A Lesson in Brown

The feds have learned what to do with polluted industrial sites. States and cities taught them.
May 2002
By Jonathan Walters  |  Senior Editor
A Senior Editor of Governing, Jonathan has been covering state and local public policy and administration for more than 30 years.

The federal government isn't often accused of being a quick study in learning valuable lessons from state and local government. It certainly hasn't moved with unusual urgency on the problem of brownfields--the reclamation of environmentally damaged but still usable land. The brownfields question has been floating around in Congress for the past decade and a half. But on this issue, at least, it's a clear case of better late than never. When it comes to moving the feds off dead center, a decade and a half arguably can be counted as a fast-track success.

The brownfields law signed recently by President Bush has two key provisions. One relieves from liability small businesses that may have dumped a minuscule amount of toxins on a polluted parcel, or perhaps nothing toxic at all, just run-of-the-mill trash. The legislation also protects those not directly responsible for any pollution of a site-- potential new owners, for example.

The federal government is authorized to dole out money for site evaluation and cleanup based on the new, more liberal standard of remediation, rather than the old one, which essentially demanded that any site be restored to fully pristine condition before it could be reused at all. What matters now is the nature of the proposed reuse. Land being cleared for a warehouse doesn't have to be as clean as a playground.

But while the feds are to be commended for their newly enlightened approach to brownfields, the crowing that came out of Congress and the administration over the law was a little disingenuous. The limited- liability approach was not the federal government's idea, nor was the notion of bringing a parcel up to a "clean-enough" standard rather than the old absolute one.

Fourteen years ago--at a time when the EPA was bent on dragging everyone imaginable into litigation over a parcel's cleanup--the state of Minnesota launched the first state "voluntary investigation and cleanup program." Under the VICP, developers of polluted and abandoned industrial sites could work out deals with state environmental officials to remediate them in return for assurance that if the land were cleaned up to the agreed-upon standards, no further legal action would ensue. The idea was to focus not on blame but on redevelopment.

Just two years later, local governments got into the act. The city of Wichita came up with its own radical approach, inspired by some very bad news: The city's entire central business district was about to be named a federal Superfund site because of extensive groundwater contamination.

The impact of such a designation would have been downtown development paralysis, because of Superfund's "joint, several and strict liability" provisions, which essentially meant that anybody connected in any way with a contaminated parcel could be put on the hook for cleanup costs, whether they'd originally had anything to do with the pollution or not. Even owners of adjoining property who'd had contaminants leach over to their land could be held liable under Superfund. So could those who'd purchased parcels after the fact, unaware of the problem.

On the news of the impending Superfund designation, property values in downtown Wichita crashed by 40 percent almost overnight. Banks wouldn't lend to businesses or home buyers in the area. Indeed, nobody wanted anything to do with the 6-square-mile hunk of legal limbo.

And so Wichita decided on a bold course of action. Working through the state environmental agency, city officials negotiated an agreement with the EPA whereby the city would take responsibility for cleanup-- at an estimated cost of $20 million--in exchange for holding any new landowners or developers harmless for remediation costs.

By removing the taint of potential liability from hundreds of parcels, and by focusing on assessment and cleanup, the city saw a rebound in redevelopment activity.

It was this results-focused state and local approach that led the Clinton EPA to launch its own brownfields initiative, under which the feds worked much more cooperatively with states and localities to assess and redevelop polluted sites.

Under this cooperative program, ballparks blossomed on abandoned industrial sites in Dayton, Ohio, and Bridgeport, Connecticut. Ikea built a store on a former factory site in Elizabeth, New Jersey. Cleveland's trendy "Flats" redevelopment project went in on top of an abandoned marina formerly laced with petro-goo.

Now these promising cooperative ventures of the 1990s have been codified into federal law. But whether the lesson will penetrate other issues is uncertain. The advantage of looking to the grassroots for innovation extends far beyond the confines of environmental policy. The 1996 welfare reform law may be the most impressive example. The states led; the federal government followed. There are plenty of messy regulatory problems facing the country right now that would benefit from that approach. Perhaps, if there is a sufficient sense of urgency, we will be able to look for comprehensive federal health care reform based on state experimentation--sometime in, say, 2012.