[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1392 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 1392

To require the Administrator of the Environmental Protection Agency to 
 establish a program under which States may be certified to carry out 
voluntary environmental cleanup programs and to amend CERCLA regarding 
        the liability of landowners and prospective purchasers.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 17, 1997

Mr. Regula (for himself and Mr. Murtha) introduced the following bill; 
which was referred to the Committee on Commerce, and in addition to the 
  Committee on Transportation and Infrastructure, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
To require the Administrator of the Environmental Protection Agency to 
 establish a program under which States may be certified to carry out 
voluntary environmental cleanup programs and to amend CERCLA regarding 
        the liability of landowners and prospective purchasers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Brownfields Reuse and Real Estate 
Development Act''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds:
            (1) Nationwide, older abandoned or under-used commercial 
        and industrial sites known as ``brownfields'' are often 
        overlooked for redevelopment because of actual or potential 
        environmental contamination from past commercial or industrial 
        activities.
            (2) The actual or potential environmental liability 
        associated with brownfields, including requirements for site 
        assessment and cleanup, creates enormous uncertainties in the 
        redevelopment process, prompting many developers to pursue 
        cheaper, less complicated development options on undeveloped 
        sites.
            (3) Industrialized metropolitan areas and small towns alike 
        are affected adversely by these competing pressures, as loss of 
        tax revenues and job opportunities for community residents lead 
        to a deterioration of the urban environment, including the 
        presence of unremediated environmental contamination.
            (4) States have created remedial action programs to allow a 
        person to respond voluntarily to a release or potential release 
        of hazardous substances at low and medium priority facilities. 
        Such programs have flourished due to the States' ability to 
        streamline duplicative State and Federal regulatory 
        requirements and affect a timely, cost-effective, and 
        environmentally protective cleanup of sites.
            (5) The benefits of State voluntary cleanup programs would 
        be significantly enhanced in the context of a Federal system 
        that encourages Federal-State partnerships, and provides legal 
        finality to the cleanup process.
    (b) Purpose.--The purpose of this Act is to ensure the quality of 
State brownfield cleanup and redevelopment efforts by establishing 
Federal criteria for State voluntary cleanup programs and to provide 
certainty by removing the threat of Federal enforcement under Federal 
law during and after the cleanup of brownfield facilities and 
properties.

SEC. 3. CERTIFICATION OF STATE VOLUNTARY CLEANUP PROGRAMS.

    (a) In General.--Not later than one year after the date of the 
enactment of this Act, the Administrator of the Environmental 
Protection Agency (hereinafter in this Act referred to as the 
``Administrator'') shall establish, and publish in the Federal 
Register, certification criteria under subsection (d) for State 
programs for the voluntary cleanup of eligible facilities. Upon 
enactment of this Act, a State may submit for review by the 
Administrator documents that the State deems appropriate to describe a 
voluntary response program for eligible facilities.
    (b) Certification of State Programs.--The Administrator shall 
certify a State program for the voluntary cleanup of eligible 
facilities within 120 days after the Administrator receives adequate 
documentation that the State program substantially satisfies the 
certification criteria established under subsection (d). If the 
Administrator takes no action with respect to certification under this 
section within 120 days after receipt of adequate documentation from 
the State, the State program shall be treated as certified for purposes 
of this Act. If the Administrator denies certification for a State 
program, the State may, in an action brought within 60 days after the 
date of such denial, obtain review of such denial in the United States 
Court of Appeals for the circuit in which such State is located.
    (c) Federal-State Cooperation and State Certification.--The 
Administrator shall cooperate with States to ensure that State programs 
continue to meet the terms of the certification issued pursuant to 
subsection (b). The Administrator shall notify the State of any failure 
of a certified State program to continue to meet the certification 
criteria established under subsection (d) and shall assist the State in 
remedying such deficiency. If any such deficiency is substantial and is 
not remedied in a timely manner, the Administrator may withdraw the 
certification. Withdrawal of certification shall not affect any cleanup 
completed and approved by the State as of the date of such withdrawal. 
The State may, in an action brought within 60 days after such 
withdrawal, obtain review of such withdrawal in an action brought in 
the United States Court of Appeals for the circuit in which such State 
is located. A withdrawal of certification shall not take effect until 
completion of judicial review in the United States Court of Appeals or, 
if no action is brought seeking review of such withdrawal, the date on 
which the period to bring an action for such review has expired.
    (d) Certification Criteria.--In order for a State voluntary cleanup 
program to be certified under this section, the program must meet each 
of the following criteria:
            (1) The program shall provide adequate opportunities for 
        meaningful public participation. Meaningful public 
        participation shall include adequate notice by the State (or a 
        person authorized by the State) to the local government of a 
        site being addressed, as well as public involvement in relation 
        to the environmental risks posed by the sites being addressed 
        under the program.
            (2) The program shall ensure that technical assistance is 
        available throughout each voluntary cleanup.
            (3) The program shall ensure that adequate resources are 
        available to ensure cleanups under the program and to 
        administer the program.
            (4) The program shall ensure adequate oversight and 
        enforcement authority.
            (5) The program shall provide, upon completion of cleanup, 
        for documentation to be provided by the State to the owner or 
        prospective purchaser that the cleanup of the eligible facility 
        is complete.
            (6) The program shall ensure that the cleanup undertaken 
        under the program will protect human health and the 
        environment.

