29 ELR 10339 | Environmental Law Reporter | copyright © 1999 | All rights reserved
Voluntary and Brownfields Remediation Programs: An Overview of the Environmental Law Institute's 1998 ResearchLinda K. Breggin and John Pendergrass
Editors' Summary: One of the most important legal tools in the effort to remediate the nation's contaminated sites is state law that applies to such cleanups. In 1989, the Environmental Law Institute (ELI) conducted a study of this law, and last year, it completed its most recent update of that study. In this Article, two ELI Senior Attorneys discuss the results of that update as it concerns two key aspects of site remediation — voluntary and brownfield cleanup programs. The Article begins with a description of state voluntary cleanup programs, summarizing their legal structure, eligibility requirements, cleanup standards, cleanup activities, and incentives. It then examines state brownfield programs, discussing their inclusion criteria, cleanup activities, cleanup standards, and incentives.
Ms. Breggin is a Senior Attorney with the Environmental Law Institute (ELI). Prior to joining ELI, she was with the firm of LeBoeuf, Lamb, Greene and MacRae, L.L.P. and previously served as Associate Director for Toxics and Environmental Education in the White House Office on Environmental Policy. She is a graduate of the University of Chicago Law School. Mr. Pendergrass is a Senior Attorney at ELI, where he is also the Director of the Center for State, Local, and Regional Environmental Programs. He is a graduate of Case Western Reserve University Law School.
[29 ELR 10339]
In 1998, the Environmental Law Institute (ELI) completed the latest update of its report An Analysis of State Superfund Programs: 50-State Study.1 The report examines state cleanup programs in all 50 states, the District of Columbia, and the Commonwealth of Puerto Rico, and provides descriptions of their statutes, program organization, staffing, funding, expenditures, cleanup standards, and cleanup activities. The report covers both state regulatory enforcement cleanup programs and state voluntary and brownfields programs.
To ensure the completeness and accuracy of the information in the report, ELI collected statutes, regulations, and other state documents; interviewed state program staff by telephone; and verified information for each state. ELI initially reviewed both the information gathered for prior versions of the report and newer information found in state documents, legislative reporting services, newsletters, and U.S. Environmental Protection Agency (EPA) documents. A request for updated program information was sent to each state with a general request for copies of relevant legislative amendments or state reports. ELI then conducted phone interviews to clarify written responses and to reconcile any discrepancies in the data. In assembling the report, ELI tried to take a "snap shot" of state cleanup programs, while recognizing that they are dynamic and that changes may occur after the publication of the report and this Article. For this report, ELI used state information available on or before December 31, 1997. States were provided an opportunity to review and update all the information in the state program summaries included in the full report.
Voluntary cleanup programs are state-sponsored programs that encourage private parties to conduct cleanups of contaminated properties in the absence of state enforcement measures. States typically set the eligibility requirements for participation in voluntary cleanup programs, establish cleanup standards, and provide oversight of the cleanup activities. Voluntary cleanups provide states with an additional tool to address contaminated sites identified as needing attention, as well as sites that have not yet been identified. Voluntary cleanups typically require fewer resources and funding from the state than state-funded or enforcement-based cleanups. Accordingly, voluntary cleanup programs allow states to leverage their resources, concentrate their efforts, and achieve additional cleanups.2
State brownfields are defined in a variety of ways by the states, but the term typically refers to urban industrial or commercial facilities that are abandoned or underutilized due, in part, to environmental contamination or fear of contamination. States have made special efforts in recent years to target brownfields for cleanup and reuse for several reasons, including the potential to revitalize distressed communities, increase tax dollars, and provide new jobs. States take a wide range of approaches: some specifically address [29 ELR 10340] brownfields through their voluntary programs, while others supplement their voluntary program activities, and still others have separate brownfields cleanup and redevelopment programs.3
The distinction between voluntary programs and brownfields programs is not always clear and may vary from state to state. Voluntary programs typically do not focus on redevelopment of the contaminated properties nor do they target specific properties such as urban properties. Rather, voluntary programs are more often aimed at getting simple, less contaminated sites cleaned up regardless of whether they are reused. Brownfields programs, on the other hand, are more likely to focus on redevelopment and to be part of a broader strategy or set of social policies aimed at improving distressed urban areas.4 In reading this Article, it is important to recognize that the distinction in many cases may be artificial and that a voluntary program in one state may focus more heavily on the cleanup of brownfields sites than a "brownfields" program in another state. For this reason it is important not to look at a state's voluntary and brownfields programs in isolation.
State voluntary and brownfields programs are distinct from both the federal Superfund program5 and state regulatory and enforcement superfund programs, but because the programs overlap in some areas, it is important to understand the federal Superfund program and the state regulatory cleanup programs.
The federal Superfund program addresses national priorities list (NPL) sites, sites that have been determined to be the highest priorities for long-term remediation. Although the states have a role in Superfund cleanups, the program is governed by federal legislation and regulations and EPA typically leads the enforcement, investigation, and remediation efforts. For federal Superfund sites at which private parties are not paying for the cleanup, the cleanup is conducted primarily using federal funds. The role of the states ranges from required cost-sharing at federally funded cleanups to active site management. States also are responsible for operation and maintenance of sites after the remedial action has been completed.6
A vast number of sites do not meet the criteria for inclusion on the NPL. For these non-NPL sites, the federal government may not be involved at all. Thus, the role of the states in addressing contaminated sites, independently and in concert with the federal government, has become increasingly important. If any government supervised activity is to occur at non-NPL sites, states must oversee, enforce, or fund the cleanups.
