Lessons in Brownfields: Phase One Report Reform Ain't Working

In 2002, amendments to CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act)—the Superfund Law, were supposed to create a "get out of jail card" for owners of land who were innocent of polluting it or were diligent in investigating for pollution before acquiring it. It hasn't quite worked out that way, writes Richard Opper, an environmental attorney in San Diego, in a funny and sarcastic manner that could not be duplicated in this summary. Moreover, Phase 1 reports have created a cottage industry in which a large percentage of the reports are quite meaningless—except for their costs. Opper writes:

Now the bad news is that efforts by property owners to claim this protected space have not met with general success.  Sometimes it’s been a good thing – but more often there is some little bit or piece of the puzzle that you just sort of missed and WHAM!  Color you a Responsible Party.  And, by the way, if the strategy does work, it ONLY works for CERCLA as a “get out of jail pass”.  It doesn’t work for the Clean Water Act (federal) or Porter-Cologne (state) or claims of nuisance or any one of a dozen creative ways lawyers can tell you, “tag, you’re it.”

He goes on:

We now routinely use a Phase I for every property transaction that takes place.  Lenders demand it (despite the fact that they get a special extra CERCLA exemption).  So this notion of taking an “initial study” to see if there might be a “release of hazardous substances” that requires assessment and remediation gets routinely applied to all deals.  And each time it follows the set rules about how to address the issue.  And at no point did anyone ever consider – why are we doing this for property that has already been studied,  assessed AND remediated, all under the watchful eye of a regulator?

Opper goes on to point to a number of the other ways the new Phase I requirements fail. For anyone wanting to understand the brownfield environmental process better, and where it needs improvement, please read Richard Opper's series on Brownfields.