Work From Home Jobs Middlesex

Brownfield Redevelopments

Since the beginning of the Environmental Revolution, seldom have there been any proactive governmental solutions to local environmental problems. The federal bureaucracy often has difficulties passing broad legislation directed toward local areas of the country. Also, when it comes to environmental regulation and conservation, all levels of government struggle to find a balance between protecting our economy with protecting our ecology. While its believed most Americans want to protect our environment and natural resources, they also want to live in the free-market economy that they are accustomed to. All levels of government regularly give tax incentives, land grants, and reduced environmental regulations for industrial businesses the dump or emit pollutants into our air, land, and water supplies just so the states can thereby increase their tax base. While emissions of pollution have been quelled since the passage of the Clean Air Act and the Clean Water Act, these regulatory actions only attempt to limit the pollution that will come, not the pollution that already exists in our environment.

In the 1960s, after industrial companies had become a mainstay in the United States, a concern developed about contaminated lands caused by industrial pollution and consumption, specifically in blighted areas and a desire for someone to clean these sites commonly referred to as "brownfields." In general, brownfields are sore sights to see next to residential or business areas that often drive down property values and could cause severe health problems to residents or workers nearby. Developers and real estate investors avoid such properties because of cleanup costs and liabilities. Additionally, these sites provide no tax revenue or economic contribution to the local economy. The result can be blighted areas rife with abandoned industrial facilities that create safety and health risks for residents, drive up unemployment, and foster a sense of hopelessness.1

This is a problem that is neither good for the economy nor for the environment is one that requires serious rectification. However, after an initial burst of activity in brownfield redevelopment, the buzz around these projects has been suppressed. All levels of government have seen reductions in their budgets allocated for clean-up funding, financial institutions are less willing to loan money for these projects, and investor confidence in turning a profit is low. This paper shall explore the origin of brownfields, discuss the federal and state laws that seek to remedy these sites, and how effective those laws have been.

Initial Brownfield Issues

Identifying Brownfields

The overriding issue with the national brownfield program is that the federal government rarely, if ever, takes a hands-on approach to cleaning up these already neglected sites. In their defense, it is a difficult problem to solve when each brownfield requires a site-specific solution. The Environmental Protection Agency (EPA) has been the center responsible for identifying and locating brownfield sites and provides a roadmap of what needs to be done to complete the cleanup the location. However, there is no mandated national standard. The federal government is not nearly as involved in redeveloping brownfields as they should be and leaves responsibility to states, local governments, and private investors who decide to take on the financial risk and legal liability to redevelop these once useful lands.

Another issue is that brownfields are difficult to identify. Despite widespread use of the term, no commonly held definition exists.2 Some definitions limit the term to only industrial properties, properties with known contamination, or those properties with a known market demand. The EPA defines brownfields as "real [properties], the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant."3 This description applies to a wide variety of sites including, but not limited to, industrial properties, old gas stations, vacant warehouses, former dry cleaning establishments, and abandoned residential buildings which potentially could contain lead paint or asbestos.

Because of the variety of definitions currently in use, determination of the precise number of existing brownfields proves difficult. The speculative, but generally agreed upon statistic is that there are 450, 000 total brownfields in the United States.4 This figure includes some, but not all former industrial sites, abandoned gas stations, dry cleaners, and commercial operations. However, no one knows exactly how many brownfields are in each state, what percentage are rural and urban, the extent to how much brownfields make local economies suffer, or how much their redevelopment boosts those economies.5 Because of the inconsistency in definitions, landowners and municipalities hesitant to draw attention to properties which might be characterized as brownfields because of the stigma attached to contaminated land. Landowners justifiably fear a reduction in value or an expensive enforcement action by the government. Municipalities worry that publicizing a count of their brownfields place them at a disadvantage relative to cities that withhold this information.6

City Development and Environmental Justice

The cleanup and development of brownfield property not only reduces environmental health issues, but also aids in fostering community growth. Making previously, useless lands and developing them into something with greater utility such as residential housing, commercial space or a park, creates opportunities and benefits for the citizens and the community. Redevelopment also raises the property value of the land or homes that people live in, allowing home sellers or investors to make a profit off of property with a lot of utility. Replenishing these lands can result in the revitalization of a community through shops or restaurants that can add to the culture and identity of a neighborhood. Tax revenue for the city can be raised through higher property values and new commerce opportunities.

A major issue in cleaning up brownfields is where these sites are located. As early as 1971 federal regulators recognized that exposure to environmental pollutants was not distributed equally and that minority communities experienced disproportionately high levels of environmental risk.7 The EPA defines Environmental Justice (EJ) as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental policies."8 This logical interpretation stands that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.9

By the 1980s, a number of studies concluded that minority neighborhoods generally experienced worse air quality, worse water quality, more landfills, more sources of toxic and hazardous waste sites, and weaker enforcement of environmental regulations than did wealthier neighborhoods with smaller minority population.10 Cities and towns that fit this description suffer from higher rates of infant mortality, disease, and death among socioeconomically disadvantaged citizens.11

