[Senate Hearing 106-957]
[From the U.S. Government Publishing Office]
S. Hrg. 106-957
BROWNFIELD REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2000
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND,
WASTE CONTROL, AND RISK ASSESSMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JUNE 29, 2000
__________
ON
S. 2700
A BILL TO AMEND THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY ACT OF 1980 TO PROMOTE THE CLEANUP AND REUSE OF
BROWNFIELDS, TO PROVIDE FINANCIAL ASSISTANCE FOR BROWNFIELDS
REVITALIZATION, TO ENHANCE STATE RESPONSE PROGRAMS, AND FOR OTHER
PURPOSES
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
81-519 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
second session
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
Subcommittee on Superfund, Waste Control, and Risk Assessment
LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
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(ii)
C O N T E N T S
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Page
JUNE 29, 2000
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 16
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 1
Inhofe, Hon. James. M., U.S. Senator from the State of Oklahoma.. 3
Report, Superfund Reforms, General Accounting Office......... 4-13
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 14
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 46
Letters and statements submitted for the record.............. 47
WITNESSES
Bollwage, Hon. J. Christian, Mayor, Elizabeth, NJ................ 24
Prepared statement........................................... 77
Resolution, U.S. Conference of Mayors........................ 79
Daniels, Hon. Preston A., Mayor, Des Moines, IA.................. 25
Prepared statement........................................... 80
Fields, Timothy, Jr., Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency......................................................... 19
Prepared statement........................................... 71
Fitzpatrick, Kevin P., President, AIG Global Real Estate
Investment Corporation, and Chairman, Environmental Policy
Advisory Committee, The Real Estate Roundtable................. 40
Prepared statement........................................... 95
Front, Alan, Senior Vice President, The Trust for Public Land.... 38
Prepared statement........................................... 94
McElroy, William, Vice President, Zurich U.S. Specialties........ 36
Prepared statement........................................... 92
Miller-Travis, Vernice, Executive Director, Partnership for
Sustainable Brownfields Redevelopment.......................... 33
Prepared statement........................................... 90
Reitsma, Jan H., Director, Rhode Island Department of
Environmental Management....................................... 27
Prepared statement........................................... 86
ADDITIONAL MATERIAL
Letters:
American Institute of Chemical Engineers..................... 58
American Society of Civil Engineers.......................... 56
Birkhofer, William J......................................... 50
Brownfield News.............................................. 68
Building Owners and Managers Association International....... 48
CH2M HILL.................................................... 59
Cianci, Hon. Vincent, Mayor, Providence, RI.................. 68
Environmental Technology Council............................. 66
Institute of Scrap Recycling Industries...................... 62
International Council of Shopping Centers.................... 61
IT Group..................................................... 69
Levin, Hon. Carl and Hon. James M. Jeffords, U.S. Senate..... 55
National Association of Counties............................. 54
National Association of Home Builders........................ 52
National Association of Realtors............................. 48
National Conference of Black Mayors.......................... 67
National Conference of State Legislators..................... 54
National Governors Association............................... 60
National Ground Water........................................ 49
Real Estate Roundtable....................................... 47
Trust for the Public Land....................................51, 58
U.S. Conference of Mayors.................................... 50
Vas, Hon. Joseph, Mayor, Perth Amboy, NJ..................... 67
Walsh, Hon. Tom, Mayor, Casper, WY........................... 66
Wilderness Society........................................... 69
Statements:
Gates, John, National Realty Committee....................... 97
Gorton, Hon. Slade, U.S. Senator from the State of Washington 70
Grassley, Hon. Charles E., U.S. Senator from the State of
Iowa....................................................... 18
National Ground Water Association............................ 49
National Resources Defense Council........................... 62
Scherer, J. Peter, National Realty Committee................. 99
BROWNFIELD REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2000
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THURSDAY, JUNE 29, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Waste Control and Risk
Assessment,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m. in room
406, Senate Dirksen Building, Hon. Lincoln Chafee (chairman of
the subcommittee) presiding.
Present: Senators Chafee, Inhofe, and Lautenberg.
Also present, Senators Baucus and Grassley.
OPENING STATEMENT OF HON. LINCOLN CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. The hearing will come to order.
Good afternoon. I'm Senator Chafee, chairman of the
Subcommittee on Superfund, of the Environment and Public Works
Committee. I'd like to make a brief opening statement.
Today the subcommittee will receive testimony on S. 2700,
the Brownfields Revitalization and Environmental Restoration
Act of 2000. As you know, I introduced this legislation with
Senators Lautenberg, Smith and Baucus on June 8. Members of the
committee have heard thorough testimony so far.
We've also received constituent letters and had meetings
with those interested in brownfields redevelopment and know
that it's an important issue that does need to be addressed. In
response to this overwhelming call for brownfields legislation,
Senators Smith, Lautenberg, Baucus and I did reach consensus on
S. 2700. We hope this landmark bipartisan bill, which is pro-
environment and pro-economic development will attract broad
support from Senators and interested groups.
In fact, I'm pleased to announce that as of today, we have
40 Senators who cosponsored S. 2700. If I could, I'd just like
to read them to give you a sense of the depth of our support.
Chafee, Smith from New Hampshire, Grassley, Gorton, Jeffords,
Snow, Warner, Collins, DeWine, Graham, Mack, Helms, Hutchinson
from Arkansas, Smith from Oregon, Brownback, Baucus,
Lautenberg, Akaka, Leahy, Levin, Lieberman, Mikulski, Moynihan,
Schumer, Reid, Breaux, Bryan, Kerry from Nebraska, Kennedy,
Sarbanes, Gramm, Robb, Dodd, Harkin, Cleland, Edwards, Wyden,
Feinstein, Daschle and Kennedy from Massachusetts. And we're
getting more every day.
And of course, having the chairman and the ranking members
of both the Environment and Public Works Committee and the
Superfund Subcommittee supporting this legislation underscores
the strong desire of our members on both sides of the aisle in
working in a bipartisan manner to achieve this success. This
committee has a proven track record of forging sound
legislation when members of both parties work together. And S.
2700 is an example of that bipartisan tradition.
I would like to say that, as you know, this bill does
authorize $150 million per year to State and local governments
to perform assessments and cleanup at the Nation's brownfield
sites. It does allow EPA to issue grants to State and local
government to clean up sites that will be converted into non-
revenue generating parks and open spaces. It clarifies that
innocent landowners are not responsible for paying cleanup
costs. It does encourage developers to purchase and develop
brownfield sites by exempting from liability prospective
purchasers that did not cause or worsen the contamination at
the site.
It also includes an exemption for contiguous property
owners that will prevent landowners from paying cleanup costs
simply because their neighbor contaminated the land. The bill
provides $150 million annually to States to establish and
enhance voluntary cleanup programs. And last, the bill
precludes the Environmental Protection Agency from taking an
action at a site being addressed under a State cleanup program
unless the State requests the EPA's assistance, or EPA
determines there is an imminent and substantial endangerment to
public health or the environment and additional work needs to
be done.
So I look forward to the testimony. I believe it's a good
bill. I think it's long overdue, frankly. And as a former
mayor, there's nothing mayors like more than having revenue.
When we see these sites sitting unused, it deprives us of that
life sustaining revenue that we as mayors thrive on.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln Chafee, U.S. Senator from the State of Rhode
Island
Good afternoon. Today, the subcommittee will receive testimony on
S. 2700, the Brownfields Revitalization and Environmental Restoration
Act of 2000. As you know, I introduced this legislation with Senators
Lautenberg, Smith, and Baucus on June 8th. Members of this committee
have heard through testimony, constituent letters, and meetings with
stakeholders that brownfields redevelopment is an important issue that
needs to be addressed. In response to this overwhelming call for
brownfields legislation, Senators Smith, Lautenberg, Baucus, and I
reached a consensus position, S. 2700. We hope this landmark,
bipartisan bill--which is pro-environment and pro-economic
development--will attract broad support from Senators and stakeholder
groups. In fact, I am pleased to announce that as of today 39 Senators
have cosponsored S. 2700.
Having the chairmen and ranking members of both the Environment and
Public Works Committee and the Superfund subcommittee support this
legislation underscores the strong desire by members on both sides of
the aisle to enact this legislation. Indeed, I strongly believe that
reaching across the aisle and working in a bipartisan manner is the
best way to achieve success, particularly on environmental issues. This
committee has a proven track record of forging sound legislation when
members from both parties work together. S. 2700 is another example of
that bipartisan tradition.
As everyone is aware, this committee has tried for years to reform
the Superfund statute. However, broad Superfund reform has eluded us
because we have not been able to reach a bipartisan agreement. While
brownfields provisions have been included in comprehensive reform bills
in the past, I do not consider brownfields a Superfund issue. Superfund
is intended to tackle the nation's worst toxic waste sites. Brownfields
are lightly contaminated sites that will never become Superfund sites,
if we provide incentives to clean them up in a timely manner. I have
visited Superfund sites and brownfield sites in Rhode Island, and they
are truly different. At my visits to brownfield sites, it is possible
to actually see the benefits that communities would enjoy through
brownfield revitalization. I firmly believe that we must help these
communities by enacting legislation this year.
There are members of this committee who have expressed strong
concern about moving brownfields legislation separately from
comprehensive reform. Let me be clear: this bill is not intended to
serve as a substitute for comprehensive Superfund reform. This bill is
intended to spur the cleanup and redevelopment of the nearly 450,000
brownfields sites that exist in every town and every state. S. 2700
does not address everything---but it does offer something for everyone.
I would also like to address a point I hear frequently. People
often tell me it is impossible to enact environmental legislation in a
Presidential election year. I believe history tells a different story.
Important environmental legislation has been enacted in virtually every
Presidential election year since Congress became active in these
issues. In 1972, Congress passed the Clean Water Act; in 1976, the
Resources Conservation and Recovery Act; in 1980, Superfund; in 1984,
RCRA reauthorization; and in 1996, Safe Drinking Water Act
reauthorization. I hope that our work on brownfields reform follows
this tradition in 2000.
The U.S. Conference of Mayors has estimated that more than 450,000
brownfields sites exist nationwide. We stand to reap enormous economic,
environmental, and social benefits with the successful redevelopment of
brownfield sites. The redevelopment of brownfields capitalizes on
existing infrastructure, attracts new businesses and jobs, reduces the
environmental and health risks to communities, preserves community
character, and creates a robust tax base for local governments. Mayor
Bollwage and Mayor Daniels will correct me if I'm wrong, but as a
former mayor, I know that there is nothing that makes mayors happier
than increased revenue and an extended taxbase.
Our bill is an important piece of legislation that addresses the
most common problems facing the redevelopment of abandoned contaminated
sites. As this committee has heard from numerous witnesses in the past,
the most difficult problems confronting successful redevelopment are
the high costs associated with brownfields assessment and cleanup, the
threat of Superfund liability, and fear that EPA may second-guess
cleanup plans. To tackle these problems, S. 2700 authorizes $150
million for brownfields assessments and remediation. It clarifies
liability for contiguous property owners, innocent landowners, and
prospective purchasers. Last, it provides finality to parties that
clean up sites under state programs, with reopeners designed to protect
human health and the environment.
I look forward to working with every member of this committee, and
all interested parties to move the ball over the goal line. I am
confident that if we work closely, we can accommodate all concerns and
forge legislation that will benefit the entire country. I would like to
thank each of witnesses for being here today, and I look forward to
hearing your testimony.
I'd like to welcome the Senator from Oklahoma, Jim Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. And as a previous
mayor, I do understand what you're talking about.
I do have an keen interest in brownfields and in Superfund
legislation. Over the years, the subcommittee has had numerous
hearings and seen numerous legislative proposals introduced.
While I commend my colleagues for bringing up this brownfields
issue, I must ask, where are the other titles to this bill? I
still think that liability, remedy reform, natural resources
damages, the States' role in cleanups are major issues which
need to be addressed.
I strongly believe all of these issues very much need to be
addressed, not just the brownfields. And so does the General
Accounting Office. I believe it was Congressman Bliley's
committee, that they asked the GAO to get involved in a report.
And in this report they said, and I'm quoting now, ``Superfund,
extent to which most reforms have improved the program is
unknown.'' This report finds that 42 of the 62 administrative
Superfund reforms implemented by the EPA ``did not have a
fundamental effect and are unmeasurable.''
Mr. Chairman, I'd like for this report to be made a part of
the record of this committee.
Senator Chafee. Without objection.
[The report follows:]
[GAO Report to Congress, May 12, 2000]
Superfund: Extent to Which Most Reforms Have Improved the Program Is
Unknown
(Letter Report, GAO/RCED-00-118)
For years, the Environmental Protection Agency's (EPA) Superfund
program has been criticized for a number of problems. These have
included the pace and cost of cleaning up hazardous waste sites, the
agency's approach for holding waste contributors liable for cleaning up
sites, and the overall effectiveness of the program. Responding to
these criticisms, in June 1993, EPA began implementing a series of 62
administrative reforms--actions that it could take under its existing
legal authority to improve the program's fairness, efficiency, and
effectiveness. According to EPA, these reforms have led to faster
cleanups of more sites, thereby better protecting public health and the
environment. In addition, EPA maintains that the reforms have promoted
the selection of more cost-effective cleanup methods and fairer
enforcement of the law. The agency has publicly stated that, because of
the administrative reforms, comprehensive legislative reform of the
Superfund program is no longer necessary, although the agency is
willing to support certain targeted legislative changes.
As the Congress considers reauthorizing the Superfund law, it has
been debating the extent to which legislative changes to the program
would be desirable. A key factor in making this determination is the
extent to which EPA's administrative reforms have addressed previously
identified weaknesses in the program. In this context, you requested
that we review EPA's reforms to:
determine their demonstrated results and evaluate the
performance measures the agency uses to gauge these results and
identify legislative changes to the program that either
the agency or key stakeholders--including, among others, officials
representing parties responsible for cleanups, environmental groups,
and states--believe are still necessary.
We obtained basic information from EPA for all 62 reforms,
including their characteristics, scope, implementation status, overall
goals, and performance measures, where available. We also conducted a
more detailed analysis of a subset of 14 reforms that the agency
characterized as having significantly and measurably improved the
program. Appendix I provides a summary of our analysis of each of the
14 reforms. Appendix II provides a summary of the information we
collected on the remaining 48 reforms. To determine the results of the
reforms and any legislative changes needed, we met with a judgmental
sample of officials representing key stakeholders affected by the
Superfund program, including various industry groups, state cleanup
agencies, and environmental groups. Officials representing industry and
state cleanup agencies provided the majority of the comments about the
reforms. (App. III provides a listing of the stakeholders we contacted
and a more detailed discussion of our scope and methodology.)
Results in Brief
EPA claims and stakeholders agree that, in general, the Superfund
program has improved and the administrative reforms have collectively
contributed to this improvement. However, we determined that, for a
majority of the 62 reforms, it is difficult for the agency to
demonstrate the extent to which they are working and have met the goals
set for them--to make the program faster, fairer, and more efficient.
While maintaining that all the reforms are important, EPA reform
managers acknowledged that:
42 reforms did not have a fundamental effect, and EPA
could not easily collect the data to measure the results achieved for
most of them;
20 reforms had a fundamental effect; for these reforms,
the agency's performance measures demonstrated that 7 had
achieved benefits, such as dollar savings--EPA has saved $70 million to
date by identifying less costly cleanup alternatives--and greater
community involvement in cleanups;
the agency's measures counted the number of times that 7
were implemented but did not demonstrate the results achieved; and
the agency did not have measures to demonstrate the
results that 6 had achieved.
Furthermore, EPA's data for the 14 fundamental and measurable
reforms show two trends suggesting that the progress made to date may
be eroding. First, the implementation rates for almost half of these
reforms peaked in fiscal year 1997 and declined in subsequent years.
Second, the implementation rates for some reforms varied widely among
the regions, possibly indicating inconsistent application. Moreover,
stakeholders identified regional inconsistency as a problem with some
reforms, and EPA acknowledged that ensuring such consistency is a
challenge. Therefore, better measurement and oversight of the key
reforms, as well as better understanding of the reasons for regional
variation in the implementation of some, could help EPA obtain the
maximum benefits possible from its reform initiative. We are making
recommendations that the agency take such actions.
EPA and stakeholders agree that targeted legislative changes would
do more than the agency's administrative reforms to protect certain
parties from the current Superfund law's liability provisions; however,
they disagree on the extent of change. According to EPA, it is not
seeking any legislation to codify its reforms, but it would support
legislative proposals to limit liability for some parties that
stakeholders have identified. These parties include prospective
purchasers of contaminated property and current owners who are not
responsible for or aware of contamination on their property. EPA does
not see a need for other legislative changes, such as limiting
liability for small businesses, because it believes its reforms have
created the tools needed to provide relief for these parties.
Background
In 1980, the Congress passed the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), commonly known as
Superfund, to clean up highly contaminated hazardous waste sites. EPA
places sites that it determines may need long-term cleanup actions,
called remedial actions, on its National Priorities List (NPL). For
sites needing cleanup, EPA or private parties conduct studies to assess
the risks and select, design, and construct cleanup remedies. CERCLA
authorizes EPA to compel the parties responsible for the contaminated
sites to clean them up. Under CERCLA, any responsible party at a site
can, under some circumstances, be held responsible for the entire cost
of the cleanup.\1\ Responsible parties can, in turn, sue other parties
to recoup some of their own expenses. Through this process, parties can
incur high legal costs. The law also allows EPA to pay for cleanups and
seek reimbursement from the parties, and it established a trust fund,
financed primarily by taxes on crude oil and chemicals, to help EPA pay
for its cleanups and related activities. The Superfund program's
authorization and the authority for the taxes financing the trust fund
expired in 1995 and have not been renewed. The Congress continues to
fund the program through annual appropriations from the Superfund trust
fund and general revenues.
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\1\Responsible parties include present (and some former) site
owners, operators, transporters, and persons who arrange for the
treatment or disposal of hazardous substances.
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Meanwhile, to address concerns about the high costs and long
duration of cleanups, EPA, beginning in 1993, publicly announced three
separate rounds of administrative reforms--actions it could take within
its existing legislative authority. These include:
17 reforms announced in June 1993,
19 reforms announced in February 1995, and
26 reforms announced in October 1995.
These 62 reforms were intended to cover a range of activities, such
as (1) providing liability relief to certain parties, including
contributors of small volumes of waste or innocent landowners and
purchasers, (2) selecting more technologically advanced and cost-
effective cleanup remedies, (3) providing funds to assess brownfield
sites to promote their economic redevelopment,\2\ (4) providing
technical assistance so that communities and tribes located near sites
can better participate in cleanup decisions, and (5) providing for an
expanded role for states and tribes in the performance of the program.
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\2\ EPA defines brownfields as abandoned or underused facilities,
usually in industrial or commercial areas, where redevelopment is
hampered by real or perceived environmental contamination.
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In 1997, we reviewed the 45 reforms from the second and third
rounds and reported that EPA regarded 25 of them, or 56 percent, as
fundamental changes to the Superfund program but could quantify
accomplishments for only 6 of them, or 13 percent.\3\ EPA stated that,
overall, it did not need additional legislative authority to achieve
the reforms' goals but that targeted new authority would enhance their
implementation.
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\3\ Superfund: Information on EPA's Administrative Reforms (GAO/
RCED-97-174R, May 30, 1997).
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The Government Performance and Results Act of 1993 (the Results
Act) requires that agencies, among other actions, (1) establish
strategic plans containing general goals for the agencies and (2)
prepare annual performance plans that establish goals and measures to
assess the results of individual programs. Therefore, in response to
requirements of the Act, EPA established three general goals for the
reforms--faster, fairer, and cost-effective cleanups--and performance
measures for a number of the reforms, all of which support the agency's
strategic and annual goals for the Superfund program overall. The
performance measures for the reforms are intended to demonstrate
progress toward achievement of their goals, which include, among
others, increasing the number of sites where the construction of the
cleanup remedy has been completed and maximizing the participation in
cleanups of the parties responsible for contamination at sites.
EPA Does Not Have Performance Measures to Link Most Reforms to
Improvements in the Program
EPA claims that as a result of the administrative reforms, the
program is fairer and cleanups are 20 percent faster and cheaper.\4\
The stakeholders we contacted also commented that overall, after 20
years, they have a better working relationship with EPA, the agency is
fairer in dealing with responsible parties, and it is easier to use
remedies that are, in their opinion, more reasonable and cost-
effective. But stakeholders also had questions about the extent to
which some of the administrative reforms had really improved the
program. We reviewed EPA' s performance measures for each reform and
found that the agency has more measures in place since our last review,
and for a small number of reforms, the measures demonstrate results
such as cost savings. However, EPA cannot directly link the majority of
its reforms to improvements in the program.
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\4\ GAO and EPA have, in the past, disagreed on whether the
methodology that EPA uses as a basis for saying that the program is
cleaning up sites faster is appropriate (see Superfund: Times to Assess
and Clean Up Hazardous Waste Sites Exceed Program Goals (GAO/T-RCED-97-
69, Feb. 13, 1997), Superfund: Times to Complete the Assessment and
Cleanup of Hazardous Waste Sites (GAO/RCED-97-20, Mar. 31, 1997), and
Superfund: Duration of the Cleanup Process at Hazardous Waste Sites on
the National Priorities List (GAO/RCED-97-238R, Sept. 24, 1997)). We
have not assessed the agency's estimate of cost savings.
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According to EPA reform managers, all 62 reforms are important and
have helped to improve the program, but 42 of them involve activities
that (1) did not have a fundamental impact on the program and (2) could
not easily be measured for any results achieved. EPA reform managers
identified the remaining 20 reforms as activities that have had a
fundamental effect on the program. EPA has established performance
measures for 14 of them--an increase since our prior review, when EPA
had measures for 6 of its key reforms. As table 1 illustrates, EPA's
measures for all 14 reforms track the number of times they were
implemented, but measures for only 7 reforms demonstrate how they have
improved the program.
Table 1: Fourteen Fundamental/Measurable Reforms and Their Output and Outcome Measures
----------------------------------------------------------------------------------------------------------------
Year of Measures that count frequency of Measures that demonstrate results
Fundamental/measurable reform reform implementation (output) (outcome)
----------------------------------------------------------------------------------------------------------------
Encourage greater use of 1993\1\ EPA has used this tool at 9-24 .................................
alternative tools for resolving sites each year..
liability disputes. The number of settlements that
EPA reached peaked in fiscal
year 1997 an declined slightly
the following year. Data for
fiscal year 1999 were not
available..
Promote ``enforcement first''-- 1993\1\ EPA maintains that responsible
getting private parties to fund parties have funded about 70-84
most of the cleanups. percent of cleanups since fiscal
year 1992, the year before EPA
announced the reform..
Promote more settlements to 1993\1\ EPA has achieved more settlements .................................
provide liability protection after the reform (33-105 each
for de minimus contributors year) than before the reform.
(parties that contribute small The number of settlements EPA
amounts of waste). achieved peaked in fiscal year
1997, significantly declined in
fiscal year 1998, and only
slightly increased in fiscal
year 1999.
Negotiate agreements to provide 1995\1\ EPA has signed 16-28 agreements EPA facilitated the purchase of
liability protection for each year since the reform.. 1,500 acres of contaminated
prospective purchasers of The number of agreements EPA property and the redevelopment
contaminated property. achieved peaked in fiscal year of hundreds of thousands of
1997 and has been declining over adjacent acres.
the past 2 years..
Provide compensation for cleanup 1995 EPA has made from 20-30 .................................
costs attributable to insolvent compensation offers each year,
and defunct parties (orphan for a total of $175.3 million..
shares). EPA has reached agreement on a
total of 47 of these offers, for
$88 million..
Encourage the use of special 1995\1\ EPA hs set up 18-33 accounts each .................................
accounts for site-specific year since the reform, making
cleanup costs. over $570 million available for
site-specific cleanups..
EPA will measure the number and
amounts of disbursements from
these accounts beginning in
fiscal year 2000..
The number of accounts EPA
established peaked in fiscal
year 1997 and has been declining
over the past 2 years..
Revise guidance on liability 1995 EPA has made a total of 16 .................................
protection settlements for de settlements\2\.
micromis parties (parties that
contribute miniscule amounts of
waste).
Update cleanup remedy decisions 1995\1\ EPA began updating remedies as EPA estimates the net future cost
to take advantage of new early as 1983 and has updated 61- savings from the updates
science and technology. 85 remedies each year since conducted during fiscal years
fiscal year 1995, the year 1996-99 could total $1.3
before it announced this reform.. billion.\3\
The number of remedies EPA
updated peaked in fiscal year
1997, declined in fiscal year
1998, and remained at about that
level in fiscal year 1999..
Increase the number of sites 1993\1\ EPA has completed the .................................
where the construction of all construction of all remedies at
cleanup remedies has been 61-88 sites each year since
completed. fiscal year 1992, the year
before it announced this reform.
Establish the National Remedy 1995 EPA has reviewed 9-11 cleanup EPA estimates that its reviews
Review Board to review high- proposals each year. have saved a total of $70.7
cost proposed remedies. million to date.
Use the Superfund Accelerated 1993\1\ EPA has accomplished 12-27 non- EPA estimates that it saves, on
Cleanup Model (which allows the time-critical removals each year average, about $2,500 and 11
use of shorter-term cleanup since fiscal year 1992, the year months by combining assessments
actions, called removals, and before it announced this reform.. at a site.
combined site assessment EPA accomplished a total of 442
activities). integrated assessments and 405
combined assessments through
fiscal year 1999..
Fund brownfield assessment pilot 1995\1\ EPA funded a total of 305 EPA estimates that over 1,900
projects. assessment grants through properties have been assessed,
October 1999. 120 have been cleaned up, and
169 have been redeveloped and
tat over 5,800 jobs and about
$1.9 billion of private dollars
have been leveraged at sites
assessed with EPA funds.
Establish community advisory 1995\1\ EPA has helped to form 3-16 EPA surveyed members of
groups. community advisory groups each communities near 7 Superfund
year.. sites and determined that 47
The number of groups EPA percent believe that EPA is
established peaked in fiscal effectively involving them in
year 1997 and has been declining the Superfund process.
over the past 2 years..
Promote early and more effective 1993 EPA has awarded 4-37 grants each EPA surveyed members of
community involvement year since fiscal year 1988 and communities near 7 Superfund
(primarily through technical has conducted 7-46 technical sites and determined that 47
assistance grants and outreach outreach projects each year.. percent believe that EPA is
projects). The number of grants awarded effectively involving them in
since the reform peaked in the Superfund process.
fiscal year 1995 declined the
next year, and has remained at
about that level..
The number of outreach projects
established peaked in fiscal
year 1998 and declined in fiscal
year 1999..
----------------------------------------------------------------------------------------------------------------
\1\This was not a new activity, but EPA reemphasized or revised it as part of the Agency's administrative reform
effort.
\2\According to EPA, the fact that so few parties have asked for a settlement means that such parties are no
longer being threatened with lawsuits from larger parties for a share of the cleanup costs.
\3\We did not verify the accuracy of EPA's savings estimate; a 1997 industry study cautioned that these savings
may be overstated.
Source: GAO's presentation of information from EPA.
EPA's outcome measures demonstrate positive results for seven
reforms. The measures indicate that two reforms have helped the agency
move toward its goal of more cost-effective cleanups by achieving
significant dollar savings on the types of remedies selected at sites.
The measures also demonstrate that five other reforms have achieved
positive results, such as an increase in the number of brownfield sites
assessed (since assessment leads to cleanup and redevelopment) and
feelings of greater participation in cleanup decisions expressed by
some communities that received grants, technical assistance, or
outreach from EPA.
For the seven reforms that do not have outcome measures, it is
difficult for EPA to determine how well they are working, whether they
need revision to become more effective, and whether they are achieving
their intended results--faster, fairer, and cheaper cleanups. For
example, it is difficult for the agency to determine from its
performance measures whether using alternative dispute resolution has
led to settlements with responsible parties that are fairer, take less
time, and reduce legal costs. It is also difficult for the agency to
determine, just by counting how many times a reform has been
implemented each year, the extent to which the reform has become a
routine part of the overall program.
EPA reform managers acknowledged that it is very difficult to set
performance measures that directly demonstrate the extent to which the
14 reforms are achieving their goals. The managers pointed out that a
number of reforms, such as those addressing the remedies selected at a
site, work together to cumulatively benefit the program and the agency
cannot separately measure the contribution of each reform. The managers
further acknowledged that factors other than the reforms themselves
likely contributed to the benefits the agency attributes to some of the
reforms. For example, an agencywide policy on the use of alternative
dispute resolution across all EPA programs, not the Superfund reform
alone, helped to increase the use of this technique, and the agency
cannot measure the success of this reform alone.
In a November 1997 internal review of the reforms, EPA acknowledged
limitations in its performance measures and agreed that it needed to do
more than count how many times a reform has been implemented to
determine its results. Furthermore, when the agency has tried to
improve its evaluation of a reform, its efforts have paid off.
Specifically, it has learned in some instances that a reform was not
working as well as intended and needed to be improved. For example, in
1999, EPA completed the first phase of an ongoing effort to measure the
effects of its community involvement reforms. One of its findings was
that only about half of those surveyed considered the agency effective
in involving their communities in the Superfund process, leading the
agency to conclude that it needed to improve its implementation of
these reforms. To its credit, EPA is taking actions to evaluate the
performance of the reforms overall, as well as of certain individual
reforms. The agency is about to update its 1997 internal review of the
reforms to develop a strategy to improve their implementation. In
addition, it is currently compiling the results of a survey it
conducted with 36 property buyers to determine how effectively its
agreements with these buyers to limit their liability under Superfund
law have helped to stimulate the reuse of their properties.
The agency recognizes that to fully evaluate the results of
reforms, it needs input from responsible parties. One way of obtaining
this input is by surveying parties on the reforms. However, under the
Paperwork Reduction Act, EPA cannot survey more than nine members of
the public without the approval of the Office of Management and Budget
(OMB). In 1999, EPA asked OMB for general authority to conduct up to 15
separate surveys of responsible parties' experiences with the reforms.
OMB denied the request, in part because it did not specify how EPA
planned to collect and analyze the data. However, OMB encouraged EPA to
resubmit its request after it had developed a statistical data
collection and analysis plan, among other things. EPA managers said
they are trying to decide how to respond to OMB's suggestions, given
the agency's limited resources for contractors to perform surveys and
competing priorities for these resources. During March of this year,
however, EPA did obtain general agencywide authority from OMB to
conduct customer satisfaction surveys. This authority may be sufficient
for the reform managers to survey responsible parties on the reforms.