Most states now have regulatory programs that allow them to require private parties to conduct cleanups and/or provide funding for state-led cleanups. In recent years, states have increasingly recognized, however, that these programs alone may not be able to address all of the contaminated sites in a state and that there may be more efficient means of ensuring cleanups for certain types of sites. As a result, the number of states with voluntary cleanup and brownfields programs has increased considerably over the last 10 years. The size and scope of the programs have also grown in recent years as the programs have matured. As discussed below, property owners, developers, lenders, and others that are interested in cleaning up and/or redeveloping contaminated properties often need to know the substance and procedures of the specific state program that govern the cleanup of a property, as state programs vary considerably in terms of the liability relief they provide, the cleanup standards they use, and the incentives they provide for redeveloping brownfields.
Voluntary Cleanup Programs
Forty-four states have established voluntary cleanup programs.7 Thirteen states have started voluntary programs since 1995: Alaska, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Mississippi, New Hampshire, New Mexico, Utah, and West Virginia. One state, Nebraska, has only a voluntary cleanup program but does not have a regulatory enforcement cleanup program.8
Only the District of Columbia, Kentucky, Louisiana, North Dakota, South Dakota, Vermont, and Wyoming report that they do not have voluntary programs.9 However, several of these states, including South Dakota and Vermont, nevertheless will work with private parties that want to initiate voluntary cleanups.10 In addition, Louisiana11 had a program framework established but had not yet started accepting sites at the time the research for the ELI report was completed. Vermont12 has a brownfields program that allows [29 ELR 10341] for certain types of voluntary cleanups, and Kentucky13 was in the process of developing guidelines for a voluntary cleanup program at the time the research for the report was done.
States have created voluntary cleanup programs in the absence of federal legislation, and there are no federal standards that states must meet. Therefore, voluntary programs vary considerably from state to state in terms of formality and structure, as discussed below.
States establish their voluntary cleanup programs in several ways: specific statutory authority; regulations issued pursuant to current statutory authority; and guidance or policy. Most state voluntary programs are specifically established by statute. Several states, however, including Alabama, California, and Nevada, rely on their general cleanup authority for their voluntary programs.14 To implement the authority, some states, such as Washington,15 have promulgated regulations. Other states, including Alaska, New York, and South Carolina, have established their programs through guidance or policy.16
As a threshold matter, potential volunteers must first determine whether they are eligible to participate in a particular state's voluntary cleanup program. Most states limit participation in their voluntary programs in some manner. There are two basic approaches to defining eligibility for state voluntary programs: by site characteristics and by type of volunteer. Some use one approach or the other, but many use a combination of the two approaches.
With respect to site characteristics, the most common approach, used by approximately 25 states,17 is to preclude sites that are subject to pending enforcement or regulatory actions under either state regulatory programs (hazardous waste management and cleanup, underground storage tanks, or above-ground storage tanks) or federal programs (Super-fund or the Resource Conservation and Recovery Act)18 or both. This approach is often used in conjunction with other eligibility criteria, as discussed below.
Another approach is to limit the program to certain types of volunteers. For example, some states bar parties responsible for the site contamination from participating in voluntary cleanups. These include Georgia, Louisiana, and New York.19 Other states, such as Maryland, New Mexico, and Oklahoma, bar parties that are not in compliance or have been convicted of a violation of an environmental law from participating in their voluntary programs.20 Several states prohibit volunteers that are subject to federal regulatory programs or enforcement proceedings (such as Arkansas, Idaho, Mississippi, New Jersey, New Mexico, Ohio, Oklahoma, and Wisconsin)21 or state enforcement proceedings or regulatory programs (such as New Jersey, Ohio, and Wisconsin).22 Several states also use site eligibility requirements.
Several states do not use any categorical exclusions, but typically reserve the option of rejecting applications if appropriate. These states include Alaska, Michigan, Minnesota, Nebraska, Nevada, Oregon, and Pennsylvania.23
Cleanup policies and criteria are used to establish cleanup goals and to determine the level of environmental and health risk reductions to be achieved by remedial action. As the stringency and protectiveness of cleanup goals increases, the costs of cleanup usually also increase. Determining the appropriate and feasible level of cleanup for hazardous sites involves technical, administrative, and economic considerations that are evaluated on a site-by-site basis. The states vary considerably in the extensiveness and formality of procedures used to set cleanup standards. Nearly all of the states employ federal guidelines and standards as part of the process of determining standards. Most states consider future land use in determining the level of cleanup at brown-fields sites and many allow and encourage volunteers to perform risk assessments to inform the decision about cleanup standards.24 Several states used tiered systems or more than one method to select cleanup standards for their voluntary programs. For example, under Massachusetts' regulatory and voluntary cleanup programs, parties conducting response actions may choose between numeric standards for certain chemicals, numeric standards based on site-specific fate and transport information, and cleanup goals based on site-specific conditions and a quantitative risk assessment.25
In recent years, land use has become a more significant factor in determining cleanup standards. Specifically, cleanup standards are established after deciding how a particular site will be used after the cleanup is completed and exposure pathways are considered based on expected land use. Thus, if a site will be used for an industrial or commercial facility — where children will not be exposed to contaminated soils, or groundwater will not be used for drinking — the cleanup standard may be set at levels that may not fully protect health and environment if use of the site was unrestricted. In such cases, contaminated groundwater or soils may be left in place because the planned land use of the site will reduce the risks associated with human exposure to the contaminants.