Brownfield redevelopment can create employment opportunities for local citizens in either the reconstruction or in new post-redevelopment businesses. Such restoration can be an opportunity for people to focus their efforts toward their community's improvement, leading to greater capital improvements and infrastructure for the neighborhood. In the San Francisco Bay area, a company that developed a unique solution to brownfield cleanup is Remediation Services, Inc (RSI). This company realized that although these projects enable hazardous sites to be cleaned up and developed, millions of dollars were being paid to external remediation contractors who had no ties or personal stake in the community. RSI's founders decided that there was no reason for money to leave their already impoverished communities. To alleviate this problem, RSI rebuilds communities holistically by hiring and training workers from the communities where the cleanups occur to prepare them for a 40-hour work week.12

RSI reaches out to minorities and economically disadvantaged people-some of whom are in the criminal justice system-in order to give them more of a stake in the future of their community. RSI pays these workers a competitive wage and offers vacation and insurance benefits like most construction companies. Corporations like RSI take advantage of the opportunity to use local human capital and not only improve the environment but the people's lives in the community as well.

Origin and Science of Brownfields Toxic/Hazardous Waste and Health Effects

Each brownfield site has its own history, in that, the chemistry and toxicity of the soils and waters vary due to the lands original composition. Modern industrial societies depend heavily on the use of chemicals for most of consumer products at the risk of public health and the environment. Over time, when industrial and manufacturing plants become outdated with the advent of new technologies, they are abandoned to rust. These wastes are typically is the product of industry or commerce, but also come from residential use, agriculture, the military, medical facilities, radioactive sources, and light industry, such as dry cleaning establishments.

The modern day definition of a "hazardous substance" is a product of references from the Clean Water Act, Resource Conservation and Recovery Act, Clean Air Act, and the Toxic Substances Control Act. In addition, the EPA can designate other substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Two major statutory exclusions from these lists are petroleum and natural gas. Not surprisingly, these exclusions in federal definitions of "hazardous substances" have been some of the most litigated provisions of federal law (and CERCLA specifically) as they represent a potential defense to CERCLA liability. Also, it is strange that these specific exceptions exist at all since they are major contributors to land and health degradation.13

The United States uses some 80, 000 different chemical compounds in commercial quantities, and industry develops between 500 and 1, 000 new chemical compounds each year.14 National production of synthetic chemicals burgeoned after World War II, increasing dramatically between 1945 and 1985.15 The overwhelming majority of all these chemicals-90 percent or more-are considered safe, although most have never been fully tested for toxicity.16 Toxic chemicals are usually defined as a subset of hazardous substances that produce effects in living organisms. To this date, only cancer has been studied at length, and it still may be too soon to detect effects from exposures over the past several decades.

Specifically, the major chemicals that continually appear in the majority of brownfields sites are trichloroethylene (TCE), lead, and chromium compounds. TCE is used to remove grease from fabricated metal parts and some textiles.17 Those who drink water that contains and excess of TCE could experience liver malfunction and may have an increased risk of contracting various cancers.18 According to the Toxics Release Inventory, from 1987 to 1993 TCE releases from steel pipe and manufacturing industries totaled over 291, 000 lbs.19 TCE has been found in at least 852 of the 1, 430 National Priorities List sites identified by the EPA, making it the chemical compound that appears most frequently on brownfields.20

Lead is the second most commonly found contaminant at CERCLA sites.21 It is usually discovered in the groundwater local citizens drink from. Lead is commonly used in household paint, plumbing materials, and water service lines.22 From any form of contact, someone can suffer from a variety of ailments. Children under the age of six are most vulnerable to harmful effects because their bodies absorb more toxins than adults. The most common reported effects of lead include behavior and learning problems, slowed physical growth, hearing problems and severe headaches.23 Adults can suffer reproductive difficulties, high blood pressure, digestive problems, nerve disorders, memory and concentration loss, or muscle and joint pain.24 Deaths from lead poisoning have become rare in the United States, but the lifelong harmful effects from lead still give enough cause for concern to dramatically decrease this chemical from human contact.

Chromium and chromium compounds are also commonly found in brownfield sites. It is used to harden steel, to manufacture stainless steel, and to form many useful alloys. The refractory industry has found it useful for forming bricks and shapes, as it has a high melting point, moderate thermal expansion, and stability of crystalline structure.25 The human body requires chromium to produce insulin to distribute sugar, protein and fat throughout the body. However, too much of the chemical can lead to harmful effects such as skin irritation or ulceration when exposed in the short term. Long-term exposure to chromium has the potential to cause damage to the liver, kidneys, circulatory system and nerve tissues.26 Eradication of excess chromium from our land, air and water supply could save thousands of lives.

Incidences Inspiring Legislation Love Canal, New York

The incident that likely began the environmental movement to remedy brownfields occurred at Love Canal in Niagara Falls, New York. Love Canal was a 16-acre Landfill in the southeast corner of the city. In the 1890s, a canal was excavated to with the idea to provide hydroelectric power. Instead, Hooker Electrochemical Company used the property as a dumping ground for disposal of over 21, 000 tons of various chemical wastes. Dumping ceased in 1952, and in 1953 the disposal area was covered and deeded to the Niagara Falls Board of Education for a transaction of one dollar. The city developed extensively into a nice community with thousands of residents and schools.