EPA's data on the 14 reforms also showed two trends indicative of
limits on the progress achieved to date and possibly in the future,
namely, that EPA may not be sustaining its implementation of the
reforms and that the regions may be inconsistent in their use of some
reforms. First, EPA's data on the number of times the 14 reforms have
been implemented showed that for almost half of the reforms,
implementation peaked in fiscal year 1997 and then declined in
subsequent years. This suggests that the regions may not be sustaining
the level of implementation achieved after the reforms were announced
and may need additional support or incentives to sustain their
implementation. Alternatively, other factors may be mitigating the
effects of the reforms over time. EPA reform managers acknowledged that
the implementation of some reforms may naturally decline at some time
in the future, when EPA has finished constructing most remedies and is
likely to be bringing fewer sites into the program. We acknowledged in
two 1999 reports that the construction of most remedies at sites
currently in the program would be completed by 2005 and that, because
states are now taking on more of the cleanup workload, fewer sites may
come into the program in the future.\5\ However, EPA cleanup managers
stated that these possible future trends for the program do not explain
the declines in implementation that we identified for fiscal years 1998
and 1999.
---------------------------------------------------------------------------
\5\ Superfund: Progress Made by EPA and Other Federal Agencies to
Resolve Program Management Issues (GAO/RCED-99-111, Apr. 29, 1999), and
Superfund: Half the Sites Have All Cleanup Remedies in Place or
Completed (GAO/RCED-99-245, July 30, 1999).
---------------------------------------------------------------------------
Second, EPA's data also showed that the regions varied widely in
the number of times they used most of the reforms, possibly indicating
inconsistency in their use of the reforms. According to the data, all
regions appear to be giving priority to completing the construction of
cleanup remedies. In part, this is because EPA headquarters has made
this a top priority for the Superfund program, has monitored the
regions' implementation closely, and this past year for the first time
made mid-year regional budget adjustments to reward the regions that
were achieving this goal. However, the data for other reforms do not
appear to show consistent levels of implementation across the regions.
For example, regions II and V have relatively large portions of the
overall Superfund workload to manage--17 and 20 percent, respectively.
Yet Region V implemented a significantly higher portion of the total
non-time-critical removals and combined site assessments than Region
II, as figure 1 illustrates. Likewise, regions II and V used special
accounts and removals less frequently or as often as regions VII and
VIII, yet these latter two regions had much smaller portions of the
Superfund workload. Such regional variation could indicate that certain
regions are not realizing the potential savings in time and costs
expected from the reforms.
EPA reform managers pointed out that factors other than the sizes
of the regions' Superfund workloads may account for the variation and
are beyond the regions' control. For example, for several reforms, such
as those to enhance community involvement in cleanups, the regions can
offer the reforms, but it is up to stakeholders to pursue them. Or, one
region may have fewer sites involving multiple responsible parties, so
that region may have fewer opportunities to use some of the reforms
aimed at achieving faster, cheaper settlements. However, without
determining why such significant variations exist among the regions,
EPA cannot be sure that its reforms are being used to the maximum
extent possible.
Furthermore, EPA reform managers acknowledged that ensuring
regional consistency is a constant challenge for the agency and that
some regions were quicker than others to embrace the reforms. In fact,
in a 1997 review of the reforms, EPA itself identified the need to
ensure better commitment to the reforms. The EPA managers noted that
differences in the organizational structures and leadership of the
regions could lead to inconsistencies in implementing the reforms.
Likewise, industry and state cleanup agency officials expressed
concerns that some regions, and even cleanup managers within regions,
are less willing than others to implement certain reforms. These
officials felt, therefore, that they could not realize the full
benefits of the reforms, such as lowering litigation and cleanup costs.
EPA reform managers in headquarters and in the two regions we
contacted outlined EPA's current methods to help ensure that the
regions implement the reforms. These include the use of headquarters
liaisons to the regions who monitor the regions' progress toward annual
targets--the number of times the regions implement certain reforms--and
conduct regional visits, conference calls, and training sessions to
discuss the reforms. EPA has also issued new or updated guidance on the
use of some of the reforms. By better targeting these methods, EPA
could more fully achieve the reforms' goals across the regions.
EPA and Stakeholders Support Legislative Changes to Varying Degrees
EPA and some stakeholders we contacted--officials representing
industry, state cleanup agencies, and environmental and community
groups--agreed on the benefits of establishing some of the
administrative reforms in law but disagreed on the need to do so for
other reforms. More specifically, the stakeholders preferred that
reforms intended to provide liability protection to certain parties,
such as prospective property purchasers, be established in law.
Stakeholders worried that otherwise, EPA regions had too much
discretion to decide which parties would benefit and affected parties
did not have a firm basis to challenge these decisions. EPA managers
explained that the agency would support legislation, if proposed, to
provide liability relief for such parties but that the agency itself is
not currently seeking any legislation to codify its reforms. According
to EPA, it would support such proposals because they would (1) give
such parties greater assurance that they would not be held liable for
the costs of a cleanup under Superfund, (2) reduce the parties' legal
costs, and (3) promote the development of brownfields, since the fear
of being held liable under current Superfund law can deter parties from
pursuing brownfield cleanups and redevelopment.
Stakeholders and EPA both favored legislation that would provide
liability protection for:
prospective purchasers of contaminated property,
landowners who were not responsible for or aware of
contamination on their property (innocent landowners),
owners of property contiguous to a contaminated site, and
small municipal waste generators and transporters.
Both EPA and the officials representing industry would also like
the agency to be able to compensate parties more extensively for the
shares of cleanup costs attributable to insolvent or defunct parties as
a means of promoting faster and less costly settlements. However, EPA
cleanup managers said that the agency could not afford to do this
without obtaining additional funding authority for this purpose from
the Congress. The managers said the agency continues to request
additional funds for the Superfund program that would allow it to
devote more resources to covering such shares of cleanup costs--$150
million in fiscal year 2001--but have not yet obtained such funds.
EPA and stakeholders did not agree on the need for other
legislative changes. For example, EPA did not agree with the executive
director of the organization representing small businesses on the need
for further legislative authority to protect such businesses. The
agency maintains that its administrative reforms aimed at removing
small waste contributors from lengthy settlement negotiations,
protecting them from litigation, and adjusting their settlement costs
on the basis of their ability to pay provided these businesses with
ample relief. The executive director acknowledged that these reforms
were helpful but said that some member businesses still report
incurring high legal costs that threaten their financial viability.
Therefore, these businesses would like the liability protection and
other benefits of the reforms established in law to make them less
discretionary and further reduce costs.
EPA and stakeholders also differ on how much liability relief
should be extended to parties that conduct cleanups under state
programs. In general, officials representing industry and the states
explained that the fear of being held liable under the current
Superfund law deters parties that would voluntarily clean up sites
under state programs, especially brownfield sites.\6\ EPA has
maintained that it cannot provide parties that clean up a site under a
state program with full relief from Superfund liability. But the agency
can provide these parties with assurances that it no longer has any
interest in the site unless it presents an imminent and substantial
endangerment to public health or the environment in the future. The
industry and state officials believe that this qualified relief from
liability is not sufficient to overcome barriers to cleanups and that a
legislative solution may be necessary.
---------------------------------------------------------------------------
\6\ State voluntary cleanup programs offer parties incentives, such
as state liability protection, to voluntarily address waste sites.
---------------------------------------------------------------------------
Several bills that would exempt various parties from liability and
therefore would limit the potential sources of funding for cleanup
costs have been introduced in the Congress in recent years. While some
proposed bills to reauthorize the Superfund program would reinstate the
expired Superfund taxes, others would not. The Congress has not passed
any of these bills.
Conclusions
EPA claims and stakeholders agree that the Superfund program is
working better and that, at least collectively, the administrative
reforms have played some part in this improvement, but the agency has
not measured the impact of most reforms. This limits the agency's
ability to determine how well the reforms are working and where it may
need to adjust its reform efforts. EPA's ability to better measure the
results of its reforms could be further limited if the agency does not
obtain important data and input from the responsible parties that are
conducting a majority of cleanups, as well as other key stakeholders,
such as community and environmental groups. Furthermore, without
sustaining the most important reforms and ensuring that all regions are
implementing them to the maximum extent possible, the agency is not
assured that it is fully achieving potential benefits, such as saving
significant cleanup dollars and cleaning up sites more quickly.
Therefore, as the agency updates its internal review of the reforms and
develops a reform strategy, it has the opportunity to consider ways
that it could better (1) measure the results of the most important
reforms and (2) verify that it does not have a problem with
inconsistent regional implementation for some reforms.
Recommendations
To achieve the maximum benefits possible from the Superfund
administrative reforms, the Administrator, EPA, should direct the
Assistant Administrator for Solid Waste and Emergency Response, who
manages the Superfund program, to address, in EPA's internal review and
update of the reforms, ways in which the agency can:
cost-effectively obtain additional data--for those
reforms with the greatest potential for improving the program--that
would help it better assess the reforms' results, including continuing
to pursue authority from OMB to solicit input from private parties and
other key stakeholders on the success of the reforms, and
target incentives or other strategies as necessary to
sustain the implementation of some reforms and better understand
whether regional variation in their use reflects inconsistencies that
need to be addressed.
Agency Comments
We provided copies of a draft of this report to EPA for its review
and comment. EPA's comments are reproduced in appendix IV. EPA said
that it would evaluate our recommendations and include them in its
Superfund reforms strategy, as appropriate. However, EPA had three
principal concerns about our findings. While we acknowledge the
agency's position on these issues, as discussed individually below, we
continue to believe that our findings were soundly developed and fairly
presented. Therefore, we did not change our report in response to these
concerns. Specifically:
The agency regards all 62 reforms as important and
believes that they have improved the program, even if the precise
results of many cannot be measured. EPA said that it had designated 20
of the 62 reforms as fundamental because they had the biggest impact,
individually, on the program, but that many of the remaining 42 reforms
work together with the fundamental reforms to improve specific aspects
of the program, such as remedy selection. We had already noted in the
report that the agency considered all reforms to be important and
beneficial to the program and that the agency believed certain reforms
worked together to improve the program, even though the agency could
not measure their individual contributions to the improvements.
The agency disagreed with our finding that several of the
reforms it designated as fundamental have not produced measurable
outcomes. The agency also stated that it is difficult to measure
progress toward certain goals, such as greater fairness in the program
and lower litigation costs, but there are a number of indicators of
this progress. In addition, EPA said that it has been unable to obtain
the authority from OMB to survey private parties on the reforms'
accomplishments. In assessing these accomplishments, we asked the
agency to provide us with any data that it had to demonstrate results.
We took these data and used two criteria to designate whether the data
represented output or outcome performance measures: (1) the standard
definition under the Results Act that an output measure counts
activities undertaken while an outcome measure assesses the results of
a program activity compared to its intended purpose, and (2) the extent
to which the performance measure directly assessed progress toward or
achievement of EPA's stated goals for a reform. Subsequently, we found
that our designation of EPA's performance measures as measuring either
activities conducted or results achieved was consistent with the way
the agency itself characterized them in its issued work plan for
Superfund, generated in response to the Results Act. Furthermore, we
had already acknowledged in the report some of the difficulties the
agency faced in measuring progress toward the reforms' goals and
attempting to obtain authority to ask stakeholders for important data
that the agency needed to measure the reforms' results.
The agency maintains that it has sustained a high level
of commitment to implementing the reforms. Furthermore, the agency
stated that the trend data cited in the report indicating possible
declines and regional variation in the implementation of some reforms
over the past several years do not demonstrate a decrease in the
agency's commitment but could reflect the impact of other factors.
These include factors such as annual differences in the types and
number of cleanup activities being conducted in a particular region, or
an overall decline in the cleanup workload as more sites progress
through the cleanup process. These factors could also include ones that
the agency cannot control, such as different levels of interest among
stakeholders in using community advisory groups or technical assistance
grants. We had already acknowledged in the report that the trends
showing variation in implementing the reforms could be due to a number
of factors. One of these factors was not, however, an overall decline
in the cleanup workload. As we point out, the agency itself had
admitted that such a decline could affect reform accomplishments in the
future, but does not explain the decrease in accomplishments over the
past several years. Furthermore, our point is that without good
performance data, the agency cannot know if certain trends indicate
implementation problems that the agency needs to address or are due to
factors outside the agency's control. We showed that when the agency
has obtained data from stakeholders on the reforms' accomplishments, it
has learned valuable information about implementation problems and
taken subsequent action to address them. Therefore, we believe that by
focusing on the most critical reforms and significant variation in
their implementation and verifying the root cause of this variation,
the agency could achieve similar improvements in these reforms.
In addition to these overall comments, EPA provided technical and
clarifying comments that we incorporated in the report as appropriate.
Unless you announce its contents earlier, we plan no further
distribution of this report until 30 days after the date of this
letter. At that time, we will send copies of the report to appropriate
congressional committees and interested Members of the Congress. We
will also send copies of this report to the Honorable Carol M. Browner,
Administrator, EPA; and the Honorable Jacob Lew, Director, Office of
Management and Budget, and we will make copies available to others on
request. Please contact me at (202) 512-6111 if you or your staff have
any questions. Key contributors to this report are listed in appendix
V. Peter F. Guerrero Director, Environmental Protection Issues.
Senator Inhofe. The current Administration has testified
before Congress, using in my opinion, exaggerated claims and
misleading rhetoric to prevent bipartisan supporters from
enacting meaningful Superfund reform. Just last fall, our
witnesses with us today, Tim Fields, stated in testimony, and
I'm quoting now, ``EPA has significantly changed how the
Superfund program operates through three rounds of
administrative reforms which have made Superfund a fairer, more
effective and more efficient program as a result of the
progress made in cleaning up Superfund sites in recent years,
program improvements resulting from the administrative reforms,
there is no longer a need for comprehensive reform.''
However, the GAO stated in its recent report, and I'm
quoting again, ``EPA cannot directly link the majority of its
reforms to improvements in the program.''
This flatly contradicts the statements that have been made
by the Administration. And I really believe that we're going to
have to have comprehensive Superfund reform. And I do know
this, that when the Administration changes, if it changes the
way that I would prefer and the way that Senator Lautenberg
would prefer, I would think that we would have a chance at
having comprehensive reform.
But if we start cherry picking, taking out these areas that
should be in one big bill, I think it's going to make it that
much more difficult for the ultimate reform. So Mr. Chairman, I
look forward to today's dialog on brownfields. And I'm also
looking forward to further discussions on comprehensive reform
of Superfund.
Senator Chafee. Thank you, Senator.
Senator Lautenberg.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you very much, Mr. Chairman. I'm
pleased that after months of hard work that we have produced a
bipartisan plan that will clean up and redevelop the abandoned
sites known as brownfields. I listened to the Senator from
Oklahoma and he and I, I'm pleased to hear that he wants a
Democratic Administration. He said that we both agree that we
need change here.
Senator Inhofe. I appreciate your new position, then.
[Laughter.]
Senator Lautenberg. Senator Inhofe, I think, is going to be
giving me a big going away party. And wouldn't you be better
off to save comprehensive Superfund review for that date, and
I'll leave my notes and everything so you can work off those.
But I agree that comprehensive Superfund reform is
necessary. We might differ on which items need reform. But
nevertheless, I think it's appropriate for review. However,
honestly, I think that what we see in front of us, a bipartisan
bill, and I thank Senator Chafee and Senator Smith, Senator
Baucus, for their hard work on this legislation.
This is cosponsored by Senator Helms and Senator Kennedy
because I think it's fair to say that people are agreeing on
the need for doing something now. Getting brownfields into
play, stop letting these sites lie fallow and non-productive,
and a blight on the communities that they're in. Not only do we
miss the positive effect, but we also create a negative effect.
So I'm hopeful that we can proceed with this. And again, I
salute the Senator from Oklahoma's interest in full review, I
do.
Mr. Chairman, brownfields threaten the health of our
citizens and the health of our economy. And as I said, they're
eyesores. They lead to abandoned inner cities and discouraged
morale and increased crime and loss of jobs and declining tax
revenues.
I was born in one of those cities in New Jersey that had a
glorious industrial past, Paterson, New Jersey. Alexander
Hamilton had a presence there, lots of good things happened
there, in those days. But now, they've got brownfields sites,
as does Hackensack, and I could list all the communities in New
Jersey. We have a distinguished mayor from Elizabeth who's
going to be in the next panel. And that city, too, had an
incredible industrial past, with Singer Sewing Machine and
great companies producing jobs for the residents.
But a lot of sites are laid fallow now. And Elizabeth's had
a fantastic success in establishing a retail site on what was
contaminated soil at one point. We have had to provide a
turnpike exit for them for the traffic and the interest that
was generated.
So if we clean up brownfields, we curb urban sprawl, we
curb the loss of farm land and we curb the increased traffic
and air pollution and loss of historic districts and older
urban centers. We prevent that from continuing and we
revitalize those places. And once they're cleaned up, made
useful, they represent tremendous potential and new jobs and a
cleaner environment. Now that we have a bipartisan plan in
front of us to achieve those goals, we ought to move on ahead.
S. 2700 provides critically needed funds to assess and
clean up abandoned and under-utilized brownfields sites. It
provides legal protection for innocent parties, people who go
into these sites with the full intent of doing something
productive. And they ought to be protected and not open to
exposure that is far greater than any possible reward that they
might get.
So we want to take care of the contiguous property owners,
invite them to participate, prospective purchasers and innocent
landholders. This legislation also provides for funding and
enhancement of State cleanup programs, including limits, where
appropriate, on enforcement by the Federal Government at sites
cleaned up under a State response program. But allowing the
Federal Government to come in where a site poses a serious
threat. This provides a balance of certainty for prospective
purchasers and developers.
Additionally, this bill creates a public record of
brownfields sites, enhances community involvement in site
cleanup and re-use, and generally provides for deferral of
listing eligible sites on the NPL if the State is taking action
at the site. So we avoid having to enlarge that list, which is
cumbersome, effectively being worked on, but quite an
assignment to deal with.
Mr. Chairman, this bill promises a new focus on
revitalizing downtown areas, which will reduce urban sprawl,
lower tax rates, protect park land, open space. And coming from
the most densely populated State in the country, I understand
the importance of protecting open spaces. We know from
experience that cleaning up brownfields produces positive
results. We just look at our successes over the past few years.
Grants from EPA to aid in cleaning up brownfields sites have
helped generate more than 5,800 jobs and about a billion in
revenue.
But more remains to be done, as we'll soon hear from our
witnesses. Brownfields successes benefit everybody,
environmentally, economically. And that's why this legislation
has strong support from both Republicans and Democrats. Mr.
Chairman, in the 1960's, this country turned its attention away
from downtown areas, started focusing on the suburbs. And we
see now what we've got, our highways are clogged, there are
overcrowded airports, increased pollution because people have
to travel ever larger distances. It's time to turn that trend
around, revitalize our cities and our rural areas. That's what
this legislation is attempting to do.
So I welcome our distinguished witnesses, again, especially
the mayor from one of my own home towns in the State of New
Jersey. Mr. Bollwage, the Mayor of Elizabeth, knows very well
that I lived in a few communities in New Jersey, as my father
and mother struggled to make a living during the depression
years by owning a little store here and a store there, and not
rarely ever succeeding. But I got to know the towns, and I
guess it was a precursor to my running for office 1 day,
because I can claim about 12 towns as my hometown.
[Laughter.]
Senator Lautenberg. So we thank you, Mr. Chairman. Mr.
Chairman, I look forward to working with all the members of the
environmental community to move this bill through legislative
process onto the President's desk. And I commend you for
kicking this off.
Senator Chafee. Thank you, Senator.
Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman.
Mr. Chairman, we don't have very many days left of session.
I very much hope that we can get this brownfields bill through
markup here, committee on the Floor, passed and signed. There
are a lot of people in our country, as we know, wonder why in
the world can't Congress do something that makes a difference
to me here at home. There are brownfields needs, pent-up demand
all across the country. They're in your State, Mr. Chairman, in
Rhode Island, they're certainly in my State, Montana, and all
over.
And there are instances where community leaders, private
and public sector, worked hard to put all the pieces together,
different people volunteering and committing different
resources to develop a brownfields site. They can't do it. They
can't do it because we haven't cleared up the liability
question and we haven't passed legislation that basically
enables people at home to do what they want to do.
I understand that there are differences within the
legislation. Not a lot. I think they are differences we could
frankly work out. And a good indication of that is this is so
bipartisan, I guess 15-18, Republicans same number of
Democratic Senators. There is strong support on both sides of
the aisle. And people want this.
Now, I also know that some members of this Senate, and I
understand it, think perhaps this should be linked to a larger
Superfund reform, I understand that, Senator. I think it's
important to remind ourselves we've been trying to pass
comprehensive Superfund reform for four Congresses in 7 years.
We haven't done it yet. I'm not so sure we're going to do it
quickly.
And my really basic belief is that we get too hung up
around here, wrapped around the axle, and linking too much
together. It's like we're trying to make a perfect world or no
world. Of course, we all know the more we try to do that, the
more we do nothing. A, you can't let perfection be the enemy of
the good, second, everything isn't really linked that much. We
should take things one by one as they come up.
So I hope that we can pass brownfields legislation. The
time is here. And then we can take up Superfund, comprehensive
Superfund reform, the rest of Superfund and debate it on its
merits. And sometimes measures pass, sometimes measures fail.
That's the democratic way, that's the process.
But we have such a responsibility here to do something that
is so needed. I'm thinking now of a community in my home State,
Lewistown, Montana, it's called Brewery Flats, where just so
many different groups have contributed to help clean up a site.
It's a railroad site, switching tracks, I won't say a yard,
because it's a small town. But all kinds of people have come
forward with new ways to help. The Society of American
Foresters provided trees and shrubs, school kids planted
hundreds this last spring. In addition, the local community and
some of the private sector have volunteered their
contributions.
But they're stuck. They can't convert this abandoned
railroad site into something that's viable for the community
because of the liability problems. I plea, frankly, to the good
sense of all of us to just kind of keep open minds and come
together and pass something that's, you know, it's not perfect,
but it's good. And good here is a lot better than nothing.
I'm also reminded of an experience of mine this last
weekend in Montana. We in Montana are in pretty significant
dire economic straits. Our per capita income is down at the
bottom of the barrel, we rank first in the Nation in the number
of jobs per household, because people just have to have that
many jobs to make ends meet. Times are not good.
And so I decided, what the heck, I would hold this economic
development conference in Great Falls, Montana, this last
weekend. I decided to really try to do my doggonedest to make
it right.
One of the most important components is totally apolitical.
I went overboard to make sure the Republican Governor,
Republican senators, the Republican leadership, as well as the
Democratic leadership in the State legislature was there, equal
billing or no billing. This was totally non-partisan, totally.
And I made sure I said, anybody who wants to make a political
statement, I'm cutting them off at the knees. Nobody's going to
make anything that's at all political.
And I tell you, you cannot believe how, the energy and
enthusiasm in this conference that finally, finally, finally,
we in Montana may be starting something that's going to work,
all together. My view is that frankly, in matters like this,
Superfund, shouldn't blame anybody, nobody should take credit,
we should just do it. The time for blame and credit is
elections. Once people are elected, just get the job done.
And we're all elected here. This is not a campaign, but
just get the job done. The job is to pass some legislation
that's going to help a lot of people locally do what they want
to do. I just strongly urge us to do it.
Other issues will come up next year. Who knows who's going
to be our President, who knows what's going to be elected to
what offices. That's next year. Let those problems take care of
themselves next year. This is this year. This is now. And
there's not a lot of time left. And I very much hope, Mr.
Chairman, that we can get it done.
Senator Chafee. Thank you, Senator.
The Senator from Iowa would like to introduce a member of
the second panel. In respect to your time, I'll allow you to do
that now, although Mayor Daniels will be speaking at a later
time.
Mayor----Senator Grassley.
[Laughter.]
STATEMENT OF HON. CHARLES E. GRASSLEY,
U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. First of all, thanks to the committee for
allowing a non-committee member to do this. Like Senator
Lautenberg, I'm happy and honored to introduce a distinguished
mayor of my State, the mayor of Des Moines. It's Iowa's capital
city and our largest city. And the birthplace of Senator
Inhofe, and Inhofes still live there as well.
And to also support the legislation, and I've already
cosponsored it, but I can reaffirm my cosponsorship of it and
my support of it. I think Mayor Daniels and the City of Des
Moines have done a very good job at promoting economic
development, especially excelling at the job of utilizing and
redeveloping brownfields space. Currently the city is in the
process of redoing a downtown area for redevelopment as an
urban village, the River Point West project. The mayor will
elaborate on that.
He is here testifying before the committee not only for his
own beliefs, but also for the National Association of Local
Government Environmental Professionals. I'm proud to be a
cosponsor of this legislation, and I think brownfields
development improves the quality of life for everyone. And
revitalizing these abandoned properties enhances the character
of downtown areas, increases tax revenue, creates jobs, reduces
health and environmental threats and preserves open spaces.
I'm going to put the rest of my statement in the record,
Mr. Chairman, so you can move on quickly. But thank you very
much, and I thank Mayor Daniels for coming, not only to
represent his professional organization, but also for the work
he does as mayor of Des Moines. Thank you.
[The prepared statement of Senator Grassley follows:]
STATEMENT OF HON. CHARLES E. GRASSLEY, U.S. SENATOR FROM THE STATE OF
IOWA
Thank you, Mr. Chairman, and other members of the committee, for
the opportunity to come before you to introduce the distinguished Mayor
of Des Moines, Preston Daniels, and to voice my support for the
Brownfields Revitalization and Environmental Restoration Act of 2000.
Preston Daniels is the mayor of the capitol and largest city in
Iowa. Mayor Daniels and the City of Des Moines have done a good job in
promoting economic development. They have especially excelled at the
job of utilizing and redeveloping brownfield space. Currently, the City
is in the process of cleaning up a downtown area for redevelopment as
an urban village, the Riverpoint West project. I am sure that the Mayor
will elaborate more on this effort. This afternoon, however, he is here
testifying before the committee on behalf of the National Association
of Local Government Environmental Professionals.
I am proud to be a cosponsor of this bipartisan legislation.
Brownfields development improves the quality of life for everyone.
Revitalizing these abandoned properties enhances the character of
downtown areas, increases tax revenue, creates jobs, reduces health and
environmental threats, and preserves open space.
Throughout my state, communities are interested in, or have
utilized the Brownfield program to assess and clean up abandoned areas.
I have had the opportunity to visit many of the sites and have heard
from numerous Chambers of Commerce regarding their interest in future
assessments and clean-up initiatives.
This legislation would increase the amount of Federal money
available for these cleanups. It would also encourage developers to
focus on previously used properties instead of undeveloped land by
limiting the liability faced by these potential land developers and
purchasers. Many pieces of valuable property in Iowa sit untouched and
unrealized because of the liability risk they pose.
Furthermore, this legislation takes a common sense approach by
empowering states. The states would have significant regulatory control
of brownfield development while limiting Federal involvement in
projects to only those cases with serious problems. This will protect
the environment and cut through the Federal red tape that leaves
brownfield sites untouched.
Thank you again for allowing me to introduce the distinguished
Mayor of Des Moines and for voicing my support for this legislation.
Senator Chafee. Thank you, Senator Grassley.
At this time I would like to introduce our first witness.
Testifying on behalf of President Clinton is Mr. Tim Fields,
the Assistant Administrator of EPA's Office of Solid Waste and
Emergency Response.
Thank you, Mr. Fields, for appearing before the
subcommittee this afternoon. And I would ask that you limit
your testimony to 5 minutes, and also limit the members'
questions to one per round, since we do have a full afternoon.
Welcome, Mr. Fields.
STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Fields. Thank you, Mr. Chairman. It's a pleasure to be
here with you and other members of this committee and
subcommittee. It is truly a pleasure to be here with other
witnesses who will be coming in the panels after me to talk
about S. 2700.
It's a pleasure to appear again before the subcommittee,
particularly to discuss the targeted bipartisan brownfields
bill. We regret that our testimony did not arrive until today.
And we will obviously be ready to respond to any questions
about that testimony that this subcommittee may have.
We've waited a long time, Mr. Chairman, for this day. Not
since the 103d Congress have we had the opportunity to discuss
America's bipartisan brownfields legislation with the Senate. I
particularly want to thank you, Mr. Chairman, Senator
Lautenberg, Senator Baucus, Senator Smith and others who have
worked hard to come together to bring together this bill, a
good bipartisan brownfields bill.
And we congratulate you on the 40 cosponsors that you have
already attained for this bill.
The Clinton Administration has been in the forefront of
encouraging the cleanup and redevelopment of brownfields for
the last 5 years. The Administration's brownfields initiative
is targeted toward working with communities to safely clean up
and redevelop contaminated brownfields properties. The
Administration is committed to providing the tools that
communities need to address the problem of abandoned,
contaminated brownfields properties.
On behalf of the Clinton Administration, I commend the
members of this subcommittee and the committee overall for your
bipartisan efforts to develop a good, solid brownfields bill,
S. 2700. The Clinton Administration supports S. 2700. We
appreciate the efforts that you have gone to in developing a
bill that addresses the concerns of American communities. S.
2700 authorizes grants and loans to identify, assess and clean
up brownfields properties. We particularly appreciate the
flexibility given to EPA and communities in implementing those
grant programs.
The bill also provides liability protection for prospective
purchasers, innocent landowners and contiguous property owners.
We feel these provisions will do a great deal to encourage the
cleanup and redevelopment of brownfields properties across
America.
I want to thank you for working with us to meet our
concerns on the issue of finality. As you can imagine, the
Administration feels very strongly about the important role of
Federal enforcement authority in providing a consistent,
nationwide safety net to protect public health and the
environment. This Federal safety net is the fundamental
cornerstone of Federal environmental statutes.
We appreciate the additions to the bill that require States
to publish a public list of cleanup sites before application of
the Federal enforcement bars is being authorized. In addition,
we support the requirement that States enter into a memorandum
of agreement with EPA or be working toward adopting minimum
State cleanup program criteria before receiving program
funding. I am pleased that eh Administration can support this
bill. However, we do believe that there are improvements that
can be made to the bill, and the Administration stands ready to
work with this committee to effectuate those improvements.
The Administration continues to believe that States should
be required to demonstrate that their programs satisfy minimum
program criteria before Federal enforcement bars apply.
Further, there is currently no mechanism in the bill to ensure
active public participation in State cleanups or provide
assurance through State review or approval that site cleanups
are adequate.
We also believe that the provision that requires States to
publish a public list of sites should be strengthened, although
we applaud that being there, by having the list updated more
frequently and establishing a link between the enforcement bar
and the sites that are published on the list.
Further, the provision that governs the circumstances which
Federal enforcement is appropriate qualifies or modifies the
imminent and substantial endangerment standard in most
environmental laws. To avoid costly and unnecessary litigation
we believe would be preferable to retaining the current CERCLA
Section 106 standard of imminent and substantial endangerment.
