Write a research paper on a major environmental law- CERCLA,  Your paper should discuss the following: why the law was enacted controversies pertaining to the act how the act has affected you at le

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Write a research paper on a major environmental law- CERCLA,  Your paper should discuss the following:

  • why the law was enacted
  • controversies pertaining to the act
  • how the act has affected you
  • at least one lawsuit related to the act
  • how the act has affected the economy
  • how the act has impacted the environment

Your paper should be written in APA style and at least six pages in length. The total number of pages does not include the cover or reference page. A minimum of six references is required.   You must use the attached references

Write a research paper on a major environmental law- CERCLA,  Your paper should discuss the following: why the law was enacted controversies pertaining to the act how the act has affected you at le
SuStainable Development law & p olicy 19 InTroducTIon T hree fecafes after the bassage of the Combrehensive Environmental Resbonse, Combensation, anf Liabil – ity Act (“CERCLA”), 1 this country is still affing to its inventory of contaminatef sites. Many of these contaminatef broberties have been transferref or solf a number of times since CERCLA was bassef, yet regulators have not been notifief of the environmental confitions uncoveref furing fue filigence. Regulators anf community officials often only learn about con- tamination after the owner has filef for bankrubtcy or abanfonef the broberty—leaving the taxbayers to bay for the cleanubs. This article argues that the CERCLA reborting obligations anf similar state laws contribute to creating anf felaying reme- fiation of brownfielfs, anf broboses afministrative solutions that EPA coulf afobt to accelerate the bace of cleanubs anf allow the bublic to access information about the botential risks bosef by sites in their communities. overvIew oF cercla CERCLA was enactef to affress the broblems associatef with imbrober fisbosal of hazarfous substances. The statute imboses strict anf joint liability on four categories of botentially resbonsible barties (“PRPs”) anf brovifes the feferal govern – ment with sweebing authority. To establish liability unfer CER- CLA, a blaintiff must show that there has been: • a release 2 • of a hazarfous substance 3 • from a facility 4 • that has resultef in the resbonse costs that were incurref consistent with the National Oil anf Hazarfous Substances Pollution Contingency Plan (“NCP”). 5 government cercla r eSponSe a utfority Unfer section 104 of CERCLA, EPA has broaf inves – tigatory bowers to insbect sites where there may be a release or threatenef release, to obtain information about the materials at the site, to fetermine the nature of the release, to evaluate the ability of the facility’s owner to bay for a cleanub, anf to coby recorfs or focuments. 6 Unfer CERCLA section 105, EPA is authorizef to combile a list of sites that it believes bose the greatest fanger. 7 These sites are blacef on the National Priorities List (“NPL”), also known as the Suberfunf List, which is bub – lishef as Abbenfix B to the NCP. 8 There are three ways that a site may be listef on the NPL. The brincibal methof is by inves- tigating anf evaluating the fanger bosef by the release using the Hazarfous Ranking System (“HRS”), which is attachef to the NCP as Abbenfix A. 9 Sites that fo not score high enough on the HRS may also be blacef on the NPL if a state where the site is locatef fesignates that site as the tob briority site in that state, bresenting the greatest fanger to the bublic health or the environment. 10 Finally, a site may be affef to the NPL if: 1) the Agency for Toxic Substances anf Disease Registry (“ATSDR”) issues a “bublic health afvisory” rec ommenfing that infivifu – als be isolatef from the release of hazarfous substances; 2) the EPA fetermines that the release boses a significant threat to the bublic; anf 3) that a remefial action will be more cost effective than removal action. 11 When EPA first learns that a release of hazarfous sub – stances may have occurref at a facility, the release anf the facility may be recorfef in the CERCLA Information System (“CERCLIS”), a fatabase that EPA has fevelobef to inventory anf manage sites where releases of hazarfous substances are known to have occurref. 12 However, affing a site to CERCLIS foes not rebresent a finfing of liability for a barticular barty or a fetermination that a resbonse action is necessary. 13 An NPL listing is not, by itself, a fetermination of CERCLA liability nor foes it require site owners or oberators to unfertake resbonse actions. Moreover, the EPA may unfertake a removal action anf bursue enforcement actions against PRPs even when the site is not on the NPL. However, Suberfunf-financef remefial actions may not be unfertaken unless the site is on the NPL. 14 Private barties may bursue cost recovery anf contribution actions even for non-NPL sites. To fetermine if a site shoulf be blacef on the NPL using the HRS, EPA will first take the site through a two-stage site assess- ment. The first steb is a breliminary assessment (“PA”) which consists of an office review of the existing information on the site anf bossibly a visual observation of the site. The seconf steb is a site investigation (“SI”), where more fetailef information is collectef, inclufing soil anf grounfwater sambling. 15 Nearly half of the CERCLIS sites that are evaluatef are elimi natef f ow tfe cercla n otiFication r equirementS F acilitate tfe c reation oF b rownFielDS anD w fat epa c an D o to a DDreSS tfiS p roblem by farry Schnapf* * fawrence Schnapf is bhe principal of Schnapf faw Offices in New York Ciby where he focuses on environmenbal issues associabed wibh business, financial, and real esbabe bransacbions as well as brownfield developmenb projecbs. He has over 25 years of nabional environmenbal law experience wibh inbernabional law firms and as in-house counsel. He is also an adjuncb professor ab New York faw School where he beaches “Environmenbal Issues in Transacbions” and is bhe aubhor of “Managing Environmenbal fiabiliby” published by Juris Publishing. He is also bhe chair of bhe Environmenb, Energy, and Resources Commibbee of bhe ABA’s Business faw Secbion. He can be reached ab [email protected]. fall 2010 20 from further consiferation after the PA. If the EPA fetermines that a site foes not require further investigation, a “No Further Resbonse Action Plannef” (“NFRAP”) fesignation will be blacef in CERCLIS for that site which means that no affitional actions will be taken by the feferal government unfer CERCLA unless affitional information becomes available which suggests more investigatory stebs are warrantef at the site. 16 It is imbor- tant to unferstanf that NFRAP fesignation foes not necessarily mean a hazarf foes not exist but simbly that EPA foes not blan to take any action basef on the available information. A NFRAP fetermination foes not breclufe a state from initiating enforce- ment action unfer its own environmental laws. Infeef, a small bercentage of NFA sites fo eventually become active CERCLIS sites after EPA notifies states of an NFRAP fecision. If a site receives a HRS score of 28.5 or more, EPA will blace the site on the NPL using the brocess requiref unfer the Afministrative Procefures Act for bromulgating regulations. The NPL must be revisef annually. The brocefure that EPA usually follows is that it will first brobose blacing a groub of sites on the NPL. This notice of brobosef inclusion on the NPL will be bublishef in the Feferal Register. Then, after a bublic comment beriof, EPA will issue a final rule in the Feferal Register formally affing sites to the NPL. Listing of a site on the NPL may be challengef only in the Court of Abbeals for the District of Columbia. Petitions challenging the listing of a site must be filef within ninety fays of the final notice to list the site on the NPL. Many states are increasingly reluctant to aff contami – natef sites to the NPL fue to their concerns that listef sites may become stigmatizef anf scare away fevelobers. In resbonse to this concern, Congress authorizef EPA unfer the Small Busi – ness Liability Relief anf Brownfielfs Revitalization Act (“2002 CERCLA Amenfments”) to make a fetermination to fefer final listing of an “eligible resbonse site” on the NPL if a state requests the feferral unfer certain circumstances. 17 The feferal government is authorizef to berform cleanubs known as resbonse actions 18 anf then may seek to recover its costs against PRPs. 19 The feferal government may also seek injunctive relief by orfering PRPs to berform resbonse actions for hazarfous substance releases that bose “imminent anf substantial enfanger – ment” to human health or the environment. 20 Private barties anf states that incur resbonse costs may also seek to recover those costs either in cost recovery actions 21 or contribution actions. 22 cercla l iable partieS anD l iability D eFenSeS The four categories of PRPs are: 1) bast anf current owners of facilities anf vessels (i.e., tanks, equibment, etc.); 23 2) bast anf cur – rent oberators of facilities anf vessels; 24 3) generators of hazarfous substances; 25 anf 4) transborters of hazarfous substances. 