Meanwhile, the hazardous chemical waste dumped for decades had leached into the soil and water supply of the citizens. Problems with odors and residues were first reported at the site during the 1960s, increased in the 1970s as the water table rose, bringing contaminated ground water to the surface. The effect was cancer, birth defects and other diseases. Because of the well-publicized harmful health defects of the people of Love Canal, no one wanted to purchase the homes in the area. On August, 7, 1978, President Carter declared Love Canal a catastrophic environmental disaster area and began to lead the charge to provide federal financial aid for all the citizens to move from those homes, pay their medical expenses, and to cleanup Love Canal to not only make the land profitable for sale but more importantly to make it useful land again.27

Woburn, MA

One of the most publicized incidents of TCE emissions came in Woburn, Massachusetts, where, in 1982, a number of citizens whose children had either developed or died from leukemia filed a civil lawsuit against two corporations, W. R. Grace and Company and Beatrice Foods. These corporations were suspected of contaminating the groundwater by improperly disposing TCE, perchloroethylene and other industrial solvents at their facilities near Woburn's water wells. In April 1985, the same citizen's group brought a civil lawsuit against a third company, Unifirst Corporation.28

There have since been other companies who have contaminated the land and water of Woburn and Middlesex County, Massachusetts. Over the course of time, various companies have manufactured insecticides, explosives, acids, glues and other chemicals at the site. The EPA lead the first phase of cleanup at the site, which did not raise the land up to the standard required to redevelop. On February 28, 2008, a settlement was reached for the Industri-Plex site in Woburn. Cleanup costs are estimated to be nearly $26 million for the second phase.29

National Trends

Our industries are the major catalyst for dumping millions of pounds of toxins into our environment which create these health hazards and decrease the utility of our lands. New Jersey has an atrocious 116 federally designated Superfund sites, making it the state with the most concentrated amount of brownfield sites in the country.30 This is an incredible statistic when you consider that California ranks second in with 93 designated sites and it is the third largest and most populous state.31 Following behind are Pennsylvania, New York, and Michigan; three major industrial states with large populations and vast metropolitan areas.

The lack of emphasis on environmental cleanup at brownfield sites has been aided by a populous migration away from urban areas. Since the end of World War II, the development of urban areas has changed dramatically. A combination of government initiatives and technological improvements favored low-density, suburban development. Supply and demand factors dictated that this land was far less expensive than comparable tracts of land inside cities and could be developed without additional costs of clearing existing structures. For the next 50 years, the availability of cheap land just beyond the edge of development, often referred to as greenfields, pushed the border of development further out from the central core. State and local governments also added to the problem of toxic and hazardous waste by giving the additional help in the form of tax subsidies and lax zoning codes given to large polluters to be located in their lands.

Current Federal Law

Resource Conservation and Recovery Act

By the 1970s, Congress began to address the increasing problem of solid and hazardous waste. The legislature took a stance that land is too valuable a national resource to be needlessly polluted by discarded materials and that disposal without careful planning can present a danger to human health. In 1976, Congress enacted the Resource Conservation and Recovery Act (RCRA). RCRA regulates hazardous waste disposal practices as well as promotes the conservation and recovery of resources through comprehensive management of solid waste.32 The act has become a partner to CERCLA. Where RCRA requires the EPA to deal with hazardous waste generation and disposal, CERCLA is directed at the thousands of abandoned and uncontrolled hazardous waste sites.33

RCRA requires the EPA to develop criteria for the safe disposal of solid and hazardous waste and to aid in the development to promote waste recovery technologies and waste conservation. The idea is to develop a "cradle to grave" system of regulation that would create a paper trail and control the production, storage, and transportation throughout the lifetime of each specific hazardous waste to prevent illegal dumping.34 Additionally, RCRA explores and determines the appropriate technology for the removal and cleanup of wastes.35 After determining who possesses these hazardous wastes, the EPA must set the standards for treatment, storage and disposal that are "necessary to protect human health and the environment."36

RCRA is a great idea on paper; unfortunately the EPA did not utilize its vast resources and manpower as it should have for federal standards of disposal and waste treatment. In the wake of the Love Canal disaster, Congress enacted several amendments since the initial 1976 passage of RCRA to force the current and future EPA administrators to monitor and control the harmful effects of solid and hazardous wastes. Even today, many lawsuits still bring forth the issue of what is considered a hazardous waste that the EPA needs to monitor. Overall, RCRA, in conjunction with CERCLA does a lot to control and cleanup hazardous wastes by holding those responsible for toxic disposal strictly liable for their harmful effects. As with CERCLA, states have had to take more of a proactive approach with controlling this issue because the federal bureaucracy in place cannot reach to every case of waste dumping.

CERCLA

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), with access to Superfund, was passed in 1980 and revised in 1986. It provides for the establishment of a National Priorities List (NPL) to catalog the most contaminated sites, establishes a liability scheme to recover costs and compel parties to conduct cleanup activities, and creates the Superfund to finance cleanup at sites where EPA cannot find a responsible party.37 CERCLA is a long-range approach employed in the legislative response to environmental management problems. As a result, the statute indicates a clear preference for complete remediation, long-term solutions, and the interests of future generations.