States consider a variety of factors in determining future site-specific land use. The most common approach is to consider current land use and zoning requirements, often accompanied by consideration of potential future land uses for a particular site.26 A few states assume that a site will be used for residential purposes in the future unless a deed restriction [29 ELR 10342] is in place.27 Furthermore, several states consider a statement of a responsible party, while others leave all or some decisions about future land use to local governments.28 In a few states, future land use is based on more loosely defined considerations.29
Cleanup standards for voluntary sites are typically the same as the standards applied at state lead or enforcement sites.30 Thus, contrary to the common perception that states may apply less stringent cleanup standards to voluntary cleanups than to other types of cleanups, it appears that, at least on paper, the standards are identical. The limited number of exceptions include Indiana, which uses background levels in its regulatory program but not in its voluntary program, and Maryland,31 which considers land use in its voluntary program but not in its regulatory program.
In some cases, the voluntary standards are statutory but the state cleanup standards are established in policy or applied on an ad hoc basis. This is often because the state recently enacted voluntary program legislation that codified the standards currently used in state regulatory program cleanups. In the alternative, the standards may have been enacted as part of the voluntary program and subsequently adopted in policy for the state program. For example, several states, including Iowa, Kansas, Ohio, and Virginia,32 have statutes or regulations that address the use of risk assessment for voluntary cleanups but apply risk assessment for regulatory program cleanups only as a matter of policy or on an ad hoc basis. Similarly, several state statutes and regulations, such as those of Kansas, Ohio, and Virginia,33 provide for land use to be taken into account in voluntary cleanups but their state programs consider land use on an ad hoc basis or as a matter of policy.
Consistent with the state regulatory cleanup programs,34 approximately 27 of the states with voluntary programs use groundwater standards established by statute or regulation,35 and an additional6 states use groundwater standards established by policy or on an ad hoc basis.36 Eighteen of the states with voluntary programs have soil standards established in statute or regulation,37 and an additional 12 states use soil standards established through policy or on an ad hoc basis.38 Twenty-four states have statutes or regulations that provide for land use-based standards39 for their voluntary cleanup programs, and an additional 15 states take land use into account as a matter of policy or on an ad hoc basis.40
As a part of the ELI report, states identified approximately 69,000 known and suspected hazardous substance sites across the country (i.e., the number of sites known to each state and tracked in some way in connection with its cleanup program). In addition, states identified a subset of 24,000 sites as needing attention (i.e., sites that have been evaluated and determined by a state to require some level of cleanup or further evaluation).41
Overall, approximately 5,500 voluntary cleanup activities are underway across the country. Since the start of the first voluntary cleanup program, in aggregate approximately 6,800 cleanup activities have been completed, including roughly 2,400 sites in 1997.42 In comparison, 3,189 regulatory cleanups were completed in fiscal year 1997, and 8,177 regulatory cleanups were underway. In total, 34,202 regulatory cleanups have been completed since the start of the programs.43
The number of voluntary cleanups underway in states that have voluntary programs varies dramatically from 0 in Iowa to more than 2,300 in New Jersey. The wide range in numbers may be attributable, in part, to the fact that many programs were only recently established. Although large numbers of activities in a state often reflect a mature program, it is important to recognize that states count cleanup activities differently so the numbers are not always comparable. In addition, the number of sites and, therefore, the number of potential volunteers varies considerably from state to state. Furthermore, some states rely heavily on their voluntary programs while other states maintain active enforcement programs or state-funded cleanups in addition to their voluntary programs. Of the states that provided information about cleanup activities, those with voluntary cleanup activities underway at over 100 sites include: Georgia (205); Illinois (439); Indiana (200); Michigan (165); Minnesota (500, which includes investigations and cleanups); New Jersey (2,300); Ohio (200); Oregon (212); Pennsylvania (150); and Texas (445).44 States with cleanups underway at less than 10 sites include: Alabama (3); Arkansas (3); Hawaii (1); Iowa (0); Maryland (4); Mississippi (2); Nebraska (3); Vermont (2); and West Virginia (6).45
New Jersey reported the largest number of sites (1,721) with voluntary cleanups completed in 1997, followed by Minnesota with voluntary cleanups completed at 100 sites in 1997. No other states reported completed voluntary cleanups at more than 75 sites in 1997.46 Since the start of their voluntary cleanup programs, Minnesota (500) and New Jersey (4,454) have completed cleanups at the largest number of sites. Several states have completed voluntary cleanups at over 100 sites: Illinois (283); New Hampshire (136); North Carolina (250); Pennsylvania (300); Texas (158); and Washington (176). Although some of these states have had voluntary programs in place for 10 years or more (Illinois, Minnesota, and North Carolina), two of the largest [29 ELR 10343] programs were established more recently, in 1995 (Pennsyl-vania and Texas).47
Most states provide incentives for participation in their voluntary cleanups, in an effort to overcome deterrents to performing voluntary cleanups, including potential liability, cleanup costs, and transaction costs. One of the most common incentives offered by a majority of states with voluntary cleanup programs is some form of liability release on completion of voluntary cleanup activities. Typically, the state provides liability protection contingent on state approval of the cleanup and limits the protection to only the contamination addressed by the cleanup activities, excluding unknown, preexisting contamination or new releases of hazardous substances.
