Brownfields are defined by the Environmental Protection Agency (EPA) as properties that are complicated by the potential presence of pollutants or otherwise hazardous substances.EPA Brownfield The pollutants such as heavy metals, polychlorinated biphenyls (PCB), poly- and per-fluoroalkyl substances (PFAS), and volatile organic compounds (VOCs) contaminating these sites are typically due to commercial or industrial work that was previously done on the land. This includes locations such as abandoned gas stations, laundromats, factories, and mills. By a process called land revitalization, these once polluted sites can be remediated into locations that can be utilized by the public.
Legislation regarding brownfields was enacted in the United States at the federal level beginning in the late 1900s with the Resource Conservation and Recovery Act, initially only applying to locations with active hazardous waste. CERCLA, or Superfund, passed in 1980, is one of the more influential programs in the redevelopment of these lands, and has since been amended to expand its impact. The Brownfield Revitalization and Environmental Restoration Act, passed by the Bush Administration in 2002, granted additional funding for clean-up. The European Union has both the European Regional Development Fund and the Cohesion Fund to aid in the remediation of these brownfield sites. Additionally, the EU has released seventeen Sustainable Development Goals to encourage nations around the world to both prevent and reduce a variety of harmful practices that contribute to the creation of brownfields. "Polluter pays" is a principle that has been introduced in many different countries, including the United Kingdom and China, assigning responsibility to the party that did the contamination. These measures have been taken to help reduce the impact of brownfield sites internationally.
Background Common contaminants found in brownfields include PFAS and heavy metals, in addition to other compounds that can cause economic, environmental, and social issues when present. Human health can be impacted by means of cancer, brain damage, immune and nervous disorders, liver and kidney disease, and birth defects. Brownfields are often located in areas with high populations of low income or minority groups making this an environmental justice issue. Brownfields do not provide employment, tax revenue, amenities, and make no use of existing infrastructure, thus enabling urban sprawl. Improvements from remediation and redevelopment of brownfields include increased tax revenue, private capital, improved public and environmental quality, and greenspace preservation. A successful international example is in the Szechuan River, China where restoration by Shaanxi Provincial Land Engineering Construction Group altered polluted land for commercial, residential, and public usage.
Regulations in the United States Federal and state legislation pertinent to U.S. Brownfield policy is numerous and diverse. The most important include the Resource Conservation and Recovery Act (RCRA), the Community Reinvestment Act (CRA), (CERCLA Superfund), and the Small Business Liability and Brownfields Revitalization Act.
Federal level
Resource Conservation and Recovery Act (RCRA) The Resource Conservation and Recovery Act was passed in 1976 and is the federal government's approach to the regulation of hazardous waste under a “cradle to the grave” scheme. It is important to Brownfields because at birth, RCRA applied only to active hazardous waste sites. It included no remedial or retroactive measures for regulating hazardous releases occurring before its passage. This deficiency helped lead to the passage of the Superfund legislation in 1980.
Community Reinvestment Act (CRA) The Community Reinvestment Act was passed in 1977. Legislative intent behind the CRA was to incentivize the redevelopment of Brownfield properties. The Act was intended to force lenders to provide capital to the low and middle-income borrowers who lived proximally to Brownfield properties. The idea was that urban inhabitants would borrow money and invest in their neighborhoods, the development of which would require the remediation of the local Brownfields. However instead of investing in urban neighborhoods, many borrowers took the easy money and instead invested in “Greenfields,” or suburban and rural properties with fewer developmental risks. Essentially, an unintended side effect of the Act was the perpetuation of urban sprawl.
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund Superfund was passed in 1980 and among other things, granted EPA the authority to regulate cleanup of Superfund and Brownfield sites. Importantly, CERCLA does not preempt state clean-up laws and when passed, it did not distinguish between small and large generators of hazardous waste. In order to remediate a site, a party must comply with both state and EPA guidelines. There is no guarantee that compliance with state requirements will prevent further EPA regulation in the future. This complex liability scheme is a major disincentive faced by developers who under other circumstances, might be inclined to invest in remediating Brownfields.
Small Business Liability and Brownfields Revitalization Act6 The Small Business Liability and Brownfields Revitalization Act was passed in 2002 and amended CERCLA to limit the liability faced by developers, especially small developers. It lists a number of exceptions to Superfund liability but only to Brownfield sites.
