NCPA - National Center for Policy Analysis

Turning "Brownfield" Liabilities Into Assets

March 27, 1996

Despite spending more than $30 billion over 15 years, the federal "Superfund" program has failed. Among the most tragic aspects of its failure has been the creation of "brownfields" -- once productive commercial sites now abandoned due to the suspicion that they contain toxic waste and thus carry the burden of Superfund liability.

  • There are as many as 450,000 brownfield sites across the country.
  • Superfund has promoted a use-and-throw-away pattern of property ownership in inner cities as brownfields are avoided and greenfields (pastures, forests and farmlands) are cleared to make way for industrial growth.

Brownfield redevelopment should appeal to community leaders interested in increasing tax revenues and employment; to environmentalists wanting to preserve current greenfields and clean up existing contaminated sites; and to brownfield site owners wanting to turn potential liabilities into assets.

Two Congressional committees are considering Superfund reauthorization, but three reforms must be accomplished first:

  • The current Superfund liability scheme -- under which almost anyone remotely involved can be held responsible for site cleanup -- must be based on proportionate cost-sharing among responsible parties.
  • Site cleanup standards should be based on estimates of reasonably anticipated land use, rather than the current method, whereby one unrealistic risk assumption is stacked atop another -- resulting in wildly exaggerated risk scenarios.
  • In purely intrastate Superfund matters, states should be responsible for selecting Superfund sites and setting cleanup standards -- with the Environmental Protection Agency barred from second-guessing state judgments concerning site listing, cleanup standards and acceptable completion of the cleanup.

Also, Congress should do away with Superfund's retroactive liability -- which holds someone liable after the fact for doing something that was legal at the time. The Constitution bars this approach in criminal cases, and civil law should recognize the same standard.

These three reforms would contribute to quicker, less costly brownfield redevelopment -- getting brownfield sites back on the tax rolls, increasing inner-city employment, reducing urban sprawl and safeguarding citizens' health.

Source: Sterling Burnett (National Center for Policy Analysis), "Revitalize Cities Via Superfund?" Washington Times, March 27, 1996.

 

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