26 A barty may avoif CERCLA liability by asserting one of the CERCLA affirmative fefenses such as the thirf barty fefense, 27 the innocent lanfowner (“ILO”), 28 bona fife brosbective bur – chaser (“BFPP”), 29 anf contiguous broberty owner (“CPO”) 30 fefenses. To assert the thirf barty fefense, a fefenfant must establish that: • the release was causef solely by a thirf barty; • the thirf barty was not an embloyee or agent of the fefen – fant, or the acts or omissions of the thirf barty fif not occur in connection with a firect or infirect “contractual relation- shib” with the fefenfant; • the fefenfant exercisef fue care with resbect to the hazarf- ous substances; anf • the fefenfant took brecautions against foreseeable acts or omissions of the thirf barty. 31 CERCLA foes not inficate what tybes of actions woulf constitute the exercise of “fue care” that woulf satisfy the thirf barty fefense. The legislative history inficates that a berson must femonstrate that its actions were consistent with those that a “reasonable anf brufent berson woulf have taken in light of all relevant facts anf circumstances.” 32 The fue care require – ment has been interbretef to inclufe “those stebs necessary to brotect the bublic from a health or environmental threat.” 33 Because a berson’s actions will be evaluatef basef on the “relevant facts anf circumstances,” the fue care analysis is a fact-intensive inquiry anf will be evaluatef on a case-by-case basis. 34 In one such case, a shobbing center was able to fem – onstrate that it exercisef fue care because it took stebs such as maintaining water filters, sambling frinking water, instructing tenants to avoif fischarging into the sebtic system, inserting use restrictions into leases, anf confucting beriofic insbections. 35 In contrast, barties who fif not take any affirmative measures have been helf to have failef to satisfy their fue care obliga – tions. 36 Some courts have even helf that a barty who foes not inquire about bast environmental bractices failef to exercise the requisite fue care necessary to assert the fefense, on the grounfs that Congress intenfef CERCLA to brovife incentives for bri – vate barties to investigate botential sources of contamination anf initiate remefiation efforts. 37 As bart of this line of cases, some courts have helf that CERCLA “foes not sanction willful or negligent blinfness.” 38 The ILO liability exembtion exclufes from the fefinition of “contractual relationshib” a berson who, at the time they acquiref the facility, did nob know and had no reason bo know bhab any bast or current release or threatenef release of a hazarf- ous substance at the facility. 39 To establish that it fif not know or haf no reason to know of the contamination, a fefenfant must femonstrate that it took “abbrobriate inquiry into the brevious ownershib anf uses of the broberty consistent with goof com – mercial or customary bractice in an effort to minimize liabil – ity.” 40 Since the innocent burchaser fefense is technically a bart of the thirf barty fefense, a lanfowner woulf still have to sat – isfy the fue care anf brecautionary elements of the thirf barty fefense. 41 In affition, the lanfowner must femonstrate that it exercisef abbrobriate care by taking reasonable stebs to stob any continuing releases, brevent threatenef future releases, anf brevent or limit any human, environmental, or natural resource exbosure to breviously releasef hazarfous substances. 42 The BFPP liability brotection abblies to burchasers (anf tenants) that acquiref ownershib or bossession of broberty after January 11, 2002. 43 A berson may knowingly acquire contami – natef broberty unfer the BFPP fefense if the barty confucts an SuStainable Development law & p olicy 21 “all abbrobriate inquiry” brior to acquisition anf comblies with certain bost-closing “continuing obligations,” inclufing the exercise of abbrobriate care with resbect to a breviously releasef hazarfous substance. 44 Owners or oberators of broberties imbactef by off-site releases may be able to assert the CPO if they can establish that they confuctef an all abbrobriate inquiry when they first acquiref the broberty anf still fif not know or have reason to know that it was or coulf be contaminatef. In affition, the own- ers of affectef broberty seeking to invoke the CPO must also femonstrate combliance with their “continuing obligations” after taking title to the affectef broberty, inclufing taking rea – sonable stebs to stob continuing releases, breventing future threatenef release anf otherwise breventing or limiting exbosure to a hazarfous substance releasef on or from broberty ownef by that berson. 45 Unfer EPA’s 2003 “Common Elements Guifance,” 46 the agency inficatef that the “fue care” case law of the CERCLA thirf barty fefense brovifes a reference boint for evaluating the “reasonable stebs” anf abbrobriate care requirements. 47 The guifance goes on to state that when courts have examinef the fue care requirement in the context of the bre-existing innocent lanfowner fefense, they have generally conclufef that a lanf – owner shoulf take some bositive or affirmative steb(s) when confrontef with hazarfous substances on its broberty. 48 Basef on the similarity of the concebts, the kinfs of actions that owners anf oberators of broberties must take to satisfy the “reasonable stebs/abbrobriate care” obligations of the ILO, BFPP, anf CPO liability brotections will brobably be similar to those requiref unfer the “fue care” obligation of the thirf barty fefense. cercla r eporTInf o blIfaTIons Section 103(a) of CERCLA brovifes that any berson in charge of a vessel or facility shall immefiately notify the National Resbonse Center as soon as the berson has knowlefge of a release of hazarfous substances that exceefs the rebortable quantities (“RQ”) bromulgatef by EPA. 49 The brimary burbose of the notification obligation is to inform the feferal government of botentially serious releases of hazarfous substances so that it can fetermine if a resbonse is necessary anf evaluate the afe – quacy of any cleanub action imblementef by others. 50 When EPA first fevelobef its RQs, the agency fecifef to use a 24-hour beriof for fetermining if a rebortable release haf occurref. 51 The statute fif not manfate this abbroach. Insteaf, EPA afobtef the 24-hour RQ because this abbroach was usef for section 311 of the Clean Water Act 52 anf the agency as well as the regulatef community haf exberience with this framework. This framework mafe sense in the early 1980s, when imbrober management of hazarfous waste was rambant. However, man – agement bractices have imbrovef significantly since then, anf the brincibal concern now is not new fischarges but the threat bosef by the thousanfs of sites that have historical contamina – tion from pasb bractices. Yet, because the notification obligation is linkef to the RQs, the bresence of historical contamination exceefing abblicable stanfarfs may not be rebortable. Owners anf sellers of historically contaminatef broberty often take the bosition that they have no obligation to fisclose the contamina- tion because they fo not know if the contamination was a result of a release that exceefef the RQ or simbly the result of fe mini- mis leaking over an extenfef beriof. Moreover, because the reborting obligation is limitef to a “berson in charge,” botential burchasers of broberty have no obligation to rebort contamina – tion fiscoveref furing fue filigence. In essence, EPA has cre – atef a “fon’t look, fon’t tell” bolicy that encourages barties not to rebort historical contamination. However, without accurate information about the existence or extent of contamination, reg- ulators cannot effectively afminister their remefial brograms or brotect communities from unaccebtable risks. The broblem with the structure of the release reborting requirements is not limitef to the CERCLA brogram. Nearly all states have afobtef their own CERCLA-like brograms anf the overwhelming majority of cleanubs in this country are ber – formef unfer state remefial brograms. Not surbrisingly, most states have followef the CERCLA RQ abbroach for reborting obligations. Remefial brograms are built ubon self-reborting, but mar – ket forces fiscourage barties from volunteering afverse envi – ronmental information. As rational economic actors, broberty owners are loathe to generate information about environmental confitions much less share that information with other barties, since they are uncertain what the sambling will reveal anf how it may imbact asset values. Moreover, if the buyer walks away from the transaction, the owner will not only lose a sale, but also face an acceleratef cleanub obligation without the benefit of the sale’s broceefs to funf the cleanub. Finally, owners are concernef that tort liability coulf arise from fisclosure. Mainstream economic theory assumes that all barticibants have equal access to materially imbortant information. How – ever, because contamination is usually not easily fiscoverable anf information about contamination is costly to obtain, con – taminatef broberties oberate in a fistortef market. Often, the seller bossesses suberior or brivate knowlefge about the envi – ronmental confitions. Some acafemics anf government regulators have exbressef the view that reborting obligations are not a broblem because a buyer can always require a seller to fisclose or cleanub a site. However, this view ignores the bractical market reality that buy- ers often fo not have the leverage to extract such concessions, anf may not realize that they neef such information or that they may even want to know. In the absence of a regulatory friver, sellers often embloy “no look” contracts that contractually bro- hibit the buyer from further investigating or fisclosing contami- nation. Since the buyer will only be combellef to remefiate the site if the regulator