Liability relief is provided through a variety of mechanisms and the scope of the relief varies from state to state as well. Given that many voluntary programs are relatively new, liability relief tools are still being developed and refined. Furthermore, states do not use uniform terminology in referring to forms of liability relief. Two states providing the same substantive form of liability relief may use different terms to describe it. Conversely, different forms of liability relief may be referred to by the same term in different states. Accordingly, it is critical that volunteers carefully explore the incentives available in the applicable state.
One of the most common methods of providing liability relief is the covenant not to sue. The scope of a covenant not to sue will vary from state to state but, at a minimum, will typically provide that the state will not take enforcement action against the volunteer for contamination addressed by the cleanup. Several states, including Georgia, Maine, Pennsylvania, Rhode Island, and South Carolina, report that they specifically provide protection from third-party contribution actions, in addition to protection from state actions.48 Pennsylvania provides protection from citizens suits as well.49 At least one state, New Jersey, provides a covenant that "runs with the land" and, therefore, does not expire with transfer of the property.50
Another common method of providing liability relief is the "No Further Action" letter. At a minimum, a No Further Action letter includes the state's assurance that, based on currently known facts, the state is unlikely to require the volunteer to take further action with respect to contamination addressed by the voluntary cleanup. Many states use No Further Action letters that not only provide assurances that no further cleanup is required, but also specifically provide liability relief. It is important to note, however, that some states do not provide liability relief in their No Further Action letters — either because such relief is not available or because it is provided in a separate document, such as a settlement agreement with a covenant not to sue.51
Other states issue certificates of completion or approval letters that provide liability relief. As with No Further Action letters, some states do not include a liability release in their certificates and approval letters, but simply provide assurances that are intended to give comfort to lenders and prospective purchasers that additional cleanup activities will not be required.52
Some states will only provide liability protection to parties that are not responsible for the contamination. For example, Delaware, Maryland, New Mexico, Rhode Island, and Utah will not provide liability protection to responsible parties.53
In addition to liability relief and comfort letters, a common incentive reported by states is expedited or efficient cleanup oversight processes that include clear end points and deadlines for agency determinations. Alabama, Arizona, California, Maryland, Massachusetts, Mississippi, New Jersey, and other states employ some variation of a streamlined process for voluntary cleanups as an incentive for participation.54
Additional incentives take a wide variety of forms. For example, some states, including Ohio and Minnesota,55 provide financial assistance in the form of low interest loans, and some states, such as Idaho, Ohio, Oklahoma, and Wisconsin,56 provide tax credits and incentives. It is important to note that these financial incentives are often offered through economic development programs administered by state agencies other than the agency overseeing the cleanups. Tennessee57 provides orphan share funding as an incentive for voluntary cleanups and will decline to issue a lien or notice of hazardous substance on the property deed. Other states, including Minnesota58 and Washington,59 provide technical assistance to volunteers. Hawaii60 records the completion of cleanup activities on the deed to the property and sends a letter to the building permit agency.
As discussed in the introduction to this Article, it is important to note that the difference between voluntary and brownfields programs can be a question of semantics rather than substance. In theory, a brownfields program would focus on urban, rather than rural, sites and on industrial sites rather than spill or dump sites, and a voluntary cleanup program would be open to volunteers at any type of site in any location. In practice, however, state voluntary cleanup and brownfields programs do not necessarily make those distinctions. For this reason, it is important to look at both voluntary and brownfields programs to determine the brownfields redevelopment activities in any given state.
By the end of 1997, a little over half of the states reported that they had brownfields programs, an increase of 13 states since 1995. Approximately half the programs are separate and distinct programs, but half are part of the states' voluntary programs. Most of the programs, approximately 22, [29 ELR 10344] were established by statute,61 but in other states the brownfields programs were established pursuant to the states' general voluntary cleanup statutes. Other state brownfields programs were established informally or through policies (as in Alabama, Hawaii, Illinois, South Carolina, Texas, and Virginia) or a mixture of both (as in Maryland).62 Brownfields legislation was also pending in several states, including South Carolina and Massachusetts, at the time the research for this Article was concluded.
In EPA Region 1, four out of six states (Connecticut, New Hampshire, Rhode Island, and Vermont) have formal brownfields programs. In Region 2, both New Jersey and New York have brownfields programs (Puerto Rico provided no information, but did not have a program in 1995). In Region 3, Delaware, Maryland, and Virginia have brownfields programs. Although Pennsylvania does not have a separate brownfields program, its voluntary cleanup statute and program specifically address brownfields. In Region 4, five states have programs (Alabama, Florida, Mississippi, North Carolina, and South Carolina). Similarly, in Region 5, all states except Ohio have formal programs. In Region 6, all states except Louisiana have programs, though the Texas program is informal and limited in scope. In addition, all of the states in Region 9 have programs except Nevada.
