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. Contaminated sites are usually located near city centers, appealing to investors through planning, financial support, and administrative and governmental procedures. A 2014 soil survey conducted by the Ministry of Environmental Protection of China (currently
Ministry of Ecology and Environment of the People's Republic of China, or MEE) and the Ministry of Land and Resources of China (now the
Ministry of Natural Resources of the People's Republic of China), revealed the extent of
soil contamination, implicating that around 36% of sampling points were near proximity to industrially contaminated sites, thus potentially contaminated. The
MEE outlined ‘Opinions on Strengthening the Prevention and Control of Soil Pollution’ in 2008 for completing the investigation of soil pollution in a comprehensive manner, establish a soil environmental monitoring network, compiling national and local soil pollution prevention and control plans, establishing policies and laws for soil pollution prevention and control, and establishing a management framework such as laws and regulations. An ‘Action Plan on Prevention and Control of Soil Pollution’ was created in 2016 detailing requirements, work plan, and goals of the national soil contamination prevention priorities. In the
United States,
CERCLA was criticized for lengthy legal proceedings, burdens on small businesses, and lack of involvement from state and local governments as the main actions fall to the federal government. Amendments such as the Small-Scale Corporate Responsibility Mitigation and Brownfield Revitalization Act of 2002 aided these issues. The
United Kingdom established the Interdepartmental Commission for Redevelopment of Polluted Sites (ICRCL) to address contaminated sites and created legislation in 1990 to regulate these sites through the
Environmental Protection Law. Drawing on experience from these countries, crucial aspects for brownfield remediation and redevelopment include legal and regulatory systems, public participation throughout the entire project process, establishment of a register that publishes information and mobilizes participants, funding system including financial allocation and tax relief, and finally a ‘polluter pays’ system. A key difference in China is land ownership which is state controlled with individuals and businesses only having the right of land use. The challenges of managing brownfields is still complex as there are multiple levels of governmental control such as different Ministries, planning and development offices, expert groups, and residents’ groups to name a few. The
National Development and Reform Commission handles national-level planning, spatial planning, and national development planning to improve ecological protection and cleaner production. The
Ministry of Water Resources organizes preparation and implementation of water resource protection, protects drinking water sources, guides groundwater management, protection, development, and utilization, guides management and protection of important bodies of water, and guides ecological protection and restoration of water, flow, and system connectivity. The
Ministry of Housing and Urban-Rural Development handles transfer, development, and utilization of urban land use rights, improvement of small town/village environment, implementation of major energy conservation projects, and promotion of urban emission reductions. The
Ministry of Agriculture and Rural Affairs organizes rural living environment improvement as well as environmental management of agricultural sectors and cleaner production. Ownership interpretation and land use policies could pose a challenge in the future due to the complexity of land ownership in China. The UK and US have soil protection laws, with procedures to evaluate local conditions, regulate contaminated sites, and improve effectiveness of urban contaminated sites. China created a law to protect the ecological environment, prevent and control soil pollution, protect public health, promote sustainable soil usage, construct ‘ecological civilization’, and promote sustainable economic and social development. For local soil management, local governments should evaluate soil levels, risk management, technical reviews, and public participation and information to improve the contaminated land. Conditions for brownfield management should consider differences in economic and social development between different regions, availability of supporting infrastructure (landfills, storage, disposal), level of competence, pollution history, and exposure risks. These conditions applied in regional and phased manners would effectively manage contaminated sites throughout the country. For organization of brownfields, creating a registration system to keep track of the amount, pollution status, location, and size of contaminated sites to be investigated. This system will allow for brownfield sites to be managed hierarchically and classification of the site and development can be achieved. The MEE released the Measure for the Management of Soil Environment in Contaminated Land, outlining a comprehensive procedure for definition to supervision. The owner and user fill in the information system, then the MEE distributes it with urban and rural planning departments and land and resources departments. The land use holder is also responsible for site investigation, risk assessment, and remediation potential and compile a preliminary survey report, detailed survey report, risk assessment report, risk control plan, contaminated land remediation plan, and control and remediation evaluation report. Many brownfields come from old state-owned enterprises like petrochemical and metal processing plants, and over the years have been shut down making responsible parties hard to identify. Responsibility identification is thus one of the major issues facing brownfield management and remediation. In both the United Kingdom and the United States, enforcement powers ensure that polluters fulfil their obligations along with proper division of responsibility between central and local governments. The US has given
