Attorneys

• Scott R. Thistle
• Frederick L. Tolhurst

Related Practices

• Environmental Law

On Friday, January 11, 2002, President Bush signed H.R. 2869, environmental legislation designed to promote the cleanup and reuse of abandoned contaminated industrial sites and to provide certain liability relief under the Superfund law.  The new law, entitled the Small Business Liability Relief and Brownfields Revitalization Act (“the Act”), offers incentives to communities and developers to redevelop abandoned industrial sites, known as “brownfields,” and increases the amount of federal funding that state and local environmental agencies will receive from the federal government to fund assessment and cleanup activities.  At the same time, it also recognizes the need to distinguish between major and minor contributors of waste to toxic waste sites.

The Act provides certain assurances to developers that the federal government will not hold them liable for their efforts to revitalize brownfields under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as “Superfund”) and supplements similar programs already in existence in many states, such as Pennsylvania’s Act 2.  In the past, many developers were reluctant to clean up polluted brownfield sites because of such liability concerns.  This has meant that brownfield sites have often remained idle while development spurred on previously undeveloped lands.  The Act attempts to alleviate these concerns by offering liability relief to developers who make appropriate inquires about a site’s environmental condition and take reasonable steps to address those conditions.  In addition, it limits potential federal government enforcement actions under CERCLA for hazardous substance releases that are already being addressed by a state.

The Act provides liability protection for prospective purchasers, contiguous landowners and innocent landowners who have not contributed to site contamination.  For instance, property purchasers may escape liability for later-identified contamination provided they undertake appropriate inquiries about the property’s prior uses and any necessary environmental site inspection in accordance with specified requirements.  Certain innocent owners of real property that is contiguous to, and that is or may be contaminated by a release of hazardous substance from, real property on which there has been such a release are exempt from CERCLA liability.  

The Act also provides liability relief to small generators of waste.  Prior to this Act, under CERCLA these entities could have been held equally as liable for the cleanup of a toxic waste site as a significant contributor to the site.  Congress has now carved out a “de micromis” exemption from CERCLA liability for businesses that disposed of less than 110 gallons of liquid or less than 200 pounds of solid material containing hazardous substances before April 1, 2001, at a facility listed on the National Priorities List (NPL).  And, a non-governmental party bringing a contribution action has the burden to prove that the defendant does not meet the de micromis exemption criteria.

A municipal solid waste exemption is also provided to residential owners and lessees, small businesses and smaller nonprofit corporations with respect to response costs at a NPL facility where they disposed of their municipal solid waste, provided they are not an owner or operator of the facility.

Nongovernmental entities that seek contribution action will be liable to any defendant for all reasonable legal costs should the defendant be not liable based upon one of these exemptions.

For more information about this Act or how you could utilize it for a site redevelopment or take advantage of its environmental liability exemptions, please contact Scott R. Thistle, Frederick L. Tolhurst, Christine L. Wettach, or your Cohen & Grigsby attorney.