Brownfields Program Overview Liability Protection Financial Incentives Legislation Meetings & Presentations Publications Program Overview Brownfields are typically abandoned or underused commercial and industrial properties that contain some contamination that may affect their future constructive use. They are usually found in cities and inner ring suburbs, but rural areas may also contain sites. Once cleaned up to acceptable environmental standards--the property's future use will determine the necessary cleanup level--brownfields can become viable economic development centers, attracting growth that may otherwise spill out onto the urban-rural fringe.

Featured Links Healthy Community Design: Turning Brownfields into Mixed-Use Development NCSL Contact   Scott Hendrick

There are three main obstacles to brownfields cleanup and redevelopment:

• Liability concerns of prospective property owners and developers.
• Insufficient financial incentives to make the necessary cleanup and redevelopment investments.
• Lack of specific requirements--institutional controls--that ensure sites are cleaned up to different degrees based on future use.

NCSL's Brownfields Project has prepared policy option reports in each of these three issue areas. In addition, the project tracks state legislation and state, federal and local brownfields program developments, and provides technical assistance to states considering brownfields legislation. Technical assistance may include:

• Testimony by NCSL staff or outside experts at legislative committee meetings.
• State-specific policy research.
• Bill review and drafting assistance.

Related Links

U.S. EPA Office of Solid Waste and Emergency Response
Environmental Law Institute's Brownfields Center
National Brownfields Association
National Governors Association
Northeast Midwest Institute

Liability Protection

Congress enacted the strict, joint and several liability provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) to stop the discharge of hazardous pollutants into the environment.  Under that law, every past and present owner of a contaminated property is held fully responsible for all cleanup costs, regardless of fault.  Superfund liability provisions also applied to brownfields owners and developers, making them subject to liability even if they did not cause the pollution. This policy raised barriers to brownfields redevelopment since businesses were unwilling to invest in redeveloping sites that could result in later federal enforcement actions and additional cleanup costs and responsibilities.

In an effort to eliminate federal Superfund liability for brownfields owners and developers and spur site cleanup and redevelopment, the Small Business Liability Relief and Brownfields Revitalization Act signed in January 2002 gives liability protection to bona fide prospective purchasers, contiguous property owners and innocent landowners seeking to redevelop brownfields.  These owners have to prove they had no responsibility for contributing to the contamination of the property and no knowledge of the contamination prior to acquiring the property. 

Several states have enacted laws containing liability protection provisions.  Different approaches include:

• Indiana--A covenant-not-to-sue is issued with a certificate of completion of work plan protecting the applicant against public or private claims under state law related to a hazardous substance release covered under the completed work plan.
• Maryland--A no-further-requirements determination and certification of completion of a response action plan protects the applicant from liability for any violation of the conditions placed on the use of the property, so long as they did not cause or contribute to the violation.  An inculpable person is not liable for any existing contamination, but is liable for new contamination or exacerbation of existing contamination.
• Pennsylvania--Upon determination by the state regulatory agency that the appropriate cleanup standard has been attained, the person completing the cleanup is relieved of further liability for remediation of contamination identified in reports submitted to and approved by the state regulatory agency.
• Virginia--Liability protections mirror federal law and are afforded to a prospective purchaser of a brownfields property, an innocent landowner that acquires the property without knowledge of contamination, and a contiguous property owner that is a victim of a neighboring property’s contamination.  Amnesty provisions make a voluntary disclosure of real or potential contamination immune from administrative or civil penalties under state law.

Financial Incentives

Several states provide grants, low interest loans, credit enhancement agreements and tax incentives for brownfields cleanup and redevelopment.  Examples of innovative programs include:

• Colorado provides a tax credit for environmental cleanup and redevelopment projects in cities with populations larger than 10,000. The tax credit ranges from 50 percent of the initial $100,000 for site remediation to 20 percent of the third $100,000 spent on cleanup.
• Massachusetts earmarked $15 million in 1998 for an insurance fund to help pay cleanup costs or guarantee private loans. The state also established a redevelopment fund to provide $30 million in low interest loans to private parties and grants to local governments, and authorized a tax credit.
• New York provides tax credits for soil and groundwater cleanup, site redevelopment and job training costs, and for purchasing environmental remediation insurance, and allows a refund of that portion of a credit that exceeds a person's tax liability in any given year.
• Oregon's Economic and Community Development Department offers several forms of financial assistance, including credit enhancement agreements (loan portfolio insurance and loan guarantees for environmental evaluations) and a Brownfield Redevelopment Loan Fund.
• Pennsylvania’s Land Recycling Program includes an Industrial Sites Cleanup Fund to assist in voluntary cleanups--grants or low-interest loans cover up to 75 percent of the cost of an environmental study and a cleanup plan. A job creation and tax credit program provides a $1,000 tax credit for each new job created at a brownfields site for companies that increase employment by 25 jobs or 20 percent within three years of beginning site remediation.

Legislation

Find summaries and status reports of state brownfields legislation in NCSL's Growth Management Legislation Database.

Meetings and Presentations

• Brownfields Cleanup and Redevelopment Policy Options, September 2005, Larry Morandi and Glen Andersen.
• Financing Brownfields: Cleanup and Redevelopment, November 2003, Larry Morandi and L. Cheryl Runyon.
• Liability Protections for Brownfields Owners and Developers, November 2003, L. Cheryl Runyon and Larry Morandi.
• Brownfields 2003 Conference Program Proceedings
• Oregon Brownfields Redevelopment Fund

Publications

• "Turning Brownfields into Mixed-Use Development," Healthly Community Design, May 2005 by Glen Andersen. 
• Brownfields Cleanup and Redevelopment, October 2004, by Larry Morandi, Jennifer Smith and Lara Mullins.
• "Liability Reform for Brownfields," February 2004, LegisBrief by L. Cheryl Runyon and Larry Morandi.
• "Liability Protection to Promote Brownfields Redevelopment," December 2003, State Legislative Report by L. Cheryl Runyon and Larry Morandi.
• "Institutional Controls as Brownfields Cleanup Tools,"Aug./Sept. 2003, LegisBrief by Denise Griffin and Larry Morandi.
• "Using Risk Assessments and Institutional Controls as Brownfields Cleanup Tools," July 2003, State Legislative Report by Denise Griffin and George Hagevik.
• "Financing Brownfields Cleanup and Redevelopment," April 2003, State Legislative Report by Cheryl Runyon.
• "Financing Brownfields Cleanup and Redevelopment," March 2003, LegisBrief by Cheryl Runyon and Larry Morandi.