The Small Business Liability Relief and Brownfields Revitalization Act: Real Relief or Prolonged Pain?
On January 11, 2002, President George W. Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (Act), which includes numerous amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The new legislation is designed to relieve small businesses from the financial burden of CERCLA liability, promote brownfields redevelopment, define transactional due diligence standards, and encourage state primacy in enforcement matters. The Act to some degree codifies U.S. Environmental Protection Agency (EPA) policy on certain issues and builds upon other recent CERCLA amendments in narrowing CERCLA's liability scheme and providing relief to certain types of potentially responsible parties.
The Act provides several CERCLA liability exemptions, including a de micromis exemption (for parties that have contributed only very small amounts of hazardous substances to a contaminated facility), and a municipal solid waste (MSW) exemption (for parties that have contributed only innocuous types of waste). There is an extensive section dealing with the funding of brownfield revitalization efforts, and a section designed to bolster state response programs by encouraging state, rather than federal, enforcement of cleanup responsibility. Finally, the Act contains several liability exemptions and "clarifications" that deal with contaminated properties owned by contiguous landowners, "innocent" landowners, and bona fide prospective purchasers. While the Act's provisions are promising in terms of alleviating certain liability concerns and promoting brownfields development, there are a number of ambiguities that render the true impact of the legislation unclear.