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The United States Environmental Protection Agency (EPA) defines brownfield land as property where the reuse may be complicated by the presence of hazardous materials.Brownfields can be abandoned gas stations, dry cleaning establishments, factories, mills, or foundries.
Because of the growing considerations and acceptance of both federal and state agencies, more and more underused and abandoned properties are being redeveloped.
One of the major concerns with Brownfield development is the cost of cleaning up the area. However, with the passing of the Small Business Liability Relief and Brownfields Revitalization Act, there are now funds available from the Federal Government to help in the cost of cleaning.
Another option for assistance is the Brownfields Tax Incentive program, which was signed into law in 1997 and extends through December 31, 2011. The tax incentives goal is to encourage the cleanup and reuse of brownfields and the environmental cleanup costs are fully deductible in the year incurred. To qualify for this incentive the property must be owned by the taxpayer incurring the cost and there must be hazardous materials on the site.
Other federal grants and programs consist of providing either funding or technical assistance in assessing, cleaning, and revitalization of brownfields.
There are also low interest loans and grants offered by states to help in the cost of cleanup if the property meets the eligibility requirements.
Liability issues are of extreme importance to brownfield remediation. Foremost, developers run the risk of being held accountable for future remediation efforts if EPA or the state imposes additional requirements. Private parties must consider whether and when public groups should participate in control-site decisions pertaining to:
Other risk and liability issues associated with brownfield redevelopment include:
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),Superfund, and the Small Business Liability and Brownfields Revitalization Act.
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.
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.
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.
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.
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.
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:
Increased the amount of federal funds available for brownfield redevelopment from $98 million to $200 million. Expired in 2006.
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.
As a general rule, most state regulatory schemes resemble CERCLA in structure, though suffice to say,[according to whom?] there is not one "cut and dry" state approach to regulating brownfields. Most important[according to whom?] is that 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.