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

This second of a series on brownfield remediation and development is a funny and sarcastic primer about the process and its failures. Written by Environmental attorney Richard Opper.

2 minute read

February 3, 2017, 11:00 AM PST

By wadams92101


Mixed-use waterfront

La Citta Vita / Flickr

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.  

Thursday, February 2, 2017 in UrbDeZine

portrait of professional woman

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching. Mary G., Urban Planner

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching.

Mary G., Urban Planner

Cover CM Credits, Earn Certificates, Push Your Career Forward

Aerial view of town of Wailuku in Maui, Hawaii with mountains in background against cloudy sunset sky.

Maui's Vacation Rental Debate Turns Ugly

Verbal attacks, misinformation campaigns and fistfights plague a high-stakes debate to convert thousands of vacation rentals into long-term housing.

July 1, 2025 - Honolulu Civil Beat

Logo for Planetizen Federal Action Tracker with black and white image of U.S. Capitol with water ripple overlay.

Planetizen Federal Action Tracker

A weekly monitor of how Trump’s orders and actions are impacting planners and planning in America.

July 9, 2025 - Diana Ionescu

Map of Haussmann's redesign of Paris in the 1850s through 1870s under Napoleon III.

In Urban Planning, AI Prompting Could be the New Design Thinking

Creativity has long been key to great urban design. What if we see AI as our new creative partner?

June 30, 2025 - Tom Sanchez

Red and white "Wildfire Evacuation Route" sign on signpost.

Cal Fire Chatbot Fails to Answer Basic Questions

An AI chatbot designed to provide information about wildfires can’t answer questions about evacuation orders, among other problems.

3 hours ago - The Markup

Protester at Echo Park Lake, Los Angeles holding sign that says "Housing is a human right"

What Happens if Trump Kills Section 8?

The Trump admin aims to slash federal rental aid by nearly half and shift distribution to states. Experts warn this could spike homelessness and destabilize communities nationwide.

4 hours ago - Shelterforce Magazine

Aerial of rainbow painted crosswalks at large intersection in Castro District, Sna Francisco, California.

Sean Duffy Targets Rainbow Crosswalks in Road Safety Efforts

Despite evidence that colorful crosswalks actually improve intersection safety — and the lack of almost any crosswalks at all on the nation’s most dangerous arterial roads — U.S. Transportation Secretary Duffy is calling on states to remove them.

5 hours ago - Streetsblog USA

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Planning for Universal Design

Learn the tools for implementing Universal Design in planning regulations.

Home and Land Services Coordinator

Appalachian Highlands Housing Partners

Associate/Senior Planner

Gallatin County Department of Planning & Community Development

Senior Planner

Heyer Gruel & Associates PA