On the other end of the spectrum, in Region 7, only Missouri has a brownfields program. No states in Regions 8 and 10 have brownfields programs. The lack of brownfields programs in these western and midwestern states may be due in part to smaller inventories of underutilized or abandoned urban industrial sites.
Several states that do not have formal brownfields programs or have programs that are very limited in scope are targeting brownfields sites through other mechanisms. For example, through its voluntary program Maine is working with other state agencies to form a "brownfields team" that will identify potential in-state resources to promote redevelopment.63 Massachusetts' covenant-not-to-sue program is designed to attract cleanup and redevelopment to areas in state-designated Economic Target Areas.64 Texas addresses brownfields through its voluntary program, as supplemented by education of local government and interested parties, technical reviews, and state and federal tax incentives.65 Kentucky was in the process of developing guidelines for a formal broad-based brownfields program at the time the research for the ELI report was completed and currently had authority to provide municipalities with regulatory incentives to perform brownfields cleanups.66 In addition, Tennessee and Oregon brownfields sites are addressed through their voluntary programs.67
Criteria for Inclusion
The criteria for inclusion in brownfields programs vary considerably depending on the scope, nature, and structure of the particular state program. The most common criteria used by states for including sites in their brownfields programs are that the sites are abandoned or underutilized and have potential for redevelopment. The precise articulation of this standard varies from state to state. Some states, including Illinois, Minnesota, Oklahoma, and South Carolina, simply use the same criteria for their brownfields sites as for their voluntary program sites.68 Other states, such as Missouri, New York, and Texas, have programs that are narrow in scope that include only locally or municipally owned properties.69
Some states have more unusual criteria. Florida's statute establishes a process through which brownfields areas must be designated by local government by resolution with appropriate public notice and hearings. In designating brownfields areas, the Florida local government must consider nine specific issues outlined in the statute. Among the criteria to be considered are redevelopment potential, privatesector interest, recreational open space potential, cultural and historical preservation value, potential jobs, potential economic productivity, and consistency with local comprehensive plans and local land use.70 Delaware's program includes sites where employment is created and investments are made for business.71 Maryland has extensive statutory eligibility requirements for state financial incentives.72 For Maryland's site assessment initiatives, the sites may not be on the Comprehensive Environmental Response, Compensation, and Liability Information System (or CERCLIS); may not be seriously contaminated; and must be likely to be redeveloped. In addition, some states specifically exclude sites that are subject to state or federal enforcement or regulatory actions, including Arkansas, Arizona, Florida, New Hampshire, New Mexico, Vermont, and Virginia.73
The number of brownfields sites identified and the size and the scope of many programs has increased since 1995, as a result in part of the increased focus on urban revitalization and the growing maturity of many state programs. For example, the number of brownfields sites identified for state [29 ELR 10345] programs has increased dramatically since 1995 in several states. In 1997, Illinois reported the largest number (1,011) of brownfields sites identified. Following Illinois are Arkansas (262), Connecticut (144), Delaware (300), Michigan (164), and New York (105). In contrast, in 1995, Illinois had fewer than half the number of sites identified in 1997 (400-500). Delaware reported only 19 sites identified in 1995, Connecticut only 34, and Arkansas 0.74 Due in large part to the relative youth of many of the brownfields programs, no other states had more than 100 sites identified and several states have identified fewer than 10 sites for their programs (Alabama, Arizona, Florida, Hawaii, Mississippi, Missouri, New Mexico, Oklahoma, South Carolina, Texas, Vermont, and Virginia).75
Several of the same states that have identified the largest number of sites also report the largest number of sites with cleanups underway: Connecticut (44); Delaware (30); Illinois (439); and Michigan (55). In addition, Minnesota reports that it has "several hundred" cleanups underway. Although the number of cleanups underway increased for each of these states from 1995, the increases are not dramatic and seem instead to represent a steady development of the brownfields programs in these states.76
Given that site redevelopment is a cornerstone of most brownfields programs, the number of commitments for reuse is often an indication of the success of a program. In almost all of the states reporting, the number of commitments for reuse is equal to, or greater than, the number of cleanups underway. In general, however, the number of commitments for redevelopment in each state is still fairly low. For example, the number of commitments for redevelopment or reuse of brownfields sites was fewer than 8 for all states except Michigan (144), Delaware (30), New York (20), Montana (12), Missouri (8), and New Hampshire (8). The redevelopment commitment numbers for several states, including Connecticut and Illinois, are not available. Because many states did not report reuse commitments in 1995, it is difficult to gauge the relative increase in commitments for reuse.77
Almost all of the states use the same cleanup standards for brownfields sites as for voluntary cleanup sites. The few states with different standards or cleanup approaches appear to be offering additional incentives for brownfields cleanups. For example, Florida's brownfields law specifically provides for "risk-based corrective action," whereby brownfields cleanup participants may be allowed to substitute institutional and engineering controls for the remediation levels otherwise required by statute.78 Similarly, North Carolina also allows for alternative cleanup strategies that focus on removal of exposure pathways at certain brownfields sites.79 At the time the research for the ELI report was completed, Florida was conducting a rulemaking for its Brownfields Cleanup Criteria Rule that proposed to establish default cleanup target levels and authorize the establishment of alternative cleanup target levels on a site-specific basis.80 In addition, in Mississippi, brownfields cleanup standards had not yet been determined at the time of the research for the report, but the governing statute specifies that risk assessment must be used.81 Maryland and Virginia do not have established cleanup standards for their brownfields programs because their programs focus on site assessments rather than cleanups.82
Almost all states with brownfields programs provide incentives for participation. These incentives fall into two general categories: liability relief and financial incentives. Several states also use other types of incentives, as discussed below.