SEC. 4. EXISTING STATE PROGRAMS.

    Nothing in this Act is intended to impose any requirement on a 
State voluntary response program existing on or after the date of the 
enactment of this Act. A program shall not be considered to be 
certified under this Act unless the program is approved in accordance 
with this section.

SEC. 5. LIMITATION ON FEDERAL ENFORCEMENT.

    Neither the President nor any other person (other than a State) may 
use any authority of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or of 
the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) to commence an 
administrative or judicial action under either of those Acts with 
respect to any release or threatened release at any eligible facility 
that is, or has been, the subject of a certified State voluntary 
response plan.

SEC. 6. ELIGIBLE FACILITIES.

    (a) In General.--For purposes of this Act, the term ``eligible 
facility'' means an abandoned, idled or under used commercial or 
industrial facility or property for which real or perceived 
environmental contamination complicates expansion, redevelopment, or 
reuse. Such term shall not include any of the following:
            (1) A facility at which an abatement action has been 
        ordered under section 106 of the Comprehensive Environmental 
        Response, Compensation, and Liability Act of 1980 or under 
        section 7003 of the Solid Waste Disposal Act (unless such 
        abatement action has been completed).
            (2) A facility that is the subject of a Federal removal or 
        remedial action under section 104 of the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 1980 
        (42 U.S.C. 9601 et seq.).
            (3) A facility included on the National Priorities List or 
        proposed for such inclusion in the Federal Register.
            (4) A facility required to have a permit under section 3005 
        of the Solid Waste Disposal Act that does not have a permit 
        under that section and does not qualify for authorization to 
        operate in interim status under subsection (e) of that section.
            (5) A land disposal unit subject to a closure requirement 
        under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 
        6921 et seq.).
            (6) A facility that is the subject of a corrective action 
        under section 3004(u) or 3008(h) of the Solid Waste Disposal 
        Act (42 U.S.C. 5924(u) or 6928(h)) that has been evaluated as 
        high priority under the Environmental Protection Agency's 
        National Corrective Action Priority System as set forth in 
        regulations under subtitle C of the Solid Waste Disposal Act.
            (7) A facility owned or operated by a department, agency, 
        or instrumentality of the United States.
    (b) Waiver of Ineligibility.--Upon the application of a State or 
any person authorized by the State, for good cause shown, the 
Administrator may waive, on a case-by-case basis, the ineligibility of 
any facility or property listed in paragraph (4), (5), or (6) of 
subsection (a).

SEC. 7. INNOCENT LANDOWNERS.

