One is that developers elect to build on comparatively pristine land elsewhere, commonly called greenfields, often in suburban or exurban areas. While many contaminated lands, commonly known as brownfields, are located in prime urban and commercial locations, they have remained abandoned or ignored for several reasons. This approach can work for the simplest transactions or projects to the most complex, to put contaminated properties back into productive use. They can readily find ways to "hold the deal together." They can preserve the evidence they need to submit insurance claims and go after the real responsible parties for reimbursement. They can allocate their financial responsibilities and cleanup duties using carefully crafted real estate documents. They can get reliable estimates of cleanup costs and schedules. The parties to a transaction can understand their legal liabilities and the applicable procedures for cleanup. We believe, though, that most hazardous waste problems are manageable, if only someone will take charge to manage them. Real estate contamination incites fear because it can trigger what is called "strict, joint, and several liability" under federal and state Superfund laws, and impose it retroactively and prospectively. Owners and operators of hazardous waste treatment, storage and disposal facilities (TSDFs) can remain liable regardless of whether they used the best technology at the time and were not negligent in TSDF management. Sellers can remain liable even if they sell their land "as is" to buyers who agree to "assume the risk." Facility operators can remain liable long after sale, even if they have contracts for what they think is "complete and total indemnification." Waste generators and transporters can remain liable for their waste forever, wherever it might be deposited, even if they acted properly and obeyed the laws. This fear of liability is natural, considering that innocent landowners can be liable for acquiring contaminated land even if they were not aware of the contamination at the time of acquisition. Business expansions are cancelled for the fear of disturbing past contamination. Developers disappear from the landscape when they see signs of hazardous waste. Government agencies which acquire property by purchase, eminent domain, condemnation, tax title, gift, or otherwise, get cold feet when waste is found before the purchase and sale.
The label "hazardous waste" can spook buyers, sellers, banks, investors, landlords, tenants, and brokers. Those who deal with waste often witness that the discovery of contamination on real estate is the kiss of death for a land acquisition or development project.
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