[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2178 Introduced in House (IH)]
104th CONGRESS
1st Session
H. R. 2178
To promote redevelopment of ``brownfields'' by providing Federal
assistance for brownfield cleanups, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 3, 1995
Mr. Brown of Ohio (for himself, Mr. Gephardt, Mr. Dingell, Mr. Borski,
Mr. Rush, Mr. Klink, Mr. Manton, Mr. Stokes, Mr. Towns, and Ms. Furse)
introduced the following bill; which was referred to the Committee on
Commerce
_______________________________________________________________________
A BILL
To promote redevelopment of ``brownfields'' by providing Federal
assistance for brownfield cleanups, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. FINDINGS.
The Congress finds that:
(1) Former industrial and commercial sites commonly
referred to as ``brownfields'', plague urban and rural areas
throughout the United States.
(2) Rural and urban communities alike suffer from declining
property values and increasing unemployment rates caused by
undeveloped brownfields.
(3) Community health and safety is jeopardized by the
residual toxic contamination found on former industrial sites.
(4) Tens of thousands of sites across the country sit idle
or under used because potential developers and bankers are
deterred from investing in the property due to uncertainties
regarding liability for cleanup costs.
(5) Potential site purchasers are concerned with potential
future liability for contamination discovered after the
purchase transaction.
(6) To promote redevelopment of brownfields, there is a
need to create financial and legal incentives and to clarify
the liability of purchasers and lenders.
SEC. 2. AMENDMENT OF SUPERFUND.
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) is amended by adding the
following new title at the end thereof:
``TITLE VI--CLEANUP OF BROWNFIELDS
``SEC. 601. DEFINITIONS.
``For purposes of this title:
``(1) The term `administrative costs' does not include
investigation and identification of the extent of
contamination, design and performance of cleanup activities, or
monitoring of natural resources.
``(2) The term `Administrator' means the Administrator of
the Environmental Protection Agency.
``(3) The term `assistance' means a grant or loan under
this title.
``(4) The term `brownfield site' means a parcel of land
that contains, or contained abandoned or under-used commercial
or industrial facilities, the expansion or redevelopment of
which is complicated by the presence or potential presence of
hazardous substances.
``(5) The term `eligible brownfield site' means a
brownfield site for which an eligible applicant may apply for
assistance under this title.
``(6) The term `eligible applicant' means any of the
following entities that applies to the Administrator for
assistance under this title:
``(A) A general purpose unit of local government.
``(B) A land clearance authority or other quasi-
governmental entity which operates under the
supervision and control of a general purpose unit of
local government or as an agent of a general purpose
unit of local government.
``(C) A regional council or group of general
purpose units of local government.
``(D) An Indian Tribe.
``(7) The term `environmental remediation' includes site
characterization and assessment.
``(8) The term `loan recipient' means an eligible applicant
that has received a loan under this title from the
Administrator.
``SEC. 602. BROWNFIELD CLEANUP ASSISTANCE PROGRAM.
``(a) Establishment of Program.--The Administrator shall establish
a program to provide assistance for the environmental remediation of
eligible brownfield sites.
``(b) Eligible Brownfield Sites.--Any brownfield site shall be
eligible for assistance under this title unless the site is one of the
following:
``(1) Any facility that is the subject of a planned or an
ongoing removal action under title I of this Act.
``(2) Any facility included, or proposed for inclusion, in
the National Priorities List maintained by the Administrator
under title I of this Act.
``(3) Any facility that is subject to corrective action
under section 3004(u) or 3008(h) of the Solid Waste Disposal
Act (42 U.S.C. 6924(u) or 6928(h)) at the time that an
application for a grant or loan concerning the facility is
submitted under this title.
``(4) Any land disposal unit with respect to which a
closure notification under subtitle C of the Solid Waste
Disposal Act (42 U.S.C. 6921 et seq.) has been submitted and
closure requirements have been specified in a closure plan or
permit.
``(5) Any facility with respect to which an administrative
order on consent or judicial consent decree requiring cleanup
has been entered into by the United States under the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.) or title XIV of
the Public Health Service Act, commonly known as the Safe
Drinking Water Act (42 U.S.C. 300f and following).
``(6) Any facility owned or operated by a department,
agency, or instrumentality of the United States.
``(7) Any portion of a facility for which portion
assistance for response activities has been obtained pursuant
to subtitle I of the Solid Waste Disposal Act (42 U.S.C. 6991
et seq.) from the Leaking Underground Storage Tank Trust Fund
established under section 9508 of the Internal Revenue Code of
1986.
