We asked a number of people who are knowledgeable about brownfield redevelopment to provide their comments on the article written by Allison Evans and Sue Rasmussen concerning Reuse and RCRA.

Karl S. Bourdeau, Esq., Beveridge & Diamond, P.C., Washington, D.C.
As it has with respect to other contaminated sites, the EPA has undertaken a number of useful initiatives aimed at promoting the cleanup and productive redevelopment of RCRA corrective action facilities. The agency has been aided in this effort by its wise decision not to establish binding substantive regulations governing RCRA corrective action cleanups, but to emphasize instead site-specific, flexible, and holistic approaches to remediating such sites.

That said, certain regulatory impediments and liability concerns remain as significant obstacles to successful redevelopment of many RCRA corrective action sites that would otherwise be good candidates for redevelopment. The EPA could build upon its successes in this arena by taking a number of steps to address these obstacles. First, the agency could further its training of regional and state program managers so that the new “redevelopment ethic” is better inculcated into corrective action cleanups. Second, the EPA should find ways to enhance and expand the use of alternative state authorities to fulfill RCRA corrective action obligations. Third, consistent with such an initiative and Congress’ evident intent to promote redevelopment by addressing CERCLA (but not yet RCRA corrective action) liability concerns, the EPA could announce that it will use its enforcement discretion to generally not require further cleanup at RCRA corrective action sites remediated in conformance with “robust” state programs. Fourth, the agency could explore how it might facilitate and expedite the use of prospective purchaser agreements (PPAs) at RCRA sites to address more situations where remaining liability concerns make property transfer and redevelopment problematic. Finally, as EPA examines more closely the concept of, and objectives for, “final” cleanups at RCRA corrective action sites, it should do so with an eye toward an approach that will not unduly discourage sale and redevelopment of sites with more “challenging” environmental contamination.

All these possible actions could serve as meaningful incentives for property developers and lenders to invest in and redevelop these sites, or portions thereof. Whether such initiatives would help convince heretofore reluctant “deep pocket” owners of such sites to divest them for redevelopment purposes and thereby relinquish at least a good measure of control over residual liability risks is a more dubious proposition.

John Walker, manager of real estate redevelopment, Weston Solutions, Inc., Washington, D.C.
Private sector interest in brownfield redevelopment has been greatly enhanced by the recent innovative approaches undertaken by the EPA. Providing closure certainty is key to brownfield revitalization due to the requirements of the financial markets in funding redevelopment. Hopefully, the EPA will continue to look for innovative approaches to ensure that redevelopment on RCRA properties becomes even more enticing to private sector investment.

Bob Cox, a third generation paint factory owner, and author of EPA and Superfund, A Small Business Story
My comments come from an embattled warrior losing a family industrial coatings business existing from 1906-1993 to the draconian statutes incorporated in RCRA and CERCLA, aka Superfund.

I applaud the enthusiasm voiced in the article by Ms. Evans and Ms. Rasmussen, and note that both work for the EPA in the brownfields division and Office of Solid Waste. From my perspective the brownfield program arose when the EPA realized that RCRA and the Superfund laws “maturing” from “command and control enforcement first” contributed to over one million abandoned properties in the U.S. Not a good scorecard, but when these laws hold owners responsible for pollution liability from “cradle to grave” with their joint and several and retroactive (in my opinion ex-post facto law) costing millions of dollars in environmental liability statutes, abandoned properties are going to be a result. Why the EPA found this surprising speaks to their then lack of listening to their constituents. No one from the EPA in Washington, D.C., ever picked up a phone to talk to me, or wrote me a conciliatory letter in spite of my numerous efforts to talk to them. My family and I would never pollute anything; all of waste disposal practices were legal at the time until RCRA and Superfund were passed.

Fast forward to 1998 and I quote from the article: “The EPA found that, as in the case of most brownfield projects, communication among stakeholders is key.” Lesson learned I believe by the EPA, too late for me, but maybe not for others. I would suggest that EPA “trust” only works when the threat of fines, potential suits, etc., are removed from the table. It is only under these conditions, in my opinion; the small and mid-sized businesses will come to the table, wary and beaten at best, looking for a way to revitalize these RCRA properties in partnership, without all of their savings risked by EPA threats chasing potential responsible parties (PRPs) they deem to have “deep pockets.” Listening to stakeholders is important if revitalization is to remain an EPA priority.“ To be heard EPA, really, really listen.

Brian Eggers, president of AKT Peerless Environmental Services, in Saginaw, Mich.
I do agree, in just the past few years we have been successful on a number of RCRA sites in getting over the barriers to redevelopment. It used to mean that a developer would immediately walk away rather than consider acquiring and redeveloping a RCRA site. Now both the EPA and sophisticated developers are willing to more closely examine the options to overcome the stigma and actual barriers. Options exist today that we would not have considered a few years ago. Responsible parties are also more willing to sell their sites for redevelopment, while retaining the right to complete ongoing corrective actions. One of the projects we are currently working on is a 40 acre RCRA former foundry site that is being redeveloped into a new 200,000-plus sq. ft. manufacturing facility, the responsible party has sold the property, but retained access rights and the obligation to delist the property, indemnifying the new users. Believe me, the comfort factor for the new developer took a while to achieve, even with EPA and MDEQ blessings. This would not have been feasible or palatable a few years ago. Let’s keep this evolution up! This is getting fun!