Finally, brownfields range from huge former industrial
facilities to the thousands of abandoned small corner gas
stations across America. We think brownfields legislation
should encourage the cleanup and redevelopment of a full range
of contaminated brownfields properties.
Mr. Chairman, the Administration has identified other
modern technical issues that we will be communicating to the
committee as you proceed to markup. We do support this bill. We
look forward to working with you and other members of the
subcommittee to enact good bipartisan brownfields legislation
this year that the President can sign.
We thank you for the opportunity to appear today. And I'll
be pleased to answer any questions that you might have.
Thank you very much.
Senator Chafee. Thank you, Mr. Fields, and thank you for
the Administration's support of this bill.
As we heard Senator Baucus give an impassioned plea to pass
this legislation this year, and we also heard from Senator
Inhofe some of the impediments to the passage this year, my
question would be, to what extent do you think the
Administration would go to address some of the non-brownfields
issues of Superfund reform, if we did need to make some
progress on some other elements of Superfund legislation? Would
the Administration be inclined to lend a helping hand to some
of those other elements, non-brownfields elements of the
Superfund legislation, natural resources damages, and some
other areas of the law that might be important for passage this
year of brownfields legislation?
Mr. Fields. Mr. Chairman, we think you and this
subcommittee are on the right course. We believe that targeted
brownfields legislation is appropriate. We do not support
comprehensive reform of Superfund law. We do not believe that
there is a need for comprehensive reform at this time. We
believe the administrative reforms that have been implemented
have changed this program in a fundamental way.
The General Accounting Office report that Senator Inhofe
mentioned, for example, we read it completely differently than
he did. The June 8th, 2000 report from General Accounting
Office, the quote said that EPA claims and stakeholders, namely
industry, State officials, local government officials and
community representatives all agree that the Superfund program
has improved and the administrative reforms have collectively
contributed to this improvement. Those stakeholders all agree
that the reforms have improved the operation of the program,
the Superfund program is working. That is what the report says.
So we do not believe that comprehensive reform of Superfund
legislation is necessary. We believe that targeted brownfields
reform like embodied in S. 2700 is something we do support. We
are also, though, willing to look at, as we've said in the
past, other areas of reform, not necessarily in this bill.
We've in the past supported liability relief for generators and
transporters of municipal solid waste. We have supported as an
Administration the reinstatement of the Superfund taxes.
So there are other elements of Superfund legislation that
we would be willing to look at. But we do not in any way
support comprehensive reform of the Superfund statute like some
would espouse. We do not support changes to remedy selection.
We do not support changes to natural resource damages and other
issues that people would want to raise. We believe that
targeted brownfields legislation that this committee is
supporting and bringing before us today is the way that this
Administration believes the Congress ought to go.
Senator Chafee. Thank you, Mr. Fields. I'll followup with
it. Just hope you keep an open mind as we proceed on that
course. And it seems like your course is set pretty solidly in
opposition to addressing some of the other elements of
Superfund legislation. But perhaps as we go forward, we could
have some discussions on that.
Senator Lautenberg.
Senator Lautenberg. Mr. Chairman, in the interest of time,
I think Mr. Fields' statement was fairly concise. We are
pleased to have Administration support. We would encourage
Energy in that connection.
And I pass now so that we can get to the next panel.
Senator Chafee. Thank you. Senator Baucus.
Senator Baucus. Briefly, Mr. Chairman, thank you very much.
One, I want to thank you very much, Mr. Fields, for your
help in Libby, Montana.
Mr. Fields. You're welcome, sir.
Senator Baucus. As you well know, there is a horrendous
asbestos problem in Libby. And EPA's done a great job.
Mr. Fields. We thank you, Senator, for your leadership in
the situation in Libby, Montana. You've done a great job. That,
as you know, is a national issue, and we applaud the leadership
you've shown there.
Senator Baucus. I appreciate that. I throw the bouquets
back.
[Laughter.]
Senator Baucus. EPA has been just super. Sometimes people
complain about the Federal Government. I always go back to
particularly what EPA's doing in Libby. It's first rate. I know
you've heard me mention Paul Paranard, your man on the ground
there. He's aces.
Mr. Fields. Thank you.
Senator Baucus. I don't know anybody who works in public
service who I can compliment more highly than Paul. Those of
you in the audience, Paul Paranard is the on the ground
coordinator in Libby, Montana. He's a guy who's got tattoos,
he's got a ring in his ear and he comes to meetings with his
black shirt on, and people look.
[Laugher.]
Senator Baucus. He's so smart. And he knows his issues so
well, and he's so committed and dedicated, he bleeds for Libby
people, the solution there. It's just made a huge impression, a
positive impression of people in EPA. You're to be commended.
Could you just go into a little more, very briefly, Mr.
Fields, and I agree with you, that administrative reforms, the
Administration has put and set, particularly EPA with respect
to Superfund, have really gone a long way to ``reform''
Superfund. Just flesh it out a little bit, please.
Mr. Fields. Sure, Senator Baucus. The reforms have allowed
us to move over the last several years from, almost 4 years ago
now, we were doing on the average of about 65 construction
completions a year. We've now gone to 85 a year for each of the
last 3 years, and we're targeted for 85 again in fiscal year
2000. That is a tremendous increase in the pace of cleanup.
So the program is working faster. There's a 20 percent
reduction in the time it takes from a site going on the
Superfund list until construction is complete.
Costs have been reduced by 20 percent in the Superfund
program. We've saved more than $1.4 billion in cost remedies by
the institution of updating remedies based on new science and
technologies over the last several years. We've done a lot to
provide more fairness to the program by allowing de minimis
parties, more than 21,000 being settled out and given
contribution protection. We've implemented reforms to make sure
our remedies are looked at. The National Remedy Review Board
has looked at remedies and saved tens of millions of dollars in
Superfund cleanup at many sites across the country.
So by all standards, I think, and the General Accounting
Office report I referred to, the stakeholders who were
interviewed for that report all agree that the Superfund
program has been fundamentally changed. It is a program that is
working now. The Administration is working with all the
stakeholders involved, States, local government, the
communities, the private sector, to effectuate cleanups. More
than 70 percent of the cleanups are still being done by
responsible parties.
So by all accounts, we think the Superfund program is on
good foundation, working well. Therefore, we do not need a
comprehensive fix to the Superfund statute.
Senator Baucus. I appreciate that. Would the President, in
your judgment, would EPA recommend that the President sign this
bill if it were presented to him unamended?
Mr. Fields. That's a tough question, Senator. Obviously,
hypothetically, we'd say we support the bill. We don't know
what's going to happen in the House. My understanding is the
House is drafting brownfields legislation, targeted brownfields
legislation as well. I assume there will be some tweaks between
the House and the Senate as you all come together regarding a
bill that would come out of the Senate and the House.
But yes, we do support this bill, and it is the kind of
bill we would recommend the President sign. We have endorsed
other bills in the past, like S. 20, that Senator Lautenberg
was heavily involved in, H.R. 1750. But yes, this is a bill
that we do support. And we would want to work with this
committee during markup to try to make some improvements to it.
But it is the kind of bill that we believe embodies what the
Clinton Administration has been about in the brownfields arena
for the last 5 years.
Senator Baucus. Thank you, Mr. Fields. Appreciate it very
much.
Thank you, Mr. Chairman.
Senator Chafee. Thank you, Senator Baucus.
Thank you, Mr. Fields, for your testimony and your
participation in the drafting of this bill.
I do understand we have some votes, two votes. We will
adjourn for a short break and indulge your patience and shall
return.
[Recess.]
Senator Chafee. Again, I apologize for any discourtesy in
the break. You have the solace of knowing there were important
voters on Medicare and Social Security lock box, now safe for
future generations.
I'd like to invite the second panel to the table. The
second panel includes State and local officials. Mayor Preston
A. Daniels of Des Moines, previously introduced by Senator
Grassley. And he'll present testimony in behalf of the National
Association of Local Governmental Environmental Professionals.
And Mayor Bollwage of Elizabeth, New Jersey, introduced by
Senator Lautenberg, will testify on behalf of the United States
Conference of Mayors. And Jan Reitsma, Director of Rhode Island
Department of Environmental Management, will offer the State's
perspective.
Welcome, gentleman. And let's start with Mayor Bollwage,
please.
STATEMENT OF HON. J. CHRISTIAN BOLLWAGE, MAYOR, ELIZABETH, NEW
JERSEY
Mayor Bollwage. Thank you very much, Senator Chafee. I'm
Chris Bollwage, the Mayor in Elizabeth. I am pleased to appear
today on behalf of the U.S. Conference of Mayors, a national
organization representing more than 1,050 U.S. cities with a
population of 30,000 or more. Within the Conference, Senator,
I'm on the advisory board for the organization as well as the
cochair of the brownfields task force.
Mr. Chairman and Senator Lautenberg and other members of
the committee, appearing here this afternoon is a great honor
in order to help facilitate the bipartisan brownfields
proposal, the Brownfields Revitalization and Environmental
Restoration Act of 2000, S. 2700. At the Conference's 68th
annual meeting in early June, we adopted a new policy statement
conveying our support for S. 2700. I've attached a copy of the
statement to my testimony.
This legislation offers the best opportunity for successful
legislative action in the Senate this year, and hopefully final
enactment of the legislation this year. It seems that it was
just the other day that I appeared before you, Senator, and
urged the panel for a bipartisan agreement. You've done exactly
that, and we applaud your efforts in crafting S. 2700.
And Senator, as you remember, I had to leave in a hurry
that day. And I apologize for my hasty retreat. I was appearing
before my local PBA for their endorsement that evening for an
election that I had 3 weeks later, which I was successful in.
So as you know, all politics is local, and I really had to get
back for that PBA endorsement. I thank you for your patience in
letting me come back.
Senator Chafee. Welcome.
Mayor Bollwage. Mr. Chairman, we believe the legislation
before you is the right way to get started on these issues. It
delivers much needed financial tools, and it sets forth a
policy framework that we believe will help further local and
State efforts to recycle America's land. We believe the time
has come to enact these changes into Federal law, and let's
begin by reporting this legislation promptly to the Senate and
take it up on the entire Senate Floor.
Specifically about S. 2700, why we the mayors believe it
warrants broad Senate support, this legislation addresses the
three key issues: resources, liability relief and further
clarification of State and Federal roles at brownfield sites
we've identified in our most recent statement before this
committee. Senator, you have my specific comments on these
areas, and my full statement. I would just like to underscore
the point that S. 2700 addresses these issues in a manner that
has garnered support from both public and private sectors.
Mr. Chairman and members of the committee, let me conclude
by again reiterating our support for your efforts, Mr.
Chairman, in acting in a bipartisan way in this legislation.
The legislation of this committee and your staff have worked
extremely hard to craft a legislative package. And as the
mayors of this Nation, we thank you.
It is time to move the Nation to the next level on
brownfields. Congressional action on these important issues is
long overdue. And I thank you for this opportunity to appear
before the committee here today. Thank you, Senator.
Senator Chafee. Thank you, Mayor. Thank you for your
support. Us mayors have to stick together.
Mayor Bollwage. That's right, Mayor.
[Laughter.]
Senator Chafee. And I now welcome Mayor Daniels.
STATEMENT OF HON. PRESTON A. DANIELS, MAYOR, DES MOINES, IOWA
Mayor Daniels. Mr. Chairman, and I do want to thank you for
that earlier promotion of my Senator to the ranks of Mayor.
[Laughter.]
Senator Chafee. Yes, duly noted. It will help him with his
decisionmaking in the future, I'm sure.
[Laughter.]
Mayor Daniels. I am pleased to be here today to testify on
behalf of the National Association of Local Government
Environmental Professionals, or NALGEP. NALGEP represents 135
localities, including many of the leading brownfields
communities in the country, such as Providence, Trenton,
Richmond, Chicago, Los Angeles, Salt Lake City, Dallas,
Cuyahoga County and Des Moines, just to name a few.
NALGEP has been actively working with local governments in
brownfields issues for many years. My written testimony
provides details on a range of Federal initiatives or
incentives that are needed to promote brownfields
revitalization in local communities across America.
In this verbal testimony, I wish to send the
straightforward message that local governments need Federal
brownfields legislation. And S. 2700 provides a valuable,
positive approach that meets those local needs.
The City of Des Moines is impacted by brownfields. And we
seek a partnership with the Federal Government to revitalize
these brownfields and create new opportunities for our
citizens. With the business community, EPA and other key
Federal and State agencies and civic groups, we are turning our
brownfields into water fronts and mixed use developments, new
manufacturing and open spaces and parks.
Revitalizing our brownfields can keep Des Moines a livable
city, empower distressed communities and avoid the sprawling of
the region into the areas of precious farmland.
Des Moines' priority now is the revitalization of an area
called River Point West. River Point West is a 300 acre site in
Des Moines' central business district. It's situated on the
Raccoon River in a census track with 38 percent poverty rate. A
number of industrial activities that have taken place at River
Point West over the years and terrible flooding have left the
site polluted and unproductive, right in our downtown.
Des Moines will revitalize this place into a mixed use
urban village, with 1,000 residential units, 850,000 square
feet of office and retail space, parks and open space along the
river. The city has performed a phase one assessment and is
ready to perform phase two assessments on another 175 acres.
When completed, this revitalization will create 1,000 jobs
and increase the tax base twelvefold to over $140 million. But
Des Moines needs much more help to get the River Point West
revitalization done. Mostly we need Federal resources for
cleanup to leverage the other public and private sector moneys
that we will raise for this site. And the same story can be
told in localities across this Nation.
S. 2700 provides important tools that will help local
communities revitalize their brownfields, including critical
funding for localities for site assessments, cleanups, grant
and local cleanup loan funds. Liability protection for innocent
parties, and authority for State brownfields programs to take
the lead in brownfields cleanup, while preserving EPA's ability
to provide a safety net for the public health and environment
in those exceptional circumstances.
Together these provisions represent a strong legislative
approach that will go a long way toward meeting the needs of
America's local communities in this top revitalization
priority.
NALGEP wishes to raise two other important issues for local
communities. First, Federal legislation should ensure that
brownfields funding can be provided to localities to address
brownfields impacted by petroleum, or by lead and asbestos in
buildings. Under current law, these pollutants are excluded
from Federal brownfields assistance. These contaminants are
some of the most difficult problems facing local communities.
Abandoned gas stations, housing with severe lead paint hazards,
and buildings contaminated with asbestos blight communities
across America. Brownfield sites with these pollutants should
be eligible for funding and for liability from relief for
innocent parties.
Second, I want to emphasize the importance of bringing
together all the Federal agencies that can play a role in local
brownfields. Brownfields are not an EPA only issue. HUD, the
Economic Development Administration, the Department of
Transportation, the Army Corps of Engineers and other Federal
agencies will all contribute important resources to local
brownfields projects. Congress should strengthen the ability of
these agencies to help communities like Des Moines.
For example, Des Moines seeks to work with the Corps of
Engineers to clean up contamination and prevent the flooding in
the River Point West area. I understand that both the
Administration and Senator Chafee have put forth proposals to
enhance the role of the Corps in brownfield cleanup along the
Nation's waterways. These are positive and needed proposals,
and we believe it will make a big difference for our city and
many other communities.
In the words of Senator Robert Kennedy, give me a place on
which to stand and I shall move the earth. The people of
America, the people of our community, people in this Congress
are standing up on this Nation's brownfields, in our streets,
in our neighborhoods, and we're shouting, let's move the earth.
Let us take these places that have been abandoned, let us turn
them back into jobs, businesses and parks, and homes. Let us
show that we can bring businesses and people and environmental
groups and city hall and the Federal agencies together toward a
common, exciting goal.
I thank you very much.
Senator Chafee. Thank you, Mayor Daniels, for your support
and for your constructive criticism for the areas that still
need to be addressed, and your enthusiasm for the bill. Well
said.
As we mentioned earlier, the three witnesses so far have
been singing the praises of the bill. We tried to get some
witnesses in opposition. But really, the bill by itself has
pretty much unanimous support. The problem is going to be
addressing it in the framework of comprehensive Superfund
reform and whether we can just address brownfields on its own.
So that's the struggle that lies ahead.
Mr. Reitsma, welcome. How was the trip down?
Mr. Reitsma. It was quick.
[Laughter.]
Senator Chafee. Good. Welcome. What time did you get here?
Mr. Reitsma. Just about an hour before the hearing.
Senator Chafee. Good. Welcome.
STATEMENT OF JAN H. REITSMA, DIRECTOR, RHODE ISLAND DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT
Mr. Reitsma. Thank you again, Mr. Chairman. My name is Jan
Reitsma, I'm the Director of the Rhode Island Department of
Environmental Management. I bring greetings from the Ocean
State and regrets from Governor Lincoln Almond, who was not
able to be here himself to express his strong support for this
bill, Senate Bill S. 2700, on brownfields.
I would like to start by commending you, Mr. Chairman, and
the other members, for crafting a brownfields bill that has
strong bipartisan support and that addresses many of the
concerns that we have had in the State with the Superfund
program. We're also very proud in Rhode Island to see that the
tremendous efforts invested in cleaning up this country's
contaminated sites by our late Senator, John Chafee, is being
continued by this subcommittee and by you, Mr. Chairman.
In Rhode Island, as in other States, we view brownfields as
a challenge, as well as a tremendous opportunity. Governor
Lincoln Almond has consistently promoted brownfields
redevelopment as a key economic as well as environmental
priority.
There is a great need to clean up many old industrial sites
in the States that present a risk to the environment or to
public health. But the cleanup of these sites has become much
more than that. It is our chance to restore urban communities,
revitalize their economies, improve their quality of life, make
better use of existing infrastructure, as well as preserve open
space, our working landscapes and the diverse character of our
communities. In short, brownfields redevelopment is one way to
get real about smart growth.
By way of background, Rhode Island adopted its own site
remediation program in 1993 essentially because the traditional
Superfund approach simply did not allow us to address sites as
quickly as we were discovering them. We established a
relatively flexible process for identifying, investigating and
remediating sites which quickened the pace of our cleanups.
Then in 1995, Governor Almond introduced the Industrial
Property Remediation and Reuse Act, or the Rhode Island
Brownfields Bill, which was passed into law with overwhelming
support by the legislature. This gave us new tools, such as the
ability to negotiate settlements, including covenants not to
sue, with parties who were willing to perform the cleanup.
Our State law not only provides liability relief to
innocent parties, but also allows us to settle with responsible
parties who are willing to cooperate. As a result of these
statutory and additional regulatory changes, 48 sites have been
cleaned up and redeveloped, 532 acres have been returned to
productive use, 1,010 jobs have been created, and $76.9 million
is being generated annually in property and income taxes. Now,
we are a small State, but for a small State, those are big
numbers.
And although we are proud of this success, we know that we
could be doing a whole lot better. And we are very excited that
this bill promises changes at the Federal level that will in
fact help us do our job better. Too often, we still find that
the flexibility and the liability relief we can offer as a
State just is not good enough for certain parties who are
scared away by the double jeopardy issue, the possibility that
EPA may decide after the fact that the agreement reached with
the State is not good enough.
This bill addresses that by providing for finality of the
State's decision subject to certain criteria the State program
has to meet. We believe those criteria are reasonable.
Together with the liability relief provisions for innocent
parties, this finally should put to rest the double jeopardy
issue, provide certainty instead, facilitate and expedite the
completion of projects that are currently underway, and attract
many more participants to our program, so we can initiate,
cleanup and have restoration at many more sites.
This is, we believe, by far the most important thing the
Federal Government can do at this time to help us States do our
job.
Another key aspect is that the bill recognizes the
importance of brownfields, not just for commercial
redevelopment, but also as sites that can be restored as
natural resource areas, buffers that protect our water quality,
greenways, public access for fishing and other water
recreation, and urban parks. Such restoration can contribute
significantly to the quality of life and revitalization of our
urban communities. And brownfields present opportunities that
are otherwise very scarce, unaffordable or both in most urban
communities these days.
But since these restoration projects do not typically
generate a revenue stream that can be used to pay off loans, it
is important that grants are available to fund or at least jump
start them. The funding proposed by this bill is modest, we
believe, but it is a very important step toward realizing the
full potential of our brownfields programs.
On the topic of funding, this bill proposes to make loans
and grants available not just for investigation and
inventories, but also for the actual cleanup work. This too, in
our experience, can make a critical difference between a
project going forward or languishing for many more years.
I should mention in fairness that we have received very
significant funding from the Federal Government which has been
critical to our success. We have been lucky to have received
grants to be designated in Providence as a showcase community.
As I said, it's critical to our success. But the importance
of that success and the importance of that assistance will
increase exponentially when the provisions of this bill become
law, attracting more private sector participants, supporting
the role of local governments, so they can partner more
effectively with us at the State, allowing funds to be used for
actual cleanup and making funds available for greenspace
restoration projects in addition to commercial development.
In short, in Rhode Island, we strongly support Senate Bill
S. 2700. It does not solve all the issues and concerns that
have been raised by the Superfund program, nor should it have
to. It would give us in Rhode Island and in other States much
needed additional backup tools, flexibility to carry out our
brownfields program at the State and local levels. These are
improvements that can be made now. They should not be held
back, we believe, pending more comprehensive Superfund reform.
On behalf of Government Almond and all of us in Rhode
Island who work on environmental protection and economic
revitalization, I urge you to support this bill. And again,
thank you for the opportunity to testify.
Senator Chafee. Thank you, Jan, for coming all the way
down. Appreciate it very much. Thank you for your support and
your testimony.
Mayor Daniels, are you here on a day trip also?
Mayor Daniels. Day trip, and it will be midnight by the
time I get back home.
Senator Chafee. Well, thank you. That's the sacrifice you
made to be here.
Mayor Bollwage, did you come by train again this time?
[Laughter.]
Mayor Bollwage. I did, Senator. I understand from your
staff person, Senator, that Senator Lautenberg has used my
hasty departure as a reason for speeding Amtrak service to
Washington.
[Laughter.]
Senator Chafee. Well, you were successful in your election.
That's important.
Mayor Bollwage. Thank you, Senator.
Senator Chafee. Senator Lautenberg, any questions?
Senator Lautenberg. Thank you.
Mr. Reitsma, do you know that your name is a fairly popular
one in the part of New Jersey that I was born in, an old Dutch
colony?
Mr. Reitsma. I'm aware of that, yes.
Senator Lautenberg. There was a dairy named Reitsma's. How
did we let you get to Rhode Island?
I listened to the testimony in the other room. I apologize
to the two mayors, my friend Mayor Bollwage and Mayor Daniels,
for not being in the room when you were testifying. But I did
hear what you said.
I was curious about, what changed, Mayor Bollwage, in terms
of the mayors' view on financing? There wasn't the enthusiasm
in the past that I saw for the brownfields legislation as it
was originally developed. And now, it's being fairly
enthusiastically supported in the Conference of Mayors.
Mayor Bollwage. Senator, on the funding, this legislation
provides communities with considerable flexibility, which is
important to the Nation's mayors in securing resources for both
assessments and cleanup activities, allowing communities to
seek site-specific resources or to support continuing local
programs. It also provides the authority to access both grants
and loan capitalization funds to meet the varying conditions.
It also provides assurances that the distribution of these
funds will serve more urban as well as rural needs, Senator. I
have put this in my testimony in the long form. But I think the
funding, to the Nation's mayors, by providing various means to
communities to seek assistance directly, or in partnership with
other communities in their area through the State, is another
strong mechanism that this bill provides.
It also provides flexibility to communities to use a
portion of these resources to monitor the health of the
populations in affected areas and monitoring the enforcement of
institutional controls. Senator, I've also been appointed to a
committee that is trying to develop a brownfields policy school
at Rutgers University. And Dr. Michael Greenberg asked that I
speak last week at the National Academy of Medicine and
Science, to talk exactly about this issue and how brownfields
redevelopment could affect the health of the urban communities.
And this bill addresses those areas in the funding portion of
the bill.
Senator Lautenberg. That's good. I understand that you've
made non-commercial uses of some of these former sites, a
couple of athletic fields. We focused on some of these types of
uses in S. 2700 and tried to address concerns raised by local
governments. Do these special provisions allowing non-
commercial, non-conventional uses of these sites add something
to the value of this legislation, in your view?
Mayor Bollwage. That's another reason the Nation's mayors
are strongly supportive of this, Senator, is that this bill
also facilitates the opportunity to create more open space and
create more recreation. In the City of Elizabeth, we took a
former plastics sites, using Green Acres money on a State
level, and have converted it into two new little league fields.
We've taken a waterfront parcel that was vacant for 50 years
and have built two new soccer fields. We have taken another
site and are currently in the process of putting state-of-the-
art basketball courts next to the soccer fields.
So recreation combined with this brownfields plus Green
Acres funding in our State will allow more of our cities to
create open space opportunity for the residents of New Jersey.
Senator Lautenberg. Mayor Daniels, some people have the
impression that brownfields is largely a northeastern, urban
issue. And I don't want to suggest that Des Moines is a small,
rural city. It isn't. But it is in a significantly rural State.
Do you think that it's fair to say that this wouldn't have the
same value to communities away from the industrialized urban
centers of the country as they would in those locations? Does
it mean much to a place like Des Moines and surrounding areas
to be able to convert some of these sites now that are not
doing much or not doing anything except maybe scaring people?
Is there a value in your kind of community to having these
sites able to be converted under the scheme that we've outlined
in S. 2700?
Mayor Daniels. I'd say definitely yes. I think that's a
very well-preserved misnomer, that communities the size of Des
Moines and communities smaller than Des Moines would not seek
value or find value in this kind of legislation. On the
contrary, here we have urban sprawl that will rival many
communities. We have the positive aspects of being able to
utilize legislation like this early before our sprawl can
become so wide, consuming, that there's no value in dealing
with urban sprawl any longer.
We can take over 300 acres in downtown Des Moines, which
currently is not being utilized, simply laying there and
growing weeds, we have a chance to make that downtown living
destination. As I've said, maybe we're not a New York City, we
may not have a 24 hour city, but by gosh, we can do an 18 hour
city that will thrive and do very well. And this helps deliver
that to us.
It helps again in ways that were just mentioned in
integrating activities that we have. We have a waterway, we
have a major park, a lake that we're revitalizing that sits
directly across from this area that I'm talking about
developing. So we can make an integration and move that
directly across the river with the open space into a living
area and retail area.
Senator Lautenberg. And Mr. Reitsma, I don't know whether
you had talked about a grant that was recently given by the
Rhode Island Economic Development Corporation and your agency.
There was a million dollar grant set up for statewide revolving
loan fund to provide cleanup money.
What kinds of things are you looking to do with those
funds? Are they largely commercial, conventional uses? What
kind of uses are planned for that?
Mr. Reitsma. Right now, our focus has been largely on the
commercial redevelopment. But as I mentioned, we are very
excited by the possibility of broadening the scope of this
program to include things like greenspace projects as well. We
have along the Winnasquitucket River, which is a very urbanized
watershed in Rhode Island, some serious problems with older
industrial sites that have been abandoned for some time, places
like you referred to that people may be scared to go to these
days.
We have had a greenway project along that river for some
time that needs to go through these sites. We would be very
happy to be able to use some of these moneys, both to do a
commercial redevelopment, but to combine that with some of
these greenspaces, greenways projects, and having the
flexibility to use the moneys for both purposes is very
important to us.
Senator Lautenberg. Mr. Chairman, I've concluded with
questions. But it seems to me that there are so many
opportunities to obtain value from these funds with the kinds
of uses that I'm sure even the group of us here have not
thought about. I've seen it used so effectively in Hackensack.
I don't know, Mayor Bollwage, whether you know the retail site
on the Hackensack River. Boy, this place, it was nothing.
And I know these areas intimately, I pass that way all the
time. And now, 400 people working there, and shoppers coming in
and life, and revenues coming to the city and good prices
available, by the way, to the residents that otherwise might
not be obtained if there wasn't such good competition.
With the help of these mayors, Mr. Reitsma and others who
have spoken thus far, I'm encouraged the record will reflect
that this S. 2700 is a really good way to approach the problem,
and to offer a solution that can be fairly quickly accomplished
and at the same time add dimensions of life quality to these
communities, whether rural or urban, that make a difference in
the way people view not only their town, but themselves and the
whole environment surrounding what amounts to community
participation.
So I thank you very much, all of you. Thank you, Mr.
Chairman.
Senator Chafee. Thank you, Senator Lautenberg. Thank you,
Mr. Reitsma, Mayor Daniels, Mayor Bollwage, for your testimony
and the time you took to be here in support of the bill.
Senator Baucus said it's rare we get to do something so
positive such as this. And he said he pleaded with you to pass
it this year, and that's where we're going to put every bit of
our energy into doing, to help you and your communities and
States. So thank you once again.
Mayor Daniels. Thank you, Senator.
Mayor Bollwage. Thank you very much.
Senator Lautenberg. There's a copy of the legislation for
Mayor Bollwage, on the high speed rail service.
[Laughter.]
Mayor Bollwage. Thank you, Senator. I'll see you back home.
Senator Chafee. We'll take a 2-minute break while we change
panels.
Welcome. Thank you for taking your time to be here. We look
forward to your testimony.
This third panel consists of Mr. Kevin P. Fitzpatrick,
President of AIG Global Real Estate Investment Corporation, on
behalf of the Real Estate Roundtable. Welcome. Mr. Alan Front,
Senior Vice President of the Trust for Public Land. Welcome.
Mr. William McElroy, Vice President of Zurich U.S. Specialties,
on behalf of the American Insurance Association. Welcome. And
Ms. Vernice Miller-Travis, Executive Director of the
Partnership for Sustainable Brownfields Redevelopment. Welcome.
Let's start with Ms. Travis. Welcome.
STATEMENT OF VERNICE MILLER-TRAVIS, EXECUTIVE DIRECTOR,
PARTNERSHIP FOR SUSTAINABLE BROWNFIELDS REDEVELOPMENT
Ms. Travis. Thank you, Mr. Chair. Thank you so very much.
Good afternoon. As you said, my name is Vernice Miller-
Travis, and I currently serve as the Executive Director of the
Partnership for Sustainable Brownfields Redevelopment based in
Baltimore, Maryland.
The Partnership for Sustainable Brownfields Redevelopment
is a national, multi-State, non-profit organization comprised
of the leading organizations and institutions involved in the
brownfields redevelopment effort. As the focus of the
brownfields redevelopment effort moves from the Federal
Government to States and local communities, the partnership
will serve as a resource for governments, community groups,
corporations and developers as we move into the new millennium.
I also serve as a member of the National Environmental
Justice Advisory Council, where I chair the Waste and Facility
Siting Subcommittee. Through my participation in NEJAC, I have
worked closely over a period of several years with EPA's Office
of Solid Waste and Emergency Response in the development of
this national brownfields action agenda. I was there at the
beginning, and I'm proud to say I am still there as a partner
with EPA.
