What is a “brownfield”?

The Environmental Protection Agency (EPA) defines a brownfield as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant". The actual presence of contaminants on this "real property" must be determined by a carefully planned investigation known as an environmental site assessment (ESA). The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 made the purchaser of any real property liable for any contaminants on this property. CERCLA's retroactive liability has made the performance of an ESA a practical necessity for any potential buyer of property, who naturally does not want to assume liability for the cleanup of any contaminants found there.

Brownfields are often abandoned, closed or under-used industrial or commercial facilities, such as an abandoned factory in a town's former industrial section or a closed commercial building or warehouse in a suburban setting. Brownfields, however, can be located anywhere and can be quite small. For instance, many dry cleaning establishments and gas stations produced high levels of subsurface contaminants during their operation. A second growth forest or a vacant lot may contain contaminated fill or be the site of the illegal dumping of pollutants. According to the EPA there are presently over half a million brownfields in the United States, but this number only includes sites for which an ESA has been conducted. The actual number of brownfields is certainly many times greater.

Revitalization of unproductive brownfields has become an important issue for federal, state, and local governments as well as for real estate developers, law firms, and banking and insurance interests. Many contaminated brownfield sites sat idle and unused for decades because the cost of cleaning these sites was very high and uncertain. The cost of the clean-up was often greater than the land would be worth after remediation. These brownfields were often in prime locations, close to transportation and a local workforce. Abandoned building or fenced-off vacant lots depressed real estate values and incentives for economic growth. Remediation and redevelopment of these brownfields is often the key to creating jobs, expanding the tax base, and revitalizing the economy of local communities. Because of this federal and state programs have evolved to assist developers interested in cleaning up brownfield sites and redeveloping them for productive use. These programs provide technical assistance, regulatory guidance, liability protection, tax incentives, loans, as well as funding for ESAs, job training and cleanup.

Environmental Site Assessment

Because CERCLA mandated that the purchasers of property were now liable for any contamination on this property regardless of when they acquired the site, it also created the need for a method to determine whether or not a property was contaminated before any purchase of real estate was completed. CERCLA also provided an escape from liability called the “innocent landowner defense”, but this defense could only be used to escape liability if “appropriate due diligence” was conducted prior to the acquisition of the property. CERCLA allowed that “appropriate due diligence” had been exercised only if a thorough investigation of the site’s current and former uses has been prepared. This generated the ESA industry in the United States. Thousands of environmental consulting firms now perform ESAs to determine the presence of any cotaminant liabilities on a given property.

An ESA has evolved into a multi-step process carried out by trained professionals employed by an environmental consulting firm. The EPA has now strictly outlined the steps necessary for an ESA, which must be completed by a licensed environmental professional. The steps in this process have become standardized because of the need for accurate information to plan redevelopment as well as to withstand the scrutiny of litigation. The three-step process is rigorously outlined by the American Society of Testing and Materials (ASTM). Phase I of an ESA includes research on current and former uses of the land, collection of all documents relevant to the property, and a non-invasive inspection of the site to determine the possibility of contamination on the property. The goal of a Phase 1 ESA is to determine if there is anything on the site that will require further investigation. For instance, if an underground storage tank (UST) were to be located, a Phase 1 report would note this fact and state that this would need to be further investigated (i.e., excavated to determine if it had leaked) in a Phase 2 study. The purpose of Phase 2 ESA is to resolve the issues presented by the Phase 1 study and, if present, delineate the nature and extent of any contamination on the property. This is a much more invasive process than the Phase 1 ESA and can include excavation, drilling, as well as sampling and analysis of groundwater. The discovery of contamination on the property may trigger the need to for a Phase 3 ESA or detailed plan for the remediation of the site.