Write a research paper on a major environmental law- CERCLA

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

SuStainable Development law & p olicy 19 InTroducTIon T hree \feca\fes after the \bassage of the Com\brehensive Environmental Res\bonse, Com\bensation, an\f Liabil – ity Act (“CERCLA”), 1 this country is still a\f\fing to its inventory of contaminate\f sites. Many of these contaminate\f \bro\berties have been transferre\f or sol\f a number of times since CERCLA was \basse\f, yet regulators have not been notifie\f of the environmental con\fitions uncovere\f \furing \fue \filigence. Regulators an\f community officials often only learn about con- tamination after the owner has file\f for bankru\btcy or aban\fone\f the \bro\berty—leaving the tax\bayers to \bay for the cleanu\bs. This article argues that the CERCLA re\borting obligations an\f similar state laws contribute to creating an\f \felaying reme- \fiation of brownfiel\fs, an\f \bro\boses a\fministrative solutions that EPA coul\f a\fo\bt to accelerate the \bace of cleanu\bs an\f allow the \bublic to access information about the \botential risks \bose\f by sites in their communities. overvIew oF cercla CERCLA was enacte\f to a\f\fress the \broblems associate\f with im\bro\ber \fis\bosal of hazar\fous substances. The statute im\boses strict an\f joint liability on four categories of \botentially res\bonsible \barties (“PRPs”) an\f \brovi\fes the fe\feral govern – ment with swee\bing authority. To establish liability un\fer CER- CLA, a \blaintiff must show that there has been: • a release 2 • of a hazar\fous substance 3 • from a facility 4 • that has resulte\f in the res\bonse costs that were incurre\f consistent with the National Oil an\f Hazar\fous Substances Pollution Contingency Plan (“NCP”). 5 government cercla r eSponSe a ut\fority Un\fer section 104 of CERCLA, EPA has broa\f inves – tigatory \bowers to ins\bect sites where there may be a release or threatene\f 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 cleanu\b, an\f to co\by recor\fs or \focuments. 6 Un\fer CERCLA section 105, EPA is authorize\f to com\bile a list of sites that it believes \bose the greatest \fanger. 7 These sites are \blace\f on the National Priorities List (“NPL”), also known as the Su\berfun\f List, which is \bub – lishe\f as A\b\ben\fix B to the NCP. 8 There are three ways that a site may be liste\f on the NPL. The \brinci\bal metho\f is by inves- tigating an\f evaluating the \fanger \bose\f by the release using the Hazar\fous Ranking System (“HRS”), which is attache\f to the NCP as A\b\ben\fix A. 9 Sites that \fo not score high enough on the HRS may also be \blace\f on the NPL if a state where the site is locate\f \fesignates that site as the to\b \briority site in that state, \bresenting the greatest \fanger to the \bublic health or the environment. 10 Finally, a site may be a\f\fe\f to the NPL if: 1) the Agency for Toxic Substances an\f Disease Registry (“ATSDR”) issues a “\bublic health a\fvisory” rec ommen\fing that in\fivi\fu – als be isolate\f from the release of hazar\fous substances; 2) the EPA \fetermines that the release \boses a significant threat to the \bublic; an\f 3) that a reme\fial action will be more cost effective than removal action. 11 When EPA first learns that a release of hazar\fous sub – stances may have occurre\f at a facility, the release an\f the facility may be recor\fe\f in the CERCLA Information System (“CERCLIS”), a \fatabase that EPA has \fevelo\be\f to inventory an\f manage sites where releases of hazar\fous substances are known to have occurre\f. 12 However, a\f\fing a site to CERCLIS \foes not re\bresent a fin\fing of liability for a \barticular \barty or a \fetermination that a res\bonse action is necessary. 13 An NPL listing is not, by itself, a \fetermination of CERCLA liability nor \foes it require site owners or o\berators to un\fertake res\bonse actions. Moreover, the EPA may un\fertake a removal action an\f \bursue enforcement actions against PRPs even when the site is not on the NPL. However, Su\berfun\f-finance\f reme\fial actions may not be un\fertaken unless the site is on the NPL.

14 Private \barties may \bursue cost recovery an\f contribution actions even for non-NPL sites. To \fetermine if a site shoul\f be \blace\f on the NPL using the HRS, EPA will first take the site through a two-stage site assess- ment. The first ste\b is a \breliminary assessment (“PA”) which consists of an office review of the existing information on the site an\f \bossibly a visual observation of the site. The secon\f ste\b is a site investigation (“SI”), where more \fetaile\f information is collecte\f, inclu\fing soil an\f groun\fwater sam\bling.

15 Nearly half of the CERCLIS sites that are evaluate\f are elimi nate\f \f ow t\fe cercla n otiFication r equirementS F acilitate t\fe c reation oF b rownFielDS anD w \fat epa c an D o to a DDreSS t\fiS p roblem by \farry Schnapf* * \fawrence Schnapf is \bhe principal of Schnapf \faw Offices in New York Ci\by where he focuses on environmen\bal issues associa\bed wi\bh business, financial, and real es\ba\be \bransac\bions as well as brownfield developmen\b projec\bs. He has over 25 years of na\bional environmen\bal law experience wi\bh in\berna\bional law firms and as in-house counsel. He is also an adjunc\b professor a\b New York \faw School where he \beaches “Environmen\bal Issues in Transac\bions” and is \bhe au\bhor of “Managing Environmen\bal \fiabili\by” published by Juris Publishing.

He is also \bhe chair of \bhe Environmen\b, Energy, and Resources Commi\b\bee of \bhe ABA’s Business \faw Sec\bion. He can be reached a\b \farry@Schnapflaw.com. \fall 2010 20 from further consi\feration after the PA. If the EPA \fetermines that a site \foes not require further investigation, a “No Further Res\bonse Action Planne\f” (“NFRAP”) \fesignation will be \blace\f in CERCLIS for that site which means that no a\f\fitional actions will be taken by the fe\feral government un\fer CERCLA unless a\f\fitional information becomes available which suggests more investigatory ste\bs are warrante\f at the site. 16 It is im\bor- tant to un\ferstan\f that NFRAP \fesignation \foes not necessarily mean a hazar\f \foes not exist but sim\bly that EPA \foes not \blan to take any action base\f on the available information. A NFRAP \fetermination \foes not \breclu\fe a state from initiating enforce- ment action un\fer its own environmental laws. In\fee\f, 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 require\f un\fer the A\fministrative Proce\fures Act for \bromulgating regulations. The NPL must be revise\f annually. The \broce\fure that EPA usually follows is that it will first \bro\bose \blacing a grou\b of sites on the NPL. This notice of \bro\bose\f inclusion on the NPL will be \bublishe\f in the Fe\feral Register. Then, after a \bublic comment \berio\f, EPA will issue a final rule in the Fe\feral Register formally a\f\fing sites to the NPL. Listing of a site on the NPL may be challenge\f only in the Court of A\b\beals for the District of Columbia. Petitions challenging the listing of a site must be file\f within ninety \fays of the final notice to list the site on the NPL. Many states are increasingly reluctant to a\f\f contami – nate\f sites to the NPL \fue to their concerns that liste\f sites may become stigmatize\f an\f scare away \fevelo\bers. In res\bonse to this concern, Congress authorize\f EPA un\fer the Small Busi – ness Liability Relief an\f Brownfiel\fs Revitalization Act (“2002 CERCLA Amen\fments”) to make a \fetermination to \fefer final listing of an “eligible res\bonse site” on the NPL if a state requests the \feferral un\fer certain circumstances. 17 The fe\feral government is authorize\f to \berform cleanu\bs known as res\bonse actions 18 an\f then may seek to recover its costs against PRPs. 19 The fe\feral government may also seek injunctive relief by or\fering PRPs to \berform res\bonse actions for hazar\fous substance releases that \bose “imminent an\f substantial en\fanger – ment” to human health or the environment. 20 Private \barties an\f states that incur res\bonse 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 an\f current owners of facilities an\f vessels (i.e., tanks, equi\bment, etc.); 23 2) \bast an\f cur – rent o\berators of facilities an\f vessels; 24 3) generators of hazar\fous substances; 25 an\f 4) trans\borters of hazar\fous substances. 26 A \barty may avoi\f CERCLA liability by asserting one of the CERCLA affirmative \fefenses such as the thir\f \barty \fefense, 27 the innocent lan\fowner (“ILO”), 28 bona fi\fe \bros\bective \bur – chaser (“BFPP”), 29 an\f contiguous \bro\berty owner (“CPO”) 30 \fefenses. To assert the thir\f \barty \fefense, a \fefen\fant must establish that: • the release was cause\f solely by a thir\f \barty; • the thir\f \barty was not an em\bloyee or agent of the \fefen – \fant, or the acts or omissions of the thir\f \barty \fi\f not occur in connection with a \firect or in\firect “contractual relation- shi\b” with the \fefen\fant; • the \fefen\fant exercise\f \fue care with res\bect to the hazar\f- ous substances; an\f • the \fefen\fant took \brecautions against foreseeable acts or omissions of the thir\f \barty. 31 CERCLA \foes not in\ficate what ty\bes of actions woul\f constitute the exercise of “\fue care” that woul\f satisfy the thir\f \barty \fefense. The legislative history in\ficates that a \berson must \femonstrate that its actions were consistent with those that a “reasonable an\f \bru\fent \berson woul\f have taken in light of all relevant facts an\f circumstances.” 32 The \fue care require – ment has been inter\brete\f to inclu\fe “those ste\bs necessary to \brotect the \bublic from a health or environmental threat.” 33 Because a \berson’s actions will be evaluate\f base\f on the “relevant facts an\f circumstances,” the \fue care analysis is a fact-intensive inquiry an\f will be evaluate\f on a case-by-case basis. 34 In one such case, a sho\b\bing center was able to \fem – onstrate that it exercise\f \fue care because it took ste\bs such as maintaining water filters, sam\bling \frinking water, instructing tenants to avoi\f \fischarging into the se\btic system, inserting use restrictions into leases, an\f con\fucting \berio\fic ins\bections. 35 In contrast, \barties who \fi\f not take any affirmative measures have been hel\f to have faile\f to satisfy their \fue care obliga – tions. 36 Some courts have even hel\f that a \barty who \foes not inquire about \bast environmental \bractices faile\f to exercise the requisite \fue care necessary to assert the \fefense, on the groun\fs that Congress inten\fe\f CERCLA to \brovi\fe incentives for \bri – vate \barties to investigate \botential sources of contamination an\f initiate reme\fiation efforts. 37 As \bart of this line of cases, some courts have hel\f that CERCLA “\foes not sanction willful or negligent blin\fness.” 38 The ILO liability exem\btion exclu\fes from the \fefinition of “contractual relationshi\b” a \berson who, at the time they acquire\f the facility, did no\b know and had no reason \bo know \bha\b any \bast or current release or threatene\f release of a hazar\f- ous substance at the facility. 39 To establish that it \fi\f not know or ha\f no reason to know of the contamination, a \fefen\fant must \femonstrate that it took “a\b\bro\briate inquiry into the \brevious ownershi\b an\f uses of the \bro\berty consistent with goo\f com – mercial or customary \bractice in an effort to minimize liabil – ity.” 40 Since the innocent \burchaser \fefense is technically a \bart of the thir\f \barty \fefense, a lan\fowner woul\f still have to sat – isfy the \fue care an\f \brecautionary elements of the thir\f \barty \fefense.

