10
TABLE 2
MAJOR POLICY INNOVATIONS IN MICHIGAN BROWNFIELD POLICY
INNOVATION
DESCRIPTION
Increased flexibility in cleanup
standards
Brownfield redevelopment rests on the assumption that
contaminated properties ought to be cleaned to levels appropriate for
future use. Industrial properties need not be cleaned to residential
levels. This introduction of differential cleanup standards represents a
significant departure from earlier environmental regulations, which
demanded a total removal of all contaminants.
Limited owner liability
Prior to the 1996 NREPA amendments, Michigan statutes followed the
federal lead in imposing a strict liability framework for site
contamination. This essentially held that ownership of a property
carried with it the liability for cleaning that site. Changes in the law
now allow purchasers to escape liability for contamination for which
they are not directly responsible.
Increased reliance on
private/voluntary action
New owners of potentially contaminated property can secure
exemption from cleanup liability by filing a Baseline Environment
Assessment (BEA) with the Michigan Department of Environmental
Quality. This baseline data is to serve as a basis from which to
evaluate state claims against the landowner. The completion of the
BEA is largely a private action, with limited state oversight.
Increased public funding
The Brownfield Financing Act (1996) permits municipalities to create
Brownfield Redevelopment Authorities. These authorities are allowed
to capture state and local taxes generated by the redevelopment into
financing remedial cleanup action on the site. Developers are also
granted a tax credit on their single business tax.
Each of these policy innovations can be seen as a fairly direct effort to respond to long-
standing criticisms of federal policy. The most fundamental contrast between Michigan and
federal policy is that of liability. Basically, the state has incorporated the key features of past
covenants not to sue into a relatively automatic framework. If a landowner is not responsible
for site contamination, then he/she is not liable for a cleanup.
7
For parties responsible for the
7
Michigan actors note that there are two major elements of liability that continue to retard
redevelopment of brownfield sites. Both are associated with CERCLA liability. Obviously the state can not
grant immunity from federal action against property owners. As noted above, the EPA has reduced these
concerns by entering a set of agreements not to sue based on a lack of responsibility for on site
contamination. A second concern is the potential of responsible parties to bring suit against new owners
under CERCLA liability. Interestingly, while this concern is widely cited as a block to redevelopment, there
Convention