This page will provide an overview and a brief history of the federal and Rhode Island state legislation that has provided programs and has address liability issues surrounding the redevelopment of brownfields.  

Background | Federal | State | Responsibility | Forms | Resources
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Background

What is a Brownfield?
The Environmental Protection Agency (EPA) defines a brownfield as "a property the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." Estimates of the number of brownfields nationwide range from 450,000 to more than one million. Over time, lawmakers and agencies have recognized that traditional approaches to dealing with hazardous waste contamination would not be effective in addressing this large number of sites, and might in fact provide disincentives to entities otherwise interested in cleaning up and redeveloping brownfields. At the same time, awareness grew that redevelopment of brownfields needed to be promoted to counter the trend of sprawl and loss of open space and natural resources, and could serve as a driver in urban revitalization.

Why should brownfields be cleaned-up and redeveloped?
Cleaning up and reinvesting in these properties increases local tax bases, facilitates job growth, can rehabilitate existing infrastructure, takes development pressures off of "greenfields", reduces community blight, contributes to smart growth and both improves and protects the environment.

* For more information on Smart Growth principles, see the sustainability section.

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History of Federal Brownfield Legislation

In 1976, the Resource Conservation and Recovery Act (RCRA) established a program focusing on the creation, transportation, use, cleanup and storage of hazardous materials, i.e. currently ongoing activities. In 1980, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) established the federal Superfund Program, aimed at cleaning up the worst hazardous waste sites, such as Love Canal, resulting from past practices such as the dumping of hazardous waste. Both programs focused on identifying "responsible parties" and holding them responsible for the costs of site assessments and cleanups. Strict liability was imposed not only on parties who had caused or contributed to the contamination, but also past, present and future owners of the contaminated properties, whether they had caused or contributed to the contamination or not. Although "innocent" parties could bring law suits to recover expenses from other parties they believed to be responsible, this did not reduce their own liability. The "fund" part of Superfund also provided funding for cleanups by government in cases where responsible parties could not be found or made to clean up the properties as quickly as the conditions and associated risks required; the government would instead seek reimbursement from responsible parties at a later time.

In all cases, the federal government (EPA) dictated what had to be done and how. This "command and control" approach was necessary to address a crisis situation and lead to the designation and cleanup of many "superfund sites." After several years, however, complaints became louder about the strict liability provisions, the complexity and length of the process, the cost of cleanup and, at the same time, the slow pace at which sites actually got cleaned up. Concerns were also raised that the approach actually lead to more abandonment of contaminated sites, even ones with less significant contamination or "brownfields", and to a preference among developers for "greenfields", i.e. sites outside urban or industrial areas where development was less complicated, and therefore less costly.

In 1986, the Superfund Amendment and Reauthorization Act (SARA) began to focus more on expediting cleanups and promoting redevelopment, instead of on just liability and cleanup. (It also made "federal facilities" such as those of the Department of Defense, subject to cleanup requirements.) The results were mixed. As awareness about sprawl and the blight effect of brownfields grew, EPA began to develop a program targeting these less contaminated sites, providing incentives for cleanup and redevelopment, and placing these activities in the context of community-based revitalization efforts and sustainable development practices. In 1993, EPA launched a Brownfield Initiative with a grant for the first pilot project, in Ohio. In 1995 it took the administrative step of creating a formal program within the Superfund program. In 1997, Congress passed legislation establishing an independent brownfields program with its own appropriations.

In December 2001, Congress passed the Small Business Liability Relief and Brownfields Revitalization Act, signed into law In January 2002. This 2002 Brownfields Act clarified previous policies and rules limiting liability for "innocent landowners" and "bona fide purchasers", meaning among other things that parties could purchase contaminated properties, clean them up and redevelop them without open-ended, future liability (as long as they conducted "all appropriate inquiry" as part of their due diligence, now defined as a Phase I investigation in accordance with nationally accepted engineering standards). The Act explicitly included contamination with oil products in its scope. This was previously outside the definition of hazardous waste, making it ineligible for federal financial cleanup, even though it was more often than not part of the contamination problems. In addition, the Act clearly acknowledged the role of state and local governments and the importance of their Voluntary Cleanup Programs; it told EPA not to intervene in cleanups proceeding under these programs except under certain specific circumstances. The combined effect was to shift the initiative and implementation to the local and state level, and to facilitate the role of the private sector in cleaning up and redeveloping brownfields.