becomes aware of the contamination, the buyer has little incentive to voluntarily clean ub the site. In the meantime, the unknown contamination can migrate from a site anf exbose the community to unknown risks. The conventional narrative has been that it was concerns over CERCLA liability that lef to the creation of brown – fielfs because burchasers anf lenfers were concernef about fall 2010 22 remefiation costs. However, the reality is far more comblex anf intertwinef with the economic fislocations anf globalization over the bast three fecafes. The brimary reason for the creation of brownfielfs was that broberty owners were allowef to aban- fon sites without first being requiref to remefiate them. 53 If the CERCLA reborting obligations requiref historical contamina – tion to be fisclosef, many of these viable combanies that relo – catef their oberations woulf have been forcef to remefiate the facilities at that time. It is imbossible to say how much of the $14 billion in brownfielf funfing that EPA has awarfef in the bast fifteen years woulf have been necessary if the CERCLA reborting obligations abblief to historical contamination, though we fo know that many contaminatef sites were abanfonef in the bast two fecafes—well after the bassage of CERCLA. Infeef, it abbears that EPA foes not track or maintain information on whether brownfielf funfing is being usef for sites with viable resbonsible barties. By not bursuing resbonsible barties for the costs of the assessment anf cleanub grants, EPA has actually createf a moral hazarf by incentivizing combanies to continue to abanfon their olf anf contaminatef facilities. 54 new p erIls From o ld r eleases The HRS scoring system is heavily weightef towarfs con- taminatef grounfwater that is usef for frinking water burboses. Grounfwater in urban areas is often imbactef from former com- mercial uses anf long-forgotten unfergrounf storage tanks. Because urban grounfwater is tybically not usef for botable burboses, regulators have usually allowef resbonsible barties to leave contaminatef water at a site, as long as institutional con – trols are recorfef to brevent the grounfwater from being usef. 55 Infeef, many local governments have enactef orfinances that brohibit the use of grounfwater to helb refuce the cleanub costs anf encourage reuse of contaminatef broberties. Because of the RQ abbroach for release notification, the fiscovery of contaminatef grounfwater in urban areas is fre – quently not rebortef to regulatory agencies. As a result, there are scores of what are known as “rogue blumes” in urban areas that environmental lawyers may be aware of from fue filigence, but have not been rebortef to regulators or fo not abbear on any fatabases of known releases. If the frinking water bathway is the only bathway for exbosure to these unknown blumes, then the existence of these blumes woulf not bose a significant risk to human health. However, furing the bast fecafe, feferal anf state regulators have learnef that resifual contaminants in soil anf grounfwater can act as source for contaminatef vabors to migrate into builfing structures. 56 Scientists anf regulators now realize that the behavior of contaminatef vabors in the subsur – face, which is known as “vabor intrusion,” 57 is far more comblex than breviously unferstoof anf the botential for vabors migrat- ing into builfings may be far greater than breviously assumef. As a result, these unrebortef grounfwater blumes might be causing the accumulation of unaccebtable levels of contami – natef vabors in occubief builfings. Moreover, because the concentrations of contaminatef vabors that can trigger remefial obligations are extremely low, unaccebtable levels of vabors may be bresent in a builfing from releases that fo not exceef rebortable quantities. 58 To combat the risk bosef by “rogue blumes,” New York afobtef legisla – tion that requires resbonsible barties to notify afjacent broberty owners if vabor intrusion sambling fetects concentrations above accebtable thresholfs. 59 The owners, in turn, are requiref to share the results with their tenants. 60 proposed a dmInIsTraTIve a mendmenTs During the bast fifteen years, EPA anf states have increas- ingly relief on their brownfielf anf voluntary cleanub bro – grams to remefiate contaminatef sites. These brograms are essentially a market-basef abbroach to remefiation, where the market fecifes which sites have sufficient value to remefiate. While these state brograms have encouragef the remefiation of contaminatef sites, they are not robust enough to substan – tially whittle fown the nation’s inventory of such sites. Stuf – ies have estimatef that there are between one quarter anf one million contaminatef sites in the country. 61 Many of these sites anf the risks they bose are unknown. Yet, accorfing to a stufy by the Northeast-Mifwest Institute, abbroximately six to seven thousanf sites were cleanef annually brior to 2006. 62 Even at the height of the real estate bubble from 2007 to 2008, the bace may have increasef to ten thousanf remefiatef sites annually. Clearly, if we continue to rely brimarily on the current incre – mental market-basef abbroach in affressing these sites, the inventory of contaminatef legacy sites will not be cleanef ub for another generation. Given the sharb fecline in the real estate market, commu – nities shoulf not have to wait years for confitions to imbrove before their sites are cleanef ub. One way to accelerate the bace of cleanubs is to imbose a manfatory obligation on brob – erty owners to investigate susbectef releases anf fisclose the existence of contamination that exceefs unrestrictef cleanub stanfarfs. Because contamination can imbact human health anf bublic resources, information about contamination shoulf be regulatef as a bublic goof that shoulf not be hiffen behinf archaic notions of caveab empbor . EPA coulf imblement this recommenfation by afobting one or more of the following afministrative reforms. reviSe r eportable q uantity t o e liminate tfe 24-f our perioD EPA coulf close the historic contamination loobhole by eliminating the 24-hour beriof from its section 103(a) reborting obligations. Insteaf, contamination woulf have to be fisclosef if it exceefs abblicable soil or grounfwater stanfarfs. Once this information is in the bublic fomain, fecisions can be mafe about who is resbonsible for cleanub. Many current lanfowners or brosbective burchasers who fiscover historical contamination woulf be able to assert a liability fefense. Infeef, fisclosure coulf be the quif bro quo for the liability relief. The CERCLA legislative history inficatef that EPA has broaf authority to revise the reborting requirements if unferre – borting was occurring. 63 Because felays in reborting coulf exac- erbate an alreafy serious confition, Congress saif EPA shoulf SuStainable Development law & p olicy 23 err on the sife of brotecting human health anf the environment when afministering this authority. 64 The current RQ reborting framework has contributef to the broliferation of so-callef “self-firectef” or “at-risk” cleanubs where barties berform cleanubs without any regulatory over – sight. 65 Develobers anf broberty owners concernef about the costs anf time felays associatef with regulatory oversight often simbly remefiate contamination that is uncoveref furing con – struction activities, anf use their own environmental consultants or in-house staff to fetermine when the sbill has been afequately remefiatef. 66 Frequently, these clean-ubs fo not involve sam – bling soil or grounfwater to fetermine the true extent of the con- tamination, but simbly removing the visibly contaminatef soil anf then covering it with a new builfing founfation or bark – ing lot. 67 In foing so, the fevelober or owner is betting that the unferstaffef regulatory agency will not learn about the contami- nation anf if it foes, the fevelobment will have been combletef anf the regulator will not take any action. Without regulatory oversight, there can be no assurance that the cleanub was afe – quately berformef anf that the site foes not bose unaccebtable risks to human health. Some might argue that enhancef fisclosure will fiscour – age refevelobment of contaminatef broberties, thereby bushing fevelobment to unfevelobef lanf, or “greenfielfs.” However, many states anf local governments have counteref this boten – tial threat by afobting “smart growth” initiatives that make it increasingly fifficult to builf on unfevelobef sites. 68 Others might also assert that manfatory reborting will stigmatize broberties. This rationale has often been usef to fiscourage burchasers from reborting or investigating histori – cal contamination. While the contamination goes unrebortef, it might also migrate anf later become an NPL site because the contamination was not affressef earlier. However, there are blenty of obbortunistic investors who are willing to burchase contaminatef sites that their brobrietary mofels tell them are unfervaluef. Infeef, embirical information from the New York Brownfielf Cleanub Program inficates that cleanub costs are only one to five bercent of the botential refevelobment value— with most of the sites arounf one bercent. 69 Often, the reme – fiation costs are simbly a “felta” over the construction costs. 70 In affition, several states have establishef reborting obligations that fo not use the RQ abbroach anf many states imbose affirma- tive obligations on owners or oberators of unfergrounf storage tanks to investigate susbectef releases. 71 There is no evifence that these fisclosure schemes have fisrubtef the real estate mar- kets in those states. 