To establish liability, CERCLA designates certain potentially responsible parties (PRPs). Violators are identified by the statute as anyone who either: 1) is the current owner of the facility or operator of the facility; 2) previously owned the property who could have been responsible for the disposal of waste; 3) made a contract, agreement, or arranged for disposal or treatment of hazardous substances owned or possessed by such persons; or 4) accepts any hazardous substances for transport to disposal or treatment.38 These persons will be subject to strict, joint, and several liability of the act for any cost of removal or remedial action by the US government or any other entity; damages for injury to, destruction of, or loss of natural resources including reasonable costs for assessing such an injury, destruction, or loss.39 The only defenses that currently exist against a CERCLA-based lawsuit are: 1) Act of God; 2) Act of war; and 3) Act or omission by a third party.

CERCLA has another aspect to its charter; it aids in the cleaning up of contaminated sites. Congress established a "Superfund" trust that the EPA could tap into. The fund was financed by a tax on manufacturers of petrochemical feedstocks and other organic chemicals and crude oil importers.40 The act emphasized a "polluter pays" principle, in that it intended to put responsibility for the cleanup and financial liability on those who disposed of the hazardous wastes at the site. To classify Superfund sites, Congress gave the EPA responsibility to respond to the problem by identifying, assessing and cleaning up those sites.41

As much as CERCLA seeks to accomplish, the usage of the law and how it was managed was poorly executed from the outset. First, no private investor or municipality wanted to purchase Superfund sites because the law would hold them strictly liable for the contamination. Anyone who owned a CERCLA designated property could be brought to court, and possibly be compelled to pay for the entire cleanup of the project. Often owners are forced to file third party claims or joinder actions to alleviate or pass along liability for brownfields.

Secondly, the EPA allocated a disproportionate share of Superfund money to legal and administrative costs rather than funding the cleanup and redevelopment of contaminated properties. To add to the economic chaos, banks are more likely to reject any request for financing a brownfield project because environmental laws may hold them liable for cleanup if they foreclose on a contaminated site.42 Also, there is no way of knowing to what extent the soil and water contamination is until you begin to cleanup the site. With this unknown, the cost of cleanup could easily exceed the value of the property.43 The policies of EPA and some states require a site-by-site evaluation of each contaminated site, forcing parties to begin a cleanup without a clear idea of the monetary cost or time required. Uncertainty resulting from the evaluation process makes finding financing difficult for any cleanup conducted under these environmental laws.44

Finally, suing multi-billion dollar companies, who were once owners of these lands, is an expensive, timely and litigious process. While some companies say they have paid their fair share for cleanups, the amount of money the Superfund is getting back from other companies in reimbursements for cleanups has steadily declined. The amount of money the EPA recovered has fallen by half in the past 8 fiscal years, compared with the previous six years, 1995 through 2000. Recovered costs peaked in the fiscal years 1998 and 1999, at about $320 million a year. By fiscal year 2004, collected cost recoveries had dropped well below the $100 million mark. In fiscal years 2005 and 2006, the EPA collected about $60 million each year.45 The result of these factors has caused the Superfund to virtually run out of money and a decline of public and private investors willing to come forth to accept responsibility for the cleanup.

In the years since CERCLA passed, there have been some amendments as well as changes in the way states take responsibility for their own land. First, President George W. Bush signed the Small Business Liability Relief and Brownfields Revitalization Act. This 2002 law removes the strict liability requirement for any potential investor, whether public or private, who wants to take on a financial risk of redeveloping a brownfield site.46 Secondly, individual states have taken on the challenge of addressing brownfields on their own terms, with even more ferocity than the federal counterpart. States may elect to have the same or more stringent standards as CERCLA, however, these states have more of an incentive to clean these sites up because states feel a stronger economic and ecological impact from the uselessness of these sites.

State Voluntary Cleanup Programs

State governmental entities have taken more responsibility than their federal counterpart when it comes to brownfield redevelopment. States began creating brownfield and voluntary cleanup programs in the late 1980s in response to the complexities of tapping into the Superfund and the realization that public funding was not sufficient to address all sites. The Small Business Liability Relief and Brownfield Revitalization Act of 2002 recognized states as the primary regulators for brownfield sites. An important element of the Act is that when a site goes through a state program, the state becomes the primary regulator and the federal government cannot use CERCLA enforcement authority over that site.47

Although CERCLA became a failed law because of its misuse by the federal administration, states still adopt many of the basic principles of CERCLA to remediate sites within their borders. It is logical that states are the primary actors to brownfield renewal because these are lands that affect the health and safety of their citizens and remedied sites may have great tax revenue potential. Some states have ventured outside of the CERCLA template and created with their own approach to encourage redevelopment. Meanwhile, other states have shown declining or no commitment to the issue.

Generally, states conduct cleanups and redevelop brownfields in two ways. Preferably, if there is a known responsible party (RP), then the state will require the RP to cleanup the contamination themselves or provide financing for the state to conduct the work needed. Other times, when an RP cannot be identified, states generally employ Voluntary Cleanup Programs (VCPs) which encourage private entities to conduct cleanups of contaminated properties in the absence of known polluters.