The 2002 Act also formalized the role of EPA with respect to providing guidance and assistance for a range of activities, from site assessment and cleanup to training, through both grants and low interest loan programs. For more information, see the financial incentives page

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State Level Legislation: Rhode Island

State programs vary from state to state, but typically try to improve the timeliness and predictability of regulatory decisions, allow developers to take the initiative and propose assessment and cleanup plans, create flexible cleanup standards that are tailored to the future use of a property (instead of requiring cleanup to pristine conditions in all cases, or to residential standards even on commercial and industrial properties), and provide "end points" to liability through covenants not to sue, prospective purchaser agreements or similar instruments. In Rhode Island , the 1995 Industrial Property Remediation and Reuse Act includes the following Declaration of Policy:  

It shall be the policy of this state to assure that:

(1) Activities are taken to control and eliminate contamination at industrial properties that are fair, consistent, and compatible with the current and reasonably foreseeable future use of the property;
(2) Environmental barriers to economic redevelopment and beneficial reuse of contaminated properties are removed;
(3) Opportunities are available for businesses to realistically manage their environmental liabilities;
(4) Voluntary and cooperative clean-up actions are encouraged to the greatest extent possible; and
(5) Processes for environmental clean-up and liability relief are effective and efficient and minimize transaction costs to the extent reasonably feasible in order to facilitate appropriate reuse of contaminated properties.

The law also requires DEM to consider the effects of contamination and of cleanups on surrounding communities and to apply environmental equity considerations for low Income and minority populations that tend to be affected disproportionately.

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Who is considered the Responsible Party in Rhode Island?

According to the RI DEM website,

"Responsible Party shall mean any or all of the following Persons:

A. The Owner or Operator of a Vessel, Transport Vehicle, or a Contaminated-Site at which there is a known or suspected Release;
B. Any Person who, at the time of storage or disposal of any Hazardous Material, owned or operated a Contaminated-Site at which there is a known or suspected Release;
C. Any Person who, by contract, agreement, or otherwise, directly or indirectly, arranged for the disposal of Hazardous Material at a Contaminated-Site at which there has been a known or suspected Release;
D. Any Person who accepts or accepted any Hazardous Materials for transport to disposal or treatment facilities or Contaminated-Sites selected by such Person and from which location there is a Release or a threatened Release of Hazardous Materials which causes the incurrence of response costs;
E. Any Person who otherwise caused or is legally responsible for a Release of Hazardous Materials from a Vessel, Transport Vehicle or operation at a Contaminated-Site; and
F. The Person or legal entity controlling a Contaminated-Site, Transport Vehicle, Vessel or activity that contains or led to a known or suspected Release.

Responsible Party shall also mean any and all combinations of the abovementioned Persons. "

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Documents and Forms Available on RIDEM webpage

- ENVIRONMENTAL LAND USAGE RESTRICTION http://www.dem.ri.gov/brownfields/documents/elur.pdf

- Targeted Brownfields Assessment Form, an application for non-profit organizations, municipalities and tribal entities to receive a fully funded site investigation.
http://www.dem.ri.gov/brownfields/documents/tbaform.pdf

-Brownfields Economic Information Form: a request of performing parties when projects are complete to track the values of Brownfields redevelopment in the state
http://www.dem.ri.gov/brownfields/documents/beif.pdf

-Hazardous Material Release Form: sent to DEM within 15 days of the discovery of contamination on a property that is not an imminent threat to human health or the environment, which should reported immediately.
http://www.dem.ri.gov/pubs/forms/hwreleas.pdf

-Settlement Agreements and Convenants not to Sue (SACNTS): a legal document that outlines the responsibilities of respective parties in the remediation process and the terms and conditions for liability protection. In the agreement, DEM agrees not to sue the purchaser if the property is cleaned up according to Remediation Regulations.

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Resources

-Committee On Government Reform (2006). Report: Brownfields: What will it take to turn lost opportunities into America's gain? Available at http://www.gpoacsess.gov/congress/index.html
-EPA (2006). Brownfields Cleanup and Redevelopment. Retrieved from http://www.epa.gov/swerosps/bf/basic_info.htm
-RIDEM (2007). Brownfields. Retrieved from http://www.dem.ri.gov/brownfields/
-http://www.rilin.state.ri.us/Statutes/TITLE23/23-19.14/INDEX.HTM