``(c) Assistance for Site Characterization and Assessment.--Upon
the approval of an application made by an eligible applicant, the
Administrator may make grants under this subsection to the applicant to
be used for the site characterization and assessment of one or more
eligible brownfield sites. Site characterizations and assessments
carried out with the use of any such grant shall be deemed an
`appropriate inquiry' if performed in accordance with generally
accepted good commercial and customary standards and practices for
purposes of section 101(39)(B) of this Act.
``(d) Assistance for Environmental Remediation.--Upon the approval
of an application made by an eligible applicant, the Administrator may
make interest free loans under this subsection to such applicant to be
used for environmental remediation (including site characterization and
assessment) at one or more eligible brownfield sites. Such
environmental remediation shall be for purposes of making such site or
sites available for manufacturing, business, or other commercial or
residential purposes. A loan under this section may be used by the loan
recipient for environmental remediation carried out by the loan
recipient or by other entities at the eligible brownfield site or sites
and for providing technical assistance related to such environmental
remediation. Such loans may also be used by the loan recipient to make
loans and issue loan guarantees to prospective purchasers or developers
of eligible brownfield sites to be used for environmental remediation
at the sites. Any such loans made by the loan recipient may be
repayable to a revolving fund and used to make additional loans to
prospective purchasers or developers to be used for brownfield
redevelopment, including environmental remediation and related
technical assistance. A loan recipient may charge interest on such loan
and use such interest for brownfield redevelopment, including
environmental remediation and related technical assistance or for
capitalizing or administering a revolving loan fund.
``(e) Hazardous Substance Superfund.--Notwithstanding section 111
of this Act or any provision of the Superfund Amendments and
Reauthorization Act of 1986, from the amounts available in the
Hazardous Substance Superfund established under subchapter A of chapter
98 of the Internal Revenue Code of 1986, in each of the first 3 fiscal
years commencing after the enactment of this title--
``(1) $15,000,000 are authorized to be appropriated from
the Hazardous Substance Superfund to be used for making grants
under subsection (c); and
``(2) $30,000,000 are authorized to be appropriated from
the Hazardous Substance Superfund to be used for making loans
under subsection (d).
All loans made under subsection (d) shall be subject to an agreement by
the recipient to repay the full amount of the loan to the United States
within 10 years after the date on which the loan is made. Such
repayments shall be deposited in, and credited to, the Hazardous
Substance Superfund.
``(f) Sunset.--No amount shall be available from the Hazardous
Substance Superfund for purposes of this title after the third year
after the date of enactment of this title.
``(g) Prohibition.--No portion of any assistance provided under
this section to an eligible applicant may be used for payment of
penalties or fines. No portion of any grant provided under this section
to an eligible applicant may be used for administrative costs.
``(h) Audits.--The Inspector General of the Environmental
Protection Agency shall audit all grants and loans made under this
section to insure that all funds are used for the purposes set forth in
this section and that all loans under subsection (d) are repaid in
accordance with subsection (e).
``(i) Agreements.--Each grant and each loan made under this section
shall be subject to an agreement which requires the following:
``(1) The agreement shall require the applicant to comply
with all applicable State laws (including regulations).
``(2) The agreement shall require that the applicant shall
use the grant or loan exclusively for purposes specified in
subsection (c) or (d), as the case may be.
``(3) The agreement shall contain such other terms and
conditions that the Administrator determines necessary to
protect the financial interests of the United States and to
carry out the purposes of this title.
``(j) Leveraging.--The recipient of any assistance under this
section may use the assistance for part of a
project at an eligible brownfield site or sites which receives funding
from other sources, except that such assistance may only be used for
the purposes described in subsection (c) or (d), as the case may be.
``SEC. 603. APPLICATIONS FOR ASSISTANCE.
``(a) In General.--Any eligible applicant may submit an application
to the Administrator for a grant or loan, or both under this title for
one or more eligible brownfield sites. An application may be submitted
to the Administrator through any Regional Office of the Environmental
Protection Agency. The application shall be in such form as the
Administrator determines appropriate.
``(b) Application Requirements.--An application for assistance
under this title shall, at a minimum, include each of the following:
``(1) An identification of each eligible brownfield site
for which assistance is sought and a description of the
redevelopment plan for the area or areas in which each such
site is located. Such description shall include a description
of the nature and extent of any known or suspected
environmental contamination within the area.
``(2) An analysis that demonstrates the potential of the
grant to stimulate economic development on completion of the
environmental remediation. Such analysis shall include a
projection of the number of jobs expected to be created at the
site after remediation and redevelopment and, to the extent
feasible, a description of the type and skill level of such
jobs and a projection of the increases in revenues accruing to
the local, State and Federal government from such jobs.