Liability relief is a key incentive provided by states to encourage brownfields cleanup and redevelopment. The form of liability relief is often similar to the relief provided by the state voluntary programs. In some states, however, such as Florida and New Hampshire,83 liability relief incentives are reserved for the brownfields programs and are not typically available through the voluntary cleanup programs.
The following states provide some type of liability relief: Arkansas (liability release); Florida (protection for participants and certain lenders from state and third-party liability to clean up site, no protection from third-party liability for damages to property or person); Michigan (liability protection); Minnesota (extent of liability assurances depends on level of state review requested by volunteer); New Hampshire (covenant not to sue); New Jersey (liability release); New York (liability release transferable to future owners); North Carolina (liability limits, No Further Action letters); Oklahoma (certificate of no action with liability release); Rhode Island (covenant not to sue and contribution protection for nonresponsible parties); South Carolina (covenant not to sue, contribution protection for nonresponsible parties); Vermont (limited liability protection for redeveloper and successor); and Wisconsin (liability exemptions).84 In Mississippi incentives are under development but the governing statute requires liability protection.85
Many states provide some type of financial incentive, including but not limited to, the following: Arkansas (low interest revolving loan program); Delaware (low interest loans, tax credit, and grants); Florida ("bonus refunds" of $ 2,500 for each new job created in the state); Illinois (state tax credit, brownfields grants); Maryland (property tax credits, grants, loans, and free site assessments); Massachusetts (incentives through its economic development program); Michigan (grants to local governments for investigation and remedial action); Minnesota (various financial incentives); Missouri (grants, loan guarantees, and tax credits); New Jersey (loans, grants, tax incentives, and remedial cost reimbursement); New York (up to 75 percent of municipalities' [29 ELR 10346] costs associated with investment and cleanup); Oklahoma (tax incentives for remediation and redevelopment, job act incentives); Rhode Island (funding authorized but not yet available to facilitate redevelopment); Texas (property tax abatements); Vermont (site assessment funds through U.S. Department of Housing and Urban Development grants); West Virginia (revolving loan fund for site assessments); and Wisconsin (funding for site assessments by municipalities, reimbursement for portions of underground storage tanks and agricultural spill cleanups, tax incremental financing, and tax credit).86
Other incentives include variances from technical standards (New Jersey); encouragement of local governments to offer economic incentives such as one-stop permitting, tax credits, and low interest loans (Florida); advice and document review (Oklahoma); issuance of letters for federal income tax expensing of remediation costs (Texas); technical assistance (Texas); and education and outreach efforts to anyone interested in reusing a brownfields property (Texas and New Mexico).87
State voluntary and brownfields programs are growing in number and scope, thereby providing private parties and local governments with more opportunities to remediate and redevelop contaminated properties. Because each state develops its own program, it is essential that anyone interested in participating in a state voluntary cleanup or brownfields redevelopment effort carefully investigate the eligibility requirements, incentives for participation, and other aspects of the programs in the applicable state. This Article has highlighted some of the key findings on state voluntary and brownfields programs from ELI's Analysis of State Superfund Programs: 50-State Study, 1998 Update.
1. The report is an update of a study initially conducted in 1989 and updated in 1990, 1991, 1993, and 1995 through a grant from the U.S. Environmental Protection Agency's Office of Emergency and Remedial Response. The following ELI staff contributed to the full report: Susan Bass, Tobie Bernstein, Linda Breggin, Mary Brevdo, Maura Camey, Eric Feldman, Nathanial Garrett, Ivie Higgins, Julie Jones, Nadia Jones, James McElfish, Marthew Mitchell, John Pendergrass. Sheela Sathyanarayana, and Jill van Berg. In addition. Elizabeth Gordon assisted in preparing this Article. To obtain the report, contact ELI Customer Service at 1-800-433-5120.
2. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, STATE OF THE STATES ON BROWNFIELDS: PROGRAMS FOR CLEANUP AND REUSE OF CONTAMINATED SITES. OTA-BP-ETI-153, at 13 (June 1995).
3. Id. at 3-4.
4. See, e.g., ENVIRONMENTAL LAW INST., AN ANALYSIS OF STATE SUPERFUND PROGRAMS: 50-STATE STUDY, 1998 UPDATE 170-71 (1998) [hereinafter ELI STUDY] (Maryland).