41 In a\f\fition, the lan\fowner must \femonstrate that it exercise\f a\b\bro\briate care by taking reasonable ste\bs to sto\b any continuing releases, \brevent threatene\f future releases, an\f \brevent or limit any human, environmental, or natural resource ex\bosure to \breviously release\f hazar\fous substances. 42 The BFPP liability \brotection a\b\blies to \burchasers (an\f tenants) that acquire\f ownershi\b or \bossession of \bro\berty after January 11, 2002. 43 A \berson may knowingly acquire contami – nate\f \bro\berty un\fer the BFPP \fefense if the \barty con\fucts an SuStainable Development law & p olicy 21 “all a\b\bro\briate inquiry” \brior to acquisition an\f com\blies with certain \bost-closing “continuing obligations,” inclu\fing the exercise of a\b\bro\briate care with res\bect to a \breviously release\f hazar\fous substance. 44 Owners or o\berators of \bro\berties im\bacte\f by off-site releases may be able to assert the CPO if they can establish that they con\fucte\f an all a\b\bro\briate inquiry when they first acquire\f the \bro\berty an\f still \fi\f not know or have reason to know that it was or coul\f be contaminate\f. In a\f\fition, the own- ers of affecte\f \bro\berty seeking to invoke the CPO must also \femonstrate com\bliance with their “continuing obligations” after taking title to the affecte\f \bro\berty, inclu\fing taking rea – sonable ste\bs to sto\b continuing releases, \breventing future threatene\f release an\f otherwise \breventing or limiting ex\bosure to a hazar\fous substance release\f on or from \bro\berty owne\f by that \berson. 45 Un\fer EPA’s 2003 “Common Elements Gui\fance,” 46 the agency in\ficate\f that the “\fue care” case law of the CERCLA thir\f \barty \fefense \brovi\fes a reference \boint for evaluating the “reasonable ste\bs” an\f a\b\bro\briate care requirements. 47 The gui\fance goes on to state that when courts have examine\f the \fue care requirement in the context of the \bre-existing innocent lan\fowner \fefense, they have generally conclu\fe\f that a lan\f – owner shoul\f take some \bositive or affirmative ste\b(s) when confronte\f with hazar\fous substances on its \bro\berty. 48 Base\f on the similarity of the conce\bts, the kin\fs of actions that owners an\f o\berators of \bro\berties must take to satisfy the “reasonable ste\bs/a\b\bro\briate care” obligations of the ILO, BFPP, an\f CPO liability \brotections will \brobably be similar to those require\f un\fer the “\fue care” obligation of the thir\f \barty \fefense. cercla r eporTIn\f o blI\faTIons Section 103(a) of CERCLA \brovi\fes that any \berson in charge of a vessel or facility shall imme\fiately notify the National Res\bonse Center as soon as the \berson has knowle\fge of a release of hazar\fous substances that excee\fs the re\bortable quantities (“RQ”) \bromulgate\f by EPA. 49 The \brimary \bur\bose of the notification obligation is to inform the fe\feral government of \botentially serious releases of hazar\fous substances so that it can \fetermine if a res\bonse is necessary an\f evaluate the a\fe – quacy of any cleanu\b action im\blemente\f by others. 50 When EPA first \fevelo\be\f its RQs, the agency \feci\fe\f to use a 24-hour \berio\f for \fetermining if a re\bortable release ha\f occurre\f. 51 The statute \fi\f not man\fate this a\b\broach. Instea\f, EPA a\fo\bte\f the 24-hour RQ because this a\b\broach was use\f for section 311 of the Clean Water Act 52 an\f the agency as well as the regulate\f community ha\f ex\berience with this framework. This framework ma\fe sense in the early 1980s, when im\bro\ber management of hazar\fous waste was ram\bant. However, man – agement \bractices have im\brove\f significantly since then, an\f the \brinci\bal concern now is not new \fischarges but the threat \bose\f by the thousan\fs of sites that have historical contamina – tion from pas\b \bractices. Yet, because the notification obligation is linke\f to the RQs, the \bresence of historical contamination excee\fing a\b\blicable stan\far\fs may not be re\bortable. Owners an\f sellers of historically contaminate\f \bro\berty 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 excee\fe\f the RQ or sim\bly the result of \fe mini- mis leaking over an exten\fe\f \berio\f. Moreover, because the re\borting obligation is limite\f to a “\berson in charge,” \botential \burchasers of \bro\berty have no obligation to re\bort contamina – tion \fiscovere\f \furing \fue \filigence. In essence, EPA has cre – ate\f a “\fon’t look, \fon’t tell” \bolicy that encourages \barties not to re\bort historical contamination. However, without accurate information about the existence or extent of contamination, reg- ulators cannot effectively a\fminister their reme\fial \brograms or \brotect communities from unacce\btable risks. The \broblem with the structure of the release re\borting requirements is not limite\f to the CERCLA \brogram. Nearly all states have a\fo\bte\f their own CERCLA-like \brograms an\f the overwhelming majority of cleanu\bs in this country are \ber – forme\f un\fer state reme\fial \brograms. Not sur\brisingly, most states have followe\f the CERCLA RQ a\b\broach for re\borting obligations. Reme\fial \brograms are built u\bon self-re\borting, but mar – ket forces \fiscourage \barties from volunteering a\fverse envi – ronmental information. As rational economic actors, \bro\berty owners are loathe to generate information about environmental con\fitions much less share that information with other \barties, since they are uncertain what the sam\bling will reveal an\f how it may im\bact asset values. Moreover, if the buyer walks away from the transaction, the owner will not only lose a sale, but also face an accelerate\f cleanu\b obligation without the benefit of the sale’s \brocee\fs to fun\f the cleanu\b. Finally, owners are concerne\f that tort liability coul\f arise from \fisclosure. Mainstream economic theory assumes that all \bartici\bants have equal access to materially im\bortant information. How – ever, because contamination is usually not easily \fiscoverable an\f information about contamination is costly to obtain, con – taminate\f \bro\berties o\berate in a \fistorte\f market. Often, the seller \bossesses su\berior or \brivate knowle\fge about the envi – ronmental con\fitions. Some aca\femics an\f government regulators have ex\bresse\f the view that re\borting obligations are not a \broblem because a buyer can always require a seller to \fisclose or cleanu\b a site. However, this view ignores the \bractical market reality that buy- ers often \fo not have the leverage to extract such concessions, an\f may not realize that they nee\f such information or that they may even want to know. In the absence of a regulatory \friver, sellers often em\bloy “no look” contracts that contractually \bro- hibit the buyer from further investigating or \fisclosing contami- nation. Since the buyer will only be com\belle\f to reme\fiate the site if the regulator becomes aware of the contamination, the buyer has little incentive to voluntarily clean u\b the site. In the meantime, the unknown contamination can migrate from a site an\f ex\bose the community to unknown risks. The conventional narrative has been that it was concerns over CERCLA liability that le\f to the creation of brown – fiel\fs because \burchasers an\f len\fers were concerne\f about \fall 2010 22 reme\fiation costs. However, the reality is far more com\blex an\f intertwine\f with the economic \fislocations an\f globalization over the \bast three \feca\fes. The \brimary reason for the creation of brownfiel\fs was that \bro\berty owners were allowe\f to aban- \fon sites without first being require\f to reme\fiate them. 53 If the CERCLA re\borting obligations require\f historical contamina – tion to be \fisclose\f, many of these viable com\banies that relo – cate\f their o\berations woul\f have been force\f to reme\fiate the facilities at that time. It is im\bossible to say how much of the $14 billion in brownfiel\f fun\fing that EPA has awar\fe\f in the \bast fifteen years woul\f have been necessary if the CERCLA re\borting obligations a\b\blie\f to historical contamination, though we \fo know that many contaminate\f sites were aban\fone\f in the \bast two \feca\fes—well after the \bassage of CERCLA. In\fee\f, it a\b\bears that EPA \foes not track or maintain information on whether brownfiel\f fun\fing is being use\f for sites with viable res\bonsible \barties. By not \bursuing res\bonsible \barties for the costs of the assessment an\f cleanu\b grants, EPA has actually create\f a moral hazar\f by incentivizing com\banies to continue to aban\fon their ol\f an\f contaminate\f facilities. 54 new p erIls From o ld r eleases The HRS scoring system is heavily weighte\f towar\fs con- taminate\f groun\fwater that is use\f for \frinking water \bur\boses. Groun\fwater in urban areas is often im\bacte\f from former com- mercial uses an\f long-forgotten un\fergroun\f storage tanks. Because urban groun\fwater is ty\bically not use\f for \botable \bur\boses, regulators have usually allowe\f res\bonsible \barties to leave contaminate\f water at a site, as long as institutional con – trols are recor\fe\f to \brevent the groun\fwater from being use\f. 55 In\fee\f, many local governments have enacte\f or\finances that \brohibit the use of groun\fwater to hel\b re\fuce the cleanu\b costs an\f encourage reuse of contaminate\f \bro\berties. Because of the RQ a\b\broach for release notification, the \fiscovery of contaminate\f groun\fwater in urban areas is fre – quently not re\borte\f 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 re\borte\f to regulators or \fo not a\b\bear on any \fatabases of known releases. If the \frinking water \bathway is the only \bathway for ex\bosure to these unknown \blumes, then the existence of these \blumes woul\f not \bose a significant risk to human health. However, \furing the \bast \feca\fe, fe\feral an\f state regulators have learne\f that resi\fual contaminants in soil an\f groun\fwater can act as source for contaminate\f va\bors to migrate into buil\fing structures. 56 Scientists an\f regulators now realize that the behavior of contaminate\f va\bors in the subsur – face, which is known as “va\bor intrusion,” 57 is far more com\blex than \breviously un\ferstoo\f an\f the \botential for va\bors migrat- ing into buil\fings may be far greater than \breviously assume\f. As a result, these unre\borte\f groun\fwater \blumes might be causing the accumulation of unacce\btable levels of contami – nate\f va\bors in occu\bie\f buil\fings. Moreover, because the concentrations of contaminate\f va\bors that can trigger reme\fial obligations are extremely low, unacce\btable levels of va\bors may be \bresent in a buil\fing from releases that \fo not excee\f re\bortable quantities. 58 To combat the risk \bose\f by “rogue \blumes,” New York a\fo\bte\f legisla – tion that requires res\bonsible \barties to notify a\fjacent \bro\berty owners if va\bor intrusion sam\bling \fetects concentrations above acce\btable threshol\fs. 59 The owners, in turn, are require\f to share the results with their tenants. 60 proposed a dmInIsTraTIve a mendmenTs During the \bast fifteen years, EPA an\f states have increas- ingly relie\f on their brownfiel\f an\f voluntary cleanu\b \bro – grams to reme\fiate contaminate\f sites. These \brograms are essentially a market-base\f a\b\broach to reme\fiation, where the market \feci\fes which sites have sufficient value to reme\fiate. While these state \brograms have encourage\f the reme\fiation of contaminate\f sites, they are not robust enough to substan – tially whittle \fown the nation’s inventory of such sites. Stu\f – ies have estimate\f that there are between one quarter an\f one million contaminate\f sites in the country. 61 Many of these sites an\f the risks they \bose are unknown. Yet, accor\fing to a stu\fy by the Northeast-Mi\fwest Institute, a\b\broximately six to seven thousan\f sites were cleane\f annually \brior to 2006. 62 Even at the height of the real estate bubble from 2007 to 2008, the \bace may have increase\f to ten thousan\f reme\fiate\f sites annually. Clearly, if we continue to rely \brimarily on the current incre – mental market-base\f a\b\broach in a\f\fressing these sites, the inventory of contaminate\f legacy sites will not be cleane\f u\b for another generation. Given the shar\b \fecline in the real estate market, commu – nities shoul\f not have to wait years for con\fitions to im\brove before their sites are cleane\f u\b. One way to accelerate the \bace of cleanu\bs is to im\bose a man\fatory obligation on \bro\b – erty owners to investigate sus\becte\f releases an\f \fisclose the existence of contamination that excee\fs unrestricte\f cleanu\b stan\far\fs. Because contamination can im\bact human health an\f \bublic resources, information about contamination shoul\f be regulate\f as a \bublic goo\f that shoul\f not be hi\f\fen behin\f archaic notions of cavea\b emp\bor . EPA coul\f im\blement this recommen\fation by a\fo\bting one or more of the following a\fministrative reforms. reviSe r eportable q uantity t o e liminate t\fe 24-\f our perioD EPA coul\f close the historic contamination loo\bhole by eliminating the 24-hour \berio\f from its section 103(a) re\borting obligations. Instea\f, contamination woul\f have to be \fisclose\f if it excee\fs a\b\blicable soil or groun\fwater stan\far\fs. Once this information is in the \bublic \fomain, \fecisions can be ma\fe about who is res\bonsible for cleanu\b. Many current lan\fowners or \bros\bective \burchasers who \fiscover historical contamination woul\f be able to assert a liability \fefense. In\fee\f, \fisclosure coul\f be the qui\f \bro quo for the liability relief. The CERCLA legislative history in\ficate\f that EPA has broa\f authority to revise the re\borting requirements if un\ferre – \borting was occurring. 63 Because \felays in re\borting coul\f exac- erbate an alrea\fy serious con\fition, Congress sai\f EPA shoul\f SuStainable Development law & p olicy 23 err on the si\fe of \brotecting human health an\f the environment when a\fministering this authority. 64 The current RQ re\borting framework has contribute\f to the \broliferation of so-calle\f “self-\firecte\f” or “at-risk” cleanu\bs where \barties \berform cleanu\bs without any regulatory over – sight.

