Sabin Center for Climate Change Law
Brownfield projects are essentially real estate developments with a twist, and the old real estate adage certainly applies: "Location, location, location." But if time is the fourth dimension, then time is also the fourth element in a successful brownfield project – preferably, spending as little of it as possible.
The timing of standard governmental cleanup processes is simply incompatible with many kinds of real estate projects. Forget about cleanups of National Priorities List (NPL) sites under the U.S. Environmental Protection Agency's National Contingency Plan (NCP); those take on average almost twenty years to complete. But even many state voluntary cleanup programs, despite their aspirations to speed, can take many months or even years of paperwork. The multiple steps – work plans, sampling reports, cleanup method selection, completion reports – and the governmental review of each add up to long delays. While you're waiting, the proposed real estate project may well have missed its market or found another site.
There is sometimes an alternative: do it yourself. Just go in, clean up, and build, without stopping for environmental agency approval along the way. This article describes the advantages and disadvantages of "going it alone" – investigating and remediating a contaminated property without government oversight or approval.
Michael B. Gerrard,
The Benefits and Risks of Going It Alone,
Nat. Resources & Env't.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/705