The Land Recycling and Environmental Remediation Standards Act: Pennsylvania Tells CERCLA Enough Is Enough
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Volume 8 Issue 1 Article 4 1997 The Land Recycling and Environmental Remediation Standards Act: Pennsylvania Tells CERCLA Enough Is Enough Thomas G. Kessler Follow this and additional works at: https://digitalcommons.law.villanova.edu/elj Part of the Environmental Law Commons Recommended Citation Thomas G. Kessler, The Land Recycling and Environmental Remediation Standards Act: Pennsylvania Tells CERCLA Enough Is Enough, 8 Vill. Envtl. L.J. 161 (1997). Available at: https://digitalcommons.law.villanova.edu/elj/vol8/iss1/4 This Comment is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Environmental Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. 1997] Kessler: The Land Recycling and Environmental Remediation Standards Act: P THE LAND RECYCLING AND ENVIRONMENTAL REMEDIATION STANDARDS ACT: PENNSYLVANIA TELLS CERCLA ENOUGH IS ENOUGH TABLE OF CONTENTS I. INTRODUCTION ....................................... 162 II. BACKGROUND ........................................ 164 A. Legislative History ............................... 165 B. Statutory Construction ........................... 166 C. CERCLA Liability ................................ 167 D . Strict Liability ................................... 168 E. Consequences of No-Fault Liability Under CERCLA ........................................ 170 F. SARA: Amendments to Superfund .............. 171 1. Effect of "InnocentLandowner" Defense .......... 174 2. De Minimis Settlements ....................... 174 G. EPA Guidance: De Minimis Landowner Settlements and Prospective Purchaser Settlem ents ...................................... 176 III. THE BROWNFIELDS PHENOMENON ..................... 178 A. Economic Disincentives to Brownfields Redevelopm ent .................................. 178 B. Identifying Barriers to Recycling Contaminated Properties ....................................... 180 C. Proposed Amendments to Superfund: Encouraging Brownfields Redevelopment ........ 180 IV. PENNSYLVANIA BROWNFIELDS LEGISLATION ............. 182 A. The Land Recycling and Environmental Remediation Standards Act ...................... 183 1. Background Standard.......................... 187 2. Statewide Health Standard ..................... 188 3. Site-Specific Standard .......................... 190 4. Special IndustrialAreas ........................ 194 5. Cleanup Liability Protection .................... 195 6. Industrial Land Recycling Fund ................ 198 B. The Economic Development Agency, Fiduciary and Lender Environmental Liability Protection A ct .............................................. 199 1. Economic Development Agency Environmental Liability ...................................... 200 (161) Published by Villanova University Charles Widger School of Law Digital Repository, 1997 1 162 ViLANOvAVillanova EnvironmentalENVIRONMENTAL Law Journal, LAw Vol. JOURNAL 8, Iss. 1 [1997], Art.[Vol. 4 VIII: p. 161 2. Lender EnvironmentalLiability ................. 201 3. Fiduciay EnvironmentalLiability ............... 202 C. Relationship of Pennsylvania Legislation to Federal Superfund Law .......................... 203 V. CONCLUSION ......................................... 204 I. INTRODUCTION In the wake of several environmental disasters and subsequent outcries for action on the part of the government, environmental- ists and the general public,' Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).2 Unfortunately, the result was a hurriedly passed and confusing piece of legislation. 3 CERCLA's liability scheme is severe and devoid of any meaningful safe harbors. It imposes strict4 and joint and several,5 liability on all potentially responsible parties (PRPs) ,6 regardless of fault or causation. 7 Additionally, the limited defenses available under CERCLA are inadequate to protect those PRPs acquiring property subsequent to the release of hazardous substances. 8 CERCLA's strict liability scheme has resulted in unintended and undesirable consequences. 9 Fearful of being compelled to re- mediate contaminated property, landowners simply abandon con- taminated sites, or "brownfields," thus avoiding CERCLA liability.'0 1. See generally United States v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988) (explaining CERCLA enacted in response to severe environ- mental and public health effects caused by disposal of hazardous wastes). 2. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), Pub. L. No. 96-510, 94 Stat. 2767, §§ 101-308 (1980) (codified as amended at 42 U.S.C. §§ 9601-75 (1994)). 