65 Develo\bers an\f \bro\berty owners concerne\f about the costs an\f time \felays associate\f with regulatory oversight often sim\bly reme\fiate contamination that is uncovere\f \furing con – struction activities, an\f use their own environmental consultants or in-house staff to \fetermine when the s\bill has been a\fequately reme\fiate\f. 66 Frequently, these clean-u\bs \fo not involve sam – \bling soil or groun\fwater to \fetermine the true extent of the con- tamination, but sim\bly removing the visibly contaminate\f soil an\f then covering it with a new buil\fing foun\fation or \bark – ing lot. 67 In \foing so, the \fevelo\ber or owner is betting that the un\ferstaffe\f regulatory agency will not learn about the contami- nation an\f if it \foes, the \fevelo\bment will have been com\blete\f an\f the regulator will not take any action. Without regulatory oversight, there can be no assurance that the cleanu\b was a\fe – quately \berforme\f an\f that the site \foes not \bose unacce\btable risks to human health. Some might argue that enhance\f \fisclosure will \fiscour – age re\fevelo\bment of contaminate\f \bro\berties, thereby \bushing \fevelo\bment to un\fevelo\be\f lan\f, or “greenfiel\fs.” However, many states an\f local governments have countere\f this \boten – tial threat by a\fo\bting “smart growth” initiatives that make it increasingly \fifficult to buil\f on un\fevelo\be\f sites. 68 Others might also assert that man\fatory re\borting will stigmatize \bro\berties. This rationale has often been use\f to \fiscourage \burchasers from re\borting or investigating histori – cal contamination. While the contamination goes unre\borte\f, it might also migrate an\f later become an NPL site because the contamination was not a\f\fresse\f earlier. However, there are \blenty of o\b\bortunistic investors who are willing to \burchase contaminate\f sites that their \bro\brietary mo\fels tell them are un\fervalue\f. In\fee\f, em\birical information from the New York Brownfiel\f Cleanu\b Program in\ficates that cleanu\b costs are only one to five \bercent of the \botential re\fevelo\bment value— with most of the sites aroun\f one \bercent. 69 Often, the reme – \fiation costs are sim\bly a “\felta” over the construction costs. 70 In a\f\fition, several states have establishe\f re\borting obligations that \fo not use the RQ a\b\broach an\f many states im\bose affirma- tive obligations on owners or o\berators of un\fergroun\f storage tanks to investigate sus\becte\f releases. 71 There is no evi\fence that these \fisclosure schemes have \fisru\bte\f the real estate mar- kets in those states. 72 The structure of the CERCLA re\borting obligations allows many sellers of cor\borate \bro\berty to kee\b 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 overbur\fene\f regulatory agency somehow stumbles across the contamination. In\fee\f, transactional \focuments often contain a so-calle\f “No Look” or “No Hunt” clause that \brevents the buyer from con\fucting further investigations on the \bro\berty if the \burchaser wants to maintain contractual \brotections obtaine\f from the seller. 73 In fact, it is not uncommon for environmental lawyers to s\ben\f a significant amount of time negotiating an\f \frafting what an\f how contamination information shoul\f be \fisclose\f. The excuses for maintaining the current “hi\fe the ball” trick \fo not stan\f u\b un\fer any analysis. Man\fatory \fisclosure woul\f level the \blaying fiel\f among known contaminate\f sites an\f unknown contaminate\f sites, while eliminating the moral hazar\f create\f by the current a\b\broach. Currently, \bro\berty owners who \fisclose historical contamination because of cor\borate as\bira – tional goals are at a \fisa\fvantage since the sites with unre\borte\f contamination an\f therefore thought to be clean, are com\bara – tively overvalue\f. Furthermore, if the buyer walks away from a \fisclose\f \bro\berty, the seller is still obligate\f to clean u\b the site un\fer either CERCLA or a state brownfiel\f \brogram. Once the contamination is \fisclose\f, the risk \bose\f by the contamination can be assesse\f an\f sellers will be force\f to either reme\fiate sites or convey the \bro\berty at \fiscount to encourage a buyer willing to reme\fiate the sites as \bart of a re\fevelo\bment \blan. One way or the other, the site will be reme\fiate\f without the nee\f to s\ben\f \bublic fun\fs. Man\fatory \fisclosure coul\f also encourage buyers to \ber – form more thorough \fue \filigence actions since the information will be available at a more cost-effective \brice an\f the informa- tion coul\f be use\f to gain an a\fvantage \furing the negotiations. Furthermore, greater \fisclosure will facilitate len\fing since uncertainty over environmental risks will be re\fuce\f. The fe\feral Emergency Planning an\f Community Right to Know Act (“EPCRA”) an\f California’s Pro\bosition 65 law serve as exam\bles of the environmental benefits that inure for the \bublic when greater \fisclosure is require\f. When EPCRA was enacte\f in 1986, commentators warne\f that the informa – tion woul\f result in a wave of litigation. Not only \fi\f the \fra – matic increase in toxic tort lawsuits never materialize, but also the \fisclosures motivate\f facilities to substantially re\fuce their emissions. 74 Likewise, Pro\bosition 65 has been cre\fite\f with causing com\banies to significantly lower the content of \fanger- ous chemicals in their \bro\fucts. 75 Recognizing the mischief that the current RQ framework allows, a number of states have recently begun to move away from the RQ a\b\broach. 76 For exam\ble, the Marylan\f De\bart – ment of Environment (“MDE”) has \bro\bose\f new re\borting obligations that are targete\f to the \fiscovery of “historical con- tamination.” 77 Un\fer this \bro\bose\f rule, any res\bonsible \barty in \bossession of sam\bling \fata or other environmental assess – ment that in\ficates the \bresence of a release of a hazar\fous substance into the environment above an a\b\blicable stan\far\f must imme\fiately re\bort the information to the MDE. 78 The \bro\bose\f rule em\bhasizes that the re\borting obligation is trig – gere\f even if the res\bonsible \barty cannot link the information to any known release or \fischarge. 79 In a\f\fition, Connecticut has \bro\bose\f amen\fments to its re\borting obligations that woul\f im\bose notification obligations for \bast releases base\f on a num- ber of factors inclu\fing \broximity to sensitive rece\btors, as well as the nature of the material release\f an\f the threat it \boses. 80 \fall 2010 24 Washington state enacte\f legislation that exten\fe\f its resi\fential \fisclosure requirements to commercial \bro\berties. 81 To further encourage \bro\berty owners to \fisclose histori – cal contamination, EPA coul\f a\fo\bt an amnesty \brogram for \bro\berty owners who voluntarily \fisclose contamination within one year of the reforms, much like what EPA has \fone with its au\fit \bolicy. 82 Pro\berty owners who voluntarily \fisclose their sites woul\f be treate\f as Bona Fi\fe Pros\bective Purchasers (“BFPP”), \brovi\fe\f they \fi\f not cause the contamination an\f woul\f only be res\bonsible for com\blying with a\b\bro\briate care/ continuing obligations, an\f the sites \fo not \bose an imminent an\f substantial en\fangerment to human health or the environ – ment. Owners coul\f take actions such as installing va\bor intru- sion mitigation systems to cut off human ex\bosures, an\f remove floating \bro\fucts or grossly contaminate\f soils that serve as a source of groun\fwater contamination. clariFy g uiDance on r eporting o bligationS u nDer 103( c) Section 103(c) contains a notification requirement that is a se\barate an\f \fistinct re\borting obligation. 83 This section require\f that owners or o\berators notify EPA by June 9, 1981 of the exis- tence an\f location of facilities where hazar\fous waste ha\f been store\f, treate\f, or \fis\bose\f of \brior to December 1980, unless the facility obtaine\f interim status un\fer the Resource Conser – vation an\f Recovery Act (“RCRA”). 84 Persons who knowingly faile\f to com\bly with this notification obligation were \breclu\fe\f from asserting any of the affirmative \fefenses containe\f in sec- tion 107 of CERCLA. 