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July 17, 2008
U.S. cities are home to hundreds of thousands of old, abandoned commercial and industrial sites called brownfields. Developers avoid these sites for fear that they might be contaminated and could fall under the jurisdiction of the federal Superfund law, which would demand expensive cleanup. Rather than risk Superfund liability, many firms choose to develop in the so-called greenfields—property in suburban and even more rural areas that have not been developed. To promote redevelopment of urban areas, many states have passed brownfield laws that attempt to release developers from liability for state cleanup laws. However, these programs have been of limited value because the sites have still been subject to federal Superfund liability. Congress attempted to fix that problem by its own Brownfields legislation. Unfortunately, rather than remove federal controls over the lands and thereby allow state-level cleanup and private development, the federal government set up a complicated and bureaucratic brownfield program.
Most states have passed laws modeled after the federal Superfund program and those laws have created problems similar to those caused by the federal law. Fortunately, state governments have made enormous strides in reforming their laws to allow more flexible standards— producing 40,000 site cleanups, according to one estimate. In recent years, states have begun passing brownfield laws that provide liability relief to parties that voluntarily clean sites, as well as flexible cleanup standards and financial incentives. Nearly all states operate some form of voluntary brownfield cleanup program.