Liability Relief: A Corporate Perspective (Part 3)

By Chris Olson

Parts 1 and 2 of this series focused on the wide spectrum of sites commonly referred to as brownfields and the regulatory strings and re-openers that commonly accompany most No Further Action (NFA) determinations. In this final segment, we’ll look at some ideas and potential solutions that might help clear the way for more corporate brownfield properties to flow into the market and hopefully onto newly productive uses.

Taking Brownfields to the Next Level
There is no doubt that reforms are necessary to increase the number of surplus corporate properties reaching the marketplace. But what might that reform look like?
Many environmental practitioners would say that overhauling Superfund and RCRA are paramount to making headway on liability reform. However, due to the complexity and effort needed to make this happen, I will opt to side-step this political hot potato, except for making a few general comments.

RCRA today, despite a few hints of reform, remains a very prescriptive process. Comparisons have been made between RCRA and the Eagles’ 1976 song “Hotel California,” where the lyrics say “…You can check in anytime you like, but you can never leave.” It conjures up thoughts about the 30-year post-closure care requirement on RCRA regulated units.

Superfund is not much better off and major reform seems to always be that mirage just ahead on the highway. One can’t argue with the overall goals of Superfund and the intent of protecting human health and the environment, but the program remains widely criticized for inefficiency, excessive costs, funding inequities, and promoting unnecessary litigation. Assuming that these programs require more difficult, long term “fixes,” let’s instead turn attention to four areas that could deliver some short-term results.

1. Begin with the End in Mind
I know companies have spend millions of dollars complying with corrective action orders to fully investigate a site, design and implement an expensive environmental remedy, and at the end of the process, end up with everyone scratching their head saying, “Now what can we do with this?” as they stare at a fully protective, bald green knob through a chain link fence.