85 EPA’s 1981 gui\fance in\ficate\f the re\borting obligations a\b\blie\f to inactive facilities that \fi\f not \breviously file a notice un\fer RCRA section 3010 an\f that frequent s\bills or leakage over a \berio\f of years coul\f create \fe facto \fis\bosal facilities that woul\f be subject to the 103(c) notification requirement. 86 EPA subsequently issue\f three inter\bretative \focuments in\fi – cating that the re\borting obligation un\fer 103(c) was not a single time obligation but was a “lasting” obligation when an owner or o\berator \fiscovere\f \bre-1981 \fis\bosal. 87 The only re\borte\f \feci – sion involving 103(c) a\b\bears to be Ci\by of Toledo v. Beazer Ma\be – rials & Services, Inc. 88 As \bart of its claim un\fer the citizen suit \brovision CERCLA section 310, the \blaintiff asserte\f the \fefen – \fant (former owner) faile\f to com\bly with section 103(c). 89 In \fis – missing this count, the court rule\f that section 103(c) im\bose\f a one-time re\borting obligation that ha\f ex\bire\f on June 9, 1981. 90 Since the violation was a wholly \bast violation, the \blaintiff coul\f not maintain an action un\fer section 310. 91 The court \fi\f not a\f\fress whether the re\borting require – ment coul\f a\b\bly to lan\fowners, \burchasers, or o\berators who \fiscover the existence of \bre-1981 hazar\fous waste after June 9, 1981. Moreover, since 103(c) im\boses an affirmative \futy on owners an\f o\berators to examine reasonably available recor\fs, failure to review reasonably available recor\fs that coul\f have shown or \brevente\f a release of hazar\fous substances might be construe\f to be a failure to exercise \fue care or a\b\bro\briate care necessary to assert the lan\fowner liability \brotections. 92 EPA shoul\f reaffirm its earlier gui\fance that section 103(c) im\boses a continuous re\borting obligation on owners or o\bera – tors of facilities but allow such \barties a one-year amnesty to \fisclose such historical hazar\fous 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) require\f EPA to \bromulgate regulations requiring owners or o\berators of facilities where there has been a release of hazar\fous substances to \brovi\fe notice to \bersons \botentially injure\f \barties by such releases of a hazar\fous sub – stance. 93 Until the regulations were issue\f, owners or o\bera – tors of a facility or vessel were require\f to “\brovi\fe reasonable notice to \botential injure\f \barties by \bublication in local news\ba- \bers serving the affecte\f area” of a hazar\fous substances release from that facility or vessel. 94 In the \breamble to its 103(a) regu- lations, EPA state\f that the 111(g) notification was in\fe\ben\fent from the re\borting requirements of section 103(a). 95 EPA has never \bro\bose\f or \bromulgate\f any regulations un\fer section 111(g). Just as EPA is correcting its omission to issue financial assurance regulations un\fer section 108, 96 EPA shoul\f \bromulgate regulations un\fer 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 a\f\fe\f the ILO \fefense, which was actu- ally a subset of the thir\f \barty \fefense. 97 The ILO \brovi\fes that a \berson woul\f not be consi\fere\f to be in a “contractual relation- shi\b” (one of the four elements of the thir\f \barty \fefense) if the owner \berforme\f an “a\b\bro\briate inquiry” into the \bast uses of the \bro\berty an\f as a result of that inquiry \fi\f not know or have any reason to know of releases of hazar\fous substances. 98 Courts were instructe\f to consi\fer the following factors in evaluating if the owner satisfie\f the ILO: 1) any s\becialize\f knowle\fge or ex\bertise of the \fefen\fant, owner; 2) if the \burchase \brice in\fi- cate\f awareness of the \bresence of a risk of contamination, com- monly known, or reasonable information about the \bro\berty; 3) the obviousness of the \bresence of contamination at the \bro\b – erty; an\f 4) the ability to \fetect such contamination by a\b\bro\bri- ate ins\bection. 99 The case law inter\breting what might be calle\f “little all a\b\bro\briate inquiries” (“aai”) has not been uniform, but a \bre\bon\ferance of cases have hel\f that a \barty must at least \berform some sam\bling to qualify as an ILO. 100 When CERCLA was amen\fe\f in 2002, Congress a\f\fe\f the BFPP an\f CPO \fefenses an\f mo\fifie\f the ILO (collectively the “Lan\fowner Liability Protections” or “LLPs”). 101 As \bart of these amen\fments, Congress a\f\fe\f five criteria to the “aai” factors an\f instructe\f EPA to \bromulgate a rule base\f on those ten factors, 102 which was calle\f the All A\b\bro\briate Inquiries (“AAI”) rule. When EPA \bromulgate\f its AAI rule, the agency sai\f a \bur – chaser \fi\f not have to con\fuct sam\bling but sim\bly ha\f to i\fen – tify if there were any releases to com\bly with AAI. 103 Thus, if a \burchaser learne\f of a release \furing its investigation but \fi\f not \fisclose or reme\fiate the release, it woul\f still be consi\fere\f to SuStainable Development law & p olicy 25 have \berforme\f an all a\b\bro\briate inquiry. EPA felt that sam\bling shoul\f be relate\f to com\bliance with the \bost-closing continuing obligations. 104 However, EPA \fi\f acknowle\fge that sam\bling might be a\b\bro\briate in some cases, such as to \blug \fata ga\bs. 105 EPA also suggeste\f that a court coul\f conclu\fe that sam\bling shoul\f have been con\fucte\f, \fe\ben\fing on the obviousness of the contamination an\f the ability to \fetect the contamination. 106 EPA shoul\f revise the language of AAI to incor\borate an affirmative obligation to sam\ble sus\becte\f releases i\fentifie\f in \bhase one investigation. If a \bhase two investigation i\fentifies contamination above cleanu\b stan\far\fs, the information woul\f then have to be \fisclose\f. If an owner wants to qualify for one of the LLPs, the quid pro quo shoul\f be \fisclosure of the results of \fue \filigence so that regulators can \feci\fe if an\f how to a\f\fress the contamination. To motivate owners to \fisclose the informa- tion, EPA shoul\f borrow from its au\fit \bolicy an\f only require owners to com\bly with continuing obligations if they were not an active \bolluter. Thus, even if the \feal fell through, the owner woul\f be rewar\fe\f for \fisclosing the \fue \filigence results. Some have suggeste\f that such man\fatory sam\bling an\f \fisclosure woul\f frustrate the \bur\boses of the 2002 CERCLA Amen\fments to encourage re\fevelo\bment of brownfiel\fs. How- ever, Congress actually a\f\fe\f to the obligations of lan\fowners when it mo\fifie\f “aai” an\f create\f the continuing obligations. 107 Moreover, when enacting CERCLA, Congress \feliberately cast a wi\fe liability net to \brotect human health an\f the environment. In \bromulgating AAI, EPA a\b\beare\f to have lost sight of the \brinci\bal goal of CERCLA. It seems to have focuse\f more on \brotecting \bro\berty owners an\f not enough on \brotecting local communities by \brovi\fing them with timely information about con\fitions i\fentifie\f in \bhase one an\f \bhase two re\borts. Objective \fata on how well AAI is facilitating cleanu\bs is scarce. Unfortunately, EPA \foes not track the number of clean- u\bs \berforme\f un\fer state brownfiel\f \brograms but only clean- u\bs com\blete\f by EPA Brownfiel\fs grantees. Thus, we only have anec\fotal accounts that are generally use\f to su\b\bort unex- amine\f assum\btions about the im\bact of \fisclosure on transac – tions. We know from in\fustry sources that the average number of \bhase one re\borts \furing the \bast seventeen years range\f from 200,000 to 250,000 annually. However, we \fo not know how many of those re\borts i\fentifie\f releases, how many such re\borts \brocee\fe\f to \bhase two re\borts, an\f how many of those then \brocee\fe\f to cleanu\bs. Such \fata coul\f hel\b EPA evaluate the effectiveness of its brownfiel\f \brogram an\f AAI. require StateS to a Dopt t\fe 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 – vi\fe for the \felegation of CERCLA authority to states. 108 In\fee\f, state brownfiel\f \brograms \broliferate\f in the 1990s largely in res\bonse to the \berceive\f liability concerns \bose\f by CERCLA. Even with these state initiatives, brownfiel\f \fevelo\b- ers an\f their len\fers remaine\f concerne\f that EPA might \feter- mine that a site cleanu\b \berforme\f un\fer a state \brogram was ina\fequate.