In my previous appearances before this subcommittee, I
represented the Natural Resources Defense Council and the
environmental justice community. Today I'm pleased to add my
voice to the chorus of those who support this legislation. I
would also like to take this opportunity to introduce Ms.
Donele Wilkins, Founding Director of Detroiters Working for
Environmental Justice. Ms. Wilkins is one of the leading
environmental justice advocates in the State of Michigan, and
serves on the Detroit Brownfields Redevelopment Authority. She
is submitting her own comments about this legislation for your
consideration, representing the perspectives of community
residents at or near brownfield sites.
Today I am truly pleased to be able to speak affirmatively
about S. 2700 and its provisions, as opposed to speaking
against the legislation which has been my posture in all my
previous appearances before this body.
I do have a few areas of concerns, but I do want to say
that I feel a level of excitement at being able to finally, in
my 7 years of work around comprehensive Superfund reform and
brownfields, of finally being able to join in with the efforts
that Congress has made to support brownfield redevelopment and
revitalization. This is really a new day and we've turned a
corner, and I thank you so much for the opportunity presented
in this legislation.
My general review of the legislation in consultation with
embers of the board of the Partnership for Sustainable
Brownfields Redevelopment as well as consultation with several
other brownfields stakeholders across the country is that S.
2700 is a well crafted, useful, creative approach to
brownfields redevelopment. That being said, I want to raise a
few general concerns, most of which are contained in my written
testimony. But one in particular, my biggest area of concern is
the blanket delegation of enforcement authority for brownfields
redevelopment to State voluntary cleanup programs.
The legislation assumes that all States have the resources
to implement a vigorous voluntary cleanup program that can
assume the enforcement responsibilities that EPA has heretofore
held. For a variety of reasons, this assumption is not
accurate. All States are not equal in terms of the resources
available to them to implement and maintain strong voluntary
cleanup programs.
Some States, as a matter of political philosophy, are
opposed to vigorous enforcement actions that they believe will
diminish the interests of private developers in purchasing and
redeveloping brownfields sites within their States. In these
States, local communities, especially low income and
communities of color, are facing an uphill battle when trying
to get State and local agencies to balance economic development
considerations with the need for environmental and public
health considerations.
To address this particular concern, I suggested the
legislation include language that States would have to
demonstrate to EPA the existence and effectiveness of a State
voluntary cleanup program before the State could receive
delegated enforcement authority for a brownfields program.
Through this process, the State would need to certify that they
indeed have an established program of corrective action, to
clean up and redevelop brownfields sites. The State would also
need to demonstrate that their corrective action program has
been and can be implemented consistently across the State in
all communities, regardless of race, ethnicity or economic
status.
Time does not permit, but I can tell you stories about
where that is not in fact the case in many, many States, my
home State of New York being one of them.
Title II of the bill, Brownfields Liability Clarifications,
is perhaps the most creative and forthright legislative attempt
to address innocent third party and prospective purchasers in
the chain of liability while maintaining and preserving the
principle of strict joint and several liability, a phrase which
I'm happy to say, as I move on to a new stage in my career,
soon I will never have to mention that term again, strict joint
and several liability.
The proposed amount of the appropriation of Federal moneys
to accompany this bill is a welcome increase in proposed
Federal brownfields dollars, as is the definition of eligible
entities who can access these dollars and the expanded
definition of what is an eligible recipient activity or use.
The section of the bill entitled mechanisms and resources to
provide meaningful opportunities for public participation and
mechanisms for approval of a cleanup plan are especially
appreciated as delineated sections of this legislation.
Last, the language included in section 128, brownfields
revitalization funding, which basically talked about
greenspaces, open spaces, park land, is a welcome addition to
the legislative thinking about what constitutes a beneficial
re-use of a brownfields site. It also affirms the perspective
that a beneficial re-use can be something other than a
commercial or industrial re-use of a brownfields site.
Additionally, Subsection B, the extent to which a grant
will meet the needs of a community, is the first legislative
attempt to codify the needs of local communities as a paramount
consideration in the brownfields redevelopment arena. We are
truly, truly thankful for many of the provisions that are
contained within this bill.
I have specific comments, section by section, which you and
your staff will go through, I'm sure. But I just wanted to add
one more piece in terms of the actual body and language of the
bill. Section 129, State response programs, Subsection 1 on
enforcement and public record talks about the need of using
institutional controls and how they can be a good part of a
brownfields program.
I suggested somewhat of a change in the language, that the
public record shall identify whether or not the site on
completion of the response action will be suitable for
unrestricted use and if not, shall identify the institutional
controls relied on in the remedy and how the institutional
controls will be enforced and monitored over time.
Communities have profound concerns about the blanket use of
institutional controls and the fact that from one
administrative change to another at the gubernatorial or local
legislative level, no one is there to monitor the use of
institutional controls and how in fact they are enforced over
time. Lest we forget, Love Canal had an institutional control
and a deed restriction which no one ever saw and no one ever
promulgated to protect those communities.
Last, on the question of the need for comprehensive
Superfund reform, as a precursor to legislative action on
brownfields, I believe that that is a misguided thought at
best. Currently in New York State, there is a absolute
legislative morass that has engulfed the Governor, the State
legislature, the development community and the environmental
community in not being able to break through a balance between
the need for brownfields legislation versus a complete review
of the Superfund program in the state of New York and the
State's voluntary cleanup program.
I do not believe that they will be moving through that
morass into legislative action. Hopefully they will look to the
efforts that you have made here as a direction that they can go
in to see their way clear.
The environmental justice perspective on brownfields
redevelopment is that these sites must be viewed as a component
of a broader economic and community revitalization strategy, a
strategy that seeks to rebuild and revive these long dormant
communities into healthy, safe and economically viable areas.
That is what we mean by the term sustainable brownfields
redevelopment.
Back home in our respective communities, we are witnessing
brownfields programs and projects that promote economic
opportunities for entities other than the long suffering
residents of these communities and the small business owners in
our Nation's most economically, environmentally deprived
communities, where the bulk of the brownfields sites are
located.
We are also witnessing successful brownfields projects that
have mushroomed into wholesale gentrification of our
communities. For example, in Jersey City, New Jersey, with the
Newport Mall, development in downtown Detroit, and in fact, in
my own home community, the 125th Street commercial corridor
where Disney now has been brought to 125th Street, and oh, we
are not all happy.
We believe that real economic development is that which
enhances the quality of life of community residents and
improves economic opportunities for community businesses. We
believe that the issue of sustainable brownfields redevelopment
is crucial to pursuing a different path toward community
redevelopment and revitalization in this new century. Sound and
sustainable brownfields redevelopment is one of the critical
issues of our time, and this bill takes a significant step in
the right legislative direction.
Finally, it is clear to me that the crafting of this bill
was achieved through major bipartisan give and take and
consensus building. Please know that your staff efforts and
your Congressional leadership are very much appreciated, and we
look forward to your continued support on brownfields
redevelopment and community revitalization.
Thank you for the opportunity to share my thoughts about S.
2700.
Senator Chafee. Very good thoughts, Ms. Travis, indeed.
You're knowledgeable on this issue.
Ms. Travis. Thank you.
Senator Chafee. How long have you been working on it?
Ms. Travis. Probably my entire professional career on
community economic development and revitalization. I'm from
Congressman Rangel's congressional district in New York, I
lived there for 40 years and now I live here in Prince George's
County, Maryland. So my life has sort of been the issue of
brownfields redevelopment.
Senator Chafee. Good. Thank you very much for your
participation and support.
Ms. Travis. Thank you.
Senator Chafee. Let's hope we can get it passed this year,
so you won't have to talk about joint and several----
Ms. Travis. Strict joint and several.
Senator Chafee. Yes, strict joint and several liability.
[Laughter.]
Senator Chafee. Mr. McElroy.
STATEMENT OF WILLIAM MC ELROY, VICE PRESIDENT, ZURICH U.S.
SPECIALTIES
Mr. McElroy. Thank you, Mr. Chairman. It's an honor and a
pleasure to be here today to speak in support of S. 2700. I'm
grateful for that opportunity.
My name is William McElroy. I'm here as a representative of
the American Insurance Association.
AIA is a trade association of 370 major property and
casualty insurers in both the commercial and personal lines
area who account for over one-third of the property and
casualty insurance marketplace in the United States.
I'm also the Vice President of Zurich U.S. Specialties, a
leading specialty lines insurer, where I'm responsible for the
environmental risk profit center. One aspect of our
environmental risk underwriting practice involves providing
insurance coverage to real estate developers.
Some of our customers are actively engaged in brownfield
redevelopment as part of their business strategy. Member
companies of Zurich U.S. have insured hundreds of brownfield
and other environmentally sensitive real estate projects from
Massachusetts to California. These are varied in scale from
former gas stationsites that are now restaurants to the
privatization of former military facilities, such as the
current civilian redevelopment of the Presidio in San
Francisco.
While we are proud of the work on these projects, they are
but a fraction of the tens and hundreds of thousands of sites
around the country. It is likely that the first projects to be
successfully accomplished are the most obvious and potentially
most profitable ones. The key provisions of the bill provide
targeted funding and administrative support to help State and
local governments identify, classify and market the more
problematic properties, sites that might otherwise go unnoticed
to developers.
In some cases, with grants providing direct funding for
cleanup activities in local governments, it will permit
projects to succeed when the economics of the project would not
support funding remedial measures necessary to protect human
health and the environment.
Title II of the bill appears to us to be an appropriate and
measured response to recognizing new site owners and their
willingness to provide new values to the community. It further
draws the distinction between owners of tainted properties and
the unfortunate neighbors of contaminated properties whose land
has been impacted by these environmental conditions. Moreover,
it provides clarification to the concept of innocent ownership
already embraced within the intent of previous legislation
amending CERCLA.
This should help would-be buyers of brownfield properties
acquire stable financing to implement their plans. Great care
has been taken in the crafting of the bill to ensure that this
protection is not provided to people who knew or should have
known of site contamination have not taken proper action when
these conditions became apparent. This will ensure that sound
and informed judgment be employed by the sponsors of
redevelopment projects.
Title III of the bill makes the provision for funding
insurance trust funds or pools to foster brownfields
redevelopment. I must note that there is already a growing
private sector market for environmental insurance available to
real estate developers. While we recognize that the private
insurance industry does not have all the answers to this
problem, there is a history of public sector entry into the
field through so-called LUST Trust funds that is highly
questionable.
In addition to stifling the private insurance marketplace,
some of these programs have operated in a manner that lacks the
very financial responsibility they seek to foster. In the
implementation of this provision, great care must be taken to
assure that Government-funded insurance programs are not
permitted to compete or discourage a vibrant private insurance
market.
We believe this bill can help unlock the market value
hidden in certain environmentally impacted sites and in so
doing, these otherwise valuable properties can re-enter and
remain in the stream of commerce where they will generate the
economic growth on which our communities depend. And we applaud
your bipartisan efforts in making this a reality through S.
2700.
Thank you.
Senator Chafee. Thank you very much, Mr. McElroy.
Mr. Front.
STATEMENT OF ALAN FRONT, SENIOR VICE PRESIDENT, THE TRUST FOR
PUBLIC LAND
Mr. Front. Thank you very much, Mr. Chairman, and I am Alan
Front, representing the Trust for Public Land.
If I may, I'd like to cast some appropriate laurels back
across the witness table to the two of you sitting on the dais.
In our work in Rhode Island, on the previously mentioned
Winnasquitucket Greenway and elsewhere, we have seen, Senator,
your commitment to exactly the principles of environmental
justice, of brownfields cleanup, of open space protection that
this legislation embodies.
And in our long work in New Jersey, from the highlands to
the meadowlands to the pinelands to all the other lands, and
the refuges and the inner city of Newark, we have long
recognized, Senator Lautenberg, that your commitment and your
care and your effectiveness in defense of both the built
environment and the natural environment is really unparalleled.
So we're not surprised, but we are certainly gratified that
the two of you, working with Senator Smith and Senator Baucus
and your wonderful staffs, have put together legislation that
we're very pleased to embrace today.
Much has already been said about the importance of
protecting, reclaiming brownfields, the salutary effects of
brownfields restoration on local economies, the need to pass S.
2700. So if I may, I'd like to associate myself with the
remarks of almost everyone else who has spoken thus far today.
And then I'd like to offer a brief and somewhat different
perspective as the conservation green hat at the witness table
today, a perspective that's born of our longstanding commitment
to the urban sector, our Green Cities initiative, which is
focused on brownfields and other urban parks work, our founding
and spinning off of one of the Nation's first brownfields
recycling non-profits. And from that perspective, from those
labors in the vineyard of brownfields, we have seen the
inexorable connections between open space protection,
development and redevelopment and brownfields reclamation.
We have had deep and longstanding experience in
brownfields. In fact, as we've worked in the urban sector more
and more of the properties that we've come across and looked to
protect have had some sort of brownfield association. And so
again from that perspective, I have submitted a more detailed
statement and also would like to offer for the record, I feel a
bit like Senator Joe McCarthy, but I have here a letter with
the names----
[Laughter.]
Mr. Front.----of a number of other supporters who are not
yet on your list, but hopefully will be added after this
hearing.
But having submitted that material, I'd like to touch
briefly upon just three major points that I hope that you will
consider as you consider S. 2700 and as we hope you advance it
toward enactment.
First, from an oil tank farm in Pensacola, Florida to an
abandoned rail yard in Santa Fe, New Mexico, to the derelict
sports stadium outside of Cleveland, Ohio, there are a number
of brownfields, a host of brownfields across the country whose
most appropriate disposition is ultimately as park land. Many
of you all know that there have been a number of local bond
issues and voters continue to vote to fund acquisition and
development of those sorts of places. We have seen private
philanthropy increase. The environment committee just
considered a couple of weeks ago legislation known as CARA that
would provide a meaningful Federal commitment ongoing for open
space protection.
But what has been more elusive as we have had all of these
tools for open space conservation, what's been more elusive is
the formula for assessment and cleanup of brownfields. We have
long hoped for some Federal mechanism, a fitting Federal
investment in brownfields cleanup, in brownfields assessment.
And especially with its commitment to open space protection and
to underserved communities, S. 2700 certainly answers that
prayer.
Second, I'd like to touch upon sprawl for just a moment.
There are certainly a number of brownfields that are most
appropriately redeveloped to add to housing stock, to add to
commercial vitality, to bring jobs and homes to people in
communities that are brownfields affected. And those are the
most appropriate uses for those properties.
At the same time, beyond the cleanup environmental value,
there's another environmental value to those restoration and
redevelopment projects. And that environmental value is to help
stem the tide of sprawl. According to the Department of
Agriculture, since I began talking to you over these last 4
minutes, according to the yellow light, 20 some odd acres of
greenspace have vanished. Since you began this hearing this
afternoon, almost 800 acres of greenspace have been laid claim
to by development. Maybe appropriate development, but
development that maybe could have been refocused elsewhere,
other places where infrastructure was already in place, other
places that already been developed once and would be best
developed twice.
That's what this bill encourages. And so again, S. 2700
provides a wonderful tool to help prevent sprawl.
Last, I know the saying is, it's the economy. I guess that
saying has another word, but it's not accurate or appropriate
to mention. It is the economy. Brownfields cleanup is about
economic growth. And in fact, conservation of brownfields is
about economic vitality, bringing a new face and new life to
disadvantaged communities. And we have seen it over and over
again. We've seen it in the Los Angeles River, we've seen it on
the Miami River, the Portland, Maine waterfront and the
Portland, Oregon waterfront. All of these places, conservation
of previously contaminated or abused or abandoned or idle
properties has brought new economic vigor to communities that
previously lacked exactly that sort of benefit, exactly that
sort of conservation boost to their own community life.
And so, for reasons of sprawl control, for reasons of
economic investment, for reasons of economic and social justice
and certainly from that green hatted perspective, for reasons
of open space conservation, the funding mechanisms, the tools
that S. 2700 provides are a very welcome addition to the tool
box that already exists. It's a wonderful Federal joining of
the partnership that already exists. And we appreciate all of
your help in making it happen.
Thank you very much.
Senator Chafee. Thank you, Mr. Front, for your kind words
and your support.
Which Cleveland sports stadium is a brownfield site, out of
curiosity?
Mr. Front. It's the Richfield Coliseum, which was a huge
tower of asbestos and concrete that we knocked down and added,
with the Park Service's help, to the Cuyahoga National
Recreation Area, now it's restored as meadow.
Senator Chafee. Thank you.
Mr. Fitzpatrick, welcome.
STATEMENT OF KEVIN P. FITZPATRICK, PRESIDENT, AIG GLOBAL REAL
ESTATE INVESTMENT CORPORATION AND CHAIRMAN, ENVIRONMENTAL
POLICY ADVISORY COMMITTEE, THE REAL ESTATE ROUNDTABLE
Mr. Fitzpatrick. Thank you. Thank you, Chairman Chafee and
Senator Lautenberg.
As you mentioned, I'm Kevin Fitzpatrick, I'm President of
AIG Global Real Estate, which is a member company of American
International Group, the insurance and financial services
company. Today I'm here speaking on behalf of the Real Estate
Roundtable.
Its members have long advocated Federal policy reforms that
will facilitate, rather than undermine, the efforts of local
communities across the country to advance smart growth. The
Brownfields Revitalization and Environmental Restoration Act of
2000, or S. 2700, includes just these kinds of policy reforms.
We have done a good job in this country of encouraging
recycling in the area of consumer goods, such as plastic,
bottles and paper. In our view, it is time that we made the
same national commitment to recycling our Nation's blighted
urban and rural brownfields properties. S. 2700 provides the
real estate industry and its partners in State and local
governments with a detailed road map for doing just that.
Among those blighted properties the ones that often suffer
the greatest market stigma are those with actual or simply
perceived environmental issues. With the help of the economic
and regulatory incentives included in S. 2700, many of these
properties can be recycled to serve the commercial,
residential, retail and recreational needs of the information
age and its so-called new economy.
Today, companies that acquire certain environmentally
distressed real estate also end up acquiring the market stigma
and the uncertainties associated with Superfund cleanup
liability. In the past, our members have testified before the
subcommittee that innocent parties that act responsibly in the
redevelopment of these sites should not be punished by Federal
laws.
The real estate industry is fully prepared to take the
business risks associated with any prudent real estate project.
But for the most part, however, the development community is
not prepared to take the kind of litigation and liability risk
presented by many brownfields projects.
In short, when Congress passed the Superfund law in 1980,
nobody contemplated the possibility that the law would actually
serve as a barrier to cleanups, cleanups that real estate
companies might otherwise be willing to pursue at their own
expense. S. 2700 will go far to correct the unintended
consequences of Federal policymaking.
A growing number of States have initiated voluntary cleanup
programs, VCPs, that provide participants with authoritative
comfort regarding the limits of their residual risk of cleanup
liability under State law. S. 2700 will strengthen these
programs in a number of ways, both legally and financially.
In our view, the greatest asset this legislation will offer
State VCPs is the ability to extend the zone of comfort many
now offer brownfield redevelopers, so that it responds to
liability concerns under the Federal superfund law. S. 2700
includes a provision that will, in most cases, reassure
participants and State voluntary cleanup programs that their
State approved cleanup is not likely to be second guessed by
Federal authorities. This so-called finality assurance is
crucial, not only to potential buyers and sellers of brownfield
properties, but to their financial partners as well.
Finally, S. 2700 builds on the valuable work of the
Environmental Protection Agency in developing administrative
reforms in the area of prospective purchaser and adjacent
landowner protection. The prospective purchase and adjacent
landowner provisions in S. 2700 will provide self-implementing
and legally enforceable protections for would-be brownfields
redevelopers.
I hope I have made it clear that with so many other
investment options available at any given time, this prospect
of open-ended liability under the Superfund remains a deal
killer. If, however, the Superfund law were changed along the
specific lines of S. 2700, so that the potential liability of
would-be purchasers and redevelopers of brownfields became
better defined, the real estate community would be far more
ready, willing and able to invest private capital into these
sorts of projects.
Thank you.
Senator Chafee. Thank you, Mr. Fitzpatrick. It's been 20
years since Congress passed the Superfund legislation. And as
you said, who could have envisioned it would be a barrier,
potential barrier to redevelopment of these sites. But here we
are 20 years later, and we're going to try to get it done, as I
said.
Senator Lautenberg, any questions?
Senator Lautenberg. Just a couple of things. Mr. Chairman,
if I might observe, my thanks to all of the witnesses for their
testimony. I think each of the particular perspectives that you
bring here are very helpful, whether it's insurance, real
estate, community or the conservancy.
I know Alan Front fairly well, and I thank him for his work
on finding suitable properties and matching those with suitable
donors, so that the communities have done well as a result of
the efforts. They can give you chapter and verse, as you heard,
about sites that were cleaned up and turned into not only
profitable, and I use the word profit not just in financial
terms, but in terms of the community's well-being.
We've had a good time, we've worked together on several
things, including some nice forest land from which you can see
New York City's towers, a place called Sterling Forest. We both
worked extensively up there, even preserving the timber
rattlesnakes' lair, making sure that they weren't wiped out in
the process, nor did they wipe us out as we looked at them.
The focus, Mr. McElroy, coming from your particular
alignment with the American insurance industry, what do you see
from your perspective as the key factor in 2700 that you feel
is of value to the members of your association and will in turn
sell services to the community at large?
Mr. McElroy. Well, Senator, as you know from your days in
the business world, you know that the opportunity to make a
business decision often hinges on very small differentials in
cost and the cost of capital and how one proceeds with a
specific business plan. We think that the funding that exists
for certain of these projects that will get projects over the
hump, which will spawn the economic development in an area,
gives us the opportunity to serve our clients and do more
business in communities where we may not be doing it today.
The big attractive projects go forward very quickly. And
they have the native values in them to fund remediation. Some
of the smaller projects in difficult areas don't have that, and
you focused funding on targeting those very issues. And that we
think is very important.
Senator Lautenberg. Well, the liability issues are very
important, fixing the amount of risk that one takes. When they
make an investment, not winding up with a liability that far
exceeds the total value of the investment. I assume that's
important.
Mr. McElroy. A very important issue to us, Senator. And
that you have clarified the notion of the innocent landowner
provisions in CERCLA already. This is a further clarification.
We hear a lot from our customers who attempt to borrow money to
do these projects, and the efforts that you've made to hold
that liability off of the truly innocent, with the stipulations
that one has to do appropriate inquiry into the circumstances,
is the right balance between responsibility and innocence in
the process.
Senator Lautenberg. Mr. Fitzpatrick, we're glad to see you
here, too. I know your company very well, and I know Mr.
Greenberg. I remember our days at faceoff, as we might call it,
Superfund liability questions. We had a couple of very
interesting----I don't live to fight, but I fight to live.
[Laughter.]
Senator Lautenberg. I am glad to see you here, to get your
perspective. We've gotten good support from the real estate
community at large in addressing this issue. I don't know
whether you have some examples from your industry of potential
redevelopment projects of brownfield sites which have been
difficult to carry through due to the funding, the fear of the
unknown.
And this changes the dimension or the proportion of the
sites that can be attended to, those that don't require huge
investments, that aren't macro size things that make such a
difference in the area that they're found in, because they're
viewed as discarded sites and who cares kinds of things. Ms.
Travis, you know just what I'm talking about. Because people
are coming into a lot of the sites in our industrial
environment and building a mini-size businesses and so forth.
And the big ones just don't fit.
So what do you see in this bill that particularly, and I
know I looked at your testimony, that would help particularly,
be advantageous in helping some of your colleagues in the real
estate business to get on with turning their skill and their
expertise into creating sites that are going to be beneficial?
Is there any particular thing in S. 2700 that you find?
Mr. Fitzpatrick. There sure is, Senator. I think the issue
of certainty is really the question and the biggest problem
that we encounter is the issue of liability. Many times it's
not only us as a purchaser but also the seller and what
liabilities remain with them as the seller of the property. The
insurance community has been very creative in coming up with a
number of products that are available on the market that I
think need to be expanded further, at least market acceptance,
and people feeling comfortable that the insurance companies can
insure around a certain part of the liability.
But I think your bill goes a long way to removing a lot of
the uncertainty, and also the issue of finality. I think
finality is really critical.
We're working on a number of different projects around the
country. As you know, from dealing with Mr. Greenberg, we're in
the business to make money.
Senator Lautenberg. And he does it very well.
Mr. Fitzpatrick. He does a good job at it. Everything that
we do always has a commercial orientation to it. And we see
brownfields in a number of different ways, some smaller
projects that need to be cleaned up, but also more and more
people are feeling comfortable to take on the liability. I
think the certainty contained in S. 2700 will encourage many
more developers to take on the liability risks and be able to
move forward. Because capital is very smart, very shrewd, has
many opportunities and will move in a lot of different areas.
If they don't feel comfortable in the environmental area, they
just won't bother to invest.
We feel comfortable because of our experience in the
insurance on the environmental side, and have made quite a bit
of investments, our largest investment is an Atlantic Steel
site in Atlanta. And although I'm from your home State of New
Jersey, I'd like to see more done in New Jersey, but we're
working in Atlanta. It keeps me up at night time worrying about
the liability.
Senator Lautenberg. I'm sure that's the case. It's a
question of whether in fact, it's not just the liability, the
extent of the risk that one has to consider, but rather what
are we getting ourselves into that creates a degree of
uncertainty, that people just say, oh, the devil with it, we
can find other, especially in times like these, we can find
lots of places to put money and to do things. I thank you.
I wonder, Ms. Travis, you've had experience working in
different parts of the environmental world. One of the things
that I've seen, I grew up in an urban center, New Jersey,
Paterson, New Jersey, and know the State so very well. I can
call off city after city that's been part of the heat that
people throw kind of discards to and say, oh, why bother.
Those communities, these urban centers that are largely
poverty ridden and when the national highway system was
created, there was an unexpected, unanticipated effect. That
is, it gave people a chance to leave the cities behind and go
get the security in the suburbs and take away the income base,
the real estate opportunities, etc. People didn't want to
bother.
As a consequence, despair got despair. And this is one way
of kind of lifting up the spirits and making a difference in
the community. I'm sure you've seen it. You had your service
with NRDC. And now doing what you're doing. What do you see in
this bill of ours, this opportunity to take, for relatively
small amounts of money, too. Interesting. You're not talking
about a $20 million land site. You're talking about something
else. What do you see as our biggest attraction here?
Ms. Travis. Well, unlike the first statement made by the
Senator at the beginning of the hearing about the need to have
comprehensive Superfund reform first in order to move this
issue, I think that's one of the reasons that we haven't been
able to grapple with this issue, because people cannot
intellectually delineate the difference between Superfund and
brownfields.
Strongly enough, it's been a huge problem within the
environmental justice and environmental community, trying to
get State agencies and local governments to really look at
difference between the sites. What we were seeing, until this
legislation and up until this very moment is a collapsing of
sites that would otherwise be defined as a State superfund
site, not necessarily rising to the level of an NPL, but
certainly requiring very focused attention and resources to
clean up and remediate before redevelopment.
And there was a rush, when EPA first sort of put out the
call about the national brownfields action agenda, everyone was
excited about it, because it did create the opportunity to take
a new look at these sites. But what communities were finding
was that in the rush to create new economic opportunity,
everything was being classified as a brownfield site.
So sites that really required much more focused attention,
perhaps some more extensive remediation, were given cursory
remediation and then a redevelopment which continued some of
the same environmental problems that existed on the site in the
first place, and also promulgated additional public health
considerations.
We had a devil of a time. And until this legislation, I
mean, in the legislation you really go down the line and tick
off what does not constitute a brownfield site. This is the
first time in any of the Federal bills that have been put
forward to address brownfields that such attention has been
paid to clearly separating what is a Superfund site or what
would be in a State voluntary cleanup program, what is a
brownfield site.
I think we have to remember what EPA's original conception
was is that a brownfield site is something that has limited and
minimal contamination, and because it does have limited and
minimal contamination, you can create all kinds of new activity
with relatively little investment at the front end and low
levels of remediation. You've given us a real opportunity to do
lengthy issues and to really move forward in a substantive way.
And then you talked about money, a real significant
appropriation of dollars to help States and local governments
advance that. So you've really addressed a number of the
lingering issues out there that were really unclear, out in the
public sector. You've given us some real direction and
clarification. And at least from the environmental justice
perspective, we truly appreciate it. We really do.
Senator Lautenberg. Thank you. We tried to get community
participation with these TAG grants of ours. And it made a
difference. When you say to an area where people's incomes are
really modest, low income, and you say, well, get the community
together, well, how do you do it? But if there is a $25,000,
$50,000 investment in bringing the people together, getting the
materials necessary, it makes a reality out of just a hope.
And Alan, again, having worked with you and your
organization, you look at the greenspaces and we look at the
green that comes from hard work, people's opportunity. Where
have you seen these relationships just be almost symbiotic,
where greenspace comes and the jobs and good spirit that
follow? You mentioned a few before, but I'll bet there are some
sites that are just specific.
When you talk about the stadium and that kind of thing,
you're not talking about brownfield sites, you're talking about
something much larger. How about small sites? Does the Trust
for Public Land, I called it the conservancy before, I forgot
the competition isn't represented here today. But have you seen
or do you work with some of these smaller sites where
brownfields really have a unique role to play?
Mr. Front. Absolutely, Senator. In fact, we've been deeply
involved in a couple of economic revitalization programs in
different communities where small park acquisitions are one of
the keys to building the mosaic tile by tile to restore a
community.
That certainly was the case in Atlanta in the Martin Luther
King national historic site area, where a restoration of the
entire Sweet Auburn neighborhood, one small property at a time,
has actually led to an economic revival in that neighborhood.
We have seen that in the community gardens of East Oakland. We
have seen it in some very small but pivotal sites in some of
the border towns in Texas.
So community needs range from huge economic developments
like in the Chattanooga Riverfront, the Tennessee River, where
cleanup and major park land and redevelopment effort along the
river spawned better than a billion dollars of private
investment to really change the shape of the city. But from
those large scale projects down to the very smallest projects,
to some extent, the tools and the dynamics are almost the same.
It's just a question of whether or not those partnerships can
get forged.
And because I've already agreed with everyone else's
statements, I'd like to agree with Vernice's answer to her
question from you, which is that in fact, there is a desperate
need out there, your Section 128 dollars. There's a desperate
need for a sizable investment, so that not only can there be
some seed money for some of these bigger initiatives, but
specifically so the next Sweet Auburn, so the next East
Oakland, so that the next Los Angeles River can get cleaned up,
and that process of redemption can start.
Senator Lautenberg. I'd like to thank all of you. Mr.