5. See 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.
6. Id. § 9604(c)-(d), ELR STAT. CERCLA § 104(c)-(d).
7. ELI STUDY, supra note 4, at 271 (Alaska); id. at 181 (Alabama); id. at 217 (Arkansas); ARIZ. REV. STAT. §§ 49-104A.17, -282.05, -285B (Supp. 1998-1999); ELI STUDY, supra note 4, at 261 (California); COLO. REV. STAT. § 25-16-301 (Supp. 1998-1999); CONN. GEN. STAT. § 22a-133 (w)-(y) (Supp. 1998); DEL. CODE ANN. tit. 7, §§ 9102-9116 (Supp. 1998); ELI STUDY, supra note 4, at 183 (Florida); GA. CODE ANN. § 12-8-200 (1998); HAW. REV. STAT. § 128D-31-41 (1997); IDAHO CODE §§ 39-7201 to -7210 (1998); 17 ILL. COMP. STAT. ANN. §§ 58.1-.14 (West 1998); IND. CODE ANN. §§ 13-25-5-1 to -19 (Michie Supp. 1998); IOWA CODE ANN. § 455H (West 1997); KAN. STAT. ANN. § 65-34,161 to -34,174 (Supp. 1998); LA. REV. STAT. ANN. § 30:2285-:2290 (West Supp. 1999); ME. REV. STAT. ANN. tit. 38, §§ 342(15) & 343-E (West Supp. 1998); MD. CODE ANN., ENVIR. § 7-501 to -516 (Supp. 1998); MASS. GEN. LAWS ch. 21E (Supp. 1998); MICH. STAT. ANN. §§ 13A.20101-20142 (Law. Co-op. 1997); MINN. STAT. §§ 115B.17(14) & 115B.175 (1997 & Supp. 1999); MISS. CODE ANN. § 17-17-54 (Supp. 1998); MO. REV. STAT. § 260.565-.575 (Supp. 1999); MONT. CODE ANN. §§ 75-10-730 to -738 (1997); NEB. REV. STAT. §§ 81-15,181 to -15,188 (1995); ELI STUDY, supra note 4, at 267 (Nevada); N.H. REV. STAT. ANN. §§ 147-A, 147-B (1992 & Supp. 1997); N.J. STAT. ANN. § 58:10-23.11 (West 1992 & Supp. 1998); N.M. STAT. ANN. § 74-4G-1 (Michie Supp. 1998); ELI STUDY, supra note 4, at 159 (New York); N.C. GEN. STAT. § 130A-310 (1997); OHIO REV. CODE ANN. ch. 3746 (Anderson 1997 & Supp. 1998); OKLA. STAT. tit. 27A, § 2-15 (Supp. 1999); ELI STUDY, supra note 4, at 274 (Oregon): PA. STAT. ANN. tit. 35, § 6026.101-.908 (West Supp. 1998-1999); R.I. GEN. LAWS §§ 23-19.14-3 to -8 (Supp. 1997); ELI STUDY, supra note 4, at 196 (South Carolina); TENN. CODE ANN. § 68-212-224 (1996); TEX. HEALTH & SAFETY CODE ANN. §§ 361.601-.613 (West Supp. 1999); UTAH CODE ANN. §§ 19-8-101 to -118 (1998); VA. CODE ANN. §§ 10.1-1429.1 to 1429.3 (Michie 1998); ELI STUDY, supra note 4, at 278 (Washington); W. VA. CODE § 22-22-1 (1996); WIS. STAT. ANN. § 292.15 (West Supp. 1998).
8. ELI STUDY, supra note 4, at 241.
9. See, e.g., id. at 168 (District of Columbia).
10. See, e.g., id. at 252 (South Dakota).
11. Id. at 222.
12. Id. at 154.
13. Id. at 189.
14. See, e.g., NEV. REV. STAT. §§ 459.400-.600 (1997).
15. WASH. ADMIN. CODE § 173-340-550(7) (1993).
16. See, e.g., ELI STUDY, supra note 4, at 270 (Alaska).
17. See, e.g., W. VA. CODE § 22-22-4(a) (1996).
18. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.
19. See. e.g., GA. CODE ANN. § 12-8-205 (1998).
20. See. e.g., MD. CODE ANN., ENVIR. § 7-501(f)(1) (1997).
21. See, e.g., N.M. STAT. ANN. § 74-4G-1, -5 (D) (Michie Supp. 1998) (Voluntary Remediation Act).
22. See, e.g., OHIO REV. CODE ANN. § 3746.02(A) (Anderson 1997).
23. See, e.g., ELI STUDY, supra note 4, at 270 (Alaska).
24. See, e.g., FLA. STAT. ANN. § 376.81(1) (West Supp. 1999).
25. ELI STUDY, supra 4, at 147-48.
26. See id. at 146, 154, 161, 165, 184-85, 189, 197, 200, 208, 213, 224, 227, 247, 249, 253-54.
27. See id. at 148, 150-51, 157, 176, 204, 206, 259, 267-68.
28. See id. at 210-11 (local government decides land use); id. at 245 (owner decides land use); id. at 275 (potentially responsible party decides land use).
