Brownfields dilemma.

• Author: Cavanagh, Sean
• Position: Cleanup of polluted sites - Includes related article

A VOLUNTARY OPTION

The paradox of the Superfund law is that it aggravates the problem that it's supposed to cure. So states are attempting new and better ways to clean up polluted sites.

One of the great ironies of hazardous waste cleanup in this country is how a law devoted to cleaning up contaminated land could actually prevent it from occurring.

The scenario unfolds this way: An inner city business - large or small, industrial or commercial - shuts down one day. It may have gone bankrupt or its management may have decided that they would profit by moving to another location, even though the site has served them well for a number of years.

Now the owners would like to sell the property, but what if it is contaminated? They dread being subjected to a rigorous state environmental audit. They've heard stories of how even the smallest amount of contamination can result in a lengthy, expensive cleanup. And they don't really know what pollution may have been produced in the everyday operations of the business that used the site before them. They hire a private consultant to test the soil and groundwater.

The consultant finds a small amount of contamination in a number of isolated areas. Although the landowners aren't sure what threat the site poses to human health, its pollutants exceed the state's cleanup standards. They now know that their property is a prime candidate for state-enforced cleanup. Fearing that costs will exceed profits from selling the property, they choose the simplest and most cost-effective option: They abandon the site.

Purchasing this land is no more appealing than selling it. Developers don't want property that needs expensive cleanup. Lenders won't risk a venture that could make them liable.

Without a seller or a market, the property sits unused. It's a threat to nearby residents because of its gradual decay and the possibility that it harbors hazardous substances. The property might end up in a bankruptcy court or be left to the city to swallow financially through foreclosure. A "brownfield" is born.

Assuming the original property owners stay in business, they'll probably build a new facility in an undeveloped area. Outlying suburbs are eager for the economic boost any business brings. As this pattern repeats itself with other property owners, the urban center loses jobs and its tax base while the suburbs prosper and sprawl. The city expands while its center empties and decays.

WHERE DID WE GO WRONG?

This scenario is only one way a site may be abandoned. It does reveal, however, how the performance and influence of the federal Superfund law makes it easier and cheaper for owners to abandon property than to clean it up.

The late 1970s brought a number of environmental disasters, most notably the toxic chemical crisis in the Love Canal community of Niagara Falls. In response to public fears and the general sense that these events were indicative of a much larger hazardous waste problem nationwide, Congress passed the 1980 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) commonly known as Superfund.

Superfund provides federal money for the cleanup of toxic waste sites when "responsible parties" (those identified as being legally responsible for contamination) cannot be found or are unable or unwilling to pay. The law seeks to force polluters to pay for cleanup whenever possible. It pursues this goal through a strict liability scheme which, in theory, removes the financial burden from the government (and the taxpayer) and places it on the polluter.

Super fund holds a variety of parties liable for cleanup, even if they haven't actually polluted a property. Previous landowners and operators and people associated with the treatment, disposal or transportation of wastes at a site are all entangled in the law's web.

Superfund liability is also "strict, joint, several and retroactive." Strict liability assigns responsibility regardless of an individual's careful and thorough management of the waste; joint and several liability means that one party can be held liable for the entire cleanup cost at a site, regardless of the extent of his pollution and the actions of others; and retroactive liability allows...