Chairman, my compliments that you continue in the tradition of
John Chafee, who was respected, revered and loved by so many.
And his goal of environmental improvement was the mark to which
this committee often toed. Thank you for continuing in that
vein.
Senator Chafee. Thank you, Senator Lautenberg, for your
leadership on many issues, environment being one of many
national issues which you're a leader on. So thank you.
And thank you, panel for your participation. Safe travels
back. And we have still work ahead of us.
I'd also like to thank Lisa Hagee, Kristen Rohr and Barbara
Rogers, who worked very hard on this legislation. Also Chairman
Smith, who wasn't able to be here, but a critical participant
in this legislation. And Senator Baucus and Roger Platt, from
the Real Estate Roundtable, one of our first supporters on the
day we announced the bill. And thank everybody else, who has
put their oar in the water on behalf of this legislation.
Have a good evening. Meeting is adjourned.
[Whereupon, at 4:27 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF NEW
HAMPSHIRE
Good Afternoon. Thank you very much Senator Chafee. I'd like to
welcome the witnesses here today, particularly those who traveled some
distance to be here.
As the former Superfund Subcommittee chairman, I have worked on
Superfund issues for a long time. Today, we receive testimony on the
first bipartisan bill amending Superfund to be introduced since the
103d Congress.
This bill enjoys bipartisan support because of the recognition that
today's environmental problems cannot be addressed by yesterday's
solutions and that we must strive to allow for the sustainability of
our environment, our resources, and our economy in order to succeed as
policymakers.
The U.S. Conference of Mayors has estimated that more than 450,000
brownfield sites exist around the country. These sites endanger human
health and the environment, force alternative greenfield development,
and discourage the revitalization of areas in desperate need of
economic development.
Under current law, incentives do not exist to clean up and develop
these sites; in fact, quite the opposite, disincentives and fear of
liability prevail. Although the level of contamination at many of these
sites is relatively low, and the potential value of the property may be
quite high, developers often shy away from purchasing and developing
these sites because of the current status of the Superfund law.
To address these disincentives, EPA developed the National
Brownfields Program. This Program provides funding to assess brownfield
sites, but involves a cumbersome application process, and does not
address the underlying fears of liability that exist under current law.
This program is a good first step; but, in order to reach its full
potential, we must guide the efforts of EPA by authorizing the Program.
Addressing the fear of Superfund liability is just as important, if
not more so, as providing funding for site assessments and revolving
loan funds. S. 2700 provides not only funding for assessments and
revolving loan funds, but for the remediation of sites and the
enhancement of state programs as well. The bill includes clarifications
of the liability scheme to ease and encourage the transfer of
properties to those willing to clean up and develop. These
clarifications protect prospective, contiguous, and innocent landowners
from liability.
The bill also addresses the fear of Superfund liability by
providing a final decision point for assessing liability; that decision
point rests with the States. To do this, the bill restricts EPA's
ability to second-guess decisions made at sites cleaned up under a
State Voluntary Cleanup Program, except in limited circumstances. In
addition, the bill builds on the ability of the States to clean up
contaminated sites by providing that EPA defer NPL listing of a site to
a State program at the request of the State.
The need for this legislation, as well as a future comprehensive
reform bill, is supported by the conclusions of a recent GAO report
examining the effectiveness of the reforms instituted by EPA in the
Superfund program. The results found that three-fourths of the 62
reforms implemented by EPA are ineffective or unmeasurable. The study
also found that the implementation of reforms peaked in 1997 and has
declined since that time, thus indicating that further action is
needed.
As demonstrated by the findings of this study, there is a
continuing need for reform of Superfund. I plan to work toward that end
next year, however, an even more pressing need exists today. That need
is to ensure the few reforms that are working continue to be
implemented. Of the 7 reforms that GAO found to demonstrate positive
results, 4 affect the management and cleanup of brownfields. To
continue the work EPA is doing and to better guide their efforts, the
passage of BRERA is essential.
Some members of the committee believe that taking brownfields out
of a comprehensive reform package will jeopardize future Superfund
reform. I feel that we can move forward with brownfields without
compromising comprehensive reform. The funding, liability
clarifications, and state finality afforded by this bill will ensure
these sites are cleaned up, never becoming Superfund sites, and
resulting in an improved quality of life for all of us.
______
Real Estate Roundtable,
June 8, 2000.
Hon. Robert Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Senator Smith: I am writing on behalf of the Real Estate
Roundtable to express our members' enthusiastic appreciation for your
proven commitment to the pressing national issue of brownfields
development.
Congratulations are in order to all the lawmakers involved in
developing ``The Brownfields Revitalization and Environmental
Restoration Act of 2000'' (BRERA). This important new legislation would
make welcome reforms to the Comprehensive Environmental Response,
Compensation, and Liability Act or ``Superfund'' law. The bipartisan
spirit in which you have worked to achieve consensus presents a model
for practical and effective progress in that often divisive realm of
environmental policymaking.
There are brownfields in every state--and almost every community--
in this country. If enacted into law, BRERA would significantly advance
the economic prospects for remediating and recycling those properties
into a broad range of productive uses. The economic and regulatory
incentives included in the bill would help thousands of brownfield
sites across the country become vibrant new employment centers. In
other cases, the cleaned-up properties would provide many communities
with environmentally sound housing alternatives.
As you know, the Real Estate Roundtable's members are America's
leading real estate owners, advisers, builders, investors, lenders, and
managers. The Real Estate Roundtable (and its predecessor organization,
the National Realty Committee) has long supported enactment of
bipartisan legislation that includes meaningful incentives for
brownfields redevelopment. BRERA is clearly just such a piece of
legislation.
In particular, the proposed legislation would go far in assuring
those parties purchasing already contaminated ``brownfields''
properties that they have not also acquired unwarranted Superfund
liability. Such assurance is critical to successfully financing and
closing on brownfields transactions. In addition, we are pleased the
bill recognizes the need to clarify the innocence of those individuals
or companies whose real property has become contaminated simply because
hazardous substances have migrated from adjacent sites.
The legislation also includes a provision that will, in most cases,
reassure participants in state voluntary cleanup programs that their
state-approved clean-up is not likely to be ``second- guessed'' by
Federal officials. This so-called finality assurance is crucial not
only to potential buyers and sellers of brownfields properties but to
their financial partners as well. The bill presents a welcome
compromise on a very difficult policy challenge. While not as air-tight
an endorsement of State primacy in this area as we have supported in
the past, the provision represents substantial progress in finding a
bipartisan resolution to a crucial policy issue.
We look forward to working with you, other Senate leaders and the
Administration to encourage the swift passage of BRERA.
Sincerely,
Jeffrey D. DeBoer, President and Chief Operating Officer.
__________
National Association of Realtors,
June 8, 2000.
Hon. Lincoln Chafee,
Hon. Frank Lautenberg,
Hon. Bob Smith,
Hon. Max Baucus,
U.S. Senate,
Washington, DC 20510.
Dear Senators: On behalf of the 760,000 members of the National
Association of Realtors, I strongly support your introduction of S.
2700, the Brownfields Revitalization and Environmental Restoration Act
of 2000. NAR thanks you for your hard work in achieving a solid
bipartisan bill which present a constructive, viable approach to
cleaning up and revitalizing hazardous waste sites throughout the
country.
NAR supports S. 2700 because it:
Provides liability relief for innocent property owners
who have not caused or contributed to hazardous waste contamination;
Funds cleanup and redevelopment of the hundreds of
thousands of our nation's ``brownfields'' sites;
Recognizes the finality of successful state hazardous
waste cleanup efforts.
Redevelopment of brownfields sites offers excellent opportunities
for the economic and environmental enrichment of our communities.
Unfortunately, liability concerns often deter real estate transactions
involving properties which are or might be contaminated by hazardous
waste. As a result, properties that could be contributing to the tax
base of communities are left dilapidated, contributing to nothing but
economic ruin.
The meaningful reforms contained in the Brownfields Revitalization
and Environmental Restoration Act of 2000 will achieve cleanup of
hazardous waste sites, encourage property reuse and enhance community
growth. NAR looks forward to working with you in the coming months to
make brownfields legislation a reality.
Sincerely,
Lee L. Verstandig, Senior Vice President, Governmental
Affairs.
__________
Building Owners and Managers Association International,
June 27, 2000.
Hon. Lincoln D. Chafee,
U.S. Senate,
Washington, DC 20510.
Dear Senator Chafee: On behalf of commercial real estate professionals
nationwide, I applaud your recent introduction of S. 2700--The
Brownfields Revitalization and Environmental Restoration Act of 2000.
You and your fellow cosponsors have cut through a thicket of
remediation issues to create a practical, bipartisan solution for
America's brownfields problem. The Building Owners and Managers
Association (BOMA) International strongly endorses this bill as a way
to rapidly and dramatically improve our nation's cleanup efforts.
With more than 400,000 brownfields sites nationwide, our country
needs to take a more aggressive approach toward resolving this issue.
We believe that S. 2700 provides practical solutions to America's
brownfields dilemma.
Via a relatively simple approach, the bill cuts to the heart of
multiple brownfields issues. It offers reasonable liability exemptions
for blameless parties, like innocent landowners, prospective
purchasers, and contiguous properties. It also looks to enhance the
role of states in the brownfields cleanup process. Additionally, it
increases the Federal Government's commitment to solving the problem by
dedicating funds solely for brownfields assessment and remediation. By
encompassing so many important improvements to current cleanup law, you
have made it easy for real estate professionals nationwide to support
this effort.
BOMA appreciates your leadership in this demanding legislative
field. We look forward to assisting you in your efforts to help clean
up America's brownfields.
Sincerely,
Richard D. Baier, President, BOMA International.
__________
National Ground Water,
June 27, 2000.
Hon. Lincoln Chafee,
Committee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510-6175.
Dear Senator Chafee: On behalf of the National Ground Water
Association, I would like to submit the attached letter of support for
S. 2700, the Brownfields Revitalization and Environmental Restoration
Act of 2000.
The National Ground Water Association thanks you for your
sponsorship of this legislation and stands ready to assist to move the
bill forward.
Very truly yours,
Christine Reimer, Government Affairs Director.
__________
Statement of the National Ground Water Association
The National Ground Water Association (NGWA) applauds the sponsors
of S. 2700, the Brownfields Revitalization and Environmental
Restoration Act of 2000. This bill zeros in on the principal barriers
hindering the constructive reuse of abandoned and possibly contaminated
sites and lays out a responsible plan to overcome these impediments.
A 1998 study \1\ analyzing state brownfields redevelopment programs
identified liability protection for innocent parties as the most
important reform required for successful programs. Additionally,
financial incentives and a supportive governmental attitude ranked as
key factors in the success of state programs. S. 2700 brings the
Federal Government into a partnership with the states, providing
appropriate liability relief and adding Federal financial resources to
those of state, local and private entities.
---------------------------------------------------------------------------
\1\ Consumers Renaissance Development Corporation, National
Comparative Analysis of Brownfield Redevelopment Programs, 1998.
---------------------------------------------------------------------------
Much of the environmental remediation work ongoing in this country
is being done through state clean-up programs or with state oversight.
NGWA believes the financial assistance provided in the bill to state
clean-up efforts and reinforcement of the respective roles of Federal
and state government entities will help achieve the public health and
environmental protection that is everyone's ultimate aim.
Environmental professionals are working together with planners and
developers to identify land uses and remedial technologies that
complement each other, meeting both land-use objectives and
environmental standards. \2\ This legislation removes some of the
liability and financial issues that slow the application of existing
technical knowledge to the recycling of the nation's brownfields sites.
NGWA urges passage S. 2700 as expeditiously as possible.
---------------------------------------------------------------------------
\2\ Nyer, Evan K. and Lawrence S. Graves, ``Identifying Synergy
Between Remedial Strategies and Land Reuse,'' Ground Water Monitoring
and Remediation, Fall 1998, pp. 61-65.
---------------------------------------------------------------------------
The leading information and education provider for the ground water
industry, NGWA is a not-for-profit, 1 6,000-member organization
dedicated to providing and protecting the ground water resources. We
thank you for this opportunity to submit our views on this important
issue.
__________
June 23, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Frank Lautenberg, Ranking Member,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Robert Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Hon. Max Baucus, Ranking Member,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Senators Chafee, Lautenberg, Smith and Baucus: The Environmental
Business Action Coalition (EBAC) commends you for your hard work in
crafting the bipartisan bill S. 2700, Brownfields Revitalization and
Environmental Restoration Act of 2000. This bill provides significant
direction in planning a path forward by laying down a benchmark for
cleaning up brownfields nationwide.
EBAC, which is a coalition of the American Consulting Engineers
Council and represents most of the major firms working in air quality,
water infrastructure and hazardous waste environmental management, has
long supported reform in brownfields law and regulation. Specifically,
we were pleased to see provisions in S. 2700 that takes steps toward:
providing for state finality in brownfields clean up;
bolstering self-certification of state brownfields
programs;
recognizing the validity of professional judgment in site
assessment,
giving the U.S. EPA Administrator flexibility in
establishing standards of practice and not promulgating into law ASTM
1527-97 as the standard for site assessment; and
supporting state and local brownfields clean up by
providing increased resources through a grants program.
One of the hallmarks of this piece of legislation is the manner in
which it addresses site assessment and the establishment standards of
practice. The engineering community applauds your approach that does
not set in law ASTM 1527-97, but rather outlines professional standards
of care and practice as the basis for determining cleanup needs.
Again, you should be congratulated for your efforts. EBAC strongly
endorses this measure and is working as an organization, and in concert
with various coalitions, to secure its passage. If there is anything
EBAC can do to ensure that this bill is signed into law, please contact
me at (703) 351-4415 or our Executive Director, David Bancroft, at
(202) 682-4352.
Sincerely,
William J. Birkhofer, Chairman, Government Affairs
Committee.
__________
The United States Conference of Mayors,
June 8, 2000.
Hon. Lincoln Chafee, Chair,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Chafee: On behalf of The United States Conference of
Mayors, I am writing to convey our strong support for your legislation,
``Brownfields Revitalization and Environmental Restoration Act of
2000,'' a bipartisan initiative that the mayors believe will help
accelerate the assessment, cleanup and ultimately the redevelopment of
the many thousands of brownfields all across this nation.
The nation's mayor have made enactment of such legislation one of
our highest legislative priorities, because of the many benefits that
can be realized for the Nation and local communities through the
recycling of America's land. We are particularly pleased that your
proposal has already secured the bipartisan cosponsorship of the top
leaders of the Senate Environment and Public Works Committee. We urge
that this legislation advance expeditiously in the Senate to ensure
that this important legislation is enacted before the 106th Congress
adjourns later this year.
This proposal deals with the priority issues that mayors have
identified as crucial to these local brownfield efforts. First, it
provides needed partnership resources to cities, other communities and
states to tackle this national problem, which, to date, has overwhelmed
local efforts. A broader commitment of Federal resources for
assessments of these sites, coupled with funds to help get these sites
cleaned up, is a threshold issue for mayors and others struggling with
the challenge of brownfield sites in their communities. Second, your
legislation includes key liability reforms that will put an end to
policies that have unfairly punished innocent parties, both public and
private; important changes which help accelerate efforts to reclaim
these sites. Finally, the legislation further clarifies the
relationship between U.S. EPA and the states in making decisions and
taking other actions to bring these sites back into more productive
use.
We appreciate your many efforts and those of your committee
colleagues in crafting this important bipartisan agreement. You can
count on the strong support of the nation's mayors as you move this
legislation forward.
Sincerely,
Thomas Cochran, Executive Director.
__________
The Trust for Public Land,
June 8, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Frank Lautenberg, Ranking Member,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510
Hon. Robert Smith, Chairman,
Environment and Public Works Committee,
U.S. Senate,
Washington, DC 20510.
Hon. Max Baucus, Ranking Member,
Environment and Public Works Committee,
U.S. Senate,
Washington, DC 20510.
Dear Senators Chafee, Lautenberg, Smith and Baucus: I am writing to
thank you for the outstanding leadership you have demonstrated through
your introduction of the Brownfields Revitalization and Environmental
Restoration Amendments Act of 2000. On behalf of the Trust for Public
Land (TPL) and our countless community partners across America whose
landscapes and economies would benefit enormously from your landmark
legislation, I also want to advise you of our energetic and
enthusiastic support for this vitally important bill.
As you are well aware, brownfields pose some of the most critical
land-use challenges and afford some of the most promising
revitalization opportunities--facing our nation's communities, from the
urban core to more rural locales. By transforming these idled,
frequently abandoned sites into urgently needed parks and greenspaces,
or by focusing investment into their appropriate redevelopment,
reclamation of brownfield properties brings new life to local economies
and to the spirit of neighborhoods. In the process, it has proven to be
an extremely powerful tool in local efforts to control urban sprawl--
directing economic growth to already- developed areas--and in
addressing longstanding issues of environmental justice in underserved
areas.
TPL gratefully acknowledges the clear commitment that the
Environmental Protection Agency and other Federal agencies have
demonstrated to brownfields restoration through existing programs. At
the same time, given that there are an estimated 600,000 brownfield
properties nationwide, we recognize that these limited resources have
been stretched too far to allow for an optimal Federal role. Additional
investment, at higher levels and in new directions, is essential to
meeting the enormous backlog of need and to establishing the truest
Federal partnership with the many state, local, and private entities
working to renew brownfield sites.
The Brownfields Revitalization and Environmental Restoration
Amendments Act would provide this much-needed Federal response. Through
our work with myriad localities, TPL has witnessed the real, on-the-
ground benefits that your bill, with its targeted approach to
assessment and remediation, would provide. Given this experience, we
are particularly gratified by the emphasis your legislation places on
brownfields-to-parks conversion where appropriate; the broad assistance
it provides to an appropriate spectrum of landscapes, from inner city
to rural community to tribal lands; and the flexibility it affords to
tailor loan and grant funding based on community needs and eventual
uses. In all, the bill provides precisely the framework and annual
funding that an effective national approach to brownfields requires.
Accordingly, TPL deeply appreciates your vision and craftsmanship
in developing this crucial legislation, and we look forward to working
with you toward its enactment.
Sincerely,
Alan Front, Senior Vice President.
__________
National Association of Home Builders,
June 23, 2000.
Hon. Robert Smith,
U.S. Senate,
Washington, DC 20510.
Hon. Lincoln Chafee,
U.S. Senate,
Washington, DC 20510.
Hon. Max Baucus,
U.S. Senate,
Washington, DC 20510.
Hon. Frank Lautenberg,
U.S. Senate,
Washington, DC 20510
Dear Senators: On behalf of the 200,000 members of the National
Association of Home Builders (NAHB), I express strong disappointment
with S. 2700, the ``Brownfields Revitalization and Environmental
Restoration Act.'' Certainly, you should be lauded for successfully
finding bipartisan compromise on this issue. This is a crucial first
step. Unfortunately, however, the bill fails to provide enough
incentives for our membership to take the risks involved in brownfields
remediation and redevelopment. As a result, NAHB will oppose the bill
and attempt to have it amended in committee and on the floor of the
Senate to provide these incentives. I urge you to embrace these
amendments.
In particular, our membership fears that too few brownfields will
be affected by your legislation because it does not include protections
under the Resource Conservation and Recovery Act (RCRA)--which covers
petroleum contamination. Moreover, the bill also fails to protect our
membership from potential liability and administrative orders under the
Toxic Substance Control Act (TSCA). Finally, by making any discovery of
``new information'' a general ``re-opener,'' the bill gives EPA too
much authority to second-guess a cleanup that has passed a state's
qualifications.
Recently, NAHB contracted with the Northeast/Midwest Institute' to
assess each state's brownfields programs (if the state has one). This
survey highlighted the fact that Congress should include petroleum and
other pollutants not covered by the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) in brownfields
reform legislation. For example, of the forty-four states responding
that they have a brownfields program, 40 allow petroleum-contaminated
sites to enroll in the program. Examples include New Hampshire and New
Jersey, both of which allow sites contaminated with any pollutant or
contaminant to enroll. Other states have recently moved to include
petroleum contaminants in their program, including Rhode Island, which
did so in 1996. As Charles Bartsch, author of the Northeast/Midwest
study, observes:
In general states are much more advanced and comprehensive in their
approaches to contamination from a brownfields/redevelopment vantage
point. States have developed a greater level of comfort themselves in
dealing with a variety of contaminants, including petroleum. Many state
Voluntary Cleanup Plans also permit lead-based paint contamination to
be addressed, a key concern of developers wishing to rehab old
buildings into housing units. More and more states are taking a
holistic approach to contaminants, recognizing that all types impede
the restoration of brownfield sites to productive use.
The reason the states have become more advanced than the Federal
Government on this issue probably stems from the information they have
gained from running their programs. Most states reported that a
majority of contaminated sites enrolled in their brownfields program
were either solely contaminated with petroleum or have some degree of
petroleum contamination. For example, 60 percent of sites enrolled in
Texas' program have petroleum contamination. Half of Maine's sites are
petroleum-contaminated. 63 percent of Montana's sites are petroleum
contaminated. In sum, NAHB's membership cannot understand why Congress
should pass a bill that fails to bring relief to over half the
potential brownfields in the nation. Why should Congress trust the
states to adequately address hazardous materials but not petroleum
contaminants? NAHB's members urge you to amend the bill to view
contaminants holistically and to include in the legislation a single
liability standard for any contaminant covered under Federal
environmental law, just as the states are doing under their programs.
This leads to NAHB's second concern: the overlapping nature of
Federal environmental laws dealing with toxic substances. S. 2700
addresses only CERCLA. While EPA prefers acting under this statute when
it pursues an action in connection with a contaminated site, nothing
bars EPA from taking enforcement actions under TSCA or RCRA at those
sites. Put in simple terms, while the bill may close the front door of
CERCLA litigation, EPA can still use several back doors if it wants to
pursue legal action against a developer who has completed a state
voluntary cleanup.
Certainly, EPA can legitimately claim that it has never used these
other statutes to deal with hazardous materials--the kind of
contaminants covered by the bill. Indeed, enforcement attorneys from
EPA expressed precisely this point to NAHB in past conversations on
brownfields reform (as did your staff during similar conversations).
At the same time, as a factual matter no legal barrier prevents EPA
from using these other statutes. Nor would this bill erect one. Indeed,
when asked, EPA's enforcement attorneys admitted that their preference
for CERCLA over an expanded TSCA or RCRA had more to do with
convenience than a strict legal or policy principle. In fact, they
admitted that (if need be) they would turn to these other statutes in
precisely the way our members fear if CERCLA were no longer available.
In truth, anyone who has observed the way environmental law has
been enforced over the last two decades knows that once Congress gives
EPA authority to do something, eventually EPA will use that authority.
You recognize this fact tacitly by including bars on EPA's enforcement
after a state has approved a cleanup. EPA has often reiterated that it
has never taken an enforcement action under such a circumstance.
Nevertheless, you bar them from taking one because you recognize that
few developers will take the risk of remediating a brownfield when they
believe EPA will inevitably take such action--if not today, then
eventually.
This leads me to NAHB's third concern with the bill: the additional
``re-opener.'' As is true of most brownfields bills, you provide
several exceptions to the bar on EPA's enforcement authority at sites
enrolled in a state cleanup program. One of these exceptions allows EPA
to take action whenever ``additional `` information related to the
cleanup, the conditions, or the contamination at the site is
subsequently discovered. We understand that the variety of state
programs requires a flexible term to describe what seems a reasonable
concern; however, you have ended up with a very broad and ill-defined
term (``additional'') that invites too much legal uncertainty in the
cleanup process.
Specifically, since the discovery of ``additional'' information
revokes the entire bar on an EPA enforcement action regardless of its
relevance to the completed cleanup, our members fear that EPA may
``discover'' even the smallest bit of additional information in order
to revisit the entire cleanup. The result could render the entire
prohibition ineffective. Far better, we believe, to address this
concern by only providing protections for the work done as part of the
state plan. If additional contamination is discovered, then EPA may
address it regardless of the work done under the state plan. At the
same time, EPA remains barred from addressing the work already
completed.
While NAHB cannot support the bill until these issues have been
addressed, I would be remiss if I did not acknowledge the good will
your staff demonstrated in meeting with NAHB several times to discuss
your legislation and our concerns. In addition, I recognize that you
adopted in your bill an important feature of the brownfields proposal
NAHB developed with the help of EPA. Indeed, NAHB supports the process
you began when you reached out to us and other members of the concerned
community. NAHB simply hopes that this process has not ended. We hope
that there remains an opportunity to address the concerns I have raised
above so that we may all work together in passing effective brownfields
legislation.
Sincerely,
Gerald M. Howard, Senior Staff Vice President,
Federal Government Affairs Division.
__________
National Association of Counties,
June 28, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Senator Chafee: On behalf of the nation's elected county
officials, I am writing to commend your efforts in offering bipartisan
legislation, S. 2700, the Brownfields Revitalization and Environmental
Restoration Act of 2000, to facilitate the assessment, cleanup and
redevelopment of brownfields sites across the country.
The National Association of Counties strongly supports Federal
legislation aimed at meeting the reeds of states and local governments,
urban suburban and rural, to expand and improve upon the success of
brownfields programs. We believe your bill represents an excellent
opportunity to do just that--by making financial resources available
and by clarifying liability issues which so often place unnecessary
barriers in the way of counties' ability to progress in the cleanup and
development of these sites.
Nonetheless, while we support the approach to brownfields taken in
S. 2700, county governments insist that any legislation amending the
Superfund law also must address the need to codify local government
liability reforms at codisposal landfills. This is a policy issue where
there is clear bipartisan support, and we hope you will work with us in
support of those reforms.
Thank you very much for your leadership on these important issues.
Please feel free to contact Stephanie Osborn of NACo at (202) 949-4269
for further information.
We stand ready to work with you.
Sincerely,
C. Vernon Gray, President.
__________
National Conference of State Legislatures,
July 5, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington DC 20510.
Dear Chairman Chafee: I am writing on behalf of the National Conference
of State Legislatures to comment on S. 2700 the Brownfields
Revitalization and Environmental Restoration Act of 2000. NCSL commends
the committee for its efforts to provide financial assistance to state
and local governments for Brownfields revitalization.
We are concerned, however, about the matching share proposed in
Title I Brownfields Revitalization Funding, Sec. 128. Brownfields
Revitalization Funding, (i) Agreements, (3) . . . in the case of an
application by an eligible entity under section (c)( 1), requires the
eligible entity to pay a matching share (which may be in the form of a
contribution of labor, material, or services) of at least 20 percent,
from non-Federal sources of funding, unless the Administration
determines that the matching share would place an undue hardship on the
eligible entity . . . NCSL believes the match rate should be the same
as is currently required under the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA). The match rate in S. 2700
should be reduced from 20 percent to 10 percent.
We commend the committee for addressing the role of third party and
prospective purchaser in the chain of liability. NCSL supports efforts
to remove disincentives--established under CERCLA--that impede economic
development at these sites. Title II--Brownfields Liability
Clarifications provides much improved protections for innocent
landowners.
We are concerned, however, about the conditions under which the
Administrator can bring an enforcement action. Title III State Response
Programs, Section 129. State Response Programs, (b) Enforcement in
Cases of Release Subject to State Program, (1) Enforcement, (B)
Exceptions, Subsections (ii), (iii) and (iv) does not require the
Administrator to notify the state of an action the Administrator
intends to take during or after completion of a response action. It
also does not provide the state with an opportunity to comment on the
notice or take necessary corrective actions. We suggest that S. 2700 be
amended to compel administrator notification and allow for state
comment and corrective action.
Title III State Response Programs, Sec. 129. State Response
Programs, (b) Enforcement in Cases of a Release Subject to State
Program (1) Enforcement, (C) Public Record requires a state to . . .
make available to the public a record of sites, by name and location,
at which response actions have been completed in the previous year and
are planned to be addressed under the State program that specifically
governs response actions for the protection of public health and the
environment in the upcoming year . . .
Although we understand that the requirement, as it relates to
possible cleanup sites for the upcoming year, is meant to be ``good
faith reporting,'' we suggest that the language be redrafted to read .
. . make available to the public a record of sites, by name and
location, at which response actions have been completed in the previous
year and [to the best knowledge of the state] are planned to be
addressed under the State program that specifically governs response
actions for the protection of public health and the environment in the
upcoming year . . .
Title III Response Programs, Sec. 129. State Response Programs also
raises some concerns. As proposed in S. 2700, a grant is contingent on
the fact that a State or Indian Tribe . . . (i) has a response program
that includes each of the elements, or is taking reasonable steps to
include each of the elements listed in paragraph (2); or (ii) is a
party to a memorandum of agreement with the Administrator for voluntary
response programs . . .
We are concerned that a number of the 35 states that have existing
brownfields programs may not meet all of the ``reasonable steps''
requirements or may have difficulty in reaching a memorandum of
agreement (MOA) with the Environmental Protection Agency (EPA). Given
these two facts, a number of states may have difficulty qualifying for
the program. NCSL would like to work with the committee to ensure that
every state can take full advantage of the financial assistance
available to them under your proposal.
We appreciate the efforts of the chief sponsors of S. 2700 and the
subcommittee to bring forward a bill to further advance Brownfields
cleanup and redevelopment. We look forward to working with you on this
issue. For additional information, please contact Molly Stauffer in
NCSL's Washington, DC Office at (202) 624-3584 or by e-mail at
molly.stauffer?ncsl.org.
We respectfully request that this letter be added to the record for
the hearing held June 29, 2000 before the Senate Committee on
Environment and Public Works, Subcommittee on Superfund, Waste Control,
and Risk Assessment regarding S. 2700, the Brownfields Revitalization
and Environmental Restoration Act of 2000.
Sincerely,
Senator Beverly Gard, Indiana State Senate,
Chair, NCSL Environment Committee.
__________
U.S. Senate,
June 27, 2000.
Dear Colleague: As cochairs of the Senate Smart Growth Task Force we
are writing to urge your support of the Brownfields Revitalization and
Environmental Restoration Act of 2000 (S. 2700). This is the first
bipartisan brownfields bill that has the support of the chairman and
ranking member of the Environment and Public Works Committee and of the
Subcommittee on Superfund, Waste Control and Risk Assessment. Already,
it has been endorsed by the United States Conference of Mayors, the
Trust for Public Land. and the National Association of Realtors.
Brownfields are abandoned, idled, or under-used commercial or
industrial properties where development or expansion is hindered by
real or perceived environmental contamination. In a recent survey by
the U.S. Conference of Mayors, 21,000 brownfields sites covering more
than 81,000 acres were identified in 210 cities. Reusing and restoring
these sites has been a central tenant of urban revitalization and smart
growth for many years. Due to the real or perceived threat of
contamination with brownfields, the costs of developing these sites is
many times that of greenfields sites outside the city.