Exemptions from Superfund liability Bona Fide Prospective Purchasers – A release from liability of prospective purchasers even if they knew about the existence of contamination, but all contamination took place prior to purchase. Contiguous Landowner Defense - If a landowner's property happens to abut a Brownfield site and they can prove by a preponderance of the evidence that they were not aware of any release of hazardous material, and did not consent to its release, then they qualify for an exemption. Innocent Landowner Defense – If for instance, a landowner happened to lease their property to a polluter and can prove by a preponderance of the fact of not being not aware of any release of hazardous material and did not consent to its release, the landowner qualify for an exemption.
Windfall profit lien provision If EPA incurs costs in cleaning up a site, and that site is subsequently sold for a profit, this exception allows EPA to impose a lien on the profits of the sale to recoup their costs of remediation.
De micromis exemption Attempt by the Act to distinguish between small and large generators of waste. It defines a small generator of waste according to a series of limits, that if met qualify the generator for exemption. These limits are: Contribution of less than 100 gallons of liquid waste Contribution of less than 200 pounds of solid waste Employment of less than 100 people
Increase of funds for redevelopment of brownfield sites Increased the amount of federal funds available for brownfield redevelopment from $98 million to $200 million. Expired in 2006.
Federal enforcement deferral An assurance by EPA that if state cleanup regulations are followed, that it will not require further remediation activities in the future. However, EPA reserves the right to require further cleanup if contamination crosses state lines, if new information on a site comes to light, or if it judges that a release presents an imminent and substantial danger.
State level As a general rule, most state regulatory schemes resemble CERCLA in structure, though there is not one "cut and dry" state approach to regulating brownfields. CERCLA does not preempt state regulation. In an attempt to limit developer liability, states have come up with various methods to try to limit the risk of the EPA requiring cleanup on top of what they require themselves. A Voluntary Cleanup Plan (VCP) is an agreement between a developer and a state that once a site has been remediated according to state regulations, that the state will not require cleanup in the future. The EPA uses a similar tool called a State Memorandum of Agreement (SMOA), which is an agreement between a developer and the EPA that EPA will not take future remediation action once compliance with the state VCP has been achieved.
International
European Union International brownfield sites are also important to take into consideration, with around 70% of individuals in the European Union (EU) residing in urban or suburban areas facing issues of urban sprawl, scattered development, urban dispersion, soil sealing, as well as air, soil, and water pollution. To properly accommodate growing population demands of housing, employment, and infrastructure, redevelopment of contaminated lands is crucial. The European Regional Development Fund and Cohesion Fund aid industrial and military brownfield redevelopment. A main issue to be resolved is the lack of standards to strictly define contaminated sites, as well as methodology to define site specific remediation standards. Contaminated sites are usually located near city centers, appealing to investors through planning, financial support, and administrative and governmental procedures. By creating understanding and communication between academia, the public sector, and private developers, projects can be fully effective and beneficial.
The EU 2030 Agenda for Sustainable Development and Sustainable Development Goals include reducing negative impacts of urban activities and chemicals which are hazardous to human and environmental health; and environmentally sound chemical management plans, reduction and recycling of waste, and efficient water and energy usage. The 7th Environmental Action Programme of the EU 2050 vision focuses on innovative economy with minimal waste, sustainable natural resource management, biodiversity protection, and low carbon growth. Polluters are expected to pay the cost of remediation on the basis of the “polluter pays principle”, however it is not strictly enforced and alternative sources of funding are often required. The primary funding mechanisms are the Cohesion Fund and European Regional Development Fund (ERDF) which supports regional, cross-border, and multicity redevelopment. The Cohesion Fund focuses on environmental health by redeveloping cities and decontaminating brownfield sites. The ERDF allowed €278 billion to the European Structural and Investment Funds of 2014–2020 to take “action to improve the urban environment, to revitalize cities, regenerate, and decontaminate brownfield sites.” The Urban Innovative Actions based on the ERDF had a budget of €372 million throughout 2014–2020 to dedicate funding for sustainable land usage and planning. The L’Instrument Financier Pour l’Environnement had a 2014-2020 budget of €3.4 billion for projects relating to air, chemicals, green and circular economy, waste, water, soil, and urban environments. Additionally, the European Investment Bank funds public-private investment, research, and projects providing opportunity for contaminated site remediation.