“The push for the moderate approach
has come from the states, which were
better able to recognize the great potential in brownfield sites or even old gas
stations if remediation could be tied to
the next usage.
“Tennessee’s approach to dealing with
contaminated properties has shifted
over the years to risk-based corrective
action, where the state looks at expo-
sure pathways,” notes Darlene Taylor
Marsh, an attorney with Nashville-based
Dickinson Wright PLLC and immedi-
ate past chair of the Environmental
Law Section of the Tennessee Bar
Association. “As long as you are not
talking about a residential area, school,
day-care, church, or something similar
that is located close-by to where you
could have a problem with migration,
the state is much more willing to allow
capped contamination to stay in place
so the property can be redeveloped into
productive use.”
She adds, “that is quite a departure from
the initial approach of dealing with con-
tamination, which was trying to clean
everything up to pristine conditions.
That didn’t make a lot of sense from an
economic perspective.”
So how did Tennessee, a generally
conservative state, become a leader
in risk-based remediation? As Marsh
notes, “we were forced to.”
Marsh, who either chaired or was a
member of state environmental boards
put together to address contamination
from underground storage tanks (most-
ly gas stations) and dry cleaners, says it
was a question of maintaining solvency
of the re-imbursement funds used to
cover the cost of cleaning up properties
where there weren’t any financially
responsible parties. Those funds were
going bankrupt before the shift to risk-
based corrective action.
Other states meandered into risk-based
solutions to contaminated properties as
well. SIOR Report checked in with two
SIOR members in Michigan and South
Carolina to see how more flexible legislation has been working.
Alaw-based, recent history of contaminated site remediation can probably be taken back
over 30 years to the Comprehensive
Environmental Response Compensation
and Liability Act of 1980, often called
CERCLA, which required a full detoxification or removal of contaminants.
It was, in some ways, a drastic response
to the necessary task of protecting
the public from the after-effects of
industrialization, chemical-usage, and
untreated manufacturing waste. Over
time however, it became obvious that
to re-develop an industrial site for a
different purpose didn’t require such
full-bore measures, and that a more
measured response would be sufficient.
The new, more flexible response has
come to be called “risk-based” action, or
as one environmental attorney defined
it: “use-restricted cleanup that pairs
reduced removal or detoxification of
materials at a contaminated site with a
limitation of use ensuring that the site
will not be used in ways that will expose
people to the remaining contaminants.”
