[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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HR 2178 IH----2