|From:||Keith Welks <KWelks@compuserve.com>|
|Date:||Wed, 5 May 1999 17:29:03 -0700 (PDT)|
|Subject:||Re: Definition, VCPs, and Brownfields|
The not-so-old saw that brownfields are different things to different people never rings truer than when one stumbles into the quagmire of trying to define them. Agreeing at the outset that there is certainly more than one true path through this, let me presumptuously add the following. Confusion abounds, I believe, because many want to identify an already existing, all-purpose single definition for brownfields. To the extent that this effort imagines a recognized and "official" definition of the term, such as exists in CERCLA for hazardous substances or RCRA for hazardous wastes, it is doomed to failure. To this point, "brownfield" lacks specific legislative content (although I know of none, there may be a state statute which actually utilizes the term; if so, this is a minority approach). It is much more a term understood by its connotations, and in this regard I think the EPA attempt is actually a pretty good functional definition. To me, a brownfield is ANY site where contamination from prior activity -- or where the threat of such contamination -- makes expanded or enhanced use of the site more difficult because of concerns about the cleanup liability. From a conceptual standpoint, neither the source of the contamination (substances within or without CERCLA's jurisdiction, RCRA corrective action complications, etc.) nor the extent of the contamination (NPL-worthy or not, coverage by a state VCP) should make much difference: if anxiety about cleanup liability discourages present or prospective owners from committing resources to a site, then it is a brownfield. All would indeed be well with the world if every site which met this simple functional EPA definition were treated in the same way with regard to contamination and redevelopment. Unfortunately, EPA recognizes a number of exceptions to the defintion, and it is these exceptions which add greatly to the confusion. The important thing here, however, is to recognize that falling within an "exception" to the apparently all encompassing EPA definition (e.g., not sites with petroleum contamination, not sites on the NPL) does not mean that a site is not in fact a brownfield. Nor are contaminated sites which fall outside state VCP definitions not brownfields ("If you prick me (like with an auger), do I not bleed (like spurt contaminated groundwater)?"). These sites very clearly are brownfields in any real sense of the concept. Just ask a developer if a contaminated former refinery site is any less terrifying from a liability standpoint merely because it is excluded from the local brownfield pilot program. The exclusion simply means, working again at the purely functional level, that these sites are not eligible to take advantage of the regulatory processes, incentives or programs that the various agencies may have created to encourage brownfield reuse. Each exclusion has its own basis, some more defensible than others. The petroleum exclusion applicable to the EPA pilot projects flows (ouch!) from the exception in the Section 9601 definition of hazardous substances in CERCLA, as Lenny Siegel has already noted. I think that the NPL exception is policy-driven; that is, EPA believes that NPL sites are heavily contaminated and should follow the more rigorous CERCLA investigation and remediation track. Most states take a similar approach to NPL sites for the same reason, and also because they expect EPA will take the lead on any NPL site cleanup activities and therefore it makes little sense to involve the local program. These exclusions are obviously not insignificant. Denial of access to streamlined programs and financial incentives can have significant consequences. Nonetheless, exclusion from programs purportedly crafted for brownfields does not mean that a site is not itself a brownfield. Nor does it mean that the site does not present exactly the same challenges to cleanup and reuse as does a more "accepted" brownfield. One final point: although I am loath to disagree with my mentor and esteemed colleague Professor Meyer (and will no doubt come to regret my temerity), I do not believe the Pennsylvania program provides liability protection for sites without contamination, or with contamination below the maxiumum contamination concentrations allowed under the regulations. DEP's official position is that it is administering a cleanup program, not a certifi cation program. It claims that it will not review final reports which deal with sites where no remediation was required or conducted; that is, it will not formally confirm that a site is "clean" (whatever that may mean) unless the site was "unclean" to start with, and something was done to address this condition. Since Act 2 generally sets its acceptable risk standards above background levels, this means that "beigefields" cannot get regulatory imprimatur and some stigma or perceived fear may remain, discouraging redevelopment. An interesting, and I think technically open, question is whether a remediator can artificially procure some state review and signoff by doing a cleanup of "low" contamination levels when none was literally required under the law.
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