``(c) Approval.--After the first 12 months after the enactment of
this title, the Administrator shall make annual evaluations of all
applications received during the prior calendar year and provide
assistance under this title to those eligible applicants submitting
applications during such prior year which the Administrator determines
have the highest rankings under the ranking criteria established by the
Administrator. For the first 12 months after the enactment of this
title, at the end of each 6-month period after the enactment of this
title, the Administrator shall provide assistance under this title to
those eligible applicants submitting applications before the end of
such 6-month period which the Administrator determines have the highest
rankings under the ranking criteria established by the Administrator.
``(d) Ranking Criteria.--In determining whether to provide
assistance under this title to any applicant, the Administrator shall
establish a ranking system for applications. The ranking system shall
include the following criteria:
``(1) The extent to which the assistance will stimulate the
availability of other funds for environmental remediation and
subsequent redevelopment of the area in which the eligible
brownfield sites are located.
``(2) The potential of the development plan for the area in
which the eligible brownfield sites are located to stimulate
economic development of the area on completion of the
environmental remediation, such as the following:
``(A) The relative increase in the estimated fair
market value of the area as a result of the
environmental remediation.
``(B) The potential of the assistance to create
new, or expand existing, business and employment
opportunities (particularly full-time employment
opportunities) upon completion of the environmental
remediation.
``(C) The estimated additional tax revenues
expected to be generated by economic redevelopment in
the area in which the brownfield site is located.
``(3) The estimated extent to which the assistance would
facilitate the identification of, or reduction of, health and
environmental risks.
``(4) The financial involvement of State and local
governments in the environmental remediation proposed at the
eligible brownfield site or sites concerned and the extent to
which such remediation and the proposed redevelopment is
consistent with any applicable State or local community
economic development plan.
``(5) The extent to which the site characterization and
assessment or the remediation and subsequent development of the
eligible brownfield site or sites involves the active
participation and support of the local community.
``(6) Such other factors as the Administrator considers
relevant to carry out the purposes of this title.''.
SEC. 3. LENDER LIABILITY.
(a) Lender Liability Rule.--Effective on the date of enactment of
this section, the final rule issued by the Administrator of the
Environmental Protection Agency on April 29, 1992 (57 Fed. Reg. 18344),
shall be deemed to have been validly issued pursuant to the authority
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, and to have been effective according to the
final rule's terms. No additional administrative or judicial
proceedings shall be necessary with respect to such final rule.
(b) Judicial Review.--Notwithstanding section 113(a) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, no court shall have jurisdiction to review the final rule
issued by the Administrator of the Environmental Protection Agency on
April 29, 1992 (57 Fed. Reg. 18344).
(c) Delegation.--Nothing in this subsection shall be construed to
limit the authority of the President or his delegate to amend the final
rule issued by the Administrator of the Environmental Protection Agency
on April 29, 1992 (57 Fed. Reg. 18344), in accordance issued by the
Administrator of the Environmental Protection Agency on April 29, 1992
(57 Fed. Reg. 18344), in accordance with applicable provisions of law.
SEC. 4. PURCHASER LIABILITY.
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 is amended as follows:
(1) Section 101 is amended by adding the following after
paragraph (38):
``(39) Bona fide prospective purchaser.--The term `bona
fide prospective purchaser' means a person who acquires
ownership of a facility after the date of enactment of this
paragraph, or a tenant of such a person, who can establish each
of the following by a preponderance of the evidence:
``(A) All active disposal of hazardous substances
at the facility occurred before that person acquired
the facility.
``(B) The person made all appropriate inquiry into
the previous ownership and uses of the facility and its
real property in accordance with generally accepted
good commercial and customary standards and practices.
In the case of property for residential or other
similar use, purchased by a nongovernmental or
noncommercial entity, a site inspection and title
search that reveal no basis for further investigation
satisfy the requirements of this subparagraph.
``(C) The person provided all legally required
notices with respect to the discovery or release of any
hazardous substances at the facility.
``(D) The person exercised appropriate care with
respect to hazardous substances found at the facility
by taking reasonable steps to stop on-going releases,
prevent threatened future releases of hazardous
substances, and prevent or limit human or natural
resource exposure to hazardous substances previously
released into the environment.
``(E) The person provides full cooperation,
assistance, and facility access to persons authorized
to conduct response actions at the facility, including
the cooperation and access necessary for the
installation, integrity, operation, and maintenance of
any complete or partial response action at the
facility.
``(F) The person is not affiliated with any other
person liable for response costs at the facility,
through any direct or indirect familial relationship,
or any contractual, corporate, or financial
relationship other than that created by the instruments
by which title to the facility is conveyed or
financed.''.