As advocates for smart growth--growth that is fiscally responsible;
preserves the environment: encourages economic opportunity; and
promotes social equity-we strongly feel that whenever possible
communities should encourage development in our existing urban areas
where much underutilized land currently exists. The redevelopment of
brownfields capitalizes on existing infrastructure, expands the urban
tax base, encourages economic revitalization, mitigates urban sprawl,
and reduces public health risks in many of the neighboring communities.
Introduced on June 8, 2000, S. 2700 will compliment many of the
state's successful brownfield programs. The bill provides much needed
funding to state and local jurisdictions for the assessment,
characterization, and remediation of brownfield sites. Importantly, the
bill clarifies liability for contiguous landowners, prospective
purchasers, and innocent landowners. Finally, the bill provides greater
certainty to developers and parties conducting the cleanup, ensuring
that decisions under state programs will not be second- guessed.
We believe S. 2700 will do much to encourage both commercial and
residential development in our nation's developed areas where existing
infrastructure, access to public transit, and close proximity to
cultural facilities currently exist. If you are interested in
cosponsoring this important legislation, please have your staff call
Ted Michaels (with the Subcommittee on Superfund, Waste Control, and
Risk Assessment) at 4-1049 or Lisa Haage (with Sen. Lautenberg) at 4-
3388. For more information on the Senate Smart Growth Task Force, your
staff may call John Bailey at 4-6221 or Cameron Taylor at 4-0606.
Sincerely,
Carl Levin, U.S. Senate.
James M. Jeffords, U.S. Senate.
__________
American Society of Civil Engineers,
June 29, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control, and Risk Assessment,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Mr. Chairman: The American Society of Civil Engineers (ASCE) is
pleased to offer this statement in support of enactment of S. 2700, the
Brownfields Revitalization and Environmental Restoration Act of 2000.
ASCE was founded in 1852 and is the country's oldest national civil
engineering organization. It represents more than 125,000 civil
engineers in private practice, government, industry and academia who
are dedicated to the advancement of the science and profession of civil
engineering. ASCE is a non-profit educational and professional society
organized under Part 1.501(c)(3) of the Internal Revenue Service rules.
As an initial matter, we agree that Congress needs to pass
legislation that would eliminate statutory and regulatory barriers to
the redevelopment of ``brownfields,'' lands that effectively have been
removed from productive capacity due to serious contamination. These
sites, properly restored, aid in the revival of blighted areas, promote
sustainable development, and invest in the nation's industrial
strength.
Additionally, revitalized brownfields would reduce the demand for
undeveloped land. ASCE supports limits on urban sprawl to achieve a
balance between economic development, rights of individual property
owners, public interests, social needs and the environment. Community
growth planning should give consideration to the public needs, to
private initiatives and to local, state and regional planning
objectives. Full provision of public infrastructure and facilities
redevelopment must be included in all growth initiatives and should be
made at the lowest appropriate level of government.
We believe that a targeted brownfields restoration program should
take into account site-specific environmental exposure factors and
risks based on a reasonable assessment of the future use of the
property.
With regard to specific provisions of S. 2700, ASCE urges Congress
to adopt legislation that would ensure that the state and local
agencies charged with redeveloping brownfields through grants and loans
authorized under the Brownfields Revitalization and Environmental
Restoration Act would benefit from the most qualified engineering
service providers.
We strongly support an amendment to S. 2700 that would require all
private-sector architects and engineers who are employed in the design
and construction of brownfields cleanups using Federal grant or loan
funds to be employed using the ``qualifications-based selection'' (QBS)
procedures required for Federal agencies under title IX of the Federal
Property and Administrative Services Act of 1949, 40 U.S.C.A.
Sec. Sec. 541-544 (West 2000).
Traditionally, Federal Government procurement procedures properly
have emphasized awarding contracts to the lowest bidder, or using price
as a dominant factor. For many goods that the government purchases--
paper, office equipment, desks, even construction services--this
process serves the government and the taxpayer well. Specifications can
be written, products can be inspected and tested, and safeguards can be
built in to assure saving money.
Sometimes, however, agencies mistakenly assume professional
architecture, engineering, surveying and mapping services fall into
this category. Unfortunately, the assumption ignores the increase in
costs to administer the preparation of detailed scopes of work and bid
specifications, to evaluate numerous bids, and to remedy serious
consequences of unprofessional A/E related services.
Quality, therefore, should always be the primary focus in the
competition for architectural, engineering and surveying and mapping
procurement. Only after high quality performance is ensured should the
focus turn to the contract price. That is exactly what QBS provides.
The title IX ensures that specialized skills and technologies are
evaluated properly and are not overlooked. In this manner, the
government benefits from direct control of both the quality of the
services and the project's development.
Title IX applies to the acquisition of all architectural and
engineering services, including services of an architectural or an
engineering nature that are logically and justifiably to be performed
by architects or engineers. The language of the Act governs the
broadest range of A/E design services, i.e., any that are performed by
architects or engineers and those that may be. Nothing in the Act
limits or restricts the application of QBS procedures to some
architectural or engineering services while exempting others.
The use of negotiated procedures directs the focus of procurement
activity where it should be, on the quality of the professional A/E
services specifically suited to a given contract.
All competitors must submit their qualifications to the procuring
agency; the agency assesses the relative expertise of the competing
firms; and the one most qualified firm is selected for the particular
procurement. Such procedures produce a more cost effective design, map
and related professional service than can be achieved under price
bidding procedures.
The qualifications-based selection law was codified to protect the
interest of taxpayers. It is Federal law because over the life of a
project, engineering-related services account for less than one- half
of 1 percent of total costs. Yet these important services play a major
role in determining the other 99.5 percent on the project's ``life
cycle costs,'' such as construction, operation, and maintenance.
This process has been so successful at the Federal level that it is
recommended by the American Bar Association in its model procurement
code for state and local government. Thirty-seven states have enacted
their own qualifications-based selection laws for architecture,
engineering, surveying and mapping services. Others use it as a
standard procedure. Today, no state has a specific law requiring
bidding of these services.
Since 1972 Congress has clarified and extended the application of
the QBS process to the awarding of architectural and engineering
services contracts for aviation programs project grant application, see
49 U.S.C.A. Sec. 47107 (West 2000); for mass transportation contract
requirements, management and architectural engineering, see 49 U.S.C.A.
Sec. 5325 (West 2000); for military construction projects, see 10
U.S.C.A. Sec. 2855 (West 2000); for procurement of architectural or
engineering services as competitive procedures for procurement
purposes, see 10 U.S.C.A. Sec. 2302, 41 U.S.C.A. Sec. 259 (West
2000); for river and harbor improvements, see 33 U.S.C.A. Sec. 569b
(West 2000); for permanent clarification of the application of the QBS
process to surveying, mapping, charting and geodesy contracts of the
National Imagery and Mapping Agency (NIMA), see 144 Cong. Rec. H8718
(daily ed. Sept. 25, 1998).
In a related area, ASCE would strongly oppose any blanket
requirement mandating that architectural and engineering services be
provided exclusively by the agencies receiving the Federal loans or
exclusively by the private sector. We believe that Federal, state and
local government agencies need engineering expertise within their
organizations to manage these complex projects.
At the same time, public agencies should not to compete with
engineers in private practice. Public sector engineering projects that
can be accomplished more efficiently by private engineering firms
should be contracted out with proper oversight by the public agency.
The resulting ratio of in-house to contracted engineering services
should be based upon the agency's on-going project and policy
requirements rather than rigid rules or percentages fixed by
legislation or regulation.
Mr. Chairman, we appreciate this opportunity to express our views
on S. 2700. If you have questions for ASCE, please do not hesitate to
contact Michael Charles of our Washington Office at (202) 789-2200 or
by e-mail [email protected].
Sincerely yours,
Delon Hampton, Ph.D., P.E. President.
__________
American Institute of Chemical Engineers,
June 29, 2000.
Hon. Lincoln Chafee,
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC 20510.
Dear Senator Chafee: The American Institute of Chemical Engineers
(AIChE) appreciates the opportunity to comment on the recently
introduced brownfields legislation. The members of AIChE hold paramount
the safety, health, and welfare of the public, and therefore, support
policies such as results-oriented methods as effective tools in
achieving environmental safety goals.
Superfund cleanups and the development of brownfields sites should
be undertaken in the safest and most efficient manner possible. By
allocating this responsibility to the states, these two goals are much
more likely to be realized. AIChE supports language in the
``Brownfields Revitalization and Environmental Restoration Act'' that
focuses on streamlining the remediation process, thus creating a more
efficient, safe and cost feasible cleanup.
The AIChE, founded in 1908, is a non-profit, professional
association that provides leadership in advancing the chemical
engineering profession. Our membership of more than 57,000 is made up
of individuals who work in industry, government, academia, and
consulting, and includes students and retirees. Our members are
creative problem solvers who apply scientific Knowledge And technical
expertise in meeting societal needs.
Sincerely,
Dr. Basil C. Doumas, Chairman,
AIChE Government Relations Committee.
__________
June 29, 2000.
Hon. Lincoln Chafee, Chairman,
Environment and Public Works Committee,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Frank R. Lautenberg, Ranking Member,
Environment and Public Works Committee,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Chafee and Senator Lautenberg: We are writing to thank
you for the outstanding leadership you have demonstrated through your
introduction of the Brownfields Revitalization and Environmental
Restoration Act of 2000, and commend you for moving so efficiently to a
hearing. Our organizations, and our many community partners across
America, are heartened by the benefits that this legislation would
impart upon our landscapes, economies, public parks and our communities
as a whole. Transforming abandoned brownfield sites into greenfields or
new development will provide momentum for increasing ``smart growth''
and reducing sprawl by utilizing existing transportation
infrastructure, which in turn will lead to better transportation
systems and the revitalization of historic areas and our urban centers.
As you are well aware, brownfields pose some of the most critical
land-use challenges--and afford some of the most promising
revitalization opportunities--facing our nation's communities, from our
cities to more rural locales. By transforming these idled sites into
urgently needed parks and greenspaces, or by focusing investment into
their appropriate redevelopment, reclamation of brownfield properties
brings new life to local economies and to the spirit of neighborhoods.
In the process, it has proven to be an extremely powerful tool in local
efforts to control urban sprawl by directing economic growth to already
developed areas, encouraging the restoration and reuse of historical
sites, and in addressing longstanding issues of environmental justice
in underserved areas.
We acknowledge the commitment that the Environmental Protection
Agency and other Federal agencies have demonstrated to brownfields
restoration through existing programs. At the same time, given that
there are an estimated 450,000--600,000 brownfield properties
nationwide, we recognize that these limited resources have been
stretched too far to allow for an optimal Federal role. Additional
investment, at higher levels and in new directions, is essential to
meeting the enormous backlog of need and to establishing the truest
Federal partnership with the many state, local, and private entities
working to renew brownfield sites.
The Brownfield Revitalization and Environmental Restoration
Amendments Act of 2000 would provide this much needed Federal response.
Through our work with local governments, our organizations have
witnessed first-hand--and have often worked as a partner to help
create--the benefits that this bill would provide. Given our
experiences, we are particularly gratified by the emphasis your
legislation places on brownfields-to-parks conversion where
appropriate, and the flexibility it provides to tailor loan and grant
funding based on community needs and eventual uses. In all, this bill
provides the framework and funding that an effective national approach
to brownfields will require.
Accordingly, we appreciate your vision in developing this
legislation, and we look forward to working with you toward its
enactment.
Sincerely,
Alan Front, Senior Vice President,
Trust for Public Land.
Jeffrey Soule, AICP Director,
Public Policy American Planning Association.
Richard Moe, President,
National Trust for Historic Preservation.
Barry Tindall, Director,
Public Policy National Recreation and Park Association.
Jan Schach, President,
American Society of Landscape Architects.
__________
CH2M HILL,
June 23, 2000
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Chafee: On behalf of the 9,500 employees of CH2M HILL, I
am writing to thank and commend you for your leadership in crafting and
cosponsoring ``The Brownfields Revitalization and Environmental
Restoration Act of 2000'' S. 2700. Introduction of this legislation on
a bipartisan basis is a vital first step toward enacting Brownfields
Legislation during the 106th Congress.
Employee-owned CH2M HILL is a global leader in project development,
construction, and engineering services that assists our public and
private sector clients to apply technology, safeguard the environment,
and develop infrastructure around the world.
Enactment of S. 2700 will make important contributions to the
redevelopment and return to productivity of countless currently unused
properties across the Nation through:
Providing finality for Brownfields cleanups;
Bolstering self-certification of state Brownfields
programs;
Recognizing that the judgment of environmental
professionals in site assessment and remedy selection is critical for
cost-effective and appropriate levels of cleanup by giving the U.S. EPA
Administrator authority to establish standards of practice instead of
requiring ASTM 1527-97 for such activity; and
Authorizing increased resources to support state and
local Brownfields cleanups.
CH2M HILL strongly endorses S. 2700 and is committed to working
with you and like-minded individuals and organizations to secure its
enactment into law. If you have questions or I can be of further
assistance, I can be reached at (202) 393-2426.
Sincerely yours,
Richard L. Corrigan, Senior Vice President, Governmental
Affairs.
__________
National Governors Association,
July 6, 2000.
Hon. Lincoln D. Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Hon. Frank R. Lautenberg, Ranking Member,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Max Baucus, Ranking Member,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Senators Chafee, Lautenberg, Smith, and Baucus: On behalf of the
National Governors' Association (NGA), we are writing to commend you
for your efforts to craft a brownfields bill that has garnered support
from both sides of the aisle. The issues included in the ``Brownfields
Revitalization and Environmental Restoration Act of 2000'' (S. 2700)
are especially important to our states and communities, and deal with
four out of the six priority issues that NGA has sought in any
Superfund/Brownfields reform bill, including liability reforms for non-
culpable parties, finality at state Brownfield cleanups, concurrence of
the Governor before a site is listed on the National Priorities List,
and funding to states for brownfields assessment and remediation.
We strongly support provisions in S. 2700 that relieve the fear of
Federal Superfund liability from prospective purchasers, innocent
landowners, and contiguous property owners. The funding provisions in
the bill that provide grants to states and local government for both
response actions as well as site assessments are also very positive
steps in making certain that financial assistance is available to move
sites toward final cleanup. The bill's ``finality'' provision also
provides some degree of certainty that states can assure landowners who
participate in state voluntary cleanup programs that they will not be
engulfed in the Federal liability scheme, although we believe the
language can be significantly improved to encourage voluntary cleanups.
Last, the general deferral of a site's listing on the National Priority
List, as long as the state's cleanup is making ``reasonable progress,''
is more problematic for NGA given our policy on gubernatorial
concurrence. The state response program outlined in Title III of the
bill also includes several less significant, but important
implementation issues for states. We hope to be able to work with you
to develop language that we can support on all of these issues.
As you know, two of our priority issues are not included in your
bill--a provision that clarifies that the state cost-share at Superfund
sites is capped at 10 percent for operation and maintenance costs, and
a sovereign immunity waiver under CERCLA for Federal facilities. Both
of these issues have been sought by NGA for many years and are
extremely important to states.
While we have concerns with some portions of S. 2700, on balance we
believe that the bill moves Superfund law in the right direction. We
hope you will work with states to address these issues. As you know,
many states have developed highly successful voluntary cleanup programs
that have resulted in prompt and effective remediation actions at
brownfields sites with minimal governmental intervention. The Governors
seek to continue our successful programs in partnership with the
Federal Government. We hope that as the legislation goes forward you
will find reasonable and balanced ways to address our concerns. We
remained committed to work with you to help pass a bill this year that
the President can sign.
Sincerely,
Governor Kenny C. Guinn, Chair, Committee on Natural
Resources.
Governor Thomas J. Vilsack, Vice Chair, Committee on
Natural Resources.
__________
International Council of Shopping Centers,
July 10, 2000.
Hon. Lincoln D. Chafee,
U.S. Senate,
Washington, DC 20510.
Dear Senator Chafee: The International Council of Shopping Centers
(ICSC) commends your recent efforts in introducing S. 2700--the
``Brownfields Revitalization and Environmental Restoration Act of
2000.'' Along with your cosponsors, you have displayed critical
leadership on a public policy issue too often caught up in partisan
rhetoric. ICSC enthusiastically supports S. 2700 and looks forward to
working with you and your staff to ensure its passage.
Shopping centers are America's marketplace, representing economic
growth, environmental responsibility, and community strength. Founded
in 1957, the ICSC is the global trade association of the shopping
center industry. ITSC nearly 35,000 U.S.members represent almost all of
the 44,426 shopping centers in the United States. In 1999 alone. these
centers accounted for more than $1.2 trillion dollars in retail sales
and generated more than $47.5 billion in state sales tax revenue. In
addition, shopping centers employ over 11 million people. about 9
percent of non-agricultural jobs in the United States. Legislation such
as S. 2700 will allow center developers to step-up their efforts to
assist in the redevelopment of urban areas in their continuing efforts
to enhance the economic and environmental quality of America's cities.
S. 2700 provides practical solutions to many of the issues
developers confront when debating tile merits of brownfields
redevelopment. Provisions providing liability relief for innocent
property owners who have not caused or contributed to hazardous waste
contamination; increased funding for the cleanup and redevelopment of
the hundreds of thousands of the country's brownfields sites; and.
recognition that sites remediated under the authority of state
voluntary clean up laws should constitute final action are all vital to
encouraging development in sites that may otherwise be left abandoned.
The targeted reforms you have focused on will result in greater
infill development and enhance the urban landscape. S. 2700 will not
only spur economic development but also improve environmental quality
throughout the country. ICSC looks forward to working with you in the
coming months in support of this important legislation.
Sincerely,
William H. Hoffman, III, Manager,
Environmental Issues International Council of Shopping Centers.
__________
Institute of Scrap Recycling Industries, Inc.,
July 13, 2000.
Hon. Lincoln D. Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Hon. Frank R. Lautenberg, Ranking Member,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Hon. Max Baucus, Ranking Member,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Senators Chafee, Lautenberg, Smith and Baucus: The Institute of
Scrap Recycling Industries, Inc., (ISRI) continues to strongly support
the passage of S. 2700, the Brownfields Revitalization and
Environmental Restoration Act of 2000. Passage of this bipartisan bill
will reduce the many legal and regulatory barriers that stand in the
way of brownfields redevelopment.
S. 2700 is important legislation that will provide liability relief
for innocent property owners who purchase a property without knowing
that it was contaminated, but who carried out a good faith effort to
investigate the site. It also recognizes the finality of successful
state approved voluntary cleanup efforts and provides funds to cleanup
and redevelop brownfields sites.
As ISRI first offered in the beginning of this year, we stand ready
to help build support for the passage of this bipartisan brownfields
bill. Since S. 2700 was introduced, the membership of ISRI has been
working to build grassroots support and seeking cosponsors for the
bill.
ISRI looks forward to continuing to work with you to see that S.
2700 becomes law. We believe that the Brownfields Revitalization and
Environmental Restoration Act of 2000 is a model Or sensible bipartisan
environmental policy.
Sincerely,
1Robin K. Wiener, President, Institute of Scrap Recycling
Industries, Inc.
__________
Statement of Natural Resources Defense Council; Alternatives for
Community and Environment; Center for Public Environmental Oversight;
Detroiters Working for Environmental Justice; Jesus People Against
Pollution; Partnership for Sustainable Brownfields Redevelopment; Subra
Company; Surface Transportation Policy Project; West Harlem
Environmental Action
Dear Senators Chafee and Lautenberg: The undersigned national
environmental organizations and local environmental justice
organizations would like to lend our support to your efforts to pass S.
2700, the Brownfields Revitalization and Environmental Restoration Act
of 2000. As you know, these groups have worked for years to promote the
cleanup and redevelopment of brownfield sites, while at the same time
ensuring the protection of public health and the environment. This bill
represents a significant step forward and holds the potential to help
break the deadlock on advancing Federal brownfields clean-up issues.
Though the contamination may not rise to the level of Federal
attention, brownfield sites in cities and rural areas across the
country still threaten the health of nearby residents, of wildlife, and
of the environment. Brownfields sites also undermine an area's economic
health. At the same time that America is losing 365 acres of greenspace
per hour to development, sites rich in existing infrastructure and near
to labor pools remain abandoned because of contamination.
Your bill would provide much needed funds for communities to
revitalize and clean up contaminated property, and at the same time
would create a framework for improving how these cleanups are
conducted. Your bill holds great potential for cleaning up communities,
protecting health, renewing local economies, combating sprawl and
preserving or creating open space. First, it provides financial
resources in the form of grants, revolving loans and technical
assistance grants (TAGs) to municipalities, non-profit organizations
and community redevelopment groups for increased public participation
and site-related assessment and cleanup activities. This assistance
will help provide for meaningful community input in clean-up decisions
that will have a significant effect on that community's quality of
life. Numerous studies of clean-ups all across the country have
demonstrated that early and frequent community participation results in
better and more efficient clean-ups.
Second, the legislation requires that states take steps necessary
for their Brownfields programs to satisfy important assessment,
remediation, and public involvement criteria (or that the state has
entered a separate agreement with EPA) as a condition of receiving
Federal grants. Third, the bill provides important new funding for
preservation of greenspace and open space in communities and makes
greenspaces a priority for development. And, in Title II, S. 2700
adopts sensible liability protections, which we have long supported.
These clarifications should encourage brownfields activity while also
preserving vital Federal enforcement authority and a baseline level of
protection for all Americans.
Wisely, the bill is narrowly tailored to achieve the goal of more
and better brownfields clean-ups. We would oppose vigorously any effort
to broaden the liability clarifications provided by the bill, including
application of the bar to statutes other than CERCLA, or any changes to
the enforcement bar provisions, which we read to embody current EPA
policy and practice for taking action under CERCLA section 106.
We recognize that this legislation represents a delicate compromise
and a unique consensus on brownfields, which would not have been
possible without your commitment, and that of your dedicated staff, to
developing a national framework for restoring our communities and the
environment at the same time. While our organizations support moving
this legislation forward, below we call to your attention some
important issues which we strongly urge you to address.
Time Frames for Developing State Brownfield Programs
We strongly support additional funding for states to develop
effective and enforceable brownfields cleanup programs consonant with
the criteria in the bill. Unfortunately, the current language appears
to allow states to continue to receive funding indefinitely for taking
undefined ``reasonable steps'' toward implementing a program that meets
the criteria. We presume that ``reasonable steps'' means that
establishment of those programs should be required to occur within some
set period of time (e.g., 3-4 years), and our support is conditioned on
this understanding. In any event, EPA should be allowed to cut funding
for those states not making significant efforts to reach the funded-
program criteria.
Enforcement Bar and Re-openers
Under the proposed legislation, EPA would be prohibited from taking
enforcement action or seeking cost recovery at eligible sites which are
subject to a state clean-up program. As we understand the bill, this
``enforcement bar'' will apply only to cleanups that are designed and
initiated after the effective date of this bill, and not to cleanups
well underway or that those have been completed but are being
maintained or monitored. We could not support a bill that would do
otherwise. We also strongly suggest adding an exclusion from the
enforcement bar that would allow the EPA to take action at a site if
the land use changes substantially and the Administrator determines
that, as a result of the new land use, the cleanup is inadequate to
protect human health and the environment.
Institutional Controls
To its credit, the bill contains important language that would
provide for a public inventory of brownfields cleanups in each state,
and information on how the institutional controls in place (e.g., deed
restrictions) will protect the public when a clean-up does not remove
all wastes at brownfields sites. The text lacks a critical component,
however, for effective legislation in this area: the bill should ensure
that public information on institutional controls indicates how and by
whom these controls will be enforced and maintained in the future.
Eligible Entities
Non-profit and community development organizations (CDOs) are not
currently listed among the entities eligible to receive funds under the
pilot site assessment program. We strongly urge you to expand
eligibility beyond governmental entities and at the very least allow
CDOs and non profits to apply for funds if no other eligible entity in
the area applies. We also urge you to include gas stations in the pilot
site assessment program. Gas stations may well be the biggest category
of sites affecting communities. Since the site assessment funds do not
come from the CERCLA trust fund, the CERCLA petroleum exclusion is
irrelevant. And including these sites in the pilot assessment program
would not involve opening up other statutes, while it would help
communities gain a better picture of the full range of contamination
problems they face.
Cost Recovery
We are concerned that the bill would bar the EPA from using its
current authority in CERCLA section 1 07(a) to recover costs at
brownfields sites even if a state does not have at least a minimally
adequate state cleanup program. Federal taxpayers should not have to
bear the cost for an inadequate brownfields cleanup when a state is not
demonstrating a commitment to a strong and effective state cleanup
program, and responsible parties exist who could and should pay for the
Federal response action. Although we recognize that the funding in this
bill will be a strong incentive for states to ensure that their state
cleanup programs satisfy your bill's minimum criteria, we would suggest
requiring that a state meet the grant criteria listed in the
legislation before the enforcement bar would apply to those states.
Community Advisory Groups
We suggest that the legislation allow for the creation of community
advisory groups in state brownfields programs where sites may warrant
additional public involvement. These community advisory groups would
facilitate greater public participation in the decisionmaking process,
particularly at sites where there may be significant community health
concerns. Additionally, the legislation should define the evaluation
criteria of the TAG program in more detail and ensure consistency by
incorporating characteristics of CERCLA's TAG program (e.g., timeframe
for filing applications). Maintaining a consistent framework for all
Federal TAG programs would lead to increased predictability and success
for interested communities to apply and receive Federal financial
assistance.
Community Outreach Plans
While the bill would help communities to become more involved in
decisions regarding brownfield sites, it could be stronger in seeking
community participation. We urge you to give states more guidance and
encouragement to develop programs which seek active community
involvement. For example, California's voluntary clean-up program
requires the development of a community profile for sites going through
a full clean-up. If the community profile reveals sufficient interest,
the program directs development of a community relations plan as part
of the overall planning at a brownfield site or group of sites.
Elements of such a plan include: identifying community leaders, others
who may be concerned, and level of interest in the site; deciding how
community members will be notified of planning and other events;
determining how documents and information will be made available; and
establishing how comments will be sought. This avoids prescribing one
approach for all circumstances, but encourages early consideration of
and planning for community outreach.
Long-term Notice through State Lists and Easy Access to the Information
The bill's language regarding the state lists is not completely
clear on whether those sites with remaining contamination and
institutional controls will remain on the lists until such time as the
site is cleaned up to a level allowing unrestricted use. The bill
appears to envision this sort of treatment, which makes sense if part
of the purpose is to provide a way of providing notice of the need for
caution to current and future users of the relevant property and
surrounding areas. In addition to clarifying this language, we also
suggest making this information available electronically to gain the
full benefit of making this information easily available to the public.
We hope that our comments on S. 2700 are helpful. We look forward
to working with you as this legislation advances.
Sincerely,
Jacqueline Hamilton, Senior Attorney, Natural Resources
Defense Council, Washington, DC.
Don Chen, Smart Growth Program Director, Surface
Transportation Policy Project, Washington, DC.
Charlotte Keys, President, Jesus People Against Pollution,
Columbia, MS.
Penn Lob, Alternatives for Community and Environment,
Roxbury, MA.
Vernice Miller-Travis, Executive Director, Partnership for
Sustainable Brownfields Redevelopment, Baltimore, MD.
Peggy Shepard, Executive Director, West Harlem
Environmental Action (WHEAct), New York, NY.
Lenny Siegel, Director, Center for Public Environmental
Oversight, San Francisco, CA.
Wilma Subra, President, Subra Company, New Iberia, LA.
Donele Wilkins, Executive Director, Detroiters Working for
Environmental Justice, Detroit, MI.
______
ATTACHMENT
We would like to commend you for crafting a viable, bipartisan
brownfields bill, S. 2700, the Brownfields Revitalization and
Environmental Restoration Act of 2000. The bill contains a number of
positive features, including narrowly targeted liability provisions,
substantial funding to improve public participation and site-related
assessments and cleanup activities, and provisions that will increase
community involvement in brownfields cleanups and allow the
preservation or creation of greenways and open spaces. Importantly, it
is our understanding that eligible response sites under the bill would
not include sites for which the preliminary assessment site
investigation resulted in a ``pre-score'' ranking of 28.5 or higher.
Our support is conditioned on that understanding.
We have some concerns with the bill, however, including the fact
that some Federal funding may be awarded to states whose brownfields
programs do not necessarily meet Federal criteria for program quality.
States apply widely differing levels of resources, expertise and
commitment to cleaning contaminated sites and to ensuring that site
cleanups will continue to protect human health and the environment long
into the future. In addition, we remain unconvinced of the need for any
changes to existing Federal enforcement authority, and we would
strongly oppose any changes going beyond what is now in the bill.
Despite these concerns, our groups recognize that S. 2700
represents a delicate compromise and has been narrowly crafted to avoid
the pitfalls of previous brownfields bills. While we support this bill
in its current form, if it were to change significantly we would
reevaluate our support. Because of the importance of this bill, our
organizations will remain vigilant to assure that this legislation
maintains its current commitments to the environment and public health.
As this legislation advances, we hope that we can be of assistance in
helping the bill become law.
__________
Environmental Technology Council,
August 28, 2000.
Hon. Bob Smith, Chairman,
Committee on Environment and Public Works,
Washington, DC 20510.
Hon. Max Baucus, Ranking Minority Member,
Committee on Environment And Public Works,
Washington, DC 20510.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
Washington, DC 20510.
Hon. Frank Lautenberg, Ranking Minority Member,
Subcommittee on Superfund, Waste Control and Risk Assessment,
Washington, DC 20510.
Dear Senators: I am writing on behalf of the Environmental Technology
Council to express our support for S. 2700, the Brownfields
Revitalization and Environmental Restoration Act of 2000.
Throughout our country, brownfields limit the future development
and reuse of valuable property. Most of these sites are in urban areas
where redevelopment would be ``smart'' growth reducing sprawl by
allowing the use of the existing infrastructure.
Redeveloping brownfields is a very important environmental goal
that needs active programs to reduce the risks these sites have
created. Many of these sites have contaminated soils that threaten
ground and surface waters. The incentives to clean up the sites by
given significant finality to state cleanups will have a very positive
impact and increase the rate of site cleanups.
We especially applaud the requirement for states to keep public
records of site cleanups. Since many sites will be remediated but
hazardous wastes will still be left onsite, it is critical for anyone
changing the land use in the future to know what threats still exist at
the sites.
We applaud your bipartisan efforts to address this important
hazardous waste problem.
Very truly yours,
Scott Slesinger, Vice-President for Government Affairs.
__________
City of Casper, WY,
July 27, 2000.
Hon. Lincoln Chafee,
U.S. Senate,
Washington, DC 20510.