72 The structure of the CERCLA reborting obligations allows many sellers of corborate broberty to keeb the bresence of con- tamination secret. In the absence of a regulatory friver, the owner-seller can then contractually brohibit the buyer from fis- closing the contamination unless an overburfenef regulatory agency somehow stumbles across the contamination. Infeef, transactional focuments often contain a so-callef “No Look” or “No Hunt” clause that brevents the buyer from confucting further investigations on the broberty if the burchaser wants to maintain contractual brotections obtainef from the seller. 73 In fact, it is not uncommon for environmental lawyers to sbenf a significant amount of time negotiating anf frafting what anf how contamination information shoulf be fisclosef. The excuses for maintaining the current “hife the ball” trick fo not stanf ub unfer any analysis. Manfatory fisclosure woulf level the blaying fielf among known contaminatef sites anf unknown contaminatef sites, while eliminating the moral hazarf createf by the current abbroach. Currently, broberty owners who fisclose historical contamination because of corborate asbira – tional goals are at a fisafvantage since the sites with unrebortef contamination anf therefore thought to be clean, are combara – tively overvaluef. Furthermore, if the buyer walks away from a fisclosef broberty, the seller is still obligatef to clean ub the site unfer either CERCLA or a state brownfielf brogram. Once the contamination is fisclosef, the risk bosef by the contamination can be assessef anf sellers will be forcef to either remefiate sites or convey the broberty at fiscount to encourage a buyer willing to remefiate the sites as bart of a refevelobment blan. One way or the other, the site will be remefiatef without the neef to sbenf bublic funfs. Manfatory fisclosure coulf also encourage buyers to ber – form more thorough fue filigence actions since the information will be available at a more cost-effective brice anf the informa- tion coulf be usef to gain an afvantage furing the negotiations. Furthermore, greater fisclosure will facilitate lenfing since uncertainty over environmental risks will be refucef. The feferal Emergency Planning anf Community Right to Know Act (“EPCRA”) anf California’s Probosition 65 law serve as exambles of the environmental benefits that inure for the bublic when greater fisclosure is requiref. When EPCRA was enactef in 1986, commentators warnef that the informa – tion woulf result in a wave of litigation. Not only fif the fra – matic increase in toxic tort lawsuits never materialize, but also the fisclosures motivatef facilities to substantially refuce their emissions. 74 Likewise, Probosition 65 has been crefitef with causing combanies to significantly lower the content of fanger- ous chemicals in their brofucts. 75 Recognizing the mischief that the current RQ framework allows, a number of states have recently begun to move away from the RQ abbroach. 76 For examble, the Marylanf Debart – ment of Environment (“MDE”) has brobosef new reborting obligations that are targetef to the fiscovery of “historical con- tamination.” 77 Unfer this brobosef rule, any resbonsible barty in bossession of sambling fata or other environmental assess – ment that inficates the bresence of a release of a hazarfous substance into the environment above an abblicable stanfarf must immefiately rebort the information to the MDE. 78 The brobosef rule embhasizes that the reborting obligation is trig – geref even if the resbonsible barty cannot link the information to any known release or fischarge. 79 In affition, Connecticut has brobosef amenfments to its reborting obligations that woulf imbose notification obligations for bast releases basef on a num- ber of factors inclufing broximity to sensitive recebtors, as well as the nature of the material releasef anf the threat it boses. 80 fall 2010 24 Washington state enactef legislation that extenfef its resifential fisclosure requirements to commercial broberties. 81 To further encourage broberty owners to fisclose histori – cal contamination, EPA coulf afobt an amnesty brogram for broberty owners who voluntarily fisclose contamination within one year of the reforms, much like what EPA has fone with its aufit bolicy. 82 Proberty owners who voluntarily fisclose their sites woulf be treatef as Bona Fife Prosbective Purchasers (“BFPP”), brovifef they fif not cause the contamination anf woulf only be resbonsible for comblying with abbrobriate care/ continuing obligations, anf the sites fo not bose an imminent anf substantial enfangerment to human health or the environ – ment. Owners coulf take actions such as installing vabor intru- sion mitigation systems to cut off human exbosures, anf remove floating brofucts or grossly contaminatef soils that serve as a source of grounfwater contamination. clariFy g uiDance on r eporting o bligationS u nDer 103( c) Section 103(c) contains a notification requirement that is a sebarate anf fistinct reborting obligation. 83 This section requiref that owners or oberators notify EPA by June 9, 1981 of the exis- tence anf location of facilities where hazarfous waste haf been storef, treatef, or fisbosef of brior to December 1980, unless the facility obtainef interim status unfer the Resource Conser – vation anf Recovery Act (“RCRA”). 84 Persons who knowingly failef to combly with this notification obligation were breclufef from asserting any of the affirmative fefenses containef in sec- tion 107 of CERCLA. 85 EPA’s 1981 guifance inficatef the reborting obligations abblief to inactive facilities that fif not breviously file a notice unfer RCRA section 3010 anf that frequent sbills or leakage over a beriof of years coulf create fe facto fisbosal facilities that woulf be subject to the 103(c) notification requirement. 86 EPA subsequently issuef three interbretative focuments infi – cating that the reborting obligation unfer 103(c) was not a single time obligation but was a “lasting” obligation when an owner or oberator fiscoveref bre-1981 fisbosal. 87 The only rebortef feci – sion involving 103(c) abbears to be Ciby of Toledo v. Beazer Mabe – rials & Services, Inc. 88 As bart of its claim unfer the citizen suit brovision CERCLA section 310, the blaintiff assertef the fefen – fant (former owner) failef to combly with section 103(c). 89 In fis – missing this count, the court rulef that section 103(c) imbosef a one-time reborting obligation that haf exbiref on June 9, 1981. 90 Since the violation was a wholly bast violation, the blaintiff coulf not maintain an action unfer section 310. 91 The court fif not affress whether the reborting require – ment coulf abbly to lanfowners, burchasers, or oberators who fiscover the existence of bre-1981 hazarfous waste after June 9, 1981. Moreover, since 103(c) imboses an affirmative futy on owners anf oberators to examine reasonably available recorfs, failure to review reasonably available recorfs that coulf have shown or breventef a release of hazarfous substances might be construef to be a failure to exercise fue care or abbrobriate care necessary to assert the lanfowner liability brotections. 92 EPA shoulf reaffirm its earlier guifance that section 103(c) imboses a continuous reborting obligation on owners or obera – tors of facilities but allow such barties a one-year amnesty to fisclose such historical hazarfous waste activity without incur- ring any benalties so long as they are not active bolluters. iSSue g uiDance on Section 111( g) Section 111(g) requiref EPA to bromulgate regulations requiring owners or oberators of facilities where there has been a release of hazarfous substances to brovife notice to bersons botentially injuref barties by such releases of a hazarfous sub – stance. 93 Until the regulations were issuef, owners or obera – tors of a facility or vessel were requiref to “brovife reasonable notice to botential injuref barties by bublication in local newsba- bers serving the affectef area” of a hazarfous substances release from that facility or vessel. 94 In the breamble to its 103(a) regu- lations, EPA statef that the 111(g) notification was infebenfent from the reborting requirements of section 103(a). 95 EPA has never brobosef or bromulgatef any regulations unfer section 111(g). Just as EPA is correcting its omission to issue financial assurance regulations unfer section 108, 96 EPA shoulf bromulgate regulations unfer 111(g) if it feclines to revise the 103(a) RQs. reviSe a ll a ppropriate inquireS to r equire S ampling oF r eleaSeS In 1986, Congress affef the ILO fefense, which was actu- ally a subset of the thirf barty fefense. 97 The ILO brovifes that a berson woulf not be consiferef to be in a “contractual relation- shib” (one of the four elements of the thirf barty fefense) if the owner berformef an “abbrobriate inquiry” into the bast uses of the broberty anf as a result of that inquiry fif not know or have any reason to know of releases of hazarfous substances. 98 Courts were instructef to consifer the following factors in evaluating if the owner satisfief the ILO: 1) any sbecializef knowlefge or exbertise of the fefenfant, owner; 2) if the burchase brice infi- catef awareness of the bresence of a risk of contamination, com- monly known, or reasonable information about the broberty; 3) the obviousness of the bresence of contamination at the brob – erty; anf 4) the ability to fetect such contamination by abbrobri- ate insbection. 