USEPA powerful law enforcement powers with penalties on polluters and improve environmental protection awareness of enterprises. The UK has given comprehensive powers to local environmental protection and health departments and plans to group environmentally related sectors into the USEPA for increased unity and strength. The National Expert Committee advises on governance and site investigations, support for risk assessment, redevelopment management, and proposal of research areas. The committee should be composed of various scientific experts as well as stakeholders, in addition with an ‘Environmental Pollution Reconstruction’ or Brownfield Management Supervision Committee to supervise and evaluate risk assessment and remediation at contaminated sites. In a similar sense, in 2019 the MEE created an Expert Advisory Committee on Soil Ecology and Environmental Protection with experts on soil, groundwater, agriculture, and rural affairs. Establishing a financial support system for brownfield issues is important. In the US the process includes methods to determine the responsible parties of polluted sites, reducing legal and administrative costs by the government and small businesses, consideration of tracking limitations of responsible parties for inability to cover remediation costs, and site remediation is extremely expensive and requires a sustainable funding system. In the UK, the private sector funds most land development and rehabilitation projects. Other countries have set responsibility to begin with the polluter, then to the landowner, and then to the government. Basic principles of China's ‘polluter pays’ process include the individual/groups that cause soil pollution have the main responsibility for control and restoration, if responsibility changes the inheritor will bear the responsibilities, if the responsible party is not clear the people's government at the county level will have the responsibilities, when the land use right is transferred the responsible person agreed by the parties involved will bear responsibilities, if land use right is terminated the original land use right holder will have the responsibilities, and a lifelong responsibility system will be implemented to treat and mitigate soil pollution. "Measures for the Administration of Special Funds for the Prevention and Control of Soil Pollution include (1) detailed investigation, monitoring and evaluation of soil pollution, (2) investigation and risk assessment of construction land and agricultural land, (3) prevention and control of soil pollution sources, (4) management and control of soil pollution risks, (5) remediation and treatment of soil pollution, (6) support to the establishment of provincial soil pollution prevention funds, and (7) enhancement of soil environmental supervision capabilities and other matters closely related to the improvement of soil environmental quality.” The
Ministry of Finance reviews and determines funding arrangements of provinces, autonomous regions, and municipalities in accordance with MEE proposals. Issues such as soil remediation goals and planning for brownfield reuse are important to address. Most of the brownfield sites for redevelopment are located in cities, and can be used for residential or commercial purposes to obtain the greatest land price. However, many have pollution history spanning half a century or more. Time constraints for redevelopment and remediation, as well as expenses can make complete restoration unlikely to achieve a goal of pristine conditions, applicable for multiple purposes. Soil screening and intervention values were released in 2018, however there is no set remediation value in China yet. Physical, chemical, and biological treatment applications have been utilized for brownfield areas, and paired with scientific evaluation can yield credible decisions regarding remediation goals and costs. To ensure long-term success, an integrated framework for brownfield management is key as China experiences high urbanization and industrialization. In the UK and US, the central government guides brownfield management on a macro level, with specific sites managed by local governments and stakeholders. This contrasts with China's strong central and provincial planning, paired with its single land public ownership system for overall land use planning and site remediation. A framework with participation from the public and government paired with information disclosure through the Internet, TV, and newspapers allows the general public to raise questions and input information, strengthening the redevelopment and remediation of urban brownfields. ==Issues==