Brownfields for beginners.

• Author: Wells, Robert W., Jr.
• Position: Contaminated sites

The headlines read: "Breathing New Life into `Brownfields;' Incentives Lure Firms to Contaminated Sites."(2) "Polluted Sites Gain Counties' Interest; U.S. Funds Sought for Urban Renewal."(3) "Brownfields move to top business priority."(4) Many more similar headlines have appeared recently. The editorials urge that "Brownfields redevelopment should be limited to blighted urban areas in economically depressed neighborhoods that would otherwise not get cleaned up."(5) This year we may see a Brownfields law in Florida.(6) What does it mean? What is at stake? What are Brownfields anyway?

What Are Brownfields?

Brownfields are abandoned, idled, or under-used industrial or commercial sites that are not being expaned or developed because of real or perceived environmental contamination.(7) Drive down any commercial street in any Florida city that was developed in the 1950s and you will see Brownfields sites. They include the abandoned corner gas station, the old automobile repair shop, the abandoned drycleaning facility, the old ice house, and similar type properties. Some of these properties are located in areas where commercial redevelopment is already occurring. Many of these properties, however, are located in poorer neighborhoods that have been bypassed by commercial redevelopment, and thus stand little or no chance of redevelopment in the near future. Just because a site is abandoned, however, does not make it a Brownfield. Coupled with the site's abandonment is the existence of environmental contamination in the soil or groundwater, or the perceived stigma of environmental contamination associated with the site or neighborhood.

Brownfields sites, however, are not too contaminated. Brownfields sites are hazardous substance-contaminated sites that are not on the National Priority List (NPL).(8) The NPL is a listing of the most contaminated sites that pose a danger to public health or the environment.(9) Even if a contaminated property is not on the NPL, developers are reluctant to select it. They fear CERCLA liability(10) and state and local governmental red tape concerning cleanup. Additionally, developers fear that lenders will be unwilling to finance projects involving such property. Finally, developers fear the potential liability to third parties who may claim to be injured by the contamination on the property.

Why Are Brownfields Important?

Brownfields are important, first because pollution accidents will continue to happen. No matter how careful an owner or an operator of an industrial or commercial facility is, the possibility exists that a leak or discharge of a hazardous substance can occur, thus resulting in environmental contamination of the soil or groundwater at the facility. No matter how careful an operator is and no matter how much regulation is imposed, for example, double wall tanks for petroleum underground storage tank systems, accidental spills and discharges will happen. It is just a matter of time. Thus, it makes sense to locate new industrial or commercial facilities that store or handle hazardous substances at locations that already have existing environmental contamination. Brownfields are also important because they put property back on the tax rolls in a useful, productive way and foster job creation at what would otherwise continue as neglected and abandoned property.

When a developer looks at contaminated land, however, the vision is not one of opportunity. The problems inherent in selecting a location that is contaminated have been insurmountable. These problems include unlimited liability for contamination cleanup, expensive due diligence, inability to obtain standard bank financing, a more complex transaction with complicated indemnity clauses, restrictions by local government on the ability to obtain building permits, and bureaucratic red tape. The best course of action for a developer, therefore, has been simple: If a property is contaminated, avoid it at any cost. Pick an uncontaminated virgin site for development. Thus, Greenfields (uncontaminated pristine locations) are selected over Brownfields, and when an accident happens, it harms previously uncontaminated land. Furthermore, old abandoned sites remain neglected and a blight on the neighborhood where they are located. The Brownfields initiatives are trying to break this pattern. The Brownfields initiatives are efforts to induce developers to use and redevelop Brownfields rather than develop on Greenfields.

Brownfields Action Agenda

On January 25, 1995, EPA Administrator Carol Browner announced the Brownfields Action Agenda.(11) The Brownfields Action Agenda includes four initiatives. First, the establishment of Brownfields pilot projects funded at up to $200,000 each to test redevelopment methods and the removal of regulatory barriers without sacrificing protectiveness of human health and the environment. Second, clarification of liability and cleanup issues so that prospective purchasers, lenders, property owners and operators can be free from EPA's enforcement activities, as long as there is an involvement in cleanup and redevelopment. Third, partnerships and outreach, which includes states, cities, and community representatives promoting public participation and community involvement in decisionmaking concerning Brownfields redevelopment. Finally, job development and training through environmental education ensuring the recruitment of students from socioeconomically disadvantage communities and allowing local residents an opportunity to qualify for jobs developed as a result of Brownfields efforts.(12)

* Pilot Projects

There are now 78 EPA Brownfields pilot projects. Of these, 39 are "regional" projects sponsored by EPA regional offices. Two EPA regional pilot projects are located in Florida: Clearwater and Miami.(13) In...