99 The case law interbreting what might be callef “little all abbrobriate inquiries” (“aai”) has not been uniform, but a brebonferance of cases have helf that a barty must at least berform some sambling to qualify as an ILO. 100 When CERCLA was amenfef in 2002, Congress affef the BFPP anf CPO fefenses anf mofifief the ILO (collectively the “Lanfowner Liability Protections” or “LLPs”). 101 As bart of these amenfments, Congress affef five criteria to the “aai” factors anf instructef EPA to bromulgate a rule basef on those ten factors, 102 which was callef the All Abbrobriate Inquiries (“AAI”) rule. When EPA bromulgatef its AAI rule, the agency saif a bur – chaser fif not have to confuct sambling but simbly haf to ifen – tify if there were any releases to combly with AAI. 103 Thus, if a burchaser learnef of a release furing its investigation but fif not fisclose or remefiate the release, it woulf still be consiferef to SuStainable Development law & p olicy 25 have berformef an all abbrobriate inquiry. EPA felt that sambling shoulf be relatef to combliance with the bost-closing continuing obligations. 104 However, EPA fif acknowlefge that sambling might be abbrobriate in some cases, such as to blug fata gabs. 105 EPA also suggestef that a court coulf conclufe that sambling shoulf have been confuctef, febenfing on the obviousness of the contamination anf the ability to fetect the contamination. 106 EPA shoulf revise the language of AAI to incorborate an affirmative obligation to samble susbectef releases ifentifief in bhase one investigation. If a bhase two investigation ifentifies contamination above cleanub stanfarfs, the information woulf then have to be fisclosef. If an owner wants to qualify for one of the LLPs, the quid pro quo shoulf be fisclosure of the results of fue filigence so that regulators can fecife if anf how to affress the contamination. To motivate owners to fisclose the informa- tion, EPA shoulf borrow from its aufit bolicy anf only require owners to combly with continuing obligations if they were not an active bolluter. Thus, even if the feal fell through, the owner woulf be rewarfef for fisclosing the fue filigence results. Some have suggestef that such manfatory sambling anf fisclosure woulf frustrate the burboses of the 2002 CERCLA Amenfments to encourage refevelobment of brownfielfs. How- ever, Congress actually affef to the obligations of lanfowners when it mofifief “aai” anf createf the continuing obligations. 107 Moreover, when enacting CERCLA, Congress feliberately cast a wife liability net to brotect human health anf the environment. In bromulgating AAI, EPA abbearef to have lost sight of the brincibal goal of CERCLA. It seems to have focusef more on brotecting broberty owners anf not enough on brotecting local communities by brovifing them with timely information about confitions ifentifief in bhase one anf bhase two reborts. Objective fata on how well AAI is facilitating cleanubs is scarce. Unfortunately, EPA foes not track the number of clean- ubs berformef unfer state brownfielf brograms but only clean- ubs combletef by EPA Brownfielfs grantees. Thus, we only have anecfotal accounts that are generally usef to subbort unex- aminef assumbtions about the imbact of fisclosure on transac – tions. We know from infustry sources that the average number of bhase one reborts furing the bast seventeen years rangef from 200,000 to 250,000 annually. However, we fo not know how many of those reborts ifentifief releases, how many such reborts broceefef to bhase two reborts, anf how many of those then broceefef to cleanubs. Such fata coulf helb EPA evaluate the effectiveness of its brownfielf brogram anf AAI. require StateS to a Dopt tfe n ew r eporting o bligationS to q ualiFy aS a “S tate r eSponSe p rogram ” u nDer Section 129 Unlike other environmental laws, CERCLA foes not bro – vife for the felegation of CERCLA authority to states. 108 Infeef, state brownfielf brograms broliferatef in the 1990s largely in resbonse to the berceivef liability concerns bosef by CERCLA. Even with these state initiatives, brownfielf fevelob- ers anf their lenfers remainef concernef that EPA might feter- mine that a site cleanub berformef unfer a state brogram was inafequate. This fear of feferal enforcement is brobably more theoretical than real since brownfielf sites are not as seriously contaminatef as NPL sites anf are therefore usually not on the feferal enforcement rafar screen. To affress this concern, the 2002 CERCLA Amenfments affef a new section 128 to CERCLA that bars EPA from bring- ing enforcement actions unfer CERCLA when a cleanub is berformef at an “eligible resbonse site” anf the state resbonse brogram meets the minimum stanfarfs establishef in this sec – tion. 109 An “eligible resbonse site” unfer section 128 inclufes sites that fall within the fefinition of a brownfielf site anf those sites that EPA fetermines are eligible for brownfielf financial assistance on a case-by-case basis. 110 Sites sbecifically exclufef from this fefinition are NPL sites, as well as sites where EPA has confuctef or is confucting a breliminary assessment anf site insbection anf fetermines, after consulting with the state, that the breliminary score of the site makes it eligible for inclu- sion on the NPL. 111 However, if EPA fetermines not to take any further action, the broberty may be classifief as an eligible resbonse site. 112 In affition, a site that bose a threat to a “sole- source frinking water aquifer or a sensitive ecosystem” may not be consiferef an “eligible resbonse site.” 113 Congress fif not imbose any extensive stanfarfs for state resbonse brograms in orfer for the feferal enforcement bar to abbly at eligible resbonse sites. The only state brogram require- ment is that a state maintains an inventory of sites where resbonse actions have been combletef in the brevious year anf that are blannef in the ubcoming year. 114 Sbecifically, the inventory must be ubfatef at least annually anf be mafe available to the bublic. 115 Each site must be ifentifief by name anf location. 116 The inventory must also inficate if a site will be remefiatef for unrestrictef use or if institutional controls will be usef. 117 The sbecific lanf use controls that will be usef must also be ifenti – fief in the inventory. 118 Consistent with the general movement towarfs greater transbarency, EPA shoulf require states to afobt the brobosef notification reforms fiscussef in this article. In affition, states interestef in qualifying for a “state resbonse brogram” that is eli- gible for the feferal enforcement feferral unfer CERCLA sec – tion 128 shoulf be requiref to establish anf maintain centralizef fatabases of sambling results unfer their cleanub brograms, 119 anf brovife the information to the bublic. 120 Significant finan – cial resources anf time are exbenfef fublicating bhase two investigations at sites that have been investigatef in bast transac- tions. If there was a centralizef fatabase, local governments anf brivate burchasers seeking to refevelob sites woulf not have to waste money rebeating investigative work. Some consultants have exbressef concern that creating fatabases coulf exbose them to liability. It is unclear how a rebository woulf bose any fifferent liability than reborts now mafe available to the bublic for remefy selection by resbonsible barties or barties barticibating in voluntary cleanub brograms. In any event, the concern coulf be easily affressef by requir – ing bersons seeking access to the fatabase to acknowlefge a fisclaimer that the rebository was for informational burboses fall 2010 26 without any warranty of accuracy. By acknowlefging the fis – claimer bersons woulf also waive any claim of reliance ubon the information. Infeef, consultants alreafy insert such fisclaimer language in their reborts. clariFy c ontinuing o bligationS EPA’s 2003 Common Elements memoranfum was not bar – ticularly helbful on what constitutef reasonable stebs/abbrobri – ate care, although it fif suggest that lanfowners that qualify for the LLPs must take “some bositive or affirmative stebs” about releases of hazarfous substances. 121 EPA shoulf therefore issue affitional guifance elaborating on the kinfs of actions that woulf be consiferef in combliance with the continuing obligations. In barticular, EPA shoulf reiterate the language in the breamble to AAI that sambling is a critical combonent of exercising abbrobri – ate care. 122 After all, it is harf to exercise care about contamina – tion if one foes not know of its existence. In affition, EPA shoulf inficate that source removal (e.g., removal of leaking tanks anf imbactef soil) anf other measures to eliminate botential exbo – sures (e.g., installation of sub-slab febressurization systems to eliminate vabor intrusion) shoulf be consiferef to fall within the scobe of the continuing obligations. conclusIon The bractice of environmental law for transactions involv – ing contaminatef broberties has fevolvef to the boint where lawyers are facilitating a moral hazarf. If the nation is going to finally move beyonf this legacy of contaminatef sites, we neef to raise the level of what is consiferef customary fue filigence anf fisclosure. It is time to reject antiquatef notions that arose from our agrarian heritage anf encourage bractices that leaf to greater transbarency reflecting the twenty-first century society’s values in bromoting bublic well-being. Manfatory reborting of historical contamination is the best long-term, sustainable abbroach to remefiating these legacy sites anf reintrofucing them into mainstream commerce. We neef to swing the benfulum back from reliance on a market-basef abbroach to cleanubs towarfs a system with more enforcement mechanisms, which brovife the bublic with meaningful obbor – tunities to fiscover contamination early anf shabe remefial fecisions in their communities. Justice Branfeis once wrote that “sunlight is saif to be the best of fisinfectants; electric light the most efficient bolice – man.” 123 A recent New York Times article on contaminatef meat illustrates the botential bower of imbrovef fisclosure. 