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What are Brownfields?
A Brownfield is any real property which, due to actual or suspected environmental contamination, may lie idle, unoccupied, underutilized, unused, or have any one or combination of these characteristics. A Brownfield may be industrial, commercial, agricultural, or even residential. In many, if not most instances, a Brownfield will not be the subject of an active investigation, remedial, or enforcement action by the U.S. Environmental Protection Agency (EPA) or a state environmental agency, although it may be.
The contamination at a Brownfield may stem from activities that took place or conditions that arose before current ownership and operation of the property and as a result of lawful non-negligent conduct. Liability for Brownfields cleanup arises under the federal Comprehensive Environmental Remediation, Compensation, and Liability Act (“CERCLA” or “Superfund”) and similar state statutes, as described in more detail below, and extends to all past and current owners and operators of the property and to any party responsible for generating or transporting any hazardous substances requiring cleanup at the property. Liability under this scheme is “joint and several,” i.e., each potentially responsible party (“PRP”) bears the entire responsibility for all remedial expenses to a person who cleans up a site, notwithstanding the amount or nature of contamination for which the PRP may be individually responsible. Allocation among PRPs usually takes place in lawsuits or in other adversary contacts in which the PRPs seek equitable contribution among themselves. This liability scheme has discouraged parties who own properties which they believe may have contamination from putting these properties on the market and likewise has discouraged parties who could purchase and rehabilitate these properties from doing so.