State Voluntary Cleanup Programs: How We Got Here

            In the mid-1990s, the U.S. General Accounting Office estimated that there were approximately 130,000 – 450,000 contaminated properties located in the United States and that the cost to clean up these sites could exceed US$650 billion.  The contaminated sites – referred to as either brownfield or voluntary cleanup program (VCP) sites – ranged from manufacturing plants to military facilities to neighborhood gasoline stations to dry cleaners, and were owned by both private and governmental entities.

Although the terms brownfield and VCP are often used interchangeably, there can be programmatic differences between the two, depending on the individual state.  For example, under some state VCPs, brownfield sites may be cleaned up by a party that did not cause or contribute to the contamination.  In other states, eligibility for a VCP may depend on property ownership or it may focus only on the parties that caused or contributed to the contamination.  Differences pertaining to whether state brownfield funds may be used and the extent of public participation can drive the decision as to whether a property will be cleaned up as a brownfield or a VCP site.  State VCPs share the following general attributes and goals:

·        To reduce the spread of urban/suburban sprawl onto “greenfields” by encouraging the reuse and redevelopment of contaminated properties, especially those located in urban core areas.

·        To provide regulatory flexibility to developers, landowners, or responsible parties to investigate and cleanup environmental contamination, which often include provisions to implement institutional land-use and/or engineering controls.

·        To mitigate actual or perceived human health and ecological risks that may be present, which can include a tiered approach based on risk protocols tied to the future land-use (e.g., residential vs. commercial/industrial).

·        To provide financial incentives in the form of grants, loans, and tax incentives.

·        To relieve developers, landowners, responsible parties, or lenders of uncertain liability risks and provide some degree of liability protection (e.g., comfort letter, NFA letter, or certificate of completion).

When a contaminated site becomes the object of a cleanup program, there are a variety of federal and state regulatory programs that may be used, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA: also known as Superfund); the Resource Conservation and Recovery Act (RCRA) Corrective Action Program; the Toxic Substances Control Act (TSCA); state Leaking Underground Storage Tank (LUST) Corrective Action programs; and state brownfield programs and VCPs.

From a historical perspective, it wasn’t until the 1970s that the United States first began to recognize that environmentally contaminated properties might represent a threat to human health and the environment.  One result of this growing public awareness was the passage by Congress of RCRA in 1976, which first established the concept of the “cradle-to-grave” approach to managing solid and hazardous waste.  Within only a few years, however; it was determined that RCRA might not be the most appropriate regulatory program for investigating and cleaning up contaminated properties.

In 1980, in response to highly publicized events like Love Canal (a neighborhood in Niagara Falls, NY, which became the subject of national attention and controversy following the discovery of toxic waste buried underground), Congress passed CERCLA in an attempt to address contaminated properties.  It should be noted that CERCLA was intended to address only a relatively small number of sites that were considered to be the most heavily contaminated and posing the greatest threat to human health and the environment.  Of particular interest, CERCLA established a retrospective liability scheme to hold parties that were responsible for or associated with hazardous substances accountable for the cost of cleaning up contaminated sites.  Thus, the concept of strict, joint, and several liability entered our environmental vocabulary in the 1980s.

Since 1983, the U.S. Environmental Protection Agency (EPA) has listed 1579 sites on the National Priority List (NPL) under CERCLA.  As reported by EPA, through fiscal year 2007, 321 of these sites have been cleaned up and removed from the NPL.  Furthermore, remedial construction is now complete at 712 sites, which indicates that hazardous substances are under control and that a remediation system is in operation (www.epa.gov/swerosps/bf/index.html).

In 1986, Congress modified CERCLA and passed the Superfund Amendments and Reauthorization Act (SARA).  SARA was intended to encourage the implementation of permanent remedies and use of innovative technologies to more cost-effectively and quickly clean up contaminated sites.  In addition, SARA aimed to increase state involvement and citizen participation.

By the late 1980s, several states began developing their own brownfield programs and VCPs in response to the growing cost, complexity, and long time-frames associated with cleaning up sites under Superfund.  Both California and Minnesota enacted VCPs in 1988, and Illinois implemented its VCP in 1989.  Nearly 20 years later, most states have implemented some form of VCP.  According to the National Brownfield Association (www.brownfieldassociation.org), more than 50,000 sites have so far been cleaned up and issued some form of a comfort or no further action (NFA) letter by their respective state.

Most recently, in 2002, Congress passed the Small Business Liability Relief and Brownfield Revitalization Act, which recognizes states as the primary regulators of brownfield sites.  As summarized by the NBA, an important component of the act “was the creation of the federal enforcement bar, which ensures that when a site goes through a state program, the state becomes the primary regulator and the federal government cannot use Superfund enforcement authority over that site.”

More than 30 years after the enactment of RCRA and 20 years after the first VCPs were implemented, most states have now adopted VCPs and are moving forward with cleaning up a broad range of commercial, industrial, and (in some states), residential properties under their respective VCPs.  As a result, formerly abandoned properties are being recycled and reused and community exposure to environmental contaminants is being reduced.  The number of sites cleaned up to date under these programs reinforces the validity of the VCP model and bodes well for the continued cleanup of contaminated properties using these programs in the future.

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.  (Originally published by the author in EM, Air & Waste Management Association, April 2008).