In the mid 1990s, the EPA formally recognized the benefits of state brownfield programs and VCPs. All states have since moved to some extent to create similar forms of programs. Nearly every state conducts its program differently, however, there are a number of elements that are common to many state voluntary cleanup programs. Most state programs have common components: a definition of a brownfield, eligibility requirements, financial incentives, and some degree of liability relief.48 Voluntary cleanups provide states with an additional tool to address thousands of sites identified across the country. Furthermore, VCPs are a useful tool for the states, because they typically require fewer resources and funding from the state than state-funded or enforcement-based cleanups. These savings often allow states to leverage their resources, concentrate their efforts, and achieve additional cleanups.

Eligibility

Not every site is automatically entitled to the benefits of a VCP. The final determinations lie with the States who consider different factors when assessing an area for redevelopment. While, of course, a myriad of factors are considered, the two main determinants are whether the proposed site fits within the definition of a brownfield or hazardous waste site, and the type of entity or person bringing forth a proposal for site remediation. Other factors include, availability of resources and capital, public proximity, and the amount of tax revenue the stay may be able to bring in.49

Each individual state statute specifically defines what a brownfield is. Only eight states use the same definition as the federal EPA.50 This perspective is viewed in both positive and negative lights. On the one hand, it is positive because the definition does not limit which specific types of real properties that can become brownfields, making it broad enough to include any contaminated property. On the other hand, the definition is not specific as to what the cause of the contamination is. Some states would view this as a negative, because they are unable to know what potential RPs to seek out to in order to administer the cleanup efforts.

Of the remaining states, only 20 have defined brownfields in their own terms, while the remaining 22 states have chosen not to have a definition because they administer their VCP through other state-sponsored programs covering hazardous substances or clean water and soil.51 Of the 20 states defining the term, nine strictly limit the categorization to only commercial and industrial properties. Perhaps this is because commercial and industrial sites constitute the vast majority of brownfields locations and their redevelopment tends to be easier and cheaper to redevelop because they have an existing infrastructure. These states leave out the possibility of contamination in agricultural and residential areas. This disqualifies some contaminated areas from VCP inclusion, potentially leaving them abandoned, worthless, and potentially harmful to surrounding areas. Still, there are 13 states who, similarly to the EPA, allow for more inclusion into their VCPs.52 Additionally, there are four states, Missouri, New Hampshire, Tennessee, and Washington, who define brownfields as simply areas contaminated with hazardous substances.53 This policy is deceptively inclusive as it extremely limits many brownfield sites, while not containing hazardous substances, which are still dangerous to the environment and nearby citizens.

Even if a specific site meets the local criteria, they still may not be eligible for VCP inclusion. There are states, such as Nevada, who will not allow brownfield redevelopment if the site already qualifies for a Federal EPA program or any other state program addressing the contamination.54 States that administer their VCP this way do not allow for overlapping of state funding. This logic allows state funding to be dispersed to many more brownfields requiring attention. However, it creates problems when a state spreads its funding out too thin. Then the parties seeking capital to rehabilitate their brownfields would actually benefit from receiving funds from multiple source.

The entity or person coming forward to volunteer for the state program must also meet certain criteria. There are eight states that deny any potential RPs of the contamination to enter into the VCP themselves.55 The result of this restriction is that the state has limited the amount of willing parties to effectuate the cleanup, as well as risk that a reclamation project be under-funded. This leads to another important prerequisite: a party wishing to enter into a VCP needs to bring forth their own funding. Similar to a bank or financing institution, the lender wants to make sure that the party seeking assistance can put down their own money to show that they are serious about the project and have a plan to be able to pay back any loans given to them.

Each state plays its own balancing act when it comes down to figuring out which VCP project to accept. They have to prioritize which sites and applicant entities are worthy of state funding. States have a fixed amount of funding which can only go to a limited amount of projects. Ultimately, the states view these projects not only as individual environmental problems but also as investments in the future infrastructure and tax revenue of the state and local governments.

Financing Methods

When a state agrees to accept an eligible participant and brownfield site, they often agree to a quid pro quo form of financing to alleviate the cost of cleanup, which can take the form of grants or low-interest loans. The funds for these loans materialize from four common sources: designated state cleanup funds, state general funds, federal grants, and fees assessed by the state against polluters.56 Federal grants are made up from the EPA's core Superfund program grants, site-specific cooperative agreements, and multi-site cooperative agreements.57 According to a study conducted by the Environmental Law Institute conducted in 2001, these grants were the major source of funding for states.58 However, in recent years the funds for these grants have either dwindled or dried up the proverbial well because of the failures of the administration of CERCLA.

