Re: Definition, VCPs, and Brownfields

[TommeY@aol.com]

(I apologize in advance for the length of this e-mail.  I am frequently out 
of the country on business, and unable to regularly collect e-mail.  This 
means that when I do, I receive a large quantity, and write voluminous 
responses.  If anyone has the time or inclination to wade through it, 
however, I would appreciate comments or criticisms, as an aid to my 
understanding...)
	I'm probably jumping into this discussion at a point when everyone 
else is tired of flogging the expiring horse, but I wanted to lay out my 
concept of these questions, to find out if I am on the right track.  
	As far as I have been able to determine, despite its frequent use in 
legislative and administrative circles, there is nothing to indicate that 
"brownfields" is a "term of art" from a legal perspective (that is a term 
which has a definite legal meaning, at least when used in laws, court 
decisions, and other repositories of lawyerly discourse).  
	Rather, it appears to have been a term that "caught on" because it 
made sense.  As it stands at present, the term has an apparent general 
definition (I doubt if its in the dictionary yet) that accords with the 
definitions given by Bruce Klafter, Peter Mayer and other contributors to 
this dialog -- a property on which some type of hazardous contamination (or 
possibly the taint of a known former contamination problem) exists, which 
inhibits (or would inhibit?) potential developers or other users from making 
use of this property (or considering it for development or reuse).  
	The issue is clouded by the fact that the term started garnering 
significant attention only after the various federal and state brownfields 
programs began to appear.  Each of these programs contains a "brownfields 
definition;" however, in my view each of these is not so much a definition of 
the term, as a definition of the limits of the particular program or 
legislation in which the definition appears.  Thus, federal brownfields 
program doesn't apply to all brownfields, only to those brownfields within 
the program's particular "definition" -- i.e., only to those brownfields that 
are not already being addressed under other federal laws (the NCP, RCRA 
corrective orders, etc.) among other things.   In many states, brownfields 
legislation is more extensive in coverage (addressing a wider range of 
brownfields.)
	Recalling the environmental transactional hysteria of the last 
decade, and the many occasions in which a very minor enviromental issue 
(remember spray-on asbestos ceiling material?) could cause a major ruckus in 
an otherwise orderly transaction, I suspect that the general definition of 
"brownfields" could eventually be much broader than the discussion up to now 
suggests.
	My first recollections of the use of the term involved the 
juxtaposition of "brownfields" and "greenfields."  These discussions first 
appeared well before anyone had actually adopted any programs, legislative or 
regulatory, using either term.  The basic statement about brownfields at that 
time was that programs for the rehabilitation of brownfields could help to 
save the remaining greenfields in their more-or-less pristine condition.  
These statements  seem to indicate that, at least at its inception, the term 
"brownfields" was part of a set of terms by which you could divide all 
properties into two groups -- greenfields (clean, untainted property), and 
everything else.  
	This history accords with the Klafter and Mayer (and other) 
definitions and also Emery Graham's excellent point -- that many sites that 
are not considered "hazardous substance contamination sites" under any 
statutory definition appear to be considered "brownfields," at least for some 
purposes.  

	All of the foregoing leads (if you have an extremely free-associating 
mind) to the question which is being joined with the definitional issue -- 
the concept of intent.  Here I would begin by pointing out that "intent" IS a 
legal term-of-art, with a very specific (if sometimes unfathomable) legal 
meaning.  
	A second critical point about intent is that it is not very relevant 
in this context (as pointed out by several commentors).  CERCLA and RCRA (and 
the other primary environmental statutes which address hazardous substances 
and contamination) are by and large remarkably free of intent language.  One 
is liable under CERCLA or RCRA by virtue of being a member of one of the 
classes of liable persons, and having the requisite OBJECTIVE connection with 
the contaminated land or with the contaminants which found their way into the 
land.  Not only is intent unnecessary, but knowlege of the contaminants (or 
reason to know) is unnecessary, as well.  
	Several years after CERCLA, as an afterthought, a provision relating 
to "innocent purchasers" was added to that Act.  I suspect that the 
possibility of being labeled "innocent" has lead many people to believe that 
intent (an "innocent heart") was at issue.  
	On the contrary however, even as to "innocent purchasers", the 
question is not one of intent.  In essence, in this provision, if one is not 
"innocent" it is because one was either "duped" or "stupid" at the time of 
purchase -- i.e., he was lied to, or he failed to perform the level of "due 
diligence" common in the industry at the time of purchase...  Thus, even 
"innocence" does not carry any "intent" connotation -- one can fail to 
qualify as "innocent" despite the fact that he had no intent to purchase 
contaminated property, to allow a hazardous condition to continue, etc.....  
(However, many state laws, including California's, do impose intent-type 
requirements, such as a provision that the events causing the contamination 
must have been illegal at the time they occurred.)
	In essence, CERCLA was intended to address the CONDITIONS of 
contamination, regardless of the manner in which they came to be.  
Brownfields programs and legislation appear to take the same approach -- 
applying to particular properties because of their current physical 
characteristics, without any comment on how those conditions came to be. From 
a legal perspective, this is the only rational choice, since the 
Brownfields provisions do not alter the basic CERCLA (and other 
environmental) liability scheme, but only provide a second vehicle for 
helping to achieve the basic cleanup objectives (eliminating potential 
hazards), as well as the broader objective of returning contaminated 
properties to productive use.  

I have appreciated the dialog on this issue to date, and will be interested 
in its continuation (including any comments on the above), which I will be 
able to read in about 2-3 weeks.

Tomme R. Young
UN Legal Consultant on Environmental and Conservation Legislation