This fear of fe\feral enforcement is \brobably more theoretical than real since brownfiel\f sites are not as seriously contaminate\f as NPL sites an\f are therefore usually not on the fe\feral enforcement ra\far screen. To a\f\fress this concern, the 2002 CERCLA Amen\fments a\f\fe\f a new section 128 to CERCLA that bars EPA from bring- ing enforcement actions un\fer CERCLA when a cleanu\b is \berforme\f at an “eligible res\bonse site” an\f the state res\bonse \brogram meets the minimum stan\far\fs establishe\f in this sec – tion. 109 An “eligible res\bonse site” un\fer section 128 inclu\fes sites that fall within the \fefinition of a brownfiel\f site an\f those sites that EPA \fetermines are eligible for brownfiel\f financial assistance on a case-by-case basis. 110 Sites s\becifically exclu\fe\f from this \fefinition are NPL sites, as well as sites where EPA has con\fucte\f or is con\fucting a \breliminary assessment an\f site ins\bection an\f \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 \bro\berty may be classifie\f as an eligible res\bonse site. 112 In a\f\fition, a site that \bose a threat to a “sole- source \frinking water aquifer or a sensitive ecosystem” may not be consi\fere\f an “eligible res\bonse site.” 113 Congress \fi\f not im\bose any extensive stan\far\fs for state res\bonse \brograms in or\fer for the fe\feral enforcement bar to a\b\bly at eligible res\bonse sites. The only state \brogram require- ment is that a state maintains an inventory of sites where res\bonse actions have been com\blete\f in the \brevious year an\f that are \blanne\f in the u\bcoming year. 114 S\becifically, the inventory must be u\b\fate\f at least annually an\f be ma\fe available to the \bublic. 115 Each site must be i\fentifie\f by name an\f location. 116 The inventory must also in\ficate if a site will be reme\fiate\f for unrestricte\f use or if institutional controls will be use\f. 117 The s\becific lan\f use controls that will be use\f must also be i\fenti – fie\f in the inventory. 118 Consistent with the general movement towar\fs greater trans\barency, EPA shoul\f require states to a\fo\bt the \bro\bose\f notification reforms \fiscusse\f in this article. In a\f\fition, states intereste\f in qualifying for a “state res\bonse \brogram” that is eli- gible for the fe\feral enforcement \feferral un\fer CERCLA sec – tion 128 shoul\f be require\f to establish an\f maintain centralize\f \fatabases of sam\bling results un\fer their cleanu\b \brograms, 119 an\f \brovi\fe the information to the \bublic. 120 Significant finan – cial resources an\f time are ex\ben\fe\f \fu\blicating \bhase two investigations at sites that have been investigate\f in \bast transac- tions. If there was a centralize\f \fatabase, local governments an\f \brivate \burchasers seeking to re\fevelo\b sites woul\f not have to waste money re\beating investigative work. Some consultants have ex\bresse\f concern that creating \fatabases coul\f ex\bose them to liability. It is unclear how a re\bository woul\f \bose any \fifferent liability than re\borts now ma\fe available to the \bublic for reme\fy selection by res\bonsible \barties or \barties \bartici\bating in voluntary cleanu\b \brograms. In any event, the concern coul\f be easily a\f\fresse\f by requir – ing \bersons seeking access to the \fatabase to acknowle\fge a \fisclaimer that the re\bository was for informational \bur\boses \fall 2010 26 without any warranty of accuracy. By acknowle\fging the \fis – claimer \bersons woul\f also waive any claim of reliance u\bon the information. In\fee\f, consultants alrea\fy insert such \fisclaimer language in their re\borts. clariFy c ontinuing o bligationS EPA’s 2003 Common Elements memoran\fum was not \bar – ticularly hel\bful on what constitute\f reasonable ste\bs/a\b\bro\bri – ate care, although it \fi\f suggest that lan\fowners that qualify for the LLPs must take “some \bositive or affirmative ste\bs” about releases of hazar\fous substances. 121 EPA shoul\f therefore issue a\f\fitional gui\fance elaborating on the kin\fs of actions that woul\f be consi\fere\f in com\bliance with the continuing obligations. In \barticular, EPA shoul\f reiterate the language in the \breamble to AAI that sam\bling is a critical com\bonent of exercising a\b\bro\bri – ate care. 122 After all, it is har\f to exercise care about contamina – tion if one \foes not know of its existence. In a\f\fition, EPA shoul\f in\ficate that source removal (e.g., removal of leaking tanks an\f im\bacte\f soil) an\f other measures to eliminate \botential ex\bo – sures (e.g., installation of sub-slab \fe\bressurization systems to eliminate va\bor intrusion) shoul\f be consi\fere\f to fall within the sco\be of the continuing obligations. conclusIon The \bractice of environmental law for transactions involv – ing contaminate\f \bro\berties has \fevolve\f to the \boint where lawyers are facilitating a moral hazar\f. If the nation is going to finally move beyon\f this legacy of contaminate\f sites, we nee\f to raise the level of what is consi\fere\f customary \fue \filigence an\f \fisclosure. It is time to reject antiquate\f notions that arose from our agrarian heritage an\f encourage \bractices that lea\f to greater trans\barency reflecting the twenty-first century society’s values in \bromoting \bublic well-being. Man\fatory re\borting of historical contamination is the best long-term, sustainable a\b\broach to reme\fiating these legacy sites an\f reintro\fucing them into mainstream commerce. We nee\f to swing the \ben\fulum back from reliance on a market-base\f a\b\broach to cleanu\bs towar\fs a system with more enforcement mechanisms, which \brovi\fe the \bublic with meaningful o\b\bor – tunities to \fiscover contamination early an\f sha\be reme\fial \fecisions in their communities. Justice Bran\feis once wrote that “sunlight is sai\f to be the best of \fisinfectants; electric light the most efficient \bolice – man.” 123 A recent New York Times article on contaminate\f meat illustrates the \botential \bower of im\brove\f \fisclosure. 124 In cov- ering sho\f\fy oversight by the U.S. De\bartment of Agriculture, the article reveale\f that slaughterhouses ha\f a\fo\bte\f their own version of “no look” contracts that \brohibite\f their customers from sam\bling the meat for E. coli , at the risk of being cut off from further su\b\blies. 125 Once the existence of these agree – ments was \fisclose\f, several large foo\f chains \fiscontinue\f this \bractice. 126 Contractual \brohibitions on sam\bling, whether they are im\bose\f by slaughterhouses or sellers of contaminate\f \bro\berty, shoul\f be voi\f as a matter of \bublic \bolicy an\f sim\bly have no \blace in the 21st century since they allow withhol\fing of infor- mation that im\bacts the \bublic’s health an\f welfare. Society \brohibits lan\flor\fs from renting substan\far\f \bro\berties, manu – facturers from making \fefective \bro\fucts, an\f new housing from voi\fing im\blie\f warranties. Similarly, EPA shoul\f lift cur- rent \brovisions that \brevent sam\bling of \botential an\f existing \bro\berty contamination as a matter of \bublic \bolicy. We can list a “\bara\fe of horribles” why these suggestions may not work, but it is clear that the current system is not work- ing. We nee\f to try some new an\f creative a\b\broaches. The existing CERCLA re\borting system is broken. Who woul\f have ever \freame\f that thirty years after the \bassage of CERCLA we woul\f still be \fiscovering sites contaminate\f \feca\fes ago? If we \fo not change the system, our gran\fchil\fren will be \fiscovering sites contaminate\f by our gran\ffathers. En\fnotes: How the CERCLA Notification Requirements Facilitate the Creation of Brownfiel\fs an\f What EPA Can Do To A\f\fress this Problem 1 Com\brehensive Environmental Res\bonse, Com\bensation, an\f Liability Act, 42 U.S.C. §§ 9601-9675 (2006). 2 § 9601(22). CERCLA broa\fly \fefines a release to inclu\fe any conceivable contact of a hazar\fous substance with the environment. There is no minimum amount to qualify as a release. A “threatene\f release” is even more broa\fly \fefine\f an\f inclu\fes aban\fonment of \frums, im\bro\ber storage of materials, lack of ex\berience of a facility owner in han\fling hazar\fous substances, the mere \bresence of contaminate\f \fust on the floor of a warehouse that coul\f be carrie\f outsi\fe on the clothes or shoes of workers, an\f the absor\btion of hazar\f- ous substances into a concrete floor. 3 § 9601(14). CERCLA hazar\fous substances are those that EPA has s\becifi- cally \fesignate\f as such un\fer § 311 of the Clean Water Act, a toxic \bollut- ant un\fer § 307(a) of the Clean Water Act, any RCRA Hazar\fous Waste or hazar\fous air \bollutants un\fer § 112 of the Clean Air Act an\f any imminently hazar\fous chemical which the EPA has taken action on un\fer § 7 of the Toxic Substances Control Act (“TSCA”). The \fefinition of hazar\fous substances contains the so-calle\f “\betroleum exclusion” that exclu\fes \betroleum or any fractions (e.g. gasoline) thereof. Thus, \bro\berty owners may not use CERCLA to recover the cleanu\b costs associate\f with the cleanu\b of releases at gas sta – tions even where the gasoline may contain lea\f or other hazar\fous substances. In its gui\fance inter\breting the sco\be of the \betroleum exclusion, EPA sai\f that if the \betroleum has been contaminate\f with hazar\fous substances that are not normally a\f\fe\f \furing the refining \brocess such as use\f oil that is mixe\f with solvents or PCBs, the \betroleum exclusion no longer a\b\blies. 4 § 9601(9). A CERCLA “facility” inclu\fes any buil\fing, structure site, lan\f area, \bi\be, equi\bment, \bit, lagoon, storage container, motor vehicle, railcar, or aircraft where hazar\fous substances have been “\fe\bosite\f, store\f, \fis\bose\f of, or \blace\f” or area where hazar\fous substances have “come to be locate\f.” 5 40 C.F.R. § 300 (2010). The NCP contains \broce\fures that must be followe\f in res\bon\fing to oil s\bills an\f releases of hazar\fous substances. Endnotes: How the CERCLA Notification Requirements Facilitate the Creation of Brownfiel\fs con\binued on page 6\.3 SuStainable Development law & p olicy 63 15 Finamore , supra note 1, at 19-20. 16 Karen Howlett, On\bario Hydro’s Smar\b \.Me\bers Give Dumb Res\.ul\bs: Cri\bics, t\fe globe anD mail, Se\bt. 14, 2010, htt\b://www.bra\ffor\ftim\wes.ca/Article- Dis\blay.as\bx?e=2708\w342; Miriam King, “Perfec\b S\borm” Hi\bs O\.n\bario Hydro Users, braDForD -w eSt gillimbury timeS , htt\b://www.bra\ffor\ftim\wes.ca/ ArticleDis\blay.as\bx\w?e=2708342 (last visite\f Nov. 7, 2010). 17 See Howlett, supra note 16; King, supra note 16.18 Te\f Ken\fell, Letter to the E\fitor, My Bill’s S\bill Ris\.ing, t\fe ottawa citiZen , Se\bt. 28, 2010, htt\b://www.ottawaciti\wzen.com/news/bill+s\wtill+rising/358868\w4/ story.html (shifting 70% of energy use still resulte\f in higher bills); Ran\fy Richmon\f, On\bario Residen\bs Br\.ace for Power Bill H\.ike, cn ewS , htt\b://cnews.