Programs receive additional financing through fees charged to the voluntary participants as a prerequisite for entering into the VCP. These fees are generally used so that the state can oversee the project as it develops. While some states do not charge the voluntary parties, fees can accumulate such as when they charge $75.00 per hour just to make sure that cleanups are completed.59

The amount of a loan or grant is usually allocated on a site-specific basis. Depending on what type of business or structure once stood there, states have specific loans and grants for them. For example, Connecticut has a Dry Cleaner Establishment Remediation Fund which will grant up to $50, 000 per year for remediation and prevention of soil and groundwater pollution.60 Illinois will provide $3.5 million in low-interest loans to cleanup former commercial or industrial sites, $3 million of which is reserved for only six specific cities, while the remaining funds are allowed for use by other communities around the state.61

States often supplement direct financing for brownfield cleanups by offering tax incentives or breaks to VCP participants, based on the cleanup costs or the amount of time the cleanup will take. Other states provide incentives by reducing the property taxes on the brownfield site, or providing tax breaks based on the number employees conducting the cleanup.62 One means of financing which has become increasingly utilized is Tax-Increment Financing (TIF). When a state or city establishes a TIF, they will pay for the cleanup, but area then becomes a zone where all the taxes from the area will reimburse the city-with interest-for those funds they have given. This financial tool generally works after improving the property values, which in turn, raises the property tax rates of the TIF zone.63

New Jersey and Wisconsin are states which have consistently funded brownfield cleanups and redevelopment. In New Jersey, brownfield remediation has been a priority for the state for many years. Since the beginning of its brownfield programs in 1974, the state has spent over $145 million to fund redevelopment.64 In 1998, the state dedicated $75 million to a low-interest brownfield loan program in which the state will loan up to $2 million per site.65 The amount used by the state each year has increased showing their commitment to redevelop useless lands in the limited amount of space that New Jersey has. The state also attracts private investment in redevelopment by matching 25% of funds up to $250, 000 for developments utilizing innovative technology for environmental cleanups or for redeveloping sites with limited uses.66

For the 2007 fiscal year, Wisconsin appropriated over $30 million from their annual budget to different brownfield programs. From this amount, the legislature has established a Brownfield Grant Program in which they allocate $7 million per year for public or private entities to investigate, cleanup and develop a brownfield site so long as the entity provides 25% to 50% of their own funds for the project.67 Wisconsin has also increased funding for site-specific brownfields issues from $2.3 million in 2002 to $8 million in 2007.68 Wisconsin also does their fair share of providing tax incentives in the form of TIFs and property tax breaks. The state will also establish an agreement with the owner of the property where the state will cancel delinquent taxes if they agree to cleanup the site.69

Some states, despite having VCPs along with other brownfield legislation, do not provide the funding necessary to remedy the problem. Oklahoma, for example, has many brownfield sites, but as of 2002 reports a balance of $0.53 in the state's Environmental Trust Fund which is meant to replicate the purpose of the federal Superfund.70 As of 2001, the state did report that approximately $313, 450.00 were still in the state's Hazardous Waste Fund.71 Unfortunately, according to the annual budgets for 2007-2009, there is no mention of the allocation of any funding for the VCP program. These budgets indicate that a VCP does exist and claims some moderate success, but never mentions what the state has spent on the program.72

With little funding budgeted, Nebraska has demonstrated a lack of commitment to brownfield cleanup redevelopment. They established its VCP in 1995, but do little to fund it. The state budget allocates $2 million for federally designated Superfund Sites, but 95% of the funds actually come from the federal government.73 Therefore, even if an investor does wish to enter into the state VCP, they would have to rely on the state to obtain funding from the federal government. Rather than appropriately financing the rehabilitation brownfield sites, Nebraska has instead chosen to prevent future pollution of hazardous wastes into the air, water, and land through new legislation.74

Effectiveness

State brownfield programs and, more specifically, VCPs can be extremely effective in the cleanup and redevelopment of brownfields. As of 2005, approximately 48, 000 properties have been cleaned up through state response programs while 53, 000 properties are were still involved in state-sponsored programs.75 According to the Northeast-Midwest Institute study on every state's VCP, this model shows a correlation between the positive outcome of a project and the successful working relationships between the state agency, property owner, lending institutions, cleanup crews and development workers.76

The main benefit of VCPs is that they allow for organization and uniformity of the cleanup process within each state. The programs that tend to be the more successful in reclamation are the ones that have conceptualized how they want the redevelopment to be conducted and have the support of the state's financial weight to facilitate risky projects.

Massachusetts and Pennsylvania are two states putting forth significant efforts into remediating their respective brownfields. This is not merely out of good will, but out of necessity, as both industrial states contain thousands of contaminated sites. Fortunately, through 2005, they cleaned up 4, 917 brownfield sites collectively.77 Massachusetts not only focuses on the cleanup, but is also concerned with the recontamination of the site and thus restricts the available future uses of the land. The state has appropriated $15 million per year just for cleanup costs and another $30 million per year toward the Brownfield Redevelopment Fund.78 Addtionally, Massachusetts provides interest-free loans, tax incentives and grants for any party wishing to enter into the VCP. Actions and intelligent development techniques have alleviated the concerns of its populous and promoted feelings of environmental justice.