29. See id. at 173, 179, 182, 187, 195, 215, 218.
30. See, e.g., MINN. STAT. § 115B.175(3)(c) (Supp. 1999).
31. MD. CODE ANN., ENVIR. § 7-510 (1997); ELI STUDY, supra note 4, at 91, 94.
32. ELI STUDY, supra note 4, at 91-95.
33. See, e.g., KAN. STAT. ANN. §§ 65-34,161 & -34,167(a) (Supp. 1998).
34. See ELI STUDY, supra note 4, at 26-28.
35. See, e.g., N.J. STAT. ANN. § 58:10B-12 (West Supp. 1998).
36. See, e.g., ELI STUDY, supra note 4, at 164 (Delaware).
37. See, e.g., N.J. STAT. ANN. § 58:10B-12 (West Supp. 1998).
38. See, e.g., ELI STUDY, supra note 4, at 270 (Alaska).
39. See, e.g., KAN. STAT. ANN. § 65-34,167(a) (Supp. 1998).
40. See, e.g., ELI STUDY, supra note 4, at 145 (Maine).
41. Id. at 10.
42. Id. at 11.
43. Id. at 61.
44. Id. at 62-63.
47. See, e.g., id. at 229 (Texas).
48. See, e.g., ME. REV. STAT. ANN. tit. 38, § 343-E(5) (West 1993).
49. PA. STAT. ANN. tit. 35, § 6026.501(a) (West 1998).
50. N.J. STAT. ANN. § 58:10B-13.1 (West 1998).
51. ELI STUDY, supra note 4, at 127-30.
53. See, e.g., R.I. GEN. LAWS § 23-19.14-18 (1997).
54. See, e.g., MASS. GEN. LAWS ANN. ch. 21E, § 3B (West Supp. 1998).
55. See, e.g., MINN. STAT. § 115B. 223(1) (1997) (limited to small business generators of hazardous waste).
56. See, e.g., IDAHO CODE § 63-602BB (1997).
57. See, e.g., TENN. CODE ANN. § 68-212-224(d)(2) (1997).
58. MINN. STAT. § 115B.17(14) (Supp. 1997).
59. WASH. ADMIN. CODE § 173-340-130(3)(a) (1998).
60. HAW. REV. STAT. § 128D-39(d) (1997).
61. ARIZ. REV. STAT. §§ 49-153 to -157 (Supp. 1998-1999); ARK. CODE ANN. §§ 8-7-1101 to- 1104 (Michie Supp. 1997) (Act 125 of 1995, as amended by Act 1042 of 1997); CONN. GEN. STAT. § 22a-133(m) (Supp. 1998); DEL. CODE ANN. tit. 30, §§ 2010-2011 (1997) (Tax Code); FLA. STAT. chs. 376.77-.85 (Supp. 1999); IND. CODE ANN. §§ 6-1-1-42-10, -16, -19, -20, -24, -30, -32, -33 (Michie Supp. 1998); MD. CODE ANN., art. 83A §§ 3-901 to -905 (Supp. 1998); MICH. STAT. ANN. §§ 13A.20101-20142 (Law. Co-op. 1997); MINN. STAT. ANN. §§ 115B.17(14) & 115B.175 (West 1997 & Supp. 1999); MISS. CODE ANN. §§ 49-35-1 to -27 (Supp. 1998); MO. REV. STAT. § 447.700 (1998); N.H., REV. STAT. ANN. § 147-F (Supp. 1997); N.J. STAT. ANN. § 58:10B-1 (West Supp. 1998); N.M. STAT. ANN. § 74-4G-1 (Michie Supp. 1998); N.Y. ENVTL. CONSERV. LAW § 56-0503(1) (West 1997); N.C. GEN. STAT. §§ 130A-310.30 to .40 (1997); OKLA. STAT. tit. 27A, § 2-15 (1999); R.I. GEN. LAWS § 23-19.14 (Supp. 1997); VT. STAT. ANN. tit. 10, § 6615a (1997 & Supp. 1998); WIS. STAT. ANN. § 292.15 (West 1998-1999); ELI STUDY, supra note 4, at 178 (West Virginia).
62. ELI STUDY, supra note 4, at 169.
63. Id. at 145.
64. Id. at 147.
65. Id. at 229.
66. Id. at 188.
67. Id. at 199, 274.
68. See, e.g., id. at 226 (Oklahoma).
69. See, e.g., N.Y. ENVTL. CONSERV. LAW §§ 56-0101(7) & -0503(1) (West 1997).
70. FLA. STAT. ANN. § 376.80(2)(a)(1)-(4) & (b)(2)-(3) (West Supp. 1999).
71. ELI STUDY, supra note 4, at 164.
72. MD. CODE ANN., art. 83A § 3-903 (1998).
73. See, e.g., FLA. STAT. ch. 376.82(1)(a) (1997).
74. ELI STUDY, supra note 4, at 135-38.
78. FLA. STAT. ch. 376.81(1)(d) (1997).
79. See ELI STUDY, supra note 4, at 193.
80. See id. at 183.
81. MISS. CODE ANN. §§ 49-35-1 to -27 (Supp. 1998).
82. MD. CODE ANN., art. 83A, §§ 3-901 to -905 (1998); VA. CODE ANN. §§ 10.1-1429.1 to -1429.3 (Michie 1998).
83. See, e.g., FLA. STAT. ch. 376.82(2) (1997).
84. See, e.g., id. ch. 376.82(2) & (4); ELI STUDY, supra note 4, at 136-37.
85. MISS. CODE ANN. §§ 49-35-1 to -27 (Supp. 1998).
86. See, e.g., N.J. STAT. ANN. §§ 58:10B-30, 10B-31 (West Supp. 1998); ELI STUDY, supra note 4, at 136-37.
87. See, e.g., FLA. STAT. ch. 376.80(12) (1997); ELI STUDY, supra note 4, at 136-37.
29 ELR 10339 | Environmental Law Reporter | copyright © 1999 | All rights reserved