Senator Chafee: I want to thank you for informing me of your intentions
concerning this new bill. I want you to know that the City of Casper is
very much in support of your efforts surrounding Brownfields
revitalization and restoration. This bill sounds as though it will be
very instrumental in the successful facilitation of remediation efforts
throughout the country.
The City of Casper announced recently the creation of our Urban
Renewal Agency that will oversee the development of the Amoco
redevelopment corridor. The site of the former Amoco refinery within
this corridor is currently undergoing a massive cleanup and being
transformed into a more productive piece of land. We are very
optimistic about what this project will do for our community.
Brownfields revitalization is very important to Casper!
It is exciting to think about the benefits that a piece of
legislation like S. 2700 has for this country. Once again, thank you
for your efforts to enhance the resources available for Brownfields
redevelopment. If I can be of any assistance at the local level or
whatever, please feel free to let me know.
Sincerely,
Dr. Tom Walsh, Mayor.
__________
Joseph Vas, Mayor,
City of Perth Amboy, NJ 08861, July 6, 2000.
Hon. Frank Lautenberg,
United States Senator.
Dear Senator Lautenberg: Throughout the country, government leaders are
coming to the realization that it is both economically and physically
prudent to invest our resources into rebuilding our urban cities due to
the existing infrastructure which has the capacity to support
redevelopment. However, in this rebuilding process there remains one
major impediment--rectifying years of environmental decay brought on by
the loss of industry.
Nationwide, cities are finding the ability to triumph over this
obstacle with the help of Federal dollars. In order to continue our
success, capitalize on the burgeoning economy and reclaim valuable
land, we must fight to ensure that Federal assistance continues for our
cities. With this in mind, I am asking for your earnest support for the
Senate Bipartisan Brownfields Bill (S. 2700).
It is imperative that this bill receive the attention it deserves
so that cities such as Perth Amboy can continue talking the initiative
to remediate hazardous environmental conditions and attract private
investment to transform these fledgling properties. Perth Amboy is
proof positive that this system is effective. Through your continued
support over the years, we have been able to reclaim valuable land
which is now poised for an ambitious redevelopment project.
(S. 2700) so that this program can be continued for the benefit of
every American city battling this timeless struggle. With kind regards,
I remain.
Sincerely,
Joseph Vas, Mayor.
__________
National Conference of Black Mayors, Inc.,
August 18, 2000.
Hon. Lincoln Chafee,
U.S. Senate,
Washington, DC 20510.
Sir: I am writing on behalf of the membership of the National
Conference of Black Mayors, Inc. (NCBM) to express support for the
Brownfields Revitalization and Environmental Restoration Act of 2000.''
It deserves NCBM's support for a number of reasons. The proposed
legislation builds upon an EPA program that addresses important
challenges to local economic revitalization. It would continue an
approach that leverages financial resources with Federal dollars and
promotes local partnerships. The measure is bipartisan, and would be
potentially beneficial to both large and small communities in addition
to states and Indian tribes. EPA reports that Brownfields redevelopment
activities have resulted in 6,400 jobs and a $6.4 billion economic
impact since 1995. Clearly the additional funding and administrative
refinements called for in S. 2700 promise similar substantial gains.
NCBM supports S. 2700. However, we have a few recommendations that
will extend its benefits to many small towns and rural areas that are
left out of current considerations. First, we are particularly
concerned about the large number of underground storage tanks usually
associated with abandoned gas stations that are rampant in small towns
and rural areas. Often these tanks belonged to small business operators
who are no longer in business or lack the resources to remove them and
return their non-producing property back to the tax roles. For a small
town, redeveloping a service station corner for a small town is just as
daunting as redeveloping an out of service plant for a large town.
Section One of the bill should incorporate funding to assist small
towns and rural areas conduct site assessments and to prepare
redevelopment plans for abandoned gas stations and other sites with
underground storage tanks. Also, the bill should be more specific on
the types of state action that would exempt contaminated sites from
federally enforced cleanup.
Our suggestion does not address liability for environmental
contamination caused by leaks and spills from underground storage
tanks. We feel that those responsible parties should not be relieved
from liability simply because a site needs redevelopment. Those who
caused the damage should be held completely responsible for necessary
environmental restoration. However, in those numerous cases where the
responsible parties are no longer in business or are financially
incapable, alternatives should be made available for small towns and
rural areas to have certain properties treated as ``brownfields'' for
financial purposes.
We are interested and available to continue working with you to
complete the details of S. 2700 as it moves through the legislative
process. You should know that NCBM is prepared to offer testimony
before the committees that are considering this vital piece of
legislation. If we can provide additional assistance, please contact
me.
Thank you for your hard work on this important national concern.
Sincerely,
Michelle D. Kourouma, Executive Director.
__________
Executive Office, City of Providence, Rhode Island,
Vincent A. Cianci, Jr., Mayor, June 27, 2000.
Hon. Lincoln Chafee,
U.S. Senate,
Washington, DC 20510.
Dear Senator Chafee: I am writing to applaud your leadership in the
formation of the bipartisan legislative package that focuses on
brownfields legislation, the ``Brownfields Revitalization and
Environmental Restoration Act of 2000'' (S. 2700). This far-reaching
bill underscores the importance of sufficient funding for state,
tribal, regional, and local governments for the assessment,
characterization, and remediation of brownfields sites in cities and
towns across America.
The experience of Providence dramatically illustrates the need for,
and the benefits of, this legislation. Our remediation of brownfields
properties is reducing human health and environmental threats,
returning abandoned or underutilized property to productive use,
creating and preserving open space, encouraging job growth, increasing
the local tax base, curbing urban sprawl, and improving the overall
quality of life in the capital city.
You have my enthusiastic support in your efforts to shepherd S.
2700 to a successful conclusion in the Senate. Communities across the
United States are forging ahead with the vital task of cleaning our
urban sites and restoring them to full and beneficial use, and the
Brownfields Revitalization and Environmental Restoration Act of 2000
will go a long way toward strengthening our collective efforts. If I
can be of any assistance, please don't hesitate to contact me. I send
my best wishes and regards.
Sincerely,
Vincent A. Cianci, Jr., Mayor of Providence.
__________
Brownfield News,
June 26, 2000.
Hon. Lincoln Chafee,
Hon. Frank Lautenberg,
Hon. Bob Smith,
Hon. Max Baucus,
U.S. Senate,
Washington, DC 20510.
Dear Senators: Brownfield News magazine is the only journal dedicated
to covering the topic of brownfields on a consistent basis. With more
than 20,000 readers, the magazine reaches a diverse group of
professionals, from both the public and private sector, who are
interested in brownfield redevelopment. Our readers represent four
distinct sectors of this emerging market: Sellers/Owners, Buyers/
Developers, Real Estate Transaction Support and Policy Makers.
On behalf of our readers and as Publisher of Brownfield News, I am
writing to convey our support for the legislation, ``Brownfields
Revitalization and Environmental Restoration Act of 2000''. This
bipartisan initiative will bring efficiencies to the marketplace by
providing predictability, consistency and environmental certainty,
which will stimulate more brownfield transactions. Specifically, we
believe this legislation will provide the following relief to each of
the four sectors of the market:
Owner's Section: Provides liability relief for innocent property
owners who have not caused or contributed to site contamination.
Developers/Investors Section: Recognizes the finality of successful
state hazardous waste cleanup efforts.
Transaction Support Section: Recognizes the validity of
professional judgment in site assessments.
Policy Makers Section: Provides funding for cleanup and
redevelopment of the hundreds of thousands of our nation's brownfield
sites and further clarifies the relationship between the U.S. EPA and
states.
``Brownfield'' is no longer a label that stigmatizes a property,
but represents a redevelopment opportunity and a new way of thinking
about environmental issues and economic development concerns. This
legislation will bring about meaningful reforms and will remove
unwanted impediments, allowing the public and private sector to
redevelop properties based on local needs and community involvement.
We commend your pragmatic approach in dealing with brownfield
legislation and would be happy to work with each of you to provide
coverage on this issue in future articles of the magazine.
Sincerely,
Robert V. Colangelo, Publisher.
__________
The IT Group,
June 21, 2000.
Senator Lincoln Chafee,
U.S. Senate,
Washington, DC 20510.
Dear Senator Chafee: I am writing in support of S. 2700, the
Brownfields Revitalization and Environmental Restoration Act of 2000.
Your leadership in crafting bipartisan legislation to accelerate the
cleanup and reuse of brownfields is to be commended.
As a provider of environmental infrastructure services, The IT
Group believes S. 2700 provides an opportunity for states, tribes and
local governments to more effectively manage the cleanup of
brownfields. The IT Group is a $1.3 billion diversified engineering
firm, whose eight thousand employees offer a full range of consulting,
facility management, engineering and construction services. IT now has
over 100 offices throughout the U.S. and abroad.
I wish you continued success as S. 2700 moves through the
legislative process. Without adequate funding and the liability
protections offered by your legislation, the productive reuse of
lightly contaminated properties will only be further delayed. I look
forward to working with you on brownfields restoration and similar
issues in the future.
Sincerely,
Craig Crotteau.
__________
The Wilderness Society,
June 23, 2000.
Hon. Lincoln Chafee, Chairman,
Subcommittee on Superfund, Waste Control and Risk Assessment,
U.S. Senate,
Washington, DC 20510.
Dear Senators Chafee, Lautenberg, Smith and Baucus: I am writing to
express on behalf of The Wilderness Society a thank you for your
leadership in introducing the Brownfields Revitalization and
Environmental Restoration Amendments Act of 2000. We are happy to
support the land provisions in Title I of S. 2700.
As an organization dedicated to a network of wildlands, restoring
our nation's cities and communities for open space and chances for
restoration of badly over-developed lands is a vital part of our
mission. We believe that by transforming idled, frequently abandoned
sites into urgently needed parks and greenspaces bring new life to
these local economies and to the community as a whole.
Directing economic growth to already developed areas also helps to
control urban sprawl and the protection of our last remaining wild
lands. It also helps to address the longstanding issues of
environmental justice in our undeserved areas.
The bill you have introduced places special emphasis on brownfields
to parks conversion where appropriate and assistance to broaden the
spectrum of landscapes from our inner city to rural communities to
tribal lands. We believe that the framework to reach a truly effective
national approach is contained in the bill introduced on June 8. As a
public lands organization, we do not have the expertise to comment on
the other portions of the Act.
We appreciate your many efforts in getting S. 2700 introduced in
this important bipartisan agreement. Please count on The Wilderness
Society's support to work with you and the committee to bring more
dedicated brownfields lands to our nation's growing network of
wildlands by passage of this act.
Sincerely,
Rindy O'Brien, Vice President Policy,
The Wilderness Society.
__________
STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM THE STATE OF
WASHINGTON
Mr. Chairman, I am pleased to cosponsor S. 2700--the ``Brownfields
Revitalization and Environmental Restoration Act of 2000.'' I
appreciate the work of the chairman, as well as Senators Lautenberg,
Smith, and Baucus in writing this important legislation and for holding
this hearing today.
This legislation is pro-environment and pro-economic development.
It is particularly important for several small communities in
Washington and across the Nation that have been unfairly saddled with
moderately contaminated sites they are able neither to clean up, nor to
sell to prospective buyers due to liability risks.
Providing assistance to states and localities that seek to clean up
industrial sites for future economic development is common sense. When
Congress passed the Superfund law in the 1980's to help fund the
cleanup of large and heavily contaminated sites across the United
States, unfortunately it failed to authorize a program that would
assist smaller sites. This legislation would authorize significant
funding for brownfields cleanup, and would make key improvements to the
current program.
Over the past year, a dozen cities in Washington have applied for
and have received grants under the existing Environmental Protection
Agency's brownfields program. These sites are typically abandoned wood
treatment plants, lumber mills, and other small companies that have
filed bankruptcy. Unfortunately, because of the restrictions, negative
stigma, and liability associated with Superfund sites, and the
cumbersome brownfields grant application process, many communities have
been either unable or unwilling to obtain assistance to clean up these
sites.
Two sites in Washington particularly exemplify the need for this
legislation and for a more comprehensive reform of our Superfund laws.
The first is the Port of Ridgefield. Ridgefield is a small community of
about 1,500 residents located 20 miles away from Portland, Oregon. A
wood treating company filed bankruptcy several years ago and left the
community 41 acres of contaminated soil and an underground plume that
is moving dangerously close to the Ridgefield National Wildlife Refuge,
as well as Carty Lake and Lake River.
While the Port has been working diligently to attract new tenants
to its industrial area and bring in more revenue, unfortunately, these
efforts have been stymied until the site is cleaned up. The Port and
the State of Washington contributed approximately $5 million dollars to
assess the damage at the site and initiate actual clean up.
Unfortunately, the total cost to clean up the site is $30 million and
the port and state will face a shortfall of about $10 million. The Port
has sought the assistance of brownfields grants and research grants
involving innovative cleanup technology from EPA.
EPA met with the Port of Ridgefield officials and advised that the
port is eligible to receive a $200,000 assessment grant, but only if
EPA conducts a whole new site assessment. Awarding money to re- assess
a site that is already into the cleanup phase would be a flagrant waste
of time and the taxpayers' money. It would defeat the very purpose of
the brownfields program, which is to assist communities that wish to
redevelop contaminated sites. On the other hand, the port does not want
to be listed under the Superfund site list and risk driving up the cost
of cleanup, delaying cleanup for several years, and relinquish control
of the cleanup to EPA officials. S. 2700 would help address this
situation by allowing the state more flexibility and authority to
develop state brownfields programs and provide greater assistance to
sites such as the Port of Ridgefield.
The second example involves the Rayonier Mill site located in Port
Angeles in the northern Olympic Peninsula of Washington. In that case,
the mill closed in 1997 and did the most responsible thing it could do:
it announced its intentions to voluntarily assist in the clean-up of
its 80-acre site, which is mildly contaminated with various toxic
materials that have been used to dissolve wood pulp at the plant for
the last 60 years.
Representatives of Rayonier met with EPA representatives, who
initiated a 2-year investigation to determine whether the site should
be designated as a Superfund site. The Washington Department of
Ecology, the Governor of Washington joined local of finials in
requesting EPA to defer the cleanup of the site to the state.
After spending an astronomical $2 million in unsubstantiated site
investigation costs, EPA ultimately agreed to defer the cleanup to the
state. However, EPA is now seeking reimbursement of the $2 million it
incurred to determine the site was not a Superfund site from the mill.
EPA's actions creates a disincentive for other owners of contaminated
sites to take responsibility for their sites' cleanup on a voluntary
basis. S. 2700 would prevent future incidents such as this by requiring
deferral of a Superfund listing of a site at the request of a state if
the state or responsible party makes reasonable progress toward
cleaning up the site.
These examples illustrate the need for reform of Superfund laws and
the existing brownfields program. S. 2700 is a strong first step in the
right direction to achieving the goals that we all share- cleaning up
toxic sites that threaten the environment, and creating a tool to
assist local governments to turn contaminated sites into economic
assets. I'm pleased to that it has bipartisan support, and I urge all
of my colleagues to vote for its quick passage.
__________
STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION
AGENCY
INTRODUCTION
Good afternoon, Mr. Chairman, and members of the subcommittee. I am
pleased to have this opportunity today to: 1) share with you the
significant accomplishments the Administration has achieved since the
1995 inception of the Brownfields Economic Redevelopment Initiative in
helping States, Tribes, local governments, and communities across
America to address the problem of brownfields; and 2) comment on the
subject of brownfields legislation, in particular S. 2700, ``The
Brownfields Revitalization and Economic Restoration Act of 2000.''
The cleanup of brownfields is important to the environmental and
economic health of our Nation. We commend the committee for their
efforts to produce bipartisan brownfields legislation and thank Senator
Lautenberg for his tireless leadership on these issues during his many
years of public service in the U.S. Senate. The Administration believes
that S. 2700 represents a positive step forward and we support the
bill. We look forward to working with the committee to further improve
the bill during the legislative process.
BROWNFIELDS ECONOMIC REDEVELOPMENT INITIATIVE
Brownfields, which are abandoned and contaminated properties once
used for industrial and commercial purposes, are found in almost every
community in America. The presence of these properties fuels urban
sprawl, luring investment and job development farther from city centers
and inner suburbs. While the full extent of the brownfields problem is
unknown, the United States General Accounting Office (GAO/RCED-95-172,
June 1995) estimates that approximately 450,000 brownfield sites exist
in the United States. Brownfields represent by far the largest number
of properties affected by concerns related to environmental
contamination. These sites typically do not pose the type of risks
found at Superfund National Priorities List (NPL) sites and best are
addressed through local, State, or Tribal authorities. EPA long has
realized that the assessment and cleanup of properties with potential
or actual contamination is a shared responsibility. What matters most
is that these sites are addressed as effectively and efficiently as
possible.
The Administration believes that environmental protection and
economic progress are inextricably linked. EPA's Brownfields Initiative
plays a key role in the Administration's goal of building strong and
healthy communities for the 21st century. The Initiative represents a
comprehensive approach to empowering States, local governments,
communities, and other stakeholders interested in environmental cleanup
and economic redevelopment to work together to prevent, assess, safely
clean up, and reuse brownfields. In many cases, local government
environmental specialists are sitting down together with the city's
economic development experts for the first time. Others are joining
in--businesses, local residents, and community activists.
As the former Director of the Portland, Oregon, Brownfields
Initiative said, ``brownfields renewal is one of the most important
environmental and economic challenges facing our nation's communities,
calling for partnership among our Federal and local governments,
businesses and community and environmental leaders. We must work
together to build a national brownfields partnership from the ground
up.'' The Agency's multi-faceted initiative represents a significant
step forward by the Administration and, according to Renew America,
represents ``a new paradigm in locally based environmental protection
that forges public-private partnerships, promotes innovation, and
relies on market incentives and private sector actions.''
Stakeholders tell the Agency that many Brownfields redevelopment
activities could not have occurred in the absence of EPA efforts. For
example:
On an abandoned, four-acre railroad site, the city of
Emeryville, CA., a development corporation constructed more than 200
units of residential housing. Approximately 100 construction workers
were hired to build these housing units. Within the next 5 years,
construction of retail, hotel and office complexes is expected to
create as many as 10,600 jobs and nearly 4 million square feet of new
facilities, and provide an additional $6.4 million in annual property
tax revenues.
In Dearborn, MI, an abandoned property was redeveloped
into a cardiology clinic valued at $2.5 million and employing 16
people.
In Shreveport, LA., as a result of $1.3 million in
cleanup and redevelopment funding, the former HICA steel foundry and
upgrade company has been upgraded and renovated into the new HICA Steel
Castings, LLC, with owners committed to running an environmentally safe
operation in the Cedar Grove neighborhood of the city.
The initial Brownfields Action Agenda, announced on January 25,
1995, focused on the award of Brownfields Assessment Demonstration
Pilots; building partnerships with all brownfields stakeholders;
clarifying liability and cleanup issues; and, fostering local work
force development and job training initiatives. By mid-1996, EPA
completed all of its commitments on the initial Action Agenda, and the
Agency continues to move forward. Let me briefly describe what we have
done in the last 4 years.
ASSESSMENT PILOTS
Through pilots, and in partnership with a wide range of
stakeholders, EPA provides technical assistance and seed money to
local, State, and Tribal entities engaged in the revitalization of
brownfields properties. The Brownfields Assessment Pilots have formed a
major component of the Brownfields Initiative since its announcement.
The Agency has announced 362 Brownfields Site Assessment Demonstration
Pilots, funded at up to $200,000 each, to States, Tribes, and
communities.
Selected through a competitive process, Brownfields Assessment
Pilots help communities to demonstrate the economic and environmental
benefits of reclaiming brownfields properties, to explore ways of
leveraging financial resources, and to model strategies for the
organization of public and private sector support. Small towns and
large cities both have been recipients of the grants. These pilots have
resulted in the assessment of 1933 brownfield properties, cleanup of
130 properties, redevelopment underway at 184 properties, and a
determination that 617 properties did not need additional cleanup. To
date, over 6,400 jobs have been generated as a result of the program.
Pilot communities have reported a leveraged economic impact of over
$2.3 billion.
REVOLVING LOAN PILOTS
As EPA works to implement a comprehensive brownfields strategy, the
Agency has developed a ``second-stage'' type of brownfields pilot
program. Those pilots, known as the Brownfields Cleanup Revolving Loan
Fund (BCRLF) Pilots, are designed to enable eligible States, Tribes,
and political subdivisions to capitalize revolving loan funds for use
in the cleanup and sustainable reuse of brownfields. EPA's goal for
these pilots is to develop revolving loan fund models that can be used
by communities to promote coordinated public and private partnerships
for the cleanup and reuse of brownfields. Eligible applicants for BCRLF
pilots are entities previously awarded brownfield assessment pilots. In
addition, coalitions formed among these entities and political
subdivisions with jurisdiction over sites that have been the subject of
a targeted brownfield pilot are eligible for BCRLF awards.
To date, 98 BCRLF pilots have been announced. These pilots
represent 142 communities, and include pilot awards to individual
eligible entities and to coalitions. Four BCRLF loans have been made in
four communities--Stamford, CT, Las Vegas, NV, Trenton, NJ, and
Shreveport, LA. The loan made in Las Vegas has resulted in the first
complete cleanup. A $50,000 loan cleaned up a former National Guard
armory for reuse as a community and small business incubator.
JOB TRAINING PILOTS
To help local citizens take advantage of the new jobs created by
assessment and cleanup of brownfields, EPA began its Brownfields Job
Training and Development Demonstration Pilot program in 1998. To date,
EPA has awarded 37 new pilots to applicants located within or near
brownfield communities. For example, in Oakland, CA, the Oakland
Private Industry Council has placed 96 participants in private industry
jobs. Colleges, universities, nonprofit training centers, and community
job training organizations, as well as States, Tribes, and communities,
were eligible to apply for these pilots.
BROWNFIELDS NATIONAL PARTNERSHIP
The Brownfields Initiative is clearly about partnerships--with
other Federal, State, and local agencies, and a diverse array of
stakeholders. The EPA has undertaken partnership efforts with
individual States as well as through broad organizational structures
like the U.S. Conference of Mayors, the National Governors Association
(NGA), the National Association of Local Government Environmental
Professionals (NALGEP), the Council for Urban Economic Development
(CUED) and the U.S. Chamber of Commerce. EPA also forged working
relationships with a vast spectrum of other stakeholders, including the
Environmental Bankers Association, the Irvine Foundation's Center for
Land Recycling, the International City/County Management Association
(ICMA), to mention but a few.
Federal Partners
Early in the development of EPA's Brownfields Initiative, the
Agency recognized the important contribution of many of our Federal
partners to brownfields through their participation in the Brownfields
National Partnership. Through the Partnership, Federal departments and
agencies can offer special technical, financial, and other assistance
that can be of great benefit to brownfields communities. More than 20
National partners are committing resources and assistance to
brownfields. By the end of 1999, the partners estimate spending more
than $385 million for brownfields work, with another $141 million in
loan guarantees. The Federal Home Loan Bank System, for example, is
exploring ways to bring more private investment to redeveloping
brownfields properties and, along with the U.S. Conference of Mayors,
has selected 50 cities to participate in a project to research
opportunities, impediments, and successes by both cities and lenders to
address brownfields.
Many of the commitments by our Federal partners were expressed
through initial Memoranda of Understanding (MOUs). EPA has signed MOUs
with the Economic Development Administration of the Department of
Commerce, the Departments of Labor, Housing and Urban Development, and
Interior, as well as the U.S. Army Corps of Engineers. EPA also is
working with the Agency for Toxic Substances and Disease Registry and
county health officials to address the health concerns of brownfields
communities. Our partnership with EDA and HUD has been particularly
beneficial for brownfields. EDA has provided more than $178 million for
brownfield redevelopment and the HUD Brownfields Economic Development
Initiative (BEDI) grants program has provided $50 million in assistance
to cities to redevelop contaminated industrial and commercial sites and
$249 million in economic development loan guarantees to 44 communities.
HUD anticipates that this funding will leverage almost $1.4 billion in
private and public funding.
States and Tribes
EPA continues to work closely with States and Indian Tribes as key
partners in the cleanup and redevelopment of contaminated properties.
The Administration supports the continued growth of the State and
Tribal regulated and voluntary programs which have greatly expanded the
number of sites cleaned up to protect human health and the environment.
To date, 44 States have established voluntary cleanup programs.
Recognizing the important role that State environmental agencies have
in encouraging economic redevelopment of brownfields, EPA has provided
$28.6 million in funding to States and Tribes to support the
development of these programs since fiscal year 1997. EPA plans to
continue to provide $10 million in fiscal year 2000 to promote the
development or enhancement of State programs that encourage private
parties to voluntarily undertake early protective cleanups of less
seriously contaminated sites, thus accelerating their cleanup and
redevelopment. EPA has entered into Memoranda of Agreement (MOAs) with
14 States to facilitate the cleanup of contaminated sites that
generally pose lower risks than sites EPA would consider listing on the
NPL. A MOA reflects mutual agreement by both the State and EPA with
respect to the appropriate roles of these parties in conducting cleanup
activities.
Showcase Communities
The centerpiece of the National Partnership is designation of 16
Brownfields Showcase Communities in 1998. These Showcase Communities
are distributed across the country and vary in size, resources, and
community background. EPA and its Federal partners are in the process
of choosing 10 new Showcase Communities in anticipation of announcing
their selection this October at the Brownfields 2000 Conference in
Atlantic City, NJ. The Brownfields Showcase Communities project is an
outgrowth of those early partnership efforts and now forms an important
component of the Brownfields Initiative. It represents a multi-faceted
partnership among Federal agencies to demonstrate the benefits of
coordinated, collaborative activity on brownfields.
The report, Building A Brownfields Partnership from the Ground Up,
by the National Association of Local Government Environmental
Professionals, (February 13, 1997), presented the views of a network of
local government brownfields leaders on the value of EPA's brownfields
programs and policies. The report calls local government leaders ``a
key link in the success of brownfields partnerships, for it is the
environmental, health, development and political leaders in our cities,
counties and towns who can best build a brownfields partnership ``from
the ground up.''' For example, through the Showcase Community in Glen
Cove, New York, a revitalization plan to convert brownfields and
Superfund sites into tourist destinations has been completed. State,
Federal, and local agencies have played a crucial role in securing $18
million in grants from various agencies. In addition, a prospective
purchaser agreement was signed between EPA and the Glen Cove Industrial
Development Corporation for the LI Tungsten and Captain's Cove
Superfund sites. Proceeds from selling the property will go toward
repaying response costs.
REMOVING BARRIERS TO REDEVELOPMENT--LIABILITY CONCERNS
Over the past several years, EPA has removed many of the liability
uncertainties associated with brownfields properties. EPA is promoting
redevelopment of brownfields properties by protecting prospective
purchasers, lenders, and property owners from incurring Superfund
liability, and by working with States through MOAs to clarify site
responsibilities.
Prospective Purchaser Agreements (PPAs)
At some sites, the potential threat of liability under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) may be a barrier to the reuse of the property. Through
agreements known as ``prospective purchaser agreements,'' EPA assures
that prospective purchasers will not be responsible for cleaning up
sites, provided they do not further contribute to or worsen
contamination. EPA's PPA guidance was issued in May 1995 (http://
es.epa.gov/oeca/osre/liabil.html), and has been used to stimulate the
development of sites where parties otherwise may have been reluctant to
redevelop due to liability concerns. The 1995 guidance expanded the
universe of sites eligible for such agreements to include sites where
EPA has undertaken, is undertaking, or plans to undertake a response
action. Prior to issuance of the 1995 guidance, EPA had entered into
only 20 PPAs. In the last 5 years, EPA successfully has finalized over
100 additional PPAs. Further, in 1999, EPA took several steps to
streamline the process of obtaining PPAs, including the appointment of
a PPA Expediter, development of a system to track PPA negotiations, and
issuance of a model letter to respond to PPA requests.
PPAs have brought about meaningful community befits through
fostering brownfields use. Redevelopment projects cover over 1500
acres, or 80 percent of the property secured through PPAs. EPA regional
personnel estimate that nearly 1700 short-term jobs (e.g.,
construction) and over 1700 permanent jobs have resulted from
redevelopment projects associated with PPAs. An estimated $2.6 million
in local tax revenue for communities nationwide have resulted from
these projects.
Comfort letters
EPA has provided over 500 ``comfort letters'' (or ``status
letters'') in appropriate circumstances to new owners, lenders, or
developers to inform them of EPA's intentions at a site. The Policy on
the Issuance of Comfort/Status Letters, issued in 1996 (http://
es.epa.gov/oeca/osre/961108.html) is designed to assist parties who
seek to cleanup and reuse brownfields. EPA often receives requests from
parties for some level of ``comfort'' that, if they purchase, develop,
or operate on brownfield property, EPA will not pursue them for the
costs to clean up any contamination resulting from the previous use.
The policy contains four sample comfort/status letters that address the
most common inquiries EPA receives regarding contaminated or
potentially contaminated properties.
Property Owner Protections
Other guidance issued by the Agency to benefit brownfields
assessment, cleanup and redevelopment have included the ``Policy Toward
Owners of Property Containing Contaminated Aquifers'' (http://
es.epa.gov/oeca/osre/950524-1.html). Prior to the issuance of this
guidance in July 1995, people owning property under which hazardous
substances had migrated through groundwater also feared liability under
the statute. EPA responded by announcing that it will not take
enforcement actions under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) against owners of property
situated above contaminated ground water, provided the landowner did
not cause or contribute to the contamination. EPA also will consider
providing protection to such property owners from third party lawsuits
through a settlement that affords contribution protection.
Lender Protections
EPA supported the ``Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996,'' which clarified the
liability of lenders, governmental entities that acquire property
involuntarily, and fiduciaries under CERCLA and RCRA. The change in the
law is providing significant relief to banks and lending institutions,
expanding the availability of credit for small businesses, and greatly
facilitating the assessment, cleanup, and redevelopment of brownfield
sites. EPA's lender liability policy, issued in 1997 (http://
es.epa.gov/oeca/osre/970630.html), clarifies the steps a lender or
governmental entity may take after acquiring contaminated property
through, for example, foreclosure or involuntary acquisition.
Supplemental Environmental Projects
EPA encourages the use of Supplemental Environmental Projects
(SEPs) to facilitate the reuse of brownfields through assessment and
cleanup projects at brownfield properties. SEPS are environmentally
beneficial projects that a defendant agrees to undertake in settlement
of a civil penalty action, but that the defendant is not otherwise
legally responsible to perform. SEPs enhance the environmental quality
of communities that have been put at risk due to the violation of an
environmental law. In September 1988, EPA issued a fact sheet promoting
the use of SEPs at brownfields sites (http://es.epa.gov/oeca/osre/
980930.html).