In Pennsylvania, a state with less identified sites than Massachusetts has appropriated a total $110 million toward their cleanup programs. Pennsylvania's Land Recycling Program is the state's version of Superfund, which they tap into when the state accepts a viable VCP proposal. Impressively enough, all of the funding is derived from state tax revenue as opposed to federal grants or fees. Pennsylvania loans up to $1 million when industrial brownfields are repaired and reused and up to $1.25 million when it is into a more publicly useful site, such as a residential area or recreational space.79 Pennsylvania also loans its cities and municipalities up to $50, 000 just to obtain an inventory of brownfield sites, which allows the state and general public access to information regarding what sites are available for redevelop.80

While complete economic effects have not been tabulated, officials estimate that New Jersey has created 30, 000 jobs and approximately 1, 097 businesses are currently located on redeveloped brownfields.81 In addition to the wide variety of industrial and commercial redevelopment, the citizenry of New Jersey has received the benefit of residential projects, schools, and recreational facilities.

Unlike the success of New Jersey and Massachusetts, there are some states that do not commit as much effort into brownfields remediation. Oklahoma has 850 known or suspected brownfield sites, 170 of which are identified as needing attention.82 Unfortunately, the state budget for fiscal year 2007 reports that approximately 200 sites have participated in the VCP and only 120 sites are currently in development.83 While public comments make it appear that Oklahoma has been committed to remediation of brownfields since the beginning of the VCP program in 1988, according to the Oklahoma Department of Environmental Quality, only 14 sites have actually received letters stating that soil and water contamination have been eliminated.84

Another state falling short is Virginia, which lacks a solid definition of brownfields, even though there are an estimated 2, 015 brownfield and hazardous sites that have been identified, 411 which require immediate attention.85 Out of all these sites, only 130 have been redeveloped.86 While Virginia does provide a framework for cleanup and redevelopment, the lack of remediated sites since the program began in 1997 is discouraging, given the large amount of identified brownfield sites. Virginia's lack of a clear definition of what a brownfield is forces them to decide which projects are worthy for the state to invest in on a case-by-case basis. They will also not accept any project or owner into the VCP who already is receiving funding from a different federal or state source.87 Virginia does provide loans to private entities, but the state only budgets about $1.3 million for that purpose.88

Success Stories Pittsburgh, Pennsylvania- Washington's Landing

Washington's Landing is located in Allegheny River within sight of downtown Pittsburgh. This area once known as Herrs Island, had a history of industrial oil refining, tube works, soap works, stockyards and scrap metal recycling. In 1903, Pennsylvania Railroad bought a portion of the island with the intent to use it as a stopover for its route from Chicago to New York. The island was well known for foul odors which drifted for miles and was commonly referred to as the "Herrs' stink." By the mid 1960s, new technology had invented high-speed trains putting Herrs Island off the route for the railroad and in 1966, the packing companies closed. Left behind were the commercial structures of these businesses and the contaminated soil and drinking water which contained particles of leached PCBs, heavy metals, and organic waste.

As far back as 1959, the City Department of Parks and Recreation, the City Planning Commission, and the Three Rivers Improvement and Development Co. thought about making the island a recreational park, although the plan was never adopted. By the late 1970's the Urban Redevelopment Authority (URA), an agency from the City of Pittsburgh, began to purchase parcels of the island and commenced to cleanup the site in 1983 (before CERCLA or any Pennsylvania brownfield program even existed).

Pittsburgh legally possessed all of what became known as Washington's Landing by 1989. An environmental assessment was conducted and non-hazardous waste materials giving off the offensive odor were found. The groundwater did not meet drinking water standards due to the ash, sand and granular materials on site.89 Also found was a 550-gallon underground storage tank with high levels of heavy metals and petroleum hydrocarbons. The tank was drained and disposed of while the contaminated soils were covered with crushed stone and used as a lot for boat storage and parking. In addition, hazardous waste was found on the southern part of the island in the form of PCBs which were linked back to electrical transformers from a salvage plant. The project was financed by approximately $43, 588, 000 in private investments and included $26, 205, 090 in grants and loans from state and federal organizations.90

After a traffic study of the island, it was found that the road system could not support the traffic for new commercial buildings. Thus, the island once known for its urban waste has been successfully redeveloped into a high profile residential community. The development consisted of seven-acres with 93 townhouses, a public park, tennis courts, a jogging and bike trail, a fitness and rowing center, a 150-slip marina, three office buildings, and a light industrial manufacturer.

Homes on Washington's Landing that once sold for $50, 000 now sell for more than $650, 000. While the city no longer receives tax revenue from the commercial plants that once existed, the residential community and small businesses now generate over $700, 000 in tax revenue annually for Pittsburgh.91 Washington's Landing is a prime example of the success that can be achieved when private entities work together with federal, state, and local governments to cleanup and redevelop what was considered useless property.

