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Abandoned Industrial Land Could Be Reused

© Kenneth Friedman

As the expanding global marketplace forces change upon American industries, many find themselves tightening belts. Sometimes this means cutting the workforce; sometimes it means closing office buildings and factories. Recently, for example, a newspaper article described an attempt by a company to give away its downtown multistory office building because it could find no buyers. Two nearby once-corporate buildings are already partly occupied by tenants. Elsewhere, numerous industries have announced partial or complete plant closings.

While it is arguably easy to sell an office building, it is not so easy to sell industrial land because much is or is suspected of being contaminated by industrial contamination. Such industrial sites, thousands of them, often in or near urban areas, are know as Brownfields, which should be reused quickly rather than left standing idle while new development grows on land better used for agriculture, forest, recreation and open space. When not reused, Brownfields often become blighted urban land.

Selling Brownfield sites isn't easy for at least two reasons. One is that government regulations, particularly the Superfund Law (Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)), assign to the seller long-term liability for environmental cleanup. No matter how long it takes, once an environmental problem is uncovered, the seller is liable for at least some of the cleanup. At the same time, buyers don't want property for which there are unforseen liabilities.

A second deterrent to selling industrial land has been the lack of or variability in government-approved cleanup standards. How clean is clean? Visually clean? Pristine clean? Clean according to an arbitrary numerical standard in parts per million or billion? Is it even possible to remove all contamination? If you own a 100-year-old plant, how do you know what historical contaminants were placed where over the lifetime of the plant? Since you don't, you could find yourself liable for cleanup many years later. Faced with such unknown liability, rather than selling, some industries would rather incur no liability by sitting tight and doing nothing.

Part of the Brownfield solution has been addressed by states' laws that define how much and how to clean up, release complying industries from state liability, and offer economic incentives for cleanup. However, industries still face bureaucratic delays, the problems of satisfying multiple levels of local government, and tough-to-understand cleanup regulations. And no matter what the states say, they have no jurisdiction over the federal Environmental Protection Agency, which still has a final say on federal liability.

One problem with federal liability under CERCLA is that liability can be assigned "severally" or "jointly." This means that EPA can hold one industry liable for its share of the cleanup cost or for the entire cost. This encourages each involved landowner to file

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