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Brownfields Revitalization and Legal Issues
The cleanup of contaminated property, including Brownfields, and the clarification of environmental cleanup liability, are the building blocks to the sustainable reuse of previously used property.
The term `Brownfields Site' (www.epa.gov/brownfields/glossary.htm) with certain legal exclusions and additions, means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. State and Tribal response programs play a significant role in cleaning up Brownfields.
I want to purchase a Brownfields site - what generally do I need to know about legal issues?
The vast majority of the Brownfields in the United States will not require federal EPA action. As a result, most will be cleaned up under State or Tribal authorities under what is called voluntary cleanup programs or a Brownfields programs. Many of these voluntary cleanup programs and Brownfields programs offer significant liability protections and other incentives to encourage the cleanup and revitalization of Brownfields sites. You should research your specific State or Tribal program by clicking on the links below.
State Voluntary Cleanup Programs (www.epa.gov/brownfields/pubs/st_res_prog_report.htm)
State and Tribal Contacts (PDF: 4 pp, 37KB)
Should I find out about the available liability protections before purchasing the site?
Yes. For many Brownfields sites, liability for the cleanup and other liabilities, can attach to a purchaser of such property as soon as they buy the site even if the purchaser did not cause the contamination. So it is often the best practice to research the site and determine what liability protections are available and to obtain those protections before taking title to the property. The good news is that there are numerous liability protections that a person can obtain to protect themselves from some or all of the legal responsibility for the cleanup and/or from other liability.
I’ve heard of the brownfield Amendments and ‘bona fide prospective purchaser’ status, how can it help me?
On January 11, 2002, President Bush signed into law the Small Business Relief and Liability and Brownfields Revitalization Act (www.epa.gov/brownfields/sblrbra.htm) otherwise known as the "Brownfield Amendments." The Brownfield Amendments amended the Superfund law. The main purpose of this amendment was to create incentives for the revitalization of contaminated properties. One of the main liability protection provisions of the Brownfield Amendments is the ‘bona fide prospective purchaser provision’ (www.epa.gov/compliance/cleanup/redevelop/landowner.html).
The bona fide prospective purchaser provision plays an important role in two areas. First, it allows purchasers to buy Superfund sites without incurring federal Superfund liability. Secondly, for applicants of some federal Brownfields grants, achieving landowner liability protected status (normally bona fide prospective purchaser status) is a mandatory qualification.
What about ‘bona fide prospective purchaser status’ and protecting myself from potential federal Superfund liability?
The vast majority of Brownfields sites that are entered into a State or Tribal voluntary cleanup program will never become a site of federal Superfund interest. This is because the site will be properly cleaned up under a state’s or Tribal government’s oversight and EPA will not need to become involved. In fact, under Section 128(b) limitations on Superfund liability authority (www.epa.gov/compliance/resources/publications/cleanup/brownfields/handbook/bfhbkcmp.pdf) in the Brownfield Amendments to the Superfund law, EPA is only allowed to become involved at such a site under limited circumstances.
However, some purchasers of Brownfields sites wish to obtain federal Superfund liability protection in the event that the site becomes a site of federal Superfund interest. The Brownfields Amendments provide important protections from Superfund liability to landowners who meet certain statutory criteria. Purchasers of contaminated property are protected from owner or operator liability under the Superfund law so long as the new purchaser meets the definition of a “bona fide prospective purchaser” under 40 U.S.C. Section 9601(40). The bona fide prospective purchaser provision states that a purchaser who acquires a site after January 11, 2002, and who complies with eight criteria will not incur Superfund liability as an owner of the property. In other words, a new purchaser must achieve and maintain bona fide prospective purchaser status for as long as potential liability exists to remain exempt from Superfund liability for the existing contamination at the site.
The bona fide prospective purchaser provision is designed to be self-implementing by the prospective purchaser meaning that you will not need to seek EPA’s review or approval of bona fide prospective purchaser status. Document your satisfaction of the criteria and keep it in a file in the event you need to prove that you have attained and maintained bona fide prospective purchaser status. EPA has issued guidance (www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf) and a reference sheet (www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-ref.pdf) which further explains the eight criteria. Another tool for managing federal environmental liability is the Brownfields Handbook (www.epa.gov/compliance/resources/publications/cleanup/brownfields/handbook/bfhbkcmp.pdf)
What about ‘bona fide prospective purchaser status’ and federal Brownfields grants?
In order to be eligible (http://www.epa.gov/brownfields/pg/faq2004.htm) for a federal Brownfields assessment and/or cleanup grant, an applicant must not be potentially liable or responsible for the contamination at the Brownfields site for which the grant is requested. In addition, in order to be eligible for a Brownfields grant where the applicant owns the property (for cleanup grants, the applicant must own the Brownfields site) the applicant satisfy the criteria of a “bona fide prospective purchaser” ( http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf) under 40 U.S.C. Section 9601(40).