3. For a discussion of CERCIA's legislative history, see infra notes 28-30 and accompanying text. 4. For a discussion of CERCLA's strict liability scheme, see infra notes 40-44 and accompanying text. 5. For a discussion ofjoint and several liability, see infra note 44 and accompa- nying text. 6. See CERCLA § 107, 42 U.S.C. § 9607. For text of CERCLA section 107, see infra note 34. 7. For a discussion of causation and fault under CERCLA's liability scheme, see infra notes 45-47. 8. For a discussion of the defenses available to PRPs under CERCLA, see infra notes 50-62 and accompanying text. 9. For a discussion of the brownfields phenomenon, see infra notes 79-97 and accompanying text. 10. Brownfields are defined as "abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination." U.S. ENVIRONMENTAL PROTEC- TION AGENCY, THE BROWNFIELDS ACTION AGENDA (1995). https://digitalcommons.law.villanova.edu/elj/vol8/iss1/4 2 1997] Kessler: The Land RecyclingBROWNFIELDS and Environmental LEGISLATION Remediation Standards Act: P 163 As a result, these sites remain vacant, and the contamination is per- mitted to go unchecked and unremediated." In an attempt to alleviate the harsh effects of CERCLA's liabil- ity scheme, Congress amended CERCLA in 1986, passing the Superfund Amendment and Reauthorization Act (SARA). 12 The primary significance of SARA's enactment is the codification of the "innocent landowner" defense.13 Regrettably, few landowners are able to satisfy its stringent requirements, thereby precluding invoca- 14 tion of the defense. After sixteen years of experience with CERCLA's insurmounta- ble liability scheme, a movement has surfaced to mitigate the stat- ute's harsh effects.15 This movement comes as Congress debates Superfund Reauthorization bills.' 6 Proponents of easing CER- CLA's liability scheme suggest passage of legislation which would grant liability protection to owners, prospective purchasers and de- 17 velopers once they remediate a site to a predetermined standard. As the law currently stands, however, owners, as well as prospective purchasers, of contaminated property subject themselves to CER- CLA's strict liability component.18 Part II of this Comment begins with a general overview of CER- CIA's strict liability component and courts' subsequent interpreta- tion of this provision.' 9 Subsequently, Part III provides a brief 11. For a discussion of why prospective purchasers and developers are reluc- tant to develop brownfields, see infra notes 92-94. 12. Pub. L. No. 99-499, 100 Stat. 1613 (codified at 42 U.S.C. §§ 9601-75 (West Supp. 1987)). 13. For a discussion of the "innocent landowner" defense, see infra notes 57- 62. 14. In order to qualify, a defendant must prove by a preponderance of the evidence that he did not have "knowledge" of the release or threatened release of hazardous material on the property prior to acquiring the property. See CERCLA § 122, 42 U.S.C. § 9622(g). For a discussion of the elements necessary to establish the defense, see infra notes 60-62 and accompanying text. 15. For a discussion of the effects of CERCILA's liability scheme, see infra notes 48-49 and accompanying text. 16. See, e.g., H.R. REP. No. 2500, 1st Sess., 101st Cong. (1995) (sponsored by Rep. Michael Oxley). 17. For a discussion of federal brownfield redevelopment proposals, see infra notes 89-97 and accompanying text. 18. Landowners remain fully liable for remediation of contaminated property regardless of fault or causation unless they can prove they fall within the provisions of the innocent landowner defense. For a discussion of the innocent landowner defense, see infra notes 61-62 and accompanying text. 19. For a discussion of CERCLA's strict liability component, see infra notes 40- 44 and accompanying text. Published by Villanova University Charles Widger School of Law Digital Repository, 1997 3 164 VILi-ANOVAVillanova EnvironmentalENVIRONMENTAL Law Journal, LAW Vol. JOURNAL 8, Iss. 1 [1997], Art.[Vol. 4 VIII: p. 161 overview of the brownfields phenomenon.2 0 Lastly, Part IV focuses on the Land Recycling and Environmental Remediation Standards Act of 1995 (Act 2)21 which the Pennsylvania State Legislature passed and Governor Thomas Ridge signed into law to address and remediate the brownfields problem in Pennsylvania.22 II. BACKGROUND Congress passed CERCLA in response to growing concerns over the release of hazardous materials into the environment.2 3 CERCLA's primary goal is to identify PRPs2 4 and to force them to pay for the costs of remediation25 resulting from the release of haz- ardous substances.2 6 To this end, CERCLA imposes strict liability.2 7 20. For a discussion of the brownfields phenomenon, see infra notes