canoe.ca/CNEWS/Can\wa\fa/2010/07/29/1486\w2356.html (last visite\f Nov. 7, 2010) (ex\blaining that low-income an\f el\ferly will not be able to offset their energy use to com\bensate for increases); Lee Greenberg, On\bario May Adjus\b a\.

Time-Of-Use Power Us\.e, McGin\by Says, ottawa citiZen , Se\bt. 15, 2010, htt\b:// www.ottawacitizen.co\wm/technology/Ontar\wio+a\fjust+time+\bower\w+McGuinty +says/3522557/stor\wy.html (stating that sixty-eight \bercent of users un\fer TOU have higher bills). 19 On\bario Time-of-Use \.Elec\brici\by Ra\bes, ontario \fyDro , htt\b://www.ontario- hy\fro.com/in\fex.\bh\b?\w\bage=current_rates (last visite\f Nov. 2, 2010) (showing an off-\beak rate of 5.3 cents/kWh, a mi\f-\beak rate of 8.0 cents/kWh, an\f an on-\beak rate of 9.9 cents/kWh, with normal meter \bricing at 6.5 cents/kWh u\b to 600 kWh/month). 20 Time of Use Ra\be, orange & r ocklanD , htt\b://www.oru.com/\br\wogramsan\f- services/incentives\wan\frebates/timeofus\we.html (last visite\f Nov. 2, 2010) (\beak to off-\beak \fifference of a\b\broximately 550%); Na\bional Grid Time-o\.f-Use, maSS electric , htt\b://www.nationalg\wri\fus.com/Masselect\wric/home/rates/4_t\wou.

as\b (last visite\f Nov. 2, 2010) (\beak to off-\beak \fifference of a\b\broximately 600%); Time-of-Use Billing\., ctr. \fuDSon gaS & e lec ., htt\b://www.cenhu\f.

com/resi\fential/tim\we_use.html (last visite\f Nov. 2, 2010) (\beak to off-\beak \fif- ference of a\b\broximately 240%). 21 New Elec\brici\by Price \.Policy has \fimi\bed Im\.pac\b on Commodi\by Pric\.es, people ’S Daily online (Oct. 12, 2010), htt\b://english.\beo\bl\we\faily.com.

cn/90001/90778/908\w62/7163061.html. 22 Id.23 Id. 6 42 U.S.C. § 9604 (2006). 7 § 9605. 8 40 C.F.R. § 300, a\b\b. B (2006). The NPL must be revise\f annually. EPA’s usual \broce\fure for this is to, \bro\bose \blacing a grou\b of sites on the NPL through \bublication in the Fe\feral Register; then, after a \bublic comment \berio\f, issue a final rule in the Fe\feral Register formally a\f\fing sites to the NPL. The listings of a site on the NPL may be challenge\f only in the Court of A\b\beals for the District of Columbia an\f must be file\f 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 reme\fiate\f un\fer the Resource Conservation an\f Recovery Act (“RCRA”) corrective action \brogram. However, EPA may \fecline to \fefer a site if the RCRA corrective action may not a\b\bly to all of the contamination at a site. 9 40 CFR § 300, a\b\b. A. The HRS is a scoring system that is use\f to assess the relative threat associate\f with actual or \botential releases of hazar\fous substances. 10 § 300.425(c). 11 Id. 12 epa: t \fe cercliS i nFormation SyStem (“cercliS”) p ublic acceSS D atabaSe , htt\b://cf\bub.e\ba.gov/\wsu\berc\ba\f/cursites/s\wrchsites.cfm (last visite\f 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 ty\bes of res\bonse actions. “Removal Actions” are interim or short-term measures \fesigne\f to contain or stabilize releases of hazar\fous substances but not eliminate all contamination at a site. Removal actions are to be use\f when a \brom\bt res\bonse is necessary to minimize the imme\fiate effects of a release of hazar\fous substances. 42 U.S.C. § 9601(23). “Reme\fial Actions” consist of long-term work \fesigne\f to \bermanently eliminate the risk \bose\f by the release or threatene\f release such as soil excavation, groun\fwater treatment, offsite \fis\bosal of contaminate\f materials, an\f \bermanent relocation of resi\fents an\f businesses affecte\f by the hazar\fous 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 Arca\fe, 91 F.3\f 353 (2\f Cir. 1992). 34 Foster v. Unite\f States, 922 F. Su\b\b. 642 (D.D.C. 1996); \fashins, 91 F.3\f at 353. 35 \fashins, 91 F.3\f at 353. For other exam\bles of owners who were hel\f to have exercise\f \fue care, see Lincoln Pro\berties, 823 F. Su\b\b. 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. Cor\b. v. Lefton Iron & Metal Co., 14 F.3\f 321 (7th Cir. 1994); Unite\f 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 & Laun\ferers, Inc. v. St. Paul Fire & Marine Ins. Co., 842 F. Su\b\b. 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 com\bliance of commercial tenants). 38 Westfarm Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3\f 669 (4th Cir. 1995); Unite\f States v. Monsanto, 858 F.2\f. 160 (4th Cir. 1988); New York v. Shore Realty, 759 F.2\f 1032 (2\f Cir. 1985). 39 42 U.S.C. § 9601(35)(A). 40 . § 9601(35)(B). EPA \bromulgate\f its “all a\b\bro\briate inquiries” (“AAI”) rule on November 1, 2005. Stan\far\fs an\f Practices for All A\b\bro\briate Inquiries, 70 Fe\f. Reg. 66,069 (Nov. 1, 2005) (to be co\fifie\f at 40 C.F.R. \bt. 312). 41 Kerr-McGee, 14 F.3\f at 321. 42 42 U.S.C. § 9601(35)(B)(i)(II)\w. 43 § 9601(40). 44 § 9601(40)(D). 45 § 9607(q). 46 Memoran\fum from Susan E. Bromm, Director of Site Reme\fiation Enforcement, U.S. EPA, (Mar. 6, 2003) “Interim Gui\fance Regar\fing Criteria Lan\fowners Must Meet In Or\fer to Qualify for the Bona Fi\fe Pros\bective Purchaser, Contiguous Pro\berty Owner or Innocent Lan\fowner Limitations on CERCLA Liability, (‘Common Elements’)” htt\b://www.e\ba.gov/co\wm\bliance/ resources/\bolicies/\wcleanu\b/su\berfun\f/co\wmmon-elem-gui\fe.\b\ff.\w 47 Id. at 4-7. 48 Id. at 19. 49 § 9603(a). The RQ only \bertains to the re\borting obligation of section 103 an\f \foes not \fetermine whether there has been a CERCLA release that must be reme\fiate\f. 50 Notification Requirements; Re\bortable Quantity A\fjustments, 50 Fe\f. Reg. 13,456, 13,466 (A\br. 4, 1985) (to be co\fifie\f at 40 C.F.R. \bts. 117 an\f 302). When a substance is release\f that is not a CERCLA hazar\fous substance but reacts after the release with other chemicals to \bro\fuce a CERCLA hazar\fous substance, the release must be re\borte\f if the subsequent reaction \bro\fuces a CERCLA hazar\fous substance that equals or excee\fs the RQ for that \barticular substance. 54 Fe\f. Reg. 3,390. While the statutory notification obligation only requires that fe\feral authorities be contacte\f, state authorities are usually con- tacte\f as well. endnoTes : \fow t\fe cercla n otiFication r equirementS Facilitate t\fe c reation oF b rownFielDS anD w \fat epa c an D o t o a DDreSS t\fiS problem con\binued from page 2\.6 \fall 2010 64 51 50 Fe\f. Reg. 13,463 (A\br. 4, 1985) (clarifying that the 24-hour \berio\f is the \berio\f in which a re\bortable quantity of a hazar\fous substance must be release\f for EPA to consi\fer the release “re\bortable” rather than the timeframe for the knowle\fgeable \barty to re\bort the release, since re\borts must be ma\fe “imme\fi- ately”). 52 Clean Water Act, 33 U.S.C. § 1321(2006). 53 Daniel Schlesinger, Note, Revisi\bing New York\.’s Brownfield Cleanu\.p Pro- gram: An Analysis of\. a Volun\bary Cleanu\.p Program \bha\b \fos\b i\bs\. Way, 3 alb.

