downtown and waterfront properties.

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What are the disadvantages of brownfield development? ›

Disadvantages of a Brownfield Investment

The facility may be old and, therefore, require high maintenance and upkeep cost. There may be operational inefficiencies if the facility cannot be adapted to new production needs. There may be scalability and expansion issues related to using already constructed facilities.

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Why is it challenging to redevelop brownfields? ›

Brownfield properties are challenging to redevelop because, when active, they might have been home to businesses and industries that used chemicals harmful to human health and the environment.

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What is the biggest advantage of redevelopment? ›

Increases Appreciation

Naturally, redeveloping a property will raise the likelihood of increased value in the asset. And, the subject property isn't the only one to benefit from an increase in value and demand.

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What are the criticisms of the brownfields program? ›

Furthermore, the brownfields legislation lacks legal liability controls to compel polluters to rehabilitate their properties. Without legal recourse, many brownfields sites remain unused and contaminated, posing a continued risk to public health.

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What is the difference between a Superfund program and a brownfields development? ›

Currently, there are over 500 Superfund NPL sites that are either being reused or are already in a protective state for future reuse. On the other hand, Brownfield sites refer to properties that may have potential environmental contaminants but can be reused or redeveloped with proper cleanup and management.

What is an example of the redevelopment of a brownfield? ›

Brownfields can—and should—be redeveloped. These properties can be utilized for a wide variety of purposes. They have, for example, been successfully turned into retail sites, office parks, schools, parks, and housing developments.

What is the purpose of the brownfields legislation that became law in 2002 quizlet? ›

What is the purpose of the Brownfields Law enacted in 2002? It distributes funds to clean up polluted industrial sites so they can be restored to productive use.

What is the brownfields Revitalization Act of 2001? ›

Title II: Brownfields Revitalization and Environmental Restoration - Brownfields Revitalization and Environmental Restoration Act of 2001 - Subtitle A: Brownfields Revitalization Funding - Amends CERCLA to provide for grants to eligible entities (including local government units, redevelopment agencies, States, and ...

What role does the brownfields law play? ›

The main role of the Brownfields Law is to provide a framework for the assessment and cleanup of brownfield sites, which are abandoned, idled, or underutilized properties where the expansion, redevelopment, or reuse may be complicated by the presence or potential presence of hazardous substances, pollutants, or ...

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What is the brownfield Amendment? ›

The Brownfield Revitalization Amendment Act (Brownfield Act) was passed by the Council of the District of Columbia in 2000 and provides the District government with tools to address hazardous substance releases via regulatory processes and voluntary cleanup of contaminated properties.