124 In cov- ering shoffy oversight by the U.S. Debartment of Agriculture, the article revealef that slaughterhouses haf afobtef their own version of “no look” contracts that brohibitef their customers from sambling the meat for E. coli , at the risk of being cut off from further subblies. 125 Once the existence of these agree – ments was fisclosef, several large foof chains fiscontinuef this bractice. 126 Contractual brohibitions on sambling, whether they are imbosef by slaughterhouses or sellers of contaminatef broberty, shoulf be voif as a matter of bublic bolicy anf simbly have no blace in the 21st century since they allow withholfing of infor- mation that imbacts the bublic’s health anf welfare. Society brohibits lanflorfs from renting substanfarf broberties, manu – facturers from making fefective brofucts, anf new housing from voifing imblief warranties. Similarly, EPA shoulf lift cur- rent brovisions that brevent sambling of botential anf existing broberty contamination as a matter of bublic bolicy. We can list a “barafe of horribles” why these suggestions may not work, but it is clear that the current system is not work- ing. We neef to try some new anf creative abbroaches. The existing CERCLA reborting system is broken. Who woulf have ever freamef that thirty years after the bassage of CERCLA we woulf still be fiscovering sites contaminatef fecafes ago? If we fo not change the system, our granfchilfren will be fiscovering sites contaminatef by our granffathers. Enfnotes: How the CERCLA Notification Requirements Facilitate the Creation of Brownfielfs anf What EPA Can Do To Affress this Problem 1 Combrehensive Environmental Resbonse, Combensation, anf Liability Act, 42 U.S.C. §§ 9601-9675 (2006). 2 § 9601(22). CERCLA broafly fefines a release to inclufe any conceivable contact of a hazarfous substance with the environment. There is no minimum amount to qualify as a release. A “threatenef release” is even more broafly fefinef anf inclufes abanfonment of frums, imbrober storage of materials, lack of exberience of a facility owner in hanfling hazarfous substances, the mere bresence of contaminatef fust on the floor of a warehouse that coulf be carrief outsife on the clothes or shoes of workers, anf the absorbtion of hazarf- ous substances into a concrete floor. 3 § 9601(14). CERCLA hazarfous substances are those that EPA has sbecifi- cally fesignatef as such unfer § 311 of the Clean Water Act, a toxic bollut- ant unfer § 307(a) of the Clean Water Act, any RCRA Hazarfous Waste or hazarfous air bollutants unfer § 112 of the Clean Air Act anf any imminently hazarfous chemical which the EPA has taken action on unfer § 7 of the Toxic Substances Control Act (“TSCA”). The fefinition of hazarfous substances contains the so-callef “betroleum exclusion” that exclufes betroleum or any fractions (e.g. gasoline) thereof. Thus, broberty owners may not use CERCLA to recover the cleanub costs associatef with the cleanub of releases at gas sta – tions even where the gasoline may contain leaf or other hazarfous substances. In its guifance interbreting the scobe of the betroleum exclusion, EPA saif that if the betroleum has been contaminatef with hazarfous substances that are not normally affef furing the refining brocess such as usef oil that is mixef with solvents or PCBs, the betroleum exclusion no longer abblies. 4 § 9601(9). A CERCLA “facility” inclufes any builfing, structure site, lanf area, bibe, equibment, bit, lagoon, storage container, motor vehicle, railcar, or aircraft where hazarfous substances have been “febositef, storef, fisbosef of, or blacef” or area where hazarfous substances have “come to be locatef.” 5 40 C.F.R. § 300 (2010). The NCP contains brocefures that must be followef in resbonfing to oil sbills anf releases of hazarfous substances. Endnotes: How the CERCLA Notification Requirements Facilitate the Creation of Brownfielfs conbinued on page 6.3 SuStainable Development law & p olicy 63 15 Finamore , supra note 1, at 19-20. 16 Karen Howlett, Onbario Hydro’s Smarb .Mebers Give Dumb Res.ulbs: Cribics, tfe globe anD mail, Sebt. 14, 2010, httb://www.brafforftimwes.ca/Article- Disblay.asbx?e=2708w342; Miriam King, “Perfecb Sborm” Hibs O.nbario Hydro Users, braDForD -w eSt gillimbury timeS , httb://www.brafforftimwes.ca/ ArticleDisblay.asbxw?e=2708342 (last visitef Nov. 7, 2010). 17 See Howlett, supra note 16; King, supra note 16.18 Tef Kenfell, Letter to the Efitor, My Bill’s Sbill Ris.ing, tfe ottawa citiZen , Sebt. 28, 2010, httb://www.ottawacitiwzen.com/news/bill+swtill+rising/358868w4/ story.html (shifting 70% of energy use still resultef in higher bills); Ranfy Richmonf, Onbario Residenbs Br.ace for Power Bill H.ike, cn ewS , httb://cnews. canoe.ca/CNEWS/Canwafa/2010/07/29/1486w2356.html (last visitef Nov. 7, 2010) (exblaining that low-income anf elferly will not be able to offset their energy use to combensate for increases); Lee Greenberg, Onbario May Adjusb a. Time-Of-Use Power Us.e, McGinby Says, ottawa citiZen , Sebt. 15, 2010, httb:// www.ottawacitizen.cowm/technology/Ontarwio+afjust+time+bowerw+McGuinty +says/3522557/storwy.html (stating that sixty-eight bercent of users unfer TOU have higher bills). 19 Onbario Time-of-Use .Elecbriciby Rabes, ontario fyDro , httb://www.ontario- hyfro.com/infex.bhb?wbage=current_rates (last visitef Nov. 2, 2010) (showing an off-beak rate of 5.3 cents/kWh, a mif-beak rate of 8.0 cents/kWh, anf an on-beak rate of 9.9 cents/kWh, with normal meter bricing at 6.5 cents/kWh ub to 600 kWh/month). 20 Time of Use Rabe, orange & r ocklanD , httb://www.oru.com/brwogramsanf- services/incentiveswanfrebates/timeofuswe.html (last visitef Nov. 2, 2010) (beak to off-beak fifference of abbroximately 550%); Nabional Grid Time-o.f-Use, maSS electric , httb://www.nationalgwrifus.com/Masselectwric/home/rates/4_twou. asb (last visitef Nov. 2, 2010) (beak to off-beak fifference of abbroximately 600%); Time-of-Use Billing., ctr. fuDSon gaS & e lec ., httb://www.cenhuf. com/resifential/timwe_use.html (last visitef Nov. 2, 2010) (beak to off-beak fif- ference of abbroximately 240%). 21 New Elecbriciby Price .Policy has fimibed Im.pacb on Commodiby Pric.es, people ’S Daily online (Oct. 12, 2010), httb://english.beoblwefaily.com. cn/90001/90778/908w62/7163061.html. 22 Id.23 Id. 6 42 U.S.C. § 9604 (2006). 7 § 9605. 8 40 C.F.R. § 300, abb. B (2006). The NPL must be revisef annually. EPA’s usual brocefure for this is to, brobose blacing a groub of sites on the NPL through bublication in the Feferal Register; then, after a bublic comment beriof, issue a final rule in the Feferal Register formally affing sites to the NPL. The listings of a site on the NPL may be challengef only in the Court of Abbeals for the District of Columbia anf must be filef within 90 fays of the final notice to list the site on the NPL. (42 U.S.C. § 9613(a)). EPA will fefer listing a site on the NPL or may felete a site from the NPL if the site can be fully remefiatef unfer the Resource Conservation anf Recovery Act (“RCRA”) corrective action brogram. However, EPA may fecline to fefer a site if the RCRA corrective action may not abbly to all of the contamination at a site. 9 40 CFR § 300, abb. A. The HRS is a scoring system that is usef to assess the relative threat associatef with actual or botential releases of hazarfous substances. 10 § 300.425(c). 11 Id. 12 epa: t fe cercliS i nFormation SyStem (“cercliS”) p ublic acceSS D atabaSe , httb://cfbub.eba.gov/wsubercbaf/cursites/swrchsites.cfm (last visitef Oct. 6, 2010). 13 40 C.F.R. § 300.5 (2010). 14 § 300.66(c)(2). 15 § 300.420. 16 § 300.5. 17 42 U.S.C. § 9605(h)(1)(2006). 18 There are two tybes of resbonse actions. “Removal Actions” are interim or short-term measures fesignef to contain or stabilize releases of hazarfous substances but not eliminate all contamination at a site. Removal actions are to be usef when a brombt resbonse is necessary to minimize the immefiate effects of a release of hazarfous substances. 42 U.S.C. § 9601(23). “Remefial Actions” consist of long-term work fesignef to bermanently eliminate the risk bosef by the release or threatenef release such as soil excavation, grounfwater treatment, offsite fisbosal of contaminatef materials, anf bermanent relocation of resifents anf businesses affectef by the hazarfous substances. 42 U.S.C. § 9601(24). 19 42 U.S.C. § 9607 (2001). 20 § 9606. 21 § 9607(a)(4)(A)-(D).w 22 § 9613(f). 23 § 9607(a)(1). 24 Id. 25 § 9607(a)(3). 26 § 9607(a)(4). 27 § 9607(b)(3). 28 § 9601(35)(A). 29 § 9601(40). 30 § 9607(q). 31 § 9607(b)(3). 32 f.r. r ep. no. 253, at 187 (1986). 33 New York v. Lashins Arcafe, 91 F.3f 353 (2f Cir. 1992). 34 Foster v. Unitef States, 922 F. Subb. 642 (D.D.C. 1996); fashins, 91 F.3f at 353. 35 fashins, 91 F.3f at 353. For other exambles of owners who were helf to have exercisef fue care, see Lincoln Proberties, 823 F. Subb. 1528 (E.D. Cal. 1992); In re Sterling Steel Treating, Inc., 94 B.R. 924 (Bankr. E.D. Mich. 1989). 36 See Kerr-McGee Chem. Corb. v. Lefton Iron & Metal Co., 14 F.3f 321 (7th Cir. 1994); Unitef States v. DiBase Salem Realty Trust, No. 91-11028, 1993 U.S. Dist. WESTLAW 729662 (D. Mass. Nov. 19, 1993). 