Review of Legal Resources

• Publication year: 2002
• Pages: 89
• Citation: Vol. 31 No. 7 Pg. 89

31 Colo.Law. 89 Colorado Lawyer 2002.

2002, July, Pg. 89. Review of Legal Resources

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89

Vol. 31, No. 7, Pg. 89

The Colorado Lawyer
July 2002
Vol. 31, No. 7 [Page 89]

Departments
Review of Legal Resources
Review of Legal Resources

This department is published to apprise attorneys of legal resources that may be of interest to them. Readers wishing to make review suggestions, provide review copies, or write reviews should contact the Editorial Office of The Colorado Lawyer, 1900 Grant St., Suite 900, Denver, CO 80203; (303) 860-1118. Review of Legal Resources is prepared by the journal's Book Review Committee, chaired by Allen Sparkman, (303) 820-0833, in Denver. For information on the materials reviewed or to obtain a copy, please contact the publisher directly

BROWNFIELDS: A COMPREHENSIVE GUIDE TO
REDEVELOPING CONTAMINATED PROPERTY,
2nd EDITION

By Todd Davis, ed. (Chicago, IL: ABA Section of Environment Energy and Resources, 2002) [ABA, 750 N. Lake Shore Dr Chicago, IL 60611, (312) 988-5000], 1,022 pp.; $164.95 ($149.95 for Section members).

Reviewed by Scott H. Reisch

A partner with Hogan & Hartson LLP, Denver. Reisch is an environmental lawyer, specializing in brownfields transactions.

In Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property ("Brownfields Guide II"), editor Todd Davis offers a second edition of his soup-to-nuts guide to purchasing and redeveloping brownfields - abandoned or underused properties where expansion or redevelopment is complicated by real or perceived environmental contamination. The publication of Brownfields Guide II is timely, as Congress recently passed the Small Business Liability Relief and Brownfields Revitalization Act ("Brownfields Amendments"), which attempts to promote brownfields redevelopment through a combination of liability reforms and additional federal funding.1 Five years after publication of the first edition of this book, brownfields redevelopment remains a hot issue in Colorado, where over 300 properties have benefited from the state's brownfields programs.

Like the first edition, Brownfields Guide II is organized into separate chapters, each authored by a different brownfields expert. Each chapter focuses on a major issue that arises in a brownfields transaction or on a particular state's brownfields program. Thus, Brownfields Guide II offers separate chapters on legal, valuation, financing, tax, insurance, community relations, and scientific issues; forty-seven chapters on state brownfields programs; and, in some cases, offers multiple chapters on the same topic, analyzed from different perspectives. The breadth of issues covered is impressive, and, for the most part, each of the chapters is well-written and well-footnoted. Brownfields Guide II even provides a helpful analysis of the new Brownfields Amendments, which had been passed by Congress, but not yet signed by President Bush, when the book went to press.

Brownfields Guide II now features new chapters on environmental insurance and community relations, reflecting the growing importance of those issues. The new chapter, entitled "Environmental Insurance in Brownfield Transactions: Issues and Answers," is particularly useful because it walks through and analyzes the key provisions of a "typical" environmental insurance policy. Unlike the first edition, Brownfields Guide II contains an index, which makes it easy to locate information on issues that arise in a number of different contexts.

Although keeping this compendium up-to-date is likely to be a logistical nightmare, it appears that many of the articles from the first edition have been revised only slightly. Because this area of the law is so fluid, it would be helpful in future editions if the reader were given some idea as to the month and year in which each author completed his or her work.

The Colorado chapter of Brownfields Guide II is almost identical to the Colorado chapter contained in the first edition. As in the first edition, the Colorado chapter adequately describes Colorado's Voluntary Cleanup and Redevelopment Act ("VCUP Statute"),2 but ignores other provisions of state law that impact brownfields redevelopment in Colorado.3 For example, the author correctly states that the VCUP Statute does not offer financial incentives, tax abatement, or low-interest loans for the cleanup of contaminated properties, but fails to note that these incentives are available under other provisions of Colorado law.4 Moreover, the Colorado chapter does not address Colorado's new environmental covenant statute, which in some contexts will make it easier for landowners to leave residual contamination in place, based on enforceable restrictions on the future uses of the contaminated property.5 While the Colorado chapter appropriately focuses on the VCUP Statute, it would have been helpful if the Colorado chapter had addressed approaches the Colorado Department of Public Health and the Environment ("CDPHE") uses to promote brownfields redevelopment when the VCUP Statute does not apply.6

In addition, it might have helped Colorado lawyers put things in perspective if the Colorado chapter had addressed some of the practical issues that have arisen as CDPHE has gained experience implementing the VCUP Statute. Instead, the Colorado chapter describes the VCUP Statute, but offers little insight into how it has been applied in practice.7

Finally, the Colorado chapter, like the other state chapters, inexplicably fails to provide any citations to materials available on the Internet. CDPHE's website now includes a "how-to" guide to voluntary cleanups in Colorado, tables listing the status of each site for which an application to participate in the state's voluntary cleanup program has been filed, fact sheets on financial incentives for brownfields redevelopment in Colorado, and program guidelines for the Colorado Brownfields Revolving Loan Fund.8 These materials are critical to an understanding of how voluntary cleanups are done in Colorado.

Because of these limitations and because brownfields laws and practices continue to evolve, Brownfields Guide II is best used as a starting point for further analysis. This is particularly true in light of the recent Brownfields Amendments, which will no doubt generate EPA guidance documents, court decisions, and changes to insurance policies. In addition, some states likely will make changes to their existing brownfields programs to take advantage of the Brownfields Amendments' new federal funding and federal deferral provisions. Notwithstanding these upcoming changes, Brownfields Guide II will be a handy reference for experienced practitioners, for lawyers who only occasionally deal with brownfields issues, and for those with national practices who need a quick introduction to the laws in other states.

NOTES

1. Pub. Law 107-118, to be codified at 42 U.S.C. §§ 9601, 9604, 9605, 9607, and 9622(g). For the text of the new statute, see http://thomas. loc.gov and enter H.R. 2869.

2. Key provisions of the new statute are analyzed in Reisch, "The Brownfields Amendments: New Opportunities, New Challenges - Part I," 31 The Colorado Lawyer 99 (June 2002); Part II will be published in the August 2002 issue.

3. CRS §§ 25-16-301 to -310.

4. See Reisch, " Review of Legal Resources," 27 The Colorado Lawyer 69 (July 1998) for a review of the first edition of this book, noting the absence of any discussion of Colorado's unique lender liability law: CRS §13-20-703.

5. CRS §§ 25-16-306(b) and 39-22-526 (establishing brownfields tax credit effective, January 1, 2001); see www.cdphe.state.co.us/hm/bftax howto.asp (providing links to information regarding the tax credit and loan fund, including loan fund program guidelines and application).

6. CRS §§ 25-15-101 and -317 to -327.

7. Hazardous Materials and Waste Management Division, CDPHE, Voluntary Clean-up Roadmap: A How-To-Guide (Oct. 2001); www.cdphe. state.co.us/hm/rpvoluntarycleanup.asp.

8. Id. (providing practical insights into CDPHE's approaches to risk assessment, analytical...