    (a) Amendment of CERCLA.--Section 107 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9607) is amended by adding at the end the following new 
subsection:
    ``(n) Innocent Landowners.--
            ``(1) Conduct of environmental assessment.--A person who 
        has acquired real property shall have made all appropriate 
        inquiry within the meaning of subparagraph (B) of section 
        101(35) if he establishes that, within 180 days prior to the 
        time of acquisition, an environmental site assessment of the 
        real property was conducted which meets the requirements of 
        this subsection.
            ``(2) Definition of environmental site assessment.--For 
        purposes of this subsection, the term `environmental site 
        assessment' means an assessment conducted in accordance with 
        the standards set forth in the American Society for Testing and 
        Materials (ASTM) Standard E1527-94, titled `Standard Practice 
        for Environmental Site Assessments: Phase I Environmental Site 
        Assessment Process' or with alternative standards issued by 
        rule by the Administrator or promulgated or developed by others 
        and designated by rule by the Administrator. Before issuing or 
        designating alternative standards, the Administrator shall 
        first conduct a study of commercial and industrial practices 
        concerning environmental site assessments in the transfer of 
        real property in the United States. Any such standards issued 
        or designated by the Administrator shall also be deemed to 
constitute commercially reasonable and generally accepted standards and 
practices for purposes of this paragraph. In issuing or designating any 
such standards, the Administrator shall consider requirements governing 
each of the following:
                    ``(A) Interviews of owners, operators, and 
                occupants of the property to determine information 
                regarding the potential for contamination.
                    ``(B) Review of historical sources as necessary to 
                determine previous uses and occupancies of the property 
                since the property was first developed. For purposes of 
                this subclause, the term `historical sources' means any 
                of the following, if they are reasonably ascertainable: 
                recorded chain of title documents regarding the real 
                property, including all deeds, easements, leases, 
                restrictions, and covenants, aerial photographs, fire 
                insurance maps, property tax files, USGS 7.5 minutes 
                topographic maps, local street directories, building 
                department records, zoning/land use records, and any 
                other sources that identify past uses and occupancies 
                of the property.
                    ``(C) Determination of the existence of recorded 
                environmental cleanup liens against the real property 
                which have arisen pursuant to Federal, State, or local 
                statutes.
                    ``(D) Review of reasonably ascertainable Federal, 
                State, and local government records of sites or 
                facilities that are likely to cause or contribute to 
                contamination at the real property, including, as 
                appropriate, investigation reports for such sites or 
                facilities; records of activities likely to cause or 
                contribute to contamination at the real property, 
                including landfill and other disposal location records, 
                underground storage tank records, hazardous waste 
                handler and generator records and spill reporting 
                records; and such other reasonably ascertainable 
                Federal, State, and local government environmental 
                records which could reflect incidents or activities 
                which are likely to cause or contribute to 
                contamination at the real property.
                    ``(E) A visual site inspection of the real property 
                and all facilities and improvements on the real 
                property and a visual inspection of immediately 
                adjacent properties, including an investigation of any 
                hazardous substance use, storage, treatment, and 
                disposal practices on the property.
                    ``(F) Any specialized knowledge or experience on 
                the part of the defendant.
                    ``(G) The relationship of the purchase price to the 
                value of the property if uncontaminated.
                    ``(H) Commonly known or reasonably ascertainable 
                information about the property.
                    ``(I) The obviousness of the presence or likely 
                presence of contamination at the property, and the 
                ability to detect such contamination by appropriate 
                investigation.
        A record shall be considered to be `reasonably ascertainable' 
        for purposes of this paragraph if a copy or reasonable 
        facsimile of the record is publicly available by request 
        (within reasonable time and cost constraints) and the record is 
        practically reviewable.
            ``(3) Maintenance of information.--No presumption shall 
        arise under paragraph (1) unless the defendant has maintained a 
        compilation of the information reviewed and gathered in the 
        course of the environmental site assessment.
            ``(4) Definition of contamination.--For the purposes of 
        this subsection and section 101(35), the term `contamination' 
        means an existing release, a past release, or the material 
        threat of a release of a hazardous substance, other than de 
        minimis conditions that generally do not present a material 
        risk of harm to public health or welfare or the environment.''.
    (b) Cross Reference.--Section 101(35)(B) (42 U.S.C. 9601(35)(B)) is 
amended by inserting after ``all appropriate inquiry'' the following: 
``(as specified in section 107(n))''.

SEC. 8. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.

    Section 107 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is amended by 
after subsection (n) the following new subsections:
    ``(o) Bona Fide Prospective Purchaser.--(1) Notwithstanding 
paragraphs (1) through (4) of subsection (a), a person who does not 
impede the performance of a response action or natural resource 
restoration at a facility shall not be liable 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, and the person is a 
bona fide prospective purchaser of the facility.
    ``(2) For purposes of this subsection, the term `bona fide 
prospective purchaser' means a person who acquires ownership of a 
facility after the date of enactment of this subsection, 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 commercial and 
        customary standards and practices. Standards described in 
        section 107(n)(2) (relating to innocent landowners) shall 
        satisfy the requirements of this subparagraph. 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.
    ``(p) 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 section 107(o), 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 6 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 environmental assessment gives the bona fide 
        prospective purchaser no knowledge or reason to know of the 
        release of hazardous substances.''.

SEC. 9. CONTIGUOUS PROPERTIES.

    Section 107 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is further 
amended by adding at the end the following new subsection:
    ``(q) Contiguous Properties.--A person (other than the United 
States or a department, agency, or instrumentality of the United 
States) who owns or operates real property that is contiguous to or 
otherwise similarly situated with respect to real property on which 
there has been a release or threatened release of a hazardous substance 
and that is or may be contaminated by such release shall not be liable 
under subsection (a)(1) or (2) by reason of such ownership or operation 
solely by reason of such contamination if such person--
            ``(A) did not cause, contribute, or consent to the release 
        or threatened release; and
            ``(B) provides full cooperation, assistance, and facility 
        access to persons authorized to conduct response actions at the 
        facility.
The President may issue an assurance of no enforcement action under 
this Act to any such person and may grant any such person protection 
against cost recovery and contribution actions pursuant to section 
113(f)(2). Such person may also petition the President to exclude from 
the description of a National Priorities List site such contiguous real 
property, if such property is or may be contaminated solely by ground 
water that flows under such property and is not used as a source of 
drinking water. The President may grant such a petition pursuant to 
such procedures as he deems appropriate.''.
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