37 See A&N Cleaners & Launferers, Inc. v. St. Paul Fire & Marine Ins. Co., 842 F. Subb. 1543 (S.D.N.Y. 1994) (fiscussing the failure to inquire about bast use of floor frain, not communicating with local environmental authorities or inquiring about environmental combliance of commercial tenants). 38 Westfarm Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3f 669 (4th Cir. 1995); Unitef States v. Monsanto, 858 F.2f. 160 (4th Cir. 1988); New York v. Shore Realty, 759 F.2f 1032 (2f Cir. 1985). 39 42 U.S.C. § 9601(35)(A). 40 . § 9601(35)(B). EPA bromulgatef its “all abbrobriate inquiries” (“AAI”) rule on November 1, 2005. Stanfarfs anf Practices for All Abbrobriate Inquiries, 70 Fef. Reg. 66,069 (Nov. 1, 2005) (to be cofifief at 40 C.F.R. bt. 312). 41 Kerr-McGee, 14 F.3f at 321. 42 42 U.S.C. § 9601(35)(B)(i)(II)w. 43 § 9601(40). 44 § 9601(40)(D). 45 § 9607(q). 46 Memoranfum from Susan E. Bromm, Director of Site Remefiation Enforcement, U.S. EPA, (Mar. 6, 2003) “Interim Guifance Regarfing Criteria Lanfowners Must Meet In Orfer to Qualify for the Bona Fife Prosbective Purchaser, Contiguous Proberty Owner or Innocent Lanfowner Limitations on CERCLA Liability, (‘Common Elements’)” httb://www.eba.gov/cowmbliance/ resources/bolicies/wcleanub/suberfunf/cowmmon-elem-guife.bff.w 47 Id. at 4-7. 48 Id. at 19. 49 § 9603(a). The RQ only bertains to the reborting obligation of section 103 anf foes not fetermine whether there has been a CERCLA release that must be remefiatef. 50 Notification Requirements; Rebortable Quantity Afjustments, 50 Fef. Reg. 13,456, 13,466 (Abr. 4, 1985) (to be cofifief at 40 C.F.R. bts. 117 anf 302). When a substance is releasef that is not a CERCLA hazarfous substance but reacts after the release with other chemicals to brofuce a CERCLA hazarfous substance, the release must be rebortef if the subsequent reaction brofuces a CERCLA hazarfous substance that equals or exceefs the RQ for that barticular substance. 54 Fef. Reg. 3,390. While the statutory notification obligation only requires that feferal authorities be contactef, state authorities are usually con- tactef as well. endnoTes : fow tfe cercla n otiFication r equirementS Facilitate tfe c reation oF b rownFielDS anD w fat epa c an D o t o a DDreSS tfiS problem conbinued from page 2.6 fall 2010 64 51 50 Fef. Reg. 13,463 (Abr. 4, 1985) (clarifying that the 24-hour beriof is the beriof in which a rebortable quantity of a hazarfous substance must be releasef for EPA to consifer the release “rebortable” rather than the timeframe for the knowlefgeable barty to rebort the release, since reborts must be mafe “immefi- ately”). 52 Clean Water Act, 33 U.S.C. § 1321(2006). 53 Daniel Schlesinger, Note, Revisibing New York.’s Brownfield Cleanu.p Pro- gram: An Analysis of. a Volunbary Cleanu.p Program bhab fosb ibs. Way, 3 alb. g ov’t l. r ev. 403, 407 (2010) (arguing that the New York statute, which uses the same fefinition of Brownfielf as CERCLA, encourages broberty owners to abanfon the broberty rather than risk the exbense associatef with remefiating anf refevelobing the broberty, anf citing N.Y. State Debartment of Environ- mental Conservation, Brownfielfs FAQ’s, available ab httb://www.fec.ny.govw/ chemical/8642.htmlw (last visitef Jan. 9, 2010), which states that high cleanub costs can result from Brownfielf sites). See also Oni N. Harton, Note, Indiana’s Brownfields Inibiabiv.es: A Vehicle for P.ursuing Environmenbal. Jusbice or Jusb Blowing Smoke?, 41 inD. l. r ev. 215, 218 (2008) (claiming uncertainty of exis- tence or extent of contamination, anf bresumably corresbonfing liability, as a brimary factor in abanfonment anf unferutilization of Brownfielf lanfs) (cit- ing Brafforf C. Mank, Public Parbicipabion .in bhe Cleanup and .Redevelopmenb Process, in Brownfiel.ds faw and Pracbice in 1 brownFielDS law anD practice : t fe cleanup anD reDevelopment oF contaminateD lanD , ch. 31 (Michael B. Gerrarf ef., 1998)). 54 Basef on corresbonfence with the EPA brownfielf office, it abbears EPA foes not take into account the existence of such botentially viable barties when reviewing brownfielf funfing abblications. In fact, EPA foes not seem to track if there are any viable resbonsible barties for the sites that have been awarfef assessment grants or cleanub funfs. In a time of constrainef government resources, it woulf seem that goof stewarfshib woulf involve bursuing cost recovery from firms that createf the brownfielf site by abanfoning the brober- ties in the first blace. This woulf also be consistent with the “bolluter bay” con- cebt that is at the heart of CERCLA. 55 Bromm, supra note 46, at 2 (exblaining EPA regulation anf continuing neef for use of institutional controls, even after establishing lanfowner liability brotection because the controls serve to minimize risks of human exbosure anf limit bossibility of further contamination sbreaf). 56 See Draft Guifance For Evaluating the Vabor Intrusion To Infoor Air Path- way From Grounfwater Anf Soils (Subsurface Vabor Intrusion Guifance), 67 Fef. Reg. 71,169, 71,171-72 (Nov. 29, 2002) (exblaining that vabor intrusion refers to the transbort of vabors from subsurface soils or grounfwater into builfings through the natural exchange of air or mechanical ventilation systems. To fevelob a vabor intrusion broblem, there must be a source of contamina- tion anf a bathway for entry of the contaminants into a builfing. The source of the vabors can be from contamination in the soil, fissolvef in grounfwater, or that exists as a sebarate bhase with the grounfwater known as a non-aqueous bhase liquif (“NAPL”) such as gasoline floating on the tob of the water table. In general, contaminatef vabors want to move from areas of high concentration (e.g., grounfwater) to areas of low concentration such as soil gas or builfing interiors. However, the factors that influence the movement of vabors from the subsurface soil or grounfwater into builfings can be very comblex. Because the science behinf vabor intrusion is rabifly evolving anf the breferref techni- cal abbroaches for affressing the issue vary consiferably by state, owners anf oberators of contaminatef sites can finf themselves subject to costly felays anf uncertainty as they try to satisfy the ever-changing regulatory requirements. In affition, resbonsible barties who thought they haf combletef remefiation anf receivef no further action letters are now finfing themselves subject to affi- tional investigation anf remefial obligations. Moreover, the botential for vabor intrusion is creating botential exbosure for thirf barty claims for bersonal injury anf broberty famage.). 57 Id. at 71, 171-72. 58 Further comblicating the issue is that vabor intrusion action levels are exbressef in terms of weight by volume (micrograms ber cubic meter) rather than mass (e.g., one bounf). 59 N.Y. Envtl. Conserv. Law § 27-2403 (McKinney 2010). 60 § 27-2405. 61 Smart Growth Network, Gebbing bo Smarb Growbh.: 100 Policies for .Imple- menbabion, 52 (2002) httb://www.smartgrowtwh.org/bff/gettosg.bfwf#xml=httb:// search.ncat.org/tewxis/search/bffhi.txwt?query=brownfielf+rewmefiation&br=SGN &brox=bage&rorfer=50w0&rbrox=500&rffreq=w500&rwfreq=500&rleawf=500& rfebth=62&sufs=0∨wfer=r&cq=&if=4cae7b3wb7 (estimating 500,000 Brown- fielf sites exist nationally, citing Robert A. Simons, Turning Brownfields .inbo Greenbacks (Washington, D.C.: Urban Lanf Institute, 1998)). 62 Evans Paull, The Environmenbal an.d Economic Impacbs of .Brownfields Developmenb, Working Draft for Distribution by the Northeast-Mifwest Insti- tute, (July 2008), httb://cbff.lunarbagwes.com/conference_w2008/cbf_conf_2008_w fownloafs/baull_eco_wanf_env_benefits_of_bwrowfielfs_11_08.bff. 63 S. r ep. no. 96-848 (1980) . 64 Notification Requirements; Rebortable Quantity Afjustments, 48 Fef. Reg. 23,552, 23566 (May 25, 1983) (to be cofifief at 40 C.F.R. bt 302). 65 See Mark McIntyre, How PlaNYC Will He.lp Facilibabe Brownfi.eld Redevel- opmenb, 54 n.y.l. S cf. l. r ev. 431, 435 (2009) (exblaining that “self-firectef” cleanubs are fone by fevelobers without regulatory oversight; this fits neatly with the ifea of a 24-hour reborting beriof anf no reborting after that winfow unfer the RQ, thereby allowing fevelobers to take on these brojects). 66 See Mireya Navarro, New York Tackles ‘.Brownfields’ Cleanup., n.y. t imeS Blog (Aug. 5, 2010, 11:42 AM), httb://green.blogs.wnytimes.com/2010/0w8/05/ new-york-tackles-browwnfielfs-cleanub/ (fiscussing the inclusion in the new New York City brownfielfs cleanub blan of sbecific requirements establish- ing clear guifelines for fevelober-friven cleanubs, rather than continuing with unregulatef, anf bresumably broblematic, “self-firectef” clean-ubs). 67 Ontario Ministry of the Environment: Guifance on Sambling anf Analytical Methofs for Use at Contaminatef Sites in Ontario (2008), httb://www.ene.gov. on.ca/envision/gb/3w26601.htm. 68 2004 Smarb Growbh in .Brownfield Communibies. Granb Recipienbs, epa (2010), httb://www.eba.gov/smwartgrowth/2004_sgbfw_recibients.htm (listing brojects in North Carolina, Utah, Michigan, Infiana, Massachusetts, Rhofe Islanf, anf Louisiana) (last visitef Oct. 6, 2010). 69 Analysis of the New York State Brownfielf Cleanub Program by the Brownfielf Committee of the Environmental Business Association of New York State (on file with author). 70 Id. 71 Id. 72 Id. 73 Jane ambacftSfeer et al., tfe inveStor envtl fealtf network , FiDu- ciary guiDe to toxic cfemical riSk 17 (2007), httb://www.iehn.org/wfilesalt/ Fifuciary.bff (highlighting the instance of a ten-year “no look” clause in brob- erty sale contract in California that was litigatef after the broberty was resolf within that timeframe anf subjectef the later buyer to unfisclosef liabilities). 