Brownfields Uncertainty: A Proposal To Reform Superfund

David Slutzky
A.J. Frey

As with the articles in this issue, this introduction reflects the views of the authors and does not necessarily reflect the views of the U.S. Department of Housing and Urban Development.

For decades Americans have been trying to reverse the momentum of urban decline. In an effort to ensure that abandoned, contaminated properties were cleaned up, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA, also known as the Superfund Act. With the creation of the Superfund program, a liability scheme was put in place to make sure that brownfields would be cleaned up so they could be put into productive reuse. Unfortunately, the uncertainties associated with this liability framework have been declared by some to be the primary impediment to brownfield redevelopment. Private developers, who might otherwise provide the resources needed for redeveloping brownfields into vital community assets, are driven away from purchasing or investing in brownfield sites by the potential for catastrophic federal and state regulatory and tort liability. As a result, many brownfields continue to sit vacant or underutilized.

This article offers a solution to the risk and uncertainty resulting from federal and state cleanup and third-party tort liability often associated with brownfield sites, while preserving the current liability scheme as it pertains to parties actually responsible for the contamination. To mitigate the liability and tort concerns of potential brownfield redevelopers, this article proposes the creation of an absolute waiver of federal and state cleanup and third-party tort liability for truly innocent private parties that undertake to redevelop brownfield sites. Our proposed federal legislative reforms, coupled with incentives for states’ participation, should serve as a catalyst for private-party brownfield redevelopment while strengthening the fiscal vitality of the Superfund program without reliance on taxpayer dollars.