1999 CPEO Brownfields List Archive

From: Keith Welks <KWelks@compuserve.com>
Date: Wed, 5 May 1999 17:29:03 -0700 (PDT)
Reply: cpeo-brownfields
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

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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