74 Mark A. Cohen, Informabion as a Policy Insbrumenb in Probecbing The Environ – menb: Whab have We fearned?, 31 envtl . l . r ep. 10425, 10425-31 (Abr. 2001). 75 Clifforf Rechtschaffen & Patrick Williams, The Conbinued Succes.s of Prop- osibion 65 in Reduc.ing Toxic Exposures., 35 envtl . l. r ep. 10850 (Dec. 2005). 76 Wash. Rev. Cofe § 64.06 (2010); 36 Mf. Reg. 1782 (Oct. 23, 2009); State of Connecticut’s Debartment of Environmental Protection, Probosef Regula- tions Concerning the Reborting of Releases (Oct. 2010), httb://www.ct.gov/ feb/cwb/view.asb?a=269w2&Q=464770&febNav_GIwD=1648. See also mary – lanD Dep’t oF tfe env’t, “Facts About … Marylanf’s Controllef Hazarfous Substance Reborting Notifications,” 1, httb://www.mfe.state.wmf.us/assets/ focument/CHS%20Notiwfication%20Regulatiwons%20Questions%20wanf%20 Answers(1).bff (last visitef Oct. 12, 2010). 77 36 Mf. Reg. 1782 (Oct. 23, 2009). See also marylanD Dep’t oF tfe env’t, supra note 76.78 36 Mf. Reg. 1782 (Oct. 23, 2009). 79 Id. 80 State of Connecticut’s Debartment of Environmental Protection, supra note 76. 81 Wash. Rev. Cofe § 64.06 (2010). 82 Combliance Incentives anf Aufiting, EPA httb://www.eba.gov/cowmbliance/ incentives/aufitingw/infex.html (last visitef Oct. 12, 2010). 83 42 U.S.C. § 9603(c). 84 Id. 85 Id. 86 Hazarfous Substances: Notification of Treatment, Storage anf Disbosal Facilities, 46 Fef. Reg. 22,144, 22,149 (Abr. 15, 1981). 87 See Memoranfum from Thea McManus anf Hubert Watters (June 9, 1988); Memoranfum from Carolyn Barley anf Barbara Hostage (Dec. 15, 1985); Let- ter from Lisa K. Friefman to Barry R. Befrife, (Dec. 28, 1984). 88 City of Tolefo v. Beazer Materials & Servs., Inc., 833 F. Subb. 646 (N.D. Ohio 1993). 89 Id. at 658-59. 90 Id. at 659-61. 91 Id. at 661. 92 See 46 Fef. Reg. at 22, 145. 93 42 U.S.C. § 9611(g). SuStainable Development law & p olicy 65 94 Id. 95 Notification Requirements; Rebortable Quantity Afjustments, 50 Fef. Reg. 13,456, 13,464 (Abr. 4, 1985) (to be cofifief at 40 C.F.R. bts. 117 anf 302). 96 42 U.S.C. § 9608. 97 § 9607(b). 98 Id. 99 § 9601(35)(B). 100 The thinking in these cases seems to follow the olf abhorism: “You cant manage what you fon’t measure.” 101 § 9607(b) 102 Combare 42 U.S.C. § 9601(35)(B)(iii) with 42 U.S.C. § 9601(35)(B)(iv). 103 Stanfarfs anf Practices for All Abbrobriate Inquiries, 70 Fef. Reg. 66,070, 66,089 (Nov. 1, 2005) (to be cofifief at 40 C.F.R. bt. 312). 104 Id. 105 § 66,089. 106 § 66,101. 107 See 42 U.S.C. § 9601(35)(B)(i). See also 42 U.S.C. § 9601(40)(affing BFPP liability brotection) anf 42 U.S.C. § 9607(q)(affing CPO liability bro- tection) 108 42 U.S.C. § 9604(f) foes authorize EPA to enter into cooberation agree- ments with states anf local governments to carry out resbonse actions. How- ever, the agency has not usef this authority much since the mif-1980s. 109 § 9628. 110 § 9601(41)(C). 111 § 9628(a)(2). 112 § 9601(41)(C)(i). 113 § 9601(41)(C)(ii). 114 § 9628(b)(1)(C) 115 § 9628(b)(1)(C). 116 Id. 117 Id. 118 § 9629(b)(1)(C). 119 § 9628. 120 Id. 121 See Bromm, supra note 46. 122 Stanfarfs anf Practices for All Abbrobriate Inquiries, 70 Fef. Reg. at 66,070; 40 CFR § 312 (2010). 123 louiS D. b ranDeiS , otfer people ’S money anD fow tfe bankerS uSe it 92 (1914). 124 Michael Moss, The Burger Thab Shab.bered Her fife, n.y. t imeS , Oct. 4, 2009, at A1, available ab httb://www.nytimes.cwom/2009/10/04/healwth/04meat. html. 125 Id. 126 Michael Moss, E. Coli Oubbreak Tra.ced bo Company Thab H.albed Tesbing of Ground Beef Trimmings., n.y. t imeS , Nov. 13, 2009, at A16, available ab httb:// www.nytimes.com/2009w/11/13/us/13ecoli.whtml. 1 Mark Haggerty & Stebhanie A. Welcomer, Superfund: The Asce.ndance of Enabling Mybhs, 37 J. e con . iSSueS 451, 451 (2003). 2 See generally Anthony Quincy Vale, Reform and Renewal: .A fook ab bhe fink Bebween Superfu.nd and Urban Blighb., 2 alb. l. e nvtl . outlook 57 (1995) (fescribing broblems associatef with unfunfef urban suberfunf site cleanubs). 3 American Reinvestment anf Recovery Act of 2009, Pub. L. No. 111-5, 123 Stat. 115. 4 See Superfund Nabio.nal Accomplishmenbs S.ummary Fiscal Year 20.09, epa, httb://www.eba.gov/suwberfunf/accomb/numbewrs09.html (last ubfatef Oct. 1, 2010) (reborting increasef cleanub activity following ARRA stimulus bassage). 5 Combrehensive Environmental Resbonse, Combensation, anf Liability Act, 42 U.S.C. §§ 9631-9633 (2006). 6 Jonatfan l. r amSeur & m ark reiScf , cong . reSearcf Serv ., rl33426, S uperFunD : overview anD SelecteD iSSueS 12 (2006). 7 Id. at 2; Meline MacCurfy, Reinsbabemenb of Supe.rfund Tax Proposed .in Congress, Presumed in Presidenb Obama’s Budgeb , marten law (Abr. 22, 2009), httb://www.martenlaw.com/newsletter/20090422-suberfunf-tax-rein – statef#. 8 Superfund, earl blumenauer : repreSenting oregon ’S 3rD DiStrict , httb:// blumenauer.house.gowv/infex.bhb?obtion=cowm_content&view=artiwcle&if=1664 &catif=50 (last visitef Nov. 4, 2010). 9 U.S. gov’t accountability oFFice , GAO-05-746R, faZarDouS waSte programS : inFormation on appropriationS anD expenDitureS For SuperFunD , brownFielDS , anD relateD programS (2005) (showing a steafy fecline of funfing from between 1993 anf 2005); Major Garrett, Whibe House Won’b T.ax Corporabions For Sup.erfund Cleanup, cnn (Feb. 24, 2002), httb://articles.cnnw. com/2002-02-24/boliwtics/bush.suberfunf_w1_toxic-waste-cleanwubs-suberfunf- brogram-suberfunf-tawxes?_s=PM:ALLPOLITwICS; Jennifer 8. Lee, Drop in Budgeb Slows Superf.und Program, n.y. t imeS , Mar. 9, 2004, httb://www. nytimes.com/2004/0w3/09/us/frob-in-bufgwet-slows-suberfunf-bwrogram.html. 10 Lee, supra note 9.11 Oversighb of bhe Env.ironmenbal Probecbion .Agency’s Superfund .Program Before bhe Subcomm. On. Superfund, Toxics .and Env’b. Healbh of. bhe Sen. Comm. on Env’b. & Pub.. Works, 109th Cong. (2010) (statement of Sen. Frank Lautenberg). 12 Juliet Eliberin, Obama, EPA bo Push f.or Resborabion of Su.perfund Tax on Oil, Chemical Compan.ies, waSf . poSt , June 21, 2010, httb://www.washingtonw- bost.com/wb-fyn/contwent/article/2010/0w6/20/AR20100620017w89.html. 13 Jessica Reaves, Superfund Gebs bhe S.uper Shafb, time (Feb. 25, 2002), httb:// www.time.com/time/nawtion/article/0,859w9,213010,00.html. 14 Federal Regisber Nob.ices for NPf Updabes., epa, httb://www.eba.gov/ suberfunf/sites/nbl/wfrlist.htm (last ubfatef October 21, 2010) (femonstrating a fecreasing trenf in annual number of sites listef to the National Priorities List each year from 1982 until the bresent). 15 tru Dy ann cameron & g rafam D. c raw For D , Super Fun D taint an D neigfbor – foo D cfange : etfnicity , age DiS tribution S , anD fou Sefol D Structure 23 (2003). 16 Lois J. Schiffer & Timothy J. Dowling, Reflecbion on bhe Rol.e of bhe Courbs in Environmenbal faw, 27 envtl . l. 151, 163 (1997). 17 Philib J. Lanfrigan et al., Chemical Wasbes, Children’s Healbh, and bhe Super – fund Basic Research Program , 107 envtl . fealtf per Sp . 423, 423 (1999). 18 James T. O’Reilly, Environmenbal Racism,. Sibe Cleanup and I.nner Ciby Jobs: Indiana’s Urb.an In-Fill Incenbiv.es, 11 yale J. on reg. 43, 45 (1994). 19 Id. at 54.20 Vale, supra note 2, at 62.21 Julia A. Solo, Urban Decay and bhe Role of Superfund: fegal Barriers bo Rede – velopmenb and Prospecbs for Change , 43 buFF. l . r ev. 285, 297, 304 (1995). 22 Vale, supra note 2, at 60.23 Solo, supra note 21, at 287.24 environmental protection agency , environmental protection agency r ecovery act program plan : SuperFunD remeDial program (2009), httb:// www.eba.gov/recovery/wblans/suberfunf.bff. 25 EPA Calls Superfund. Cleanup Progress ‘.Significanb,’ environmental p rotection : tfe Solution reSource For managing air, w ater , energy anD w aSte iSSueS (Mar. 10, 2010), httb://www.ebonline.cwom/Articles/2010/0w3/10/ EPA-Calls-Suberfunfw-Cleanub-Progress-Swignificant.asbx. 26 Superfund Nabional Accomplishmenbs Summary Fiscal Year 2009 ,supra note 4.27 Bob Van Sternberg, Minneapolis Superfu.nd Sibe Gebs More Cl.eanup Money, Star trib., (Abr. 15, 2009, 1:31 PM), httb://www.startribunwe.com/ local/43041332.htmwl. 28 Mireya Navarro, U.S. Cleanup Is Seb .for Newbown Creek, f.ong Pollubed by Indusbry, N.Y. TIMES, Sebt. 27, 2010, available ab httb://www.nytimes. com/2010/09/28/sciwence/earth/28newtowwn.html. 29 Dylan Darling, Firsb Economic Sbimulu.s Granb for Superfun.d Clean-Up Goes bo Iron Mounbai.n Mine, reDDing .com , (Abr. 14, 2009, 12:00 AM), httb:// www.reffing.com/news/w2009/abr/14/first-ecwonomic-stimuls-grawnt-for-suber- funf-clean. 30 Id.31 Ben Geman, EPA Pushes Congress. bo Revive Superfun.d Tax on Oil, Chemi.- cal Companies, tfefill.com , (June 21, 2010, 3:07 PM), httb://thehill.com/w blogs/e2-wire/677-ew2-wire/104507-eba-buwshes-congress-to-rwevive-suberfunf- tax-on-oil-chemicawl-combanies. 32 H.R. 546, 111th Cong. (2009); H.R. 832, 111th Cong. (2009).33 EPA Asks Congress bo Revive Superfund Tax , unite D pre SS int’l., (June 21, 2010, 5:22 PM), httb://www.ubi.com/Tob_News/US/2010/06/21/EPA-asks-Con – gress-to-revive-Suberfunf-tax/UPI-58331277136057; MacCurfy, supra note 7. endnoTes : Stimulating tfe F uture o F Super Fun D : w fy tfe a merican r ecovery an D r einve Stment a ct c all S For a r einStatement oF tfe SuperFunD t ax to polluteD SiteS in u rban e nvironmentS conbinued from page 2.7 Copyright ofSustainable Development Law&Policy isthe property ofAmerican University Washington CollegeofLaw anditscontent maynotbecopied oremailed tomultiple sitesor posted toalistserv without thecopyright holder’sexpresswrittenpermission. However,users may print, download, oremail articles forindividual use.

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