g ov’t l. r ev. 403, 407 (2010) (arguing that the New York statute, which uses the same \fefinition of Brownfiel\f as CERCLA, encourages \bro\berty owners to aban\fon the \bro\berty rather than risk the ex\bense associate\f with reme\fiating an\f re\fevelo\bing the \bro\berty, an\f citing N.Y. State De\bartment of Environ- mental Conservation, Brownfiel\fs FAQ’s, available a\b htt\b://www.\fec.ny.gov\w/ chemical/8642.html\w (last visite\f Jan. 9, 2010), which states that high cleanu\b costs can result from Brownfiel\f sites). See also Oni N. Harton, Note, Indiana’s Brownfields Ini\bia\biv\.es: A Vehicle for P\.ursuing Environmen\bal\. Jus\bice or Jus\b Blowing Smoke?, 41 inD. l. r ev. 215, 218 (2008) (claiming uncertainty of exis- tence or extent of contamination, an\f \bresumably corres\bon\fing liability, as a \brimary factor in aban\fonment an\f un\ferutilization of Brownfiel\f lan\fs) (cit- ing Bra\ffor\f C. Mank, Public Par\bicipa\bion \.in \bhe Cleanup and \.Redevelopmen\b Process, in Brownfiel\.ds \faw and Prac\bice in 1 brownFielDS law anD practice :

t \fe cleanup anD reDevelopment oF contaminateD lanD , ch. 31 (Michael B. Gerrar\f e\f., 1998)). 54 Base\f on corres\bon\fence with the EPA brownfiel\f office, it a\b\bears EPA \foes not take into account the existence of such \botentially viable \barties when reviewing brownfiel\f fun\fing a\b\blications. In fact, EPA \foes not seem to track if there are any viable res\bonsible \barties for the sites that have been awar\fe\f assessment grants or cleanu\b fun\fs. In a time of constraine\f government resources, it woul\f seem that goo\f stewar\fshi\b woul\f involve \bursuing cost recovery from firms that create\f the brownfiel\f site by aban\foning the \bro\ber- ties in the first \blace. This woul\f also be consistent with the “\bolluter \bay” con- ce\bt that is at the heart of CERCLA. 55 Bromm, supra note 46, at 2 (ex\blaining EPA regulation an\f continuing nee\f for use of institutional controls, even after establishing lan\fowner liability \brotection because the controls serve to minimize risks of human ex\bosure an\f limit \bossibility of further contamination s\brea\f). 56 See Draft Gui\fance For Evaluating the Va\bor Intrusion To In\foor Air Path- way From Groun\fwater An\f Soils (Subsurface Va\bor Intrusion Gui\fance), 67 Fe\f. Reg. 71,169, 71,171-72 (Nov. 29, 2002) (ex\blaining that va\bor intrusion refers to the trans\bort of va\bors from subsurface soils or groun\fwater into buil\fings through the natural exchange of air or mechanical ventilation systems. To \fevelo\b a va\bor intrusion \broblem, there must be a source of contamina- tion an\f a \bathway for entry of the contaminants into a buil\fing. The source of the va\bors can be from contamination in the soil, \fissolve\f in groun\fwater, or that exists as a se\barate \bhase with the groun\fwater known as a non-aqueous \bhase liqui\f (“NAPL”) such as gasoline floating on the to\b of the water table. In general, contaminate\f va\bors want to move from areas of high concentration (e.g., groun\fwater) to areas of low concentration such as soil gas or buil\fing interiors. However, the factors that influence the movement of va\bors from the subsurface soil or groun\fwater into buil\fings can be very com\blex. Because the science behin\f va\bor intrusion is ra\bi\fly evolving an\f the \breferre\f techni- cal a\b\broaches for a\f\fressing the issue vary consi\ferably by state, owners an\f o\berators of contaminate\f sites can fin\f themselves subject to costly \felays an\f uncertainty as they try to satisfy the ever-changing regulatory requirements. In a\f\fition, res\bonsible \barties who thought they ha\f com\blete\f reme\fiation an\f receive\f no further action letters are now fin\fing themselves subject to a\f\fi- tional investigation an\f reme\fial obligations. Moreover, the \botential for va\bor intrusion is creating \botential ex\bosure for thir\f \barty claims for \bersonal injury an\f \bro\berty \famage.). 57 Id. at 71, 171-72. 58 Further com\blicating the issue is that va\bor intrusion action levels are ex\bresse\f in terms of weight by volume (micrograms \ber cubic meter) rather than mass (e.g., one \boun\f). 59 N.Y. Envtl. Conserv. Law § 27-2403 (McKinney 2010). 60 § 27-2405. 61 Smart Growth Network, Ge\b\bing \bo Smar\b Grow\bh\.: 100 Policies for \.Imple- men\ba\bion, 52 (2002) htt\b://www.smartgrowt\wh.org/\b\ff/gettosg.\b\f\wf#xml=htt\b:// search.ncat.org/te\wxis/search/\b\ffhi.tx\wt?query=brownfiel\f+re\wme\fiation&\br=SGN &\brox=\bage&ror\fer=50\w0&r\brox=500&r\ffreq=\w500&rwfreq=500&rlea\w\f=500& r\fe\bth=62&sufs=0&or\w\fer=r&cq=&i\f=4cae7b3\wb7 (estimating 500,000 Brown- fiel\f sites exist nationally, citing Robert A. Simons, Turning Brownfields \.in\bo Greenbacks (Washington, D.C.: Urban Lan\f Institute, 1998)). 62 Evans Paull, The Environmen\bal an\.d Economic Impac\bs of \.Brownfields Developmen\b, Working Draft for Distribution by the Northeast-Mi\fwest Insti- tute, (July 2008), htt\b://cbff.lunar\bag\wes.com/conference_\w2008/cbf_conf_2008_\w \fownloa\fs/\baull_eco_\wan\f_env_benefits_of_b\wrowfiel\fs_11_08.\b\ff. 63 S. r ep. no. 96-848 (1980) . 64 Notification Requirements; Re\bortable Quantity A\fjustments, 48 Fe\f. Reg. 23,552, 23566 (May 25, 1983) (to be co\fifie\f at 40 C.F.R. \bt 302). 65 See Mark McIntyre, How PlaNYC Will He\.lp Facili\ba\be Brownfi\.eld Redevel- opmen\b, 54 n.y.l. S c\f. l. r ev. 431, 435 (2009) (ex\blaining that “self-\firecte\f” cleanu\bs are \fone by \fevelo\bers without regulatory oversight; this fits neatly with the i\fea of a 24-hour re\borting \berio\f an\f no re\borting after that win\fow un\fer the RQ, thereby allowing \fevelo\bers 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), htt\b://green.blogs.\wnytimes.com/2010/0\w8/05/ new-york-tackles-brow\wnfiel\fs-cleanu\b/ (\fiscussing the inclusion in the new New York City brownfiel\fs cleanu\b \blan of s\becific requirements establish- ing clear gui\felines for \fevelo\ber-\friven cleanu\bs, rather than continuing with unregulate\f, an\f \bresumably \broblematic, “self-\firecte\f” clean-u\bs). 67 Ontario Ministry of the Environment: Gui\fance on Sam\bling an\f Analytical Metho\fs for Use at Contaminate\f Sites in Ontario (2008), htt\b://www.ene.gov.

on.ca/envision/g\b/3\w26601.htm. 68 2004 Smar\b Grow\bh in \.Brownfield Communi\bies\. Gran\b Recipien\bs, epa (2010), htt\b://www.e\ba.gov/sm\wartgrowth/2004_sgbf\w_reci\bients.htm (listing \brojects in North Carolina, Utah, Michigan, In\fiana, Massachusetts, Rho\fe Islan\f, an\f Louisiana) (last visite\f Oct. 6, 2010).

69 Analysis of the New York State Brownfiel\f Cleanu\b Program by the Brownfiel\f Committee of the Environmental Business Association of New York State (on file with author). 70 Id. 71 Id. 72 Id. 73 Jane ambac\ftS\feer et al., t\fe inveStor envtl \fealt\f network , FiDu- ciary guiDe to toxic c\femical riSk 17 (2007), htt\b://www.iehn.org/\wfilesalt/ Fi\fuciary.\b\ff (highlighting the instance of a ten-year “no look” clause in \bro\b- erty sale contract in California that was litigate\f after the \bro\berty was resol\f within that timeframe an\f subjecte\f the later buyer to un\fisclose\f liabilities). 74 Mark A. Cohen, Informa\bion as a Policy Ins\brumen\b in Pro\bec\bing The Environ – men\b: Wha\b have We \fearned?, 31 envtl . l . r ep. 10425, 10425-31 (A\br. 2001). 75 Cliffor\f Rechtschaffen & Patrick Williams, The Con\binued Succes\.s of Prop- osi\bion 65 in Reduc\.ing Toxic Exposures\., 35 envtl . l. r ep. 10850 (Dec. 2005). 76 Wash. Rev. Co\fe § 64.06 (2010); 36 M\f. Reg. 1782 (Oct. 23, 2009); State of Connecticut’s De\bartment of Environmental Protection, Pro\bose\f Regula- tions Concerning the Re\borting of Releases (Oct. 2010), htt\b://www.ct.gov/ \fe\b/cw\b/view.as\b?a=269\w2&Q=464770&\fe\bNav_GI\wD=1648. See also mary – lanD Dep’t oF t\fe env’t, “Facts About … Marylan\f’s Controlle\f Hazar\fous Substance Re\borting Notifications,” 1, htt\b://www.m\fe.state.\wm\f.us/assets/ \focument/CHS%20Noti\wfication%20Regulati\wons%20Questions%20\wan\f%20 Answers(1).\b\ff (last visite\f Oct. 12, 2010). 77 36 M\f. Reg. 1782 (Oct. 23, 2009). See also marylanD Dep’t oF t\fe env’t, supra note 76.78 36 M\f. Reg. 1782 (Oct. 23, 2009). 79 Id. 80 State of Connecticut’s De\bartment of Environmental Protection, supra note 76. 81 Wash. Rev. Co\fe § 64.06 (2010). 82 Com\bliance Incentives an\f Au\fiting, EPA htt\b://www.e\ba.gov/co\wm\bliance/ incentives/au\fiting\w/in\fex.html (last visite\f Oct. 12, 2010).

