In an effort to encourage private sector redevelopment of brownfield sites, the Trump administration is reportedly seeking to add certain Superfund liability protections to two pending Brownfields bills moving through Congress for certain “Good Samaritans”—companies, not-for-profit organizations and local governments that voluntarily engage in site cleanups. This expansion aligns with EPA Administrator Scott Pruitt’s stated goal of quickening the rate of Superfund and brownfield site cleanups.
Under existing Superfund law, current owners and operators of contaminated sites are jointly and severally liable for the remediation costs, along with former owners and operators at the time of release and parties that arranged for and transported the hazardous substances that were released. Although prospective purchasers, contiguous property owners and innocent landowners are protected from owner/operator liability in some circumstances, entities which voluntarily commence cleanup and redevelopment efforts but which do not satisfy the existing stringent requirements for liability exemptions, are not explicitly protected—even if they did not contribute to the contamination. The term “Good Samaritan” refers to companies, not-for-profit organizations and local governments who want to assist with clean-up or redevelopment activities, but do not have a legal obligation to clean up the contaminated property. The concern (that Pruitt’s team is attempting to resolve) is that Good Samaritans are not explicitly protected under existing law and through their actions to assist and manage a cleanup could be deemed “operators” of the site and therefore held strictly liable for cleanups. This concern is believed to have a chilling effect that discourages voluntary cleanup of brownfield sites.
Two pending bills concerning brownfields currently contain some limited expansions of liability protections for some parties.
In the context of the current drafts of H.R. 3017 and S. 822, the Trump administration reportedly is working with congressional committees to try to add Good Samaritan provisions into current Brownfields legislation pending in Congress to further facilitate brownfield redevelopment, which is reportedly a top priority for Administrator Scott Pruitt. The hope is that eliminating the threat of liability will encourage companies, local governments and not-for-profit organizations to embark on voluntary cleanup of the more than 450,000 brownfields in the United States.
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