Congressional efforts to reauthorize and reform the federal Superfund program have provided the context for ongoing discussion of brownfield cleanup and redevelopment. Because of the relationship between brownfields and the Superfund program, and the key issue of liability in particular, it is likely that brownfields legislation will face fewer obstacles as part of a successful congressional effort in moving and passing a Superfund bill than if free-standing brownfields legislation is pursued independent of Superfund. Toward that end, the brownfields issue enjoys bipartisan support in Congress, perhaps because it represents to many a viable marriage of efforts to promote both environmental protection and economic development. Federal brownfields legislative proposals, for the most part, have focused on setting standards for state brownfields programs, providing funding in the form of grants or loans to facilitate assessment or cleanup of brownfields, proscribing limits to lender liability, and offering additional financial assistance tools available to the public- and private-sectors to boost cleanup and redevelopment efforts.
Nevertheless, serious consideration of brownfields legislation likely will occur only after the congressional committees having jurisdiction over Superfund reauthorization resolve some of the following major reform issues.
Superfund's current liability scheme provides for strict, joint, and several liability for parties responsible for a cleanup. Critics of this liability standard hold that it is unfair, especially to small businesses and de minimus contributors to hazardous waste sites, but also to companies that disposed of waste legally prior to the 1980 passage of Superfund. Their objectives are to repeal retroactive liability entirely; exempt de minimus, small business, and municipal contributors from cleanup actions; and allocate costs among responsible parties according to amount of hazardous materials they contributed to a site.
Supporters of the current system argue that Superfund's liability framework offers several advantages because it: requires those responsible for hazardous waste discharges to remediate them; acts as an incentive for companies to handle hazardous materials properly and safely in order to avoid accidents and releases; and protects human health and the environment. Perhaps most importantly, however, is the fear among supporters that, were retroactive liability repealed, state and local government and taxpayers would be required to find the funding for cleanups. According to U.S. EPA, more than 75 percent of all cleanups are being conducted by responsible private parties, who have committed more than $10 billion. The National Governors' Association, the National League of Cities, the U.S. Conference of Mayors, the Association of Attorneys General, and the Association of State and Territorial Waste Management Officials are among those supporting retroactive liability in Superfund.
In an attempt to curtail burdens to small businesses but to preserve Superfund's incentives, some experts and members of Congress have proposed a partial repeal of the current liability framework. Partial repeal could evolve into some type of a system where truly responsible parties would remain liable for cleanups; strict, joint, and several liability is retained; mediation would be used to expedite cleanups; municipalities and other de minimus contributors to a site would be offered expedited settlements and caps on liabilities; and many small business interests would be removed from the system altogether.
As discussed earlier, the current liability system also is blamed for the underutilization or abandonment of former industrial sites, since liability extends to both current and past owners. Superfund's critics say the brownfields problem could be resolved by offering prospective purchasers of brownfields full protection from liability for pollution found at the site. Currently, they argue, such prospective purchasers and other developers generally choose to develop greenfield locations, where the threat of contamination is drastically reduced or non-existent. Proponents of the Superfund liability system, however, contend the law acts ultimately as a regulatory hammer, and thus encourages parties to participate in state voluntary cleanup programs.
In this era of defederalization, many Superfund critics advocate increasing state responsibility for implementing cleanup programs. To date, every state but Nebraska has its own Superfund program that meets or exceeds federal standards. A May 1995 estimate by the Clinton Administration and states themselves showed that only about 20-25 states would be staffed suitably and willing to accept full authority and oversight for cleanups. This estimate is important in the context of brownfields cleanup efforts because it suggests that only about half the states have created a climate conducive to these types of efforts. Among the elements critical to a state's ability to foster interest and support for brownfields cleanup and redevelopment are adequate resources and staffing to run the program, financial assurances available in the event that the state is compelled to complete cleanups or other obligations, and a track record suggesting success in bringing private parties into the program to undertake cleanup actions. This framework, in turn, buttresses the ability of local government to demonstrate an attractive context in which business can invest cleanup and redevelopment dollars. Not surprisingly, it is usually the states most experienced in running successful Superfund programs that also have the most advanced brownfields cleanup and redevelopment programs.
As discussed earlier, the Superfund program often is criticized for slowing down cleanups due to overlapping authority by state and federal agencies. While states currently oversee and manage cleanups at the vast majority of sites, the federal government retains the "final say" on whether cleanups are complete or satisfactory. (Washington, of course, also maintains access to the Superfund Trust Fund.) Critics argue that states taking the lead on designing cleanups, selecting remedies, and overseeing projects often are penalized by the federal government, which can step in at any point and seek to reopen a particular case.
"How clean is clean enough?" is a question asked by all stakeholders in Superfund reform, and one with many answers. Critics assert that EPA requires that sites be cleaned to unrealistically pristine levels, which takes too long and costs too much, especially given the historically industrial use of many of these sites. According to EPA, however, the types of cleanups accomplished at Superfund sites to date are split relatively evenly among the broad categories of cleanup standards: industrial (34 percent); commercial (24 percent); recreational or agricultural (16 percent); and residential (26 percent).
Congress will consider several approaches to reducing the time, cost, and controversy associated with the current process of selecting remedies for sites, especially for those sites burdened with only mild contamination. A proposal by Rep. Michael Oxley (R-OH), chairman of the House Subcommittee on Commerce, Trade, and Hazardous Materials, would eliminate CERCLA §121's focus on the preference for cleanups that are permanent in nature and involve treatment, rather than containment or other approaches that would control exposure to hazardous waste. Rep. Oxley's proposal would direct EPA to "consider all options for addressing contamination at a site, including containment, treatment, institutional controls, natural attenuation, or a combination of these alternatives." In addition, the bill would place a greater emphasis on remedy selections based on the reasonableness of the cost, weighed against the incremental increase realized in protecting human health and the environment.
Rep. Oxley's approach, again, reflects the assertion by some states that federal regulators sometimes are insensitive to the costs associated with remedy selections. It also would allow EPA to establish generic or presumptive cleanup remedies, a move intended to save time and money; this step, however, would require an understanding of site-specific circumstances, no matter how "typical" the contamination scenario seems. Sites with underground storage tanks, which characterize many brownfields, are thought to be candidates for generic or presumptive remedies. Some experts, however, predict that the cost savings anticipated from pursuing this approach will not necessarily materialize, given the public's inherent mistrust of off-the-shelf remedies selected for sites affecting them.
Below are some of the other legislative proposals introduced in the 104th Congress.
Tax Credit Portion of H.R. 1799:
Tax-Exempt Bond Financing Portion of H.R. 1799:
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