American Airlines Arena/Victory Park

In Dallas, Texas, around 1950, the area now known as Victory Park, citizens may remember the red brick power plant housing Texas Utilities Electric Company operations providing electric power to downtown Dallas. After an extensive environmental assessment, the EPA and state government agencies found many environmental issues, including contamination in over 70% of the soil and groundwater.92

Before the cleanup could take place, the issue of what the public and private investors were willing to convert the site into was a difficult task. The property's size and location would have made it irresistible to developers if not for the contamination left behind as a result of its former users and operators. Even considering the history of the property's industrial use and contamination in both soil and groundwater contamination, no toxic hazardous wastes were identified.93 However, environmental cleanup costs still totaled approximately $12 million dollars.94

Parts of the old structure, such as the fill material and concrete, were reused for the new construction. A comprehensive soil management plan was developed, which led to the excavation and disposal of 310, 000 cubic yards of contaminated soil and the reuse of another 250, 000 cubic yards of soil. Across the property, 45 structures were demolished and 26 miles of underground utilities were excavated and reinstalled. In addition, approximately 15 million gallons of groundwater were treated and 47, 000 cubic yards of concrete recycled.95 To support the property's eventual use as a centerpiece within an even larger, multi-use, urban community redevelopment project, more than 700 trees were planted.96

The city desired to use this land for a new venue for sports and entertainment venue that could provide multiple functions. Thus, Victory Park and American Airlines Arena was born. Ground breaking on the new development began in September 1999.97 In the end, this monstrous project was financed by a $425M Public/Private Partnership between Hillwood Development Corporation and City of Dallas.98 Hillwood conducted environmental cleanup; the state of Texas and Dallas provided $125M for construction of public infrastructure and in tax incentives.99 American Airlines Center opened its doors in 2001 to fans of the Dallas Mavericks, Dallas Stars, and began to host music concerts.

The area is now also home to three office buildings housing major multi-national corporations. Additionally, two hotels are stationed on the property, the W Hotel and the Mandarin Oriental. Within these hotels and on the park grounds are 72 acres of high-end condominium and apartment homes. Texans and visitors can also find places to shop, dine, go to the movies or enjoy the open parks on the site.

A preliminary report generated by Hillwood of the Sports Arena tax-increment finance district to the city of Dallas indicates the appraised value of the land has climbed from $145 million in 2006 to $386.5 million in 2007.100 The report goes further to say that "will result in the collection of approximately $6, 056, 674 total in incremental revenue for the Sports Arena TIF District."101 Although the project has been criticized for its flamboyance and overuse of materials, Victory Park projects will have generated 11, 000 jobs by 2009 and collectively grossed $1 billion in sales per year.102

Conclusion

Brownfield redevelopments are difficult programs for any level of government to monitor because of the many components that must work together to make the new land uses successful. The federal government, and more specifically the EPA, through its poor management, has rendered the liability and cleanup provisions CERCLA to become useless and has cashed out the Superfund. Because of the political realities, the EPA can be managed by an administration whose emphasis is not on the cleanup of these sites where the focus needs to be. When the EPA has control of funding throughout the entire United States, its possible to ignore areas of the country that require funding the most. Overall, federal legislation covering brownfields is a fantastic idea in theory, but in practice the enforcement of the law spreads the benefits too thin across the Untied States.

Individual states have proven to be better equipped to manage brownfield redevelopment legislation. While there is a lack of a consistent federal standard of what constitutes a brownfield, state VCPs have proven to be more effective and efficient in the remediation of contaminated sites no matter which definition they use. States also have more motivation to provide funding to brownfield projects because they are, in essence, investing in the future infrastructure of the state. When the state loans or grants funding to a VCP project, not only will the state regain that money with interest, but it will also accumulate a larger tax base. Furthermore, states should be allowed to decide which projects are acceptable because it is their sovereign land that is being developed on.

Leaving states the autonomy to run VCPs independently of the federal government may create a "race to the bottom" if states should decide that less stringent cleanups would suffice for redevelopment. This could result in a lack of cleanups in the more contaminated states because its easier to redevelop sites where cleanups take less money and effort. However, this theory is proven wrong because the states with the most brownfield sites and more intense cleanups standards are also the states with the most successful programs. These typically come from industrial states such as New Jersey, Pennsylvania, and Wisconsin, who put forth a great deal of financial resources and administrative efforts to redevelop contaminated lands.

Perhaps the federal government should look to the states as "laboratories" to see how to run a brownfields program. With improved administration of the program in terms of spending federal funding more wisely and creating a national cleanup standard, CERCLA and brownfields programs can potentially be more effective. Until the EPA proves they can consistently and effectively run the program to cover the United States, individual states should retain the responsibility of governing brownfield redevelopments.

People may drive by an area of abandoned warehouses and factories and think that they are entering into a poor neighborhood riddled with crime. Some just believe that the neighborhood offers no hope or opportunity. Many states and municipalities, through the leadership of forward-thinking mayors and other stakeholders, understand the importance of revitalizing blighted areas within their communities. The innovation of brownfield programs has allowed public organizations and private citizens the opportunity to redevelop these properties.

Redevelopment brings forth many benefits to the community. Initially we recognize the preventative health benefits such as eliminating or capping contaminated soil or water, along with the reuse of the land and leftover materials still on the site. Brownfield conversion can also help bolster community growth through development of residential or commercial businesses. With this progress comes more jobs, higher property values, a broader tax base for the city, reduction of urban sprawl, and the alleviation of environmental injustice. While there are many costs and risks to acquiring any brownfield property, with the right people at the helm of a project, social and financial success will be achieved.

Sources