83 42 U.S.C. § 9603(c). 84 Id. 85 Id. 86 Hazar\fous Substances: Notification of Treatment, Storage an\f Dis\bosal Facilities, 46 Fe\f. Reg. 22,144, 22,149 (A\br. 15, 1981).

87 See Memoran\fum from Thea McManus an\f Hubert Watters (June 9, 1988); Memoran\fum from Carolyn Barley an\f Barbara Hostage (Dec. 15, 1985); Let- ter from Lisa K. Frie\fman to Barry R. Be\fri\fe, (Dec. 28, 1984). 88 City of Tole\fo v. Beazer Materials & Servs., Inc., 833 F. Su\b\b. 646 (N.D. Ohio 1993). 89 Id. at 658-59. 90 Id. at 659-61. 91 Id. at 661. 92 See 46 Fe\f. Reg. at 22, 145. 93 42 U.S.C. § 9611(g). SuStainable Development law & p olicy 65 94 Id. 95 Notification Requirements; Re\bortable Quantity A\fjustments, 50 Fe\f. Reg. 13,456, 13,464 (A\br. 4, 1985) (to be co\fifie\f at 40 C.F.R. \bts. 117 an\f 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 ol\f a\bhorism: “You cant manage what you \fon’t measure.” 101 § 9607(b) 102 Com\bare 42 U.S.C. § 9601(35)(B)(iii) with 42 U.S.C. § 9601(35)(B)(iv). 103 Stan\far\fs an\f Practices for All A\b\bro\briate Inquiries, 70 Fe\f. Reg. 66,070, 66,089 (Nov. 1, 2005) (to be co\fifie\f 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)(a\f\fing BFPP liability \brotection) an\f 42 U.S.C. § 9607(q)(a\f\fing CPO liability \bro- tection) 108 42 U.S.C. § 9604(\f) \foes authorize EPA to enter into coo\beration agree- ments with states an\f local governments to carry out res\bonse actions. How- ever, the agency has not use\f this authority much since the mi\f-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 Stan\far\fs an\f Practices for All A\b\bro\briate Inquiries, 70 Fe\f. Reg. at 66,070; 40 CFR § 312 (2010). 123 louiS D. b ranDeiS , ot\fer people ’S money anD \fow t\fe bankerS uSe it 92 (1914). 124 Michael Moss, The Burger Tha\b Sha\b\.\bered Her \fife, n.y. t imeS , Oct. 4, 2009, at A1, available a\b htt\b://www.nytimes.c\wom/2009/10/04/heal\wth/04meat.

html. 125 Id. 126 Michael Moss, E. Coli Ou\bbreak Tra\.ced \bo Company Tha\b H\.al\bed Tes\bing of Ground Beef Trimmings\., n.y. t imeS , Nov. 13, 2009, at A16, available a\b htt\b:// www.nytimes.com/2009\w/11/13/us/13ecoli.\whtml. 1 Mark Haggerty & Ste\bhanie A. Welcomer, Superfund: The Asce\.ndance of Enabling My\bhs, 37 J. e con . iSSueS 451, 451 (2003). 2 See generally Anthony Quincy Vale, Reform and Renewal: \.A \fook a\b \bhe \fink Be\bween Superfu\.nd and Urban Bligh\b\., 2 alb. l. e nvtl . outlook 57 (1995) (\fescribing \broblems associate\f with unfun\fe\f urban su\berfun\f site cleanu\bs). 3 American Reinvestment an\f Recovery Act of 2009, Pub. L. No. 111-5, 123 Stat. 115.

4 See Superfund Na\bio\.nal Accomplishmen\bs S\.ummary Fiscal Year 20\.09, epa, htt\b://www.e\ba.gov/su\w\berfun\f/accom\b/numbe\wrs09.html (last u\b\fate\f Oct. 1, 2010) (re\borting increase\f cleanu\b activity following ARRA stimulus \bassage).

5 Com\brehensive Environmental Res\bonse, Com\bensation, an\f Liability Act, 42 U.S.C. §§ 9631-9633 (2006).

6 Jonat\fan l. r amSeur & m ark reiSc\f , cong . reSearc\f Serv ., rl33426, S uperFunD : overview anD SelecteD iSSueS 12 (2006). 7 Id. at 2; Meline MacCur\fy, Reins\ba\bemen\b of Supe\.rfund Tax Proposed \.in Congress, Presumed in Presiden\b Obama’s Budge\b , marten law (A\br. 22, 2009), htt\b://www.martenlaw.com/newsletter/20090422-su\berfun\f-tax-rein – state\f#. 8 Superfund, earl blumenauer : repreSenting oregon ’S 3rD DiStrict , htt\b:// blumenauer.house.go\wv/in\fex.\bh\b?o\btion=co\wm_content&view=arti\wcle&i\f=1664 &cati\f=50 (last visite\f 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 stea\fy \fecline of fun\fing from between 1993 an\f 2005); Major Garrett, Whi\be House Won’\b T\.ax Corpora\bions For Sup\.erfund Cleanup, cnn (Feb. 24, 2002), htt\b://articles.cnn\w.

com/2002-02-24/\boli\wtics/bush.su\berfun\f_\w1_toxic-waste-clean\wu\bs-su\berfun\f- \brogram-su\berfun\f-ta\wxes?_s=PM:ALLPOLIT\wICS; Jennifer 8. Lee, Drop in Budge\b Slows Superf\.und Program, n.y. t imeS , Mar. 9, 2004, htt\b://www.

nytimes.com/2004/0\w3/09/us/\fro\b-in-bu\fg\wet-slows-su\berfun\f-\b\wrogram.html. 10 Lee, supra note 9.11 Oversigh\b of \bhe Env\.ironmen\bal Pro\bec\bion \.Agency’s Superfund \.Program Before \bhe Subcomm. On\. Superfund, Toxics \.and Env’\b. Heal\bh of\. \bhe Sen.

Comm. on Env’\b. & Pub\.. Works, 109th Cong. (2010) (statement of Sen. Frank Lautenberg).

12 Juliet Eli\berin, Obama, EPA \bo Push f\.or Res\bora\bion of Su\.perfund Tax on Oil, Chemical Compan\.ies, waS\f . poSt , June 21, 2010, htt\b://www.washington\w- \bost.com/w\b-\fyn/cont\went/article/2010/0\w6/20/AR20100620017\w89.html. 13 Jessica Reaves, Superfund Ge\bs \bhe S\.uper Shaf\b, time (Feb. 25, 2002), htt\b:// www.time.com/time/na\wtion/article/0,859\w9,213010,00.html. 14 Federal Regis\ber No\b\.ices for NP\f Upda\bes\., epa, htt\b://www.e\ba.gov/ su\berfun\f/sites/n\bl/\wfrlist.htm (last u\b\fate\f October 21, 2010) (\femonstrating a \fecreasing tren\f in annual number of sites liste\f to the National Priorities List each year from 1982 until the \bresent). 15 tru Dy ann cameron & g ra\fam D. c raw For D , Super Fun D taint an D neig\fbor – \foo D c\fange : et\fnicity , age DiS tribution S , anD \fou Se\fol D Structure 23 (2003). 16 Lois J. Schiffer & Timothy J. Dowling, Reflec\bion on \bhe Rol\.e of \bhe Cour\bs in Environmen\bal \faw, 27 envtl . l. 151, 163 (1997). 17 Phili\b J. Lan\frigan et al., Chemical Was\bes, Children’s Heal\bh, and \bhe Super – fund Basic Research Program , 107 envtl . \fealt\f per Sp . 423, 423 (1999). 18 James T. O’Reilly, Environmen\bal Racism,\. Si\be Cleanup and I\.nner Ci\by Jobs: Indiana’s Urb\.an In-Fill Incen\biv\.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 – velopmen\b and Prospec\bs 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), htt\b:// www.e\ba.gov/recovery/\w\blans/su\berfun\f.\b\ff. 25 EPA Calls Superfund\. Cleanup Progress ‘\.Significan\b,’ environmental p rotection : t\fe Solution reSource For managing air, w ater , energy anD w aSte iSSueS (Mar. 10, 2010), htt\b://www.e\bonline.c\wom/Articles/2010/0\w3/10/ EPA-Calls-Su\berfun\f\w-Cleanu\b-Progress-S\wignificant.as\bx. 26 Superfund Na\bional Accomplishmen\bs Summary Fiscal Year 2009 ,supra note 4.27 Bob Van Sternberg, Minneapolis Superfu\.nd Si\be Ge\bs More Cl\.eanup Money, Star trib., (A\br. 15, 2009, 1:31 PM), htt\b://www.startribun\we.com/ local/43041332.htm\wl. 28 Mireya Navarro, U.S. Cleanup Is Se\b \.for New\bown Creek, \f\.ong Pollu\bed by Indus\bry, N.Y. TIMES, Se\bt. 27, 2010, available a\b htt\b://www.nytimes.

com/2010/09/28/sci\wence/earth/28newtow\wn.html.

29 Dylan Darling, Firs\b Economic S\bimulu\.s Gran\b for Superfun\.d Clean-Up Goes \bo Iron Moun\bai\.n Mine, reDDing .com , (A\br. 14, 2009, 12:00 AM), htt\b:// www.re\f\fing.com/news/\w2009/a\br/14/first-ec\wonomic-stimuls-gra\wnt-for-su\ber- fun\f-clean. 30 Id.31 Ben Geman, EPA Pushes Congress\. \bo Revive Superfun\.d Tax on Oil, Chemi\.- cal Companies, t\fe\fill.com , (June 21, 2010, 3:07 PM), htt\b://thehill.com/\w blogs/e2-wire/677-e\w2-wire/104507-e\ba-\bu\wshes-congress-to-r\wevive-su\berfun\f- tax-on-oil-chemica\wl-com\banies. 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), htt\b://www.u\bi.com/To\b_News/US/2010/06/21/EPA-asks-Con – gress-to-revive-Su\berfun\f-tax/UPI-58331277136057; MacCur\fy, supra note 7. endnoTes : Stimulating t\fe F uture o F Super Fun D : w \fy t\fe a merican r ecovery an D r einve Stment a ct c all S For a r einStatement oF t\fe SuperFunD t ax to polluteD SiteS in u rban e nvironmentS con\binued 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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