(2) Section 107 is amended by adding the following new
subsections after subsection (m):
``(n) Bona Fide Prospective Purchasers.--Notwithstanding subsection
(a), a person who is a bona fide prospective purchaser of a facility
and who does not impede the performance of a response action or natural
resource restoration at a facility shall not be liable under this
section to the extent liability at such facility is based solely on
paragraph (1) of subsection (a) for a release or threat of release from
the facility. Not later than 18 months after the enactment of this
subsection, the Administrator shall issue guidelines explaining the
criteria by which a person may qualify as a bona fide purchaser. Such
guidelines shall be readily available to the public.
``(o) Prospective Purchaser and Windfall Lien.--(1) In any case in
which there are unrecovered response costs at a facility for which an
owner of the facility is not liable by reason of subsection (n), and
the conditions described in paragraph (2) are met, the United States
shall have a lien upon such facility for such unrecovered costs. Such
lien--
``(A) shall not exceed the increase in fair market value of
the property attributable to the response action at the time of
a subsequent sale or other disposition of property;
``(B) shall arise at the time costs are first incurred by
the United States with respect to a response action at the
facility;
``(C) shall be subject to the requirements for notice and
validity established in paragraph (3) of subsection (l); and
``(D) shall continue until the earlier of satisfaction of
the lien or recovery of all response costs incurred at the
facility.
``(2) The conditions referred to in paragraph (1) are the
following:
``(A) A response action for which there are unrecovered
costs is carried out at the facility.
``(B) Such response action increases the fair market value
of the facility above the fair market value of the facility
that existed within six months before the response action was
taken.
``(3) No lien under this section shall arise (A) with respect to
property for which the property owner preceding the first bona fide
prospective purchaser is not a liable party or has resolved its
liability under this Act, or (B) where an audit or inquiry by an
environmental professional gives the bona fide prospective purchaser no
knowledge or reason to know of the release of hazardous substances.''.
SEC. 5. FIDUCIARIES.
(a) Liability.--Section 107 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) is amended by adding the following at the end thereof:
``(p) Fiduciaries.--(1) The personal obligations and liabilities
under subsection (a)(1) of this section with respect to a vessel or
facility of a person who is a fiduciary with respect to such vessel or
facility shall be limited to the extent to which the assets held in a
fiduciary capacity are sufficient to indemnify such person, unless--
``(A) the obligations and liabilities would have arisen
even if such person had not served as fiduciary;
``(B) such fiduciary's own failure to exercise due care
with respect to a vessel or facility caused or contributed to
the release of hazardous substances following establishment of
the trust, estate, or fiduciary relationship;
``(C) the fiduciary had a role in establishing the trust,
estate, or fiduciary relationship, and such trust, estate, or
fiduciary relationship has no objectively reasonable or
substantial purpose apart from the avoidance or limitation of
liability under this Act;
``(D) the fiduciary has not complied with such other
requirements as the Administrator may set forth by regulation;
``(E) the trust, estate or fiduciary relationship was not
created as part of, or to facilitate, one or more estate plans
or pursuant to the incapacity of a natural person;
``(F) the trust, estate, or fiduciary relationship was
organized for the primary purpose of, or is engaged in,
actively carrying on a trade or business for profit;
``(G) the person acts in a capacity other than a fiduciary
capacity, and directly or indirectly benefits from a trust or
fiduciary relationship; or
``(H) the person is a beneficiary and fiduciary with
respect to the same fiduciary estate, and as a fiduciary,
receives benefits exceeding customary or reasonable
compensation and incidental benefits that are permitted under
other applicable law.
``(2) A fiduciary shall not be personally liable for undertaking or
directing another to undertake a response action under subsection
(d)(1).
``(3) Except to the extent provided in paragraphs (1) and (2), a
fiduciary shall be liable under this section with respect to a vessel
or facility to the same extent as any other person and shall be
personally subject to the obligations and liabilities under this
section to the same extent as if the vessel or facility were held by
the fiduciary free of trust.''.
(b) Definition.--Section 101 of such Act is amended by adding after
paragraph (39) the following new paragraph:
``(40) Fiduciary.--(A) Except as provided in subparagraph
(B), the term `fiduciary' means a person who owns or controls
property--
``(i) as a fiduciary within the meaning of section
3(31) of the Employee Retirement Income Security Act of
1974, or as a trustee, executor, administrator,
custodian, guardian, conservator, or receiver acting
for the exclusive benefit of another person; and
``(ii) who has not previously owned or operated the
property in a nonfiduciary capacity.
``(B) The term `fiduciary' does not include any person
described in subparagraph (A)--
``(i) who acquires ownership or control of property
to avoid the liability of such person or any other
person under this Act; or
``(ii) who owns or controls property on behalf of
or for the benefit of a holder of a security
interest.''.
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