SEPs at brownfields sites can be a catalyst to brownfields
development. For example, a SEP provision within a consent decree
negotiated with Sherwin Williams required the company to contract with
the City of Chicago to perform an $850,000 remediation project at a
brownfields site in an Environmental Justice community near the
facility.
Removing Sites From CERCLIS
Finally, EPA believes that the removal of sites from the active
Federal inventory, the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS), is having
positive repercussions for the Brownfields Initiative. To date, EPA has
removed 32,191 sites (more than 75 percent of the total) from CERCLIS.
The removal of these sites eliminates the stigma of potential
contamination and fear of liability associated with these sites, and
allows stakeholders to focus on the future land use and redevelopment
of such sites.
BROWNFIELDS TAX INCENTIVE
EPA is pleased with the passage of the Brownfields Tax Incentive
passed in the 105th Congress. Passage of the 1997 Brownfields Tax
Incentive has enabled the Federal Government to level the economic
playing field between brownfields and greenfield sites. Under the tax
incentive, certain environmental cleanup costs for properties in
designated areas are fully deductible in the year in which they are
incurred, rather than capitalized. This incentive can reduce the
capital cost for these types of investments by more than one half. We
regard this tax provision as an essential element of a complete and
comprehensive brownfields program and hope it can be made a continuing
and broad tool for brownfields redevelopment in the future. Under
current law, the incentive will expire on December 31, 2001. The
President's fiscal year 2001 Budget request proposes to make it
permanent.
The tax incentive is applicable to properties that meet specified
land use, contamination, and geographic requirements. Both rural and
urban sites qualify for the proposed incentive. Sites on or proposed
for EPA's National Priorities List are excluded. In West Chester,
Pennsylvania, the tax incentive was used to help a demolition and
environmental service company relocate its headquarters at a
brownfield. This site was in a part of the town suffering a 29.6
percent poverty rate, well above the 20 percent poverty rate threshold
set in the guidelines. The company estimates that 100-200 jobs could be
created, and that nearly $42,000 would be returned to the company
through the deduction.
BETTER AMERICA BONDS
Innovative approaches and solutions to the problems faced by
communities are manifested in every aspect of brownfields. Innovative
financing efforts are no exception. Just as the Federal Government has
helped the brownfields program through the tax incentive, so too, will
the Clinton Administration's latest effort through the proposed Better
America Bonds program. This proposal for fiscal year 2001 seeks to
create $10.75 billion in bonding authority for state, local, and tribal
governments over 5 years. Communities will have access to zero-interest
financing because investors who buy these 15 year bonds will receive
Federal tax credits in lieu of interest paid by the bond issuers. The
tax credits would total approximately $700 million over 5 years.
Communities would pay back the principal at the end of the 15-year term
of the bond.
To help communities preserve greenspace for future generations,
protect public health, and provide for greater economic development,
Better America Bonds can be used for three purposes:
Preserve and Enhance Open Space: State, Tribal and local
governments can create, restore, or enhance parks, preserve
greenspaces, and protect threatened farmland and wetlands. Land can be
protected either by acquiring title or purchasing permanent easements.
Protect Water Quality: Rivers, lakes, coastal waters, and
wetlands--and drinking water sources--can be restored or protected
through reducing polluted runoff, the largest remaining threat to the
nations' waterways. Eligible projects to curb runoff include purchase
of sensitive lands, wetlands restoration, and the creation of planted
or forested buffer strips along waterways.
Clean Up Brownfields: Pressure to develop greenspace can
be eased through cleaning up and reusing brownfields. Communities can
clean up brownfields for use as open space, or for economic
redevelopment.
EPA believes Better America Bonds will further the Brownfields
Economic Redevelopment Initiative by providing much needed flexible
funding that communities can use for brownfields activities.
BROWNFIELDS LEGISLATION
The Clinton Administration supports the passage of targeted
brownfields legislation and views it as an important step toward
providing opportunities to local communities and neighborhoods that are
struggling to clean up and develop abandoned commercial and industrial
sites. We commend the committee for developing a good, bipartisan,
bill. We advocate a legislative approach that clarifies liability
provisions in the CERCLA statute for:
prospective purchasers of contaminated property;
innocent landowners; and
contiguous property owners.
In addition to these responsible liability provisions, brownfields
legislation should provide funding for brownfield assessment and
cleanup through grants and loans. Further, the legislation should
provide support for effective State Voluntary Cleanup Programs. At the
same time, the Federal ``safety net'' must be preserved to address
circumstances which may present an imminent and substantial
endangerment to the public and the environment. Such an approach enjoys
broad bipartisan support in Congress and would be valuable in speeding
the cleanup of brownfields.
The Administration is pleased that S. 2700:
Is modeled on the Administration's successful brownfields
program. S. 2700 authorizes the use of brownfield grants for the full
range of successful programs currently funded by EPA's brownfields
program and improves on earlier proposals in providing EPA with better
flexibility to manage this program. S. 2700 also more clearly exempts
Federal facilities, except for facilities on Tribal lands, from the
definition of ``brownfields site.''
Provides liability protection for prospective purchasers
and property owners
S. 2700 clarifies that prospective purchasers of contaminated
property, innocent landowners, and contiguous property owners, that
meet the requirements of the bill, are not liable under Superfund.
Does not undermine Superfund cleanup progress
S. 2700 does not contain comprehensive Superfund remedy or
liability provisions that would delay the current cleanup progress in
the Superfund program.
S. 2700 clearly represents a very positive step forward. We support
the bill and the efforts of the committee to draft bipartisan
brownfields legislation, consistent with the Administration's view on
brownfields. The funding provisions promote the adoption of EPA/State
Memorandum of Agreement (MOAs) or the development of minimum State
criteria. Further, the bill requires a State to maintain a publicly
available list of planned or completed sites in State Voluntary Cleanup
Programs to be eligible for the bar on Federal enforcement authority.
The bill has also strengthened the definition of ``eligible sites''
that are subject to an enforcement bar from prior bills.
While the Administration supports S. 2700, however, we believe
there are improvements that need to be made to the bill. S. 2700 bars
Federal enforcement for response actions. However, the bill does not
require minimum criteria for an adequate State program. We continue to
believe that States should be required to demonstrate that their
programs satisfy minimum criteria before Federal enforcement bars
apply. In particular, there is no mechanism to ensure appropriate
public participation in State cleanups or provide assurance through
State review or approval that site cleanups are adequate. Both public
participation and accountability are important to making good cleanup
decisions. In addition, although S. 2700 includes a public list of
sites at which the State has undertaken or is planning action, a site
need not be on that list in order for the Federal enforcement bar to
apply, and the list need not be current. A list that is updated more
frequently than annually, as well as a clear link between the list and
the enforcement bar, would strengthen the requirement.
Further, the ``reopener'' provision in S. 2700 that defines the
circumstances in which Federal enforcement may be appropriate in State
cleanup programs, requires the Administrator to determine that a
release may present an ``imminent and substantial endangerment'' AND
that additional response actions are likely to be necessary.'' This
language is more restrictive than ``imminent and substantial
endangerment'' enforcement provisions in other Federal environmental
statutes and is likely to generate unnecessary and costly new
litigation. It would be preferable to retain the existing CERCLA 106
standard of ``imminent and substantial endangerment.'' We also believe
that adequate protections must remain for situations when properties
cleaned up to industrial use are thereafter developed for residential
use. EPA must retain authority to respond to these potential threats to
public health.
The Administration has other issues and technical comments that we
would like to share with the committee as the bill continues through
the legislative process. We would also like to work with you on
appropriate resource levels consistent with the President's budget.
CONCLUSION
The Administration believes that an agreement can be reached with
Congress on bipartisan, targeted brownfields legislation to promote the
cleanup and reuse of brownfields sites across this country. We believe
that S. 2700 represents a very positive step forward toward our mutual
goals. We look forward to working with the committee to enact
effective, protective, brownfield legislation this year.
__________
Statement of Hon. J. Christian Bollwage, Mayor, Elizabeth, NJ
I am J. Christian Bollwage, Mayor of Elizabeth, New Jersey. I am
pleased to appear today on behalf of The United States Conference of
Mayors, a national organization that represents more than 1,050 U.S.
cities with a population of 30,000 or more. Within the Conference of
Mayors, I serve as a member of the organization's Advisory Board, and I
am a cochair of the Brownfields Task Force.
Mr. Chairman, Senator Lautenberg and other members of the
committee, I am pleased to appear before you today to convey the
Conference's support for the bipartisan brownfields proposal, the
Brownfields Revitalization and Environmental Restoration Act of 2000
(S. 2700).
At the Conference's 68th Annual Meeting, which was held in Seattle
earlier this month, the membership of the Conference approved a new
policy statement conveying the support of the nation's mayors for S.
2700. I have attached a copy of this statement to my testimony.
Overview
I was pleased to have the opportunity to join with you today to
discuss your proposed bipartisan legislation, which the mayors believe
offers the best opportunity for successful legislative action in the
Senate this year.
It seems that it was just the other day that I appeared before you
and urged this panel to develop a bipartisan agreement. On behalf of
the nation's mayors, I want to thank you for your responsiveness to our
call for action.
For some time, the nation's mayors and others have pressed for a
legislative response to the growing problem of brownfields. And, the
Conference, speaking on behalf of the mayors, has appreciated the many
opportunities to contribute to this committee's substantial record on
these issues.
In our testimonies before this committee, the Conference has
provided extensive views on the many benefits for the Nation from an
expanded Federal policy commitment in this area. Earlier this year, I
was pleased to provide the committee with our Third Annual Brownfields
Survey, ``Recycling America's Land'', which dramatically portrays the
challenges before the Nation and the vast potential for all Americans
if we can successfully reclaim and redevelop these sites. We believe
that this survey is just the tip of the iceberg.
I also want to underscore how pleased we are that your efforts have
secured a thoughtful and balanced bipartisan package on these issues.
And, S. 2700 is a bill that responds directly to the key issues that
have been identified by the Conference's member mayors.
We believe the legislation before you is the right way to get
started on these issues. It delivers much needed financial tools and it
sets forth a policy framework that we believe will help further local
and state efforts to recycle America's land. And, we believe that the
time has come to enact changes in Federal law to help us more
effectively recycle America's land. Lets begin by reporting this
legislation promptly to the full Senate, followed by full Senate
action.
S. 2700
Let me talk specifically about S. 2700 and why we believe it
warrants broad Senate support.
First, the legislation addresses the three key issues resources,
liability relief and further clarification of state and Federal roles
at brownfields sites we identified in our most recent statement before
this committee. And, it does so in a manner that has garnered support
from both public and private sector interests.
On Funding
It provides communities with considerable flexibility in
securing resources for both assessments and cleanup activities,
allowing communities to seek site-specific resources or to support
continuing local programs;
It provides authority to access both grants and loan
capitalization funds to meet varying conditions and status of
properties within their communities;
It provides varying means for communities to seek
assistance directly, or in partnership with other communities in their
area or through the state;
It provides flexibility to communities to use a portion
of these resources to monitor the health of populations in affected
areas and the monitoring and enforcement of institutional controls; and
It provides communities that have previously received
brownfields loan capitalization funds with the authority to deploy
these prior resources under the new rules set forth in the legislation;
and
It provides assurances that the distribution of these
funds will serve more urban as well as rural needs.
In addition, we believe that the funding thresholds are well
conceived, as well as the criteria EPA will follow in making awards
under this program.
Mr. Chairman, I would hope that the committee would also monitor
the progress of funding commitments to this program, and the success of
local efforts, to ensure that the overall authorization level of $150
million meets the demand for these resources.
Liability Reforms
On the liability reforms, I want to underscore our support for your
proposals to protect innocent prospective purchasers and contiguous
landowners.
The investment of public resources, which we believe is appropriate
and necessary, will only carry the Nation so far. Liability reforms, as
you have provided, are critical to our efforts to motivate the private
sector developers, business owners, entrepreneurs, and others to take
another look at previously developed land or brownfields for business
startups or expansions, housing and other uses. These reforms underpin
our efforts to tap the private sector to help us recycle these
properties.
On prospective purchasers, S. 2700 follows the basic principles
that have been articulated by mayors and others in seeking needed
reforms to protect innocent purchasers of these sites. This legislation
clearly delineates the thresholds for granting innocent parties certain
relief from Superfund liability. And, these provisions generally follow
other legislative proposals that have been before this committee and in
the House.
Another area of liability relief provided in the legislation is for
contiguous landowners. There is no category of landowner that is more
innocent than those who has been threatened with Superfund liability
due to their proximity to a contaminated site. It is essential that
liability protections be extended to these parties.
Future Land Uses/Institutional Controls
I noted previously that S. 2700 provides local governments with the
flexibility to use a portion of funding they receive to monitor and
enforce institutional controls.
In addition, the legislation emphasizes the need for the states to
maintain a public record of sites to help inform the public about the
status of sites in local areas. This provision offers a means to
deliver more assurances to the public that institutional controls are
part of the public record.
On this provision, we would encourage you to consider prompting the
state to deliver this information using contemporary technology through
GIS formats on the Internet. The Conference supports such approaches,
as we testified last year at the oversight hearings on TEA-21
implementation, urging that a similar approach be used by the states to
show the public where TEA-21 resources are being invested. And, we
would also ask that the information be formatted in a way to inform the
public, rather than further stigmatizing these sites. The reuse of
these properties is a very positive endeavor, and as such we should
avoid stigmatizing these sites, which is one of the real challenges
local areas already confront in redeveloping these sites.
State Voluntary Cleanup Programs
Finally, Mr. Chairman, let me offer some comments on provisions
relating to State Response Programs.
As we testified previously, the provisions of S. 2700 respond to
our recommendation that the committee provide additional funding
support to strengthen state voluntary cleanup programs and ensure that
these funds further build state capacity to address brownfields sites,
not just emphasizing the more contaminated NPL-caliber properties. We
believe that the provisions set forth in S. 2700 requesting that states
describe these efforts is responsive to our request and doesn't
constitute a burden on the states.
S. 2700 also provides additional certainty for parties who conduct
cleanups under state programs, one of the key areas that has been
identified by mayors and those from the private sector. We believe that
by including this further clarification in the statute, it should begin
to allay private concerns about the role of U.S. EPA relative to state
decisions.
Closing Comments
Mr. Chairman, Senator Lautenberg, and members of the committee, let
me conclude my remarks by again reiterating our support for your
efforts to act in a bipartisan way on this legislation.
The leadership of this committee and your staff have worked hard to
craft this legislative package that we believe will help move our
brownfields to the next level. This legislation makes important policy
reforms to accelerate the nation's progress in recycling our land.
Congressional action on these important issues is long overdue.
Thank you for this opportunity to appear before you today.
______
RESOLUTION OF THE UNITED STATES CONFERENCE OF MAYORS
SUPPORTING SENATE BIPARTISAN ACTION ON BROWNFIELDS LEGISLATION
WHEREAS, the nation's mayors have pressed for bipartisan
Congressional legislative initiatives to help communities recycle the
many thousands of brownfield sites throughout this nation; and
WHEREAS, among the legislative elements of a broader Federal
response to the national problem of the persistence and pervasiveness
of brownfields in cities, towns and counties has been a call for
increased funding commitments to cities for the assessment and cleanup
of these sites; and
WHEREAS, the mayors have also identified liability reforms,
providing protection for innocent parties, both public and private
entities, in their efforts to recycle these sites; and
WHEREAS, the mayors have also sought further clarification in the
relationship between the U.S. Environmental Protection Agency and the
states in decisions and other actions regarding the cleanup and
redevelopment of these sites; and
WHEREAS, key leaders in the Senate, led by Senators Lincoln Chafee,
Frank Lautenberg, Robert Smith and Max Baucus, recently introduced a
bipartisan legislative proposal, the ``Brownfields Revitalization and
Environmental Restoration Act'', which substantively deals with these
key concerns,
NOW, THEREFORE BE IT RESOLVED that The U. S. Conference of Mayors
supports the ``Brownfields Revitalization and Environmental Restoration
Act'' and urges the Senate to move forward promptly on this bipartisan
initiative to help ensure that final Congressional action occurs this
year on a brownfields reform package; and
BE IT FURTHER RESOLVED that The U.S. Conference of Mayors urges its
members to secure Senate cosponsors for this legislation to demonstrate
the strong support of the nation's mayors for action on this
legislation.
Passed June 12th, 2000 The 68th Annual Conference of Mayors
Seattle, Washington
__________
Statement of Preston A. Daniels, Mayor of Des Moines, Iowa, on behalf
of the: National Association of Local Government Environmental
Professionals ``NALGEP''
Introduction
Mr. Chairman and distinguished members of the subcommittee, my name
is Preston Daniels, and I am the Mayor of the City of Des Moines, Iowa.
Thank you for inviting me to testify today on behalf of the National
Association of Local Government Environmental Professionals, or
``NALGEP.'' NALGEP appreciates the opportunity to present this
testimony on the views of local government officials from across the
Nation on the need for Federal brownfields legislation to support the
cleanup, redevelopment and productive reuse of brownfields sites.
Today, I wish to convey how S. 2700, the ``Brownfields Revitalization
and Environmental Restoration Act of 2000,'' would meet the needs of
American communities to promote brownfields revitalization.
NALGEP represents local government officials responsible for
ensuring environmental compliance, and developing and implementing
environmental policies and programs. NALGEP's membership consists of
more than 135 local government entities located throughout the United
States. Our members include many of the leading brownfields communities
in the country such as Des Moines, Providence, Trenton, Richmond,
Rochester, Portland, Chicago, Los Angeles, Salt Lake City, Dallas, and
Cuyahoga County, Ohio, to name a few.
In 1995, NALGEP initiated a brownfields project to determine local
government views on national brownfields initiatives such as the EPA
Brownfields Action Agenda. The NALGEP brownfields project culminated in
a report, entitled Building a Brownfields Partnership from the Ground
Up: Local Government Views on the Value and Promise of National
Brownfields Initiatives, which was issued in February, 1997. That
report called for new Federal resources to support brownfields
revitalization, particularly cleanup. The report also called for new
liability clarification, as well as authority for states to take a lead
in voluntary brownfields cleanup. As this committee knows, local
governments have sought Federal brownfields law for many years now.
During the past few years, NALGEP has continued its work on
brownfields through coordinating projects involving local officials to
address the following issues: (1) Brownfields Cleanup Revolving Loan
Funds; (2) use of HUD Community Development Block Grants for
Brownfields; (3) partnerships between business and local government
officials to reduce sprawl and promote smart growth; and (4)
implementation of the Administration's Brownfields Showcase Community
initiative. As a result of these efforts, NALGEP is well qualified to
provide the committee with a representative view of how local
governments, and their environmental and development professionals,
believe the Nation must move ahead to create long-term success in the
revitalization of brownfields properties.
NALGEP's testimony today will focus on the following areas: (1) the
urgent need for increased Federal funding to support the assessment,
cleanup and redevelopment of brownfields sites across the country; (2)
the need for liability clarification to encourage states and the
private sector to step forward and revitalize more sites; (3) the need
for Federal brownfields legislation to provide funding for the cleanup
of brownfields blighted by lead, asbestos and petroleum; and (4) the
need to facilitate the participation of other Federal agencies, such as
the Army Corps of Engineers, in local brownfields initiatives. Overall,
our view of the opportunity created by S. 2700 is straightforward this
bill provides critical, positive support to local governments who badly
need Federal resources and assistance for the revitalization of
America's brownfields. I would also note that both of my senators,
Senator Grassley and Senator Harkin, are cosponsors of S. 2700.
The cleanup and revitalization of brownfields represents one of the
most exciting, and most challenging, environmental and economic
initiatives in the nation. Brownfields are abandoned, idled, or under-
used properties where expansion or redevelopment is hindered by real or
perceived contamination. The brownfields challenge faces virtually
every community; experts estimate that there may be as many as 500,000
brownfields sites throughout the country.
The brownfields issue illustrates the connection among
environmental, economic and community goals that can be simultaneously
fostered through a combination of national leadership, state
incentives, and the innovation of local and private sector leaders.
Cleaning up and redeveloping brownfields provides many environmental,
economic and community benefits including:
expediting the cleanup of thousands of contaminated
sites;
renewing local economies by stimulating redevelopment,
creating jobs, expanding the local tax base, and enhancing the vitality
of communities; and--limiting sprawl and its associated environmental
problems such as air pollution, water pollution, traffic and the
development of rapidly disappearing open spaces especially impacts on
the heartland's prime farmland.
Des Moines Brownfields Initiatives
The City of Des Moines is impacted by brownfields, and is seeking
partnership with the Federal Government to revitalize its brownfields
and create new opportunity for our citizens. With the business
community, key Federal and state agencies, and civic organizations, Des
Moines is demonstrating how turning its brownfields into waterfront and
mixed-use developments, new manufacturing, and recreational and open
spaces can keep Des Moines a livable city, empower distressed
communities, and avoid the sprawling of the metropolitan region into
the area's precious farmland. In addition, Des Moines' brownfields
efforts demonstrate the value of Federal support, as U.S. EPA's
resources and assistance to my City have made a critical difference in
our ability to revitalize our blighted brownfields sites. EPA has been
a spark that has fueled the brownfields flame in our community.
Des Moines has a solid track record in brownfields, as demonstrated
by the successful revitalization of the Guthrie Avenue Business Park a
$30 million, 815,000 square feet office/warehouse/manufacturing project
on a formerly contaminated site. The City is also underway with Phase
II environmental assessment and cleanup plans for the 1200-acre Des
Moines Agribusiness Park, which will accommodate the growth of value-
added agribusinesses and assist in positioning Iowa as the Food Capital
of the World. The Ag-Park is expected to add $250 million to the tax
base and create 7,000 new jobs.
Des Moines is also seeking to assess, clean up, and redevelop the
Riverpoint West area in downtown Des Moines. The 300-acre Riverpoint
West area is located directly south of the Central Business District,
north of the Raccoon River, in a census tract with a 37.8 percent
poverty rate. Prior uses in the Riverpoint area have included but are
not limited to rail yards; newspaper and magazine printing; tanning;
asphalt paving; paint manufacturing; limestone, coal and coke yards;
foundry operations; iron works and industrial chemical manufacturing.
Soil and groundwater concerns are evident, and there are tremendous
land disturbances throughout this area. Construction and demolition
debris, metal drums with unknown contents, straw, glass and broken tile
have been deposited. The redevelopment challenge not only involves
determining the nature and extent of environmental contamination, but
also assessing the geotechnical constraints that may limit construction
density and affect the economic viability of the project.
In partnership with the Greater Des Moines Partnership (comprised
of 17 chambers of commerce and business associations), the City will
revitalize this environmentally contaminated industrial area into a
mixed-used urban village with approximately 1,000 residential units,
850,000 square feet of low-rise office and retail space, and
environmental and recreational enhancements along the riverfront. By
creating an interconnection with the adjacent Central Business
District, Riverpoint West can advance the success of downtown
redevelopment initiatives by meeting needs for workers and new
consumers, providing parking, and offering support services. Moreover,
the revitalization of Riverpoint West will be coordinated with the
recycling of the adjacent DICO Superfund site into essential parking
and transportation facilities. A Phase I assessment and an initial
economic feasibility study have been completed, and Des Moines is ready
to begin Phase II testing on 175 acres. Several local developers have
indicated their serious interest in redevelopment opportunities. When
completed, this revitalization project is expected to create 1,000 jobs
and increase the tax base twelvefold from approximately $12 million to
more than $140 million in the Riverpoint West area alone, not even
taking into account the positive economic reinvestment that can spread
throughout downtown Des Moines.
Although Des Moines has already made great progress, success in
achieving the community's vision to revitalize Riverpoint West will
require substantial additional resources and support, including from
the Federal Government. Des Moines is facing daunting challenges and
expense at the Riverpoint West area, which needs further environmental
assessment and geotechnical exploration; significant environmental
remediation; substantial site preparation for development; and flood
control and aquatic ecosystem restoration assistance. Clearly, the
Federal Government has a role to play, and Federal legislation for
brownfields revitalization could make a major difference for our
revitalization plans. And, the time is now for new national brownfields
incentives, while the economy is strong and when this legislation can
make a positive difference on the market feasibility of blighted urban
sites.
The Proposed Legislation Will Meet Local Government Needs for Federal
Brownfields Incentives
Local governments across America need Federal incentives and
assistance for brownfields revitalization. Priority needs include
funding for assessment and cleanup, liability clarification for parties
who can foster the cleanup of brownfields, and clear authority for
state-led brownfields cleanups.
I. Ensuring Adequate Resources for Brownfields Revitalization
As Des Moines' efforts to revitalize the Riverpoint West area
clearly demonstrate, local governments need additional Federal funding
for site assessment, remediation and economic redevelopment to ensure
long-term success in revitalizing our brownfields. The costs of site
assessment and remediation can create a significant barrier to the
redevelopment of brownfields sites. In particular, the uncertainty
associated with brownfields sites pose an initial obstacle that drives
development away from brownfields sites. With this initial obstacle
removed, localities eliminate uncertainty, save time, and are much
better able to put sites into a development track. In addition, the
allocation of public resources for site assessment can provide a signal
to the development community that the public sector is serious about
resolving liability issues at a site and putting it back into
productive reuse. In fact, the resources provided to Des Moines through
the EPA brownfield assessment pilot program are what enabled the City
to get serious about the redevelopment of our priority brownfield
sites. Without this help, many brownfields will continue to blight
communities across America and encourage sprawling patterns of
development.
Likewise, resources for cleanup are the missing link for many
brownfield sites a link that keeps brownfields from being redeveloped
into productive areas in many communities like Des Moines. Although the
private sector has a key role to play in brownfields cleanup, the
catalyst of Federal cleanup dollars is needed at many sites to leverage
private cleanup funds and to help level the development playing field
between brownfields and our precious open spaces and agricultural
lands. The use of public funds for the assessment and cleanup of
brownfields sites is a smart investment. Public funding can be
leveraged into substantial private sector resources. Investments in
brownfields yield the economic fruit of increased jobs, expanded tax
bases for cities, and urban revitalization. And the investment of
public resources in brownfields areas will help defer the environmental
and economic costs that can result from unwise, sprawling development
outside of our urban centers.
The $150 million in annual Federal funding for brownfields
revitalization provided in S. 2700 will go a long way toward helping
communities make progress on this daunting brownfields problem.
Furthermore, S. 2700 properly recognizes a wide variety of local
entities as eligible entities for Federal brownfields funding,
including not only local governments, states and tribes, but also local
development agencies, regional economic development districts, and
other entities that play key roles in local brownfields revitalization.
The following types of Federal funding will help local communities
continue to make progress in revitalizing our brownfields sites:
Grants for Site Assessments and Investigation: EPA's
Brownfields Assessment Pilot grants have been extremely effective in
helping localities to establish local brownfields programs, inventory
sites in their communities, investigate the potential contamination at
specific sites, and educate key stakeholders and the general public
about overcoming the obstacles to brownfields redevelopment. Additional
funding for site assessments and investigation is needed to help more
communities establish local brownfields programs and begin the process
of revitalizing these sites in their communities. S. 2700 recognizes
the value of Federal funding for brownfields assessments, and
appropriately provides money for the development of local assessment
programs, as well as for targeted brownfields assessment activities.
Grants for Cleanup of Brownfields Sites: There is a
strong need for Federal grants to support the cleanup of brownfields
sites across the country. The U.S. Conference of Mayors' recent report
on the status of brownfields sites in 223 cities nationwide indicates
that the lack of cleanup funds is the major obstacle to reusing these
properties. For many brownfields sites, a modest grant targeted for
cleanup can make the critical difference in determining whether a site
is redeveloped, creating new jobs, tax revenues and return on
investment, or whether the site remains polluted, dangerous and
abandoned. The approach in S. 2700 recognizes this critical funding
need, and appropriately provides for direct grants for cleanup, based
on considerations including the protection of greenspace and parks, and
the re-use of existing infrastructure. NALGEP emphasizes the importance
of the subcommittee's recognition of the connection between brownfields
redevelopment and smart growth in our local communities.
Grants to Capitalize Brownfields Cleanup Revolving Loan
Funds: In addition to grants, Federal funding to help localities and
states to establish revolving loan funds (RLFs) for brownfields cleanup
is another effective mechanism to leverage public and private resources
for redevelopment. EPA deserves credit for championing brownfields RLFs
as a mechanism for helping communities fill a critical gap in cleanup
funding. Likewise, S. 2700 provides needed improvements to the RLF
program, by enabling EPA to separate cleanup grants for loan funds from
the burdensome and unnecessary requirements of the Superfund National
Contingency Plan that have hindered the effective use of RLF funds thus
far.
II. Liability Clarification at Brownfields Sites
On the issue of Federal Superfund liability associated with
brownfields sites, NALGEP has found that the Environmental Protection
Agency's overall leadership and its package of liability clarification
policies have helped establish a climate conducive to brownfields
renewal, and have contributed to the cleanup of specific sites
throughout the nation. Congress can enhance these liability reforms by
further clarifying in legislation that Superfund liability does not
apply to certain ``non-responsible'' parties such as innocent
landowners, prospective purchasers and contiguous property owners. S.
2700 clearly addresses these issues, and overcomes a hurdle that has
kept innocent parties from voluntarily cleaning brownfields sites.
III. Enhancing the Role of the States in Brownfields Cleanup, Improving
State Programs, and Keeping the Safety Net of EPA Protection
Addressing the American brownfields problem will require Federal
law that provides effective State brownfields cleanup programs with the
authority to foster cleanups and clarify liability at these sites.
Moreover, resources and support are needed to improve the effectiveness
of many state brownfields cleanup programs. At the same time, the law
must preserve the ability of U.S. EPA to protect citizens and local
governments from bad cleanups and ineffective state programs. The
approach proposed by S. 2700 puts forth a well crafted, workable
approach that can help foster increased brownfields revitalization.
It is clear that effective brownfields likely to take place in
states with effective voluntary cleanup programs. NALGEP has also found
that states are playing a critical lead role in promoting the
revitalization of brownfields. More than 40 states have established
voluntary or independent cleanup programs that have been a primary
factor in successful brownfields cleanup, including my home state of
Iowa. The effectiveness of state leadership in brownfields is
demonstrated by those 14 states that have taken primary responsibility
for brownfields liability clarification pursuant to Superfund
``Memoranda of Agreement'' (MOAs) with U.S. EPA. These MOAs defer
liability clarification authority to those states, and have resulted in
increased brownfields activities in local communities that can make use
of these state-EPA agreements.
The Federal Government should further encourage states to take the
lead at brownfields sites. States are more familiar with the
circumstances and needs at individual sites. A state lead will increase
local flexibility and provide confidence to developers, lenders,
prospective purchasers and other parties that brownfields sites can be
revitalized without the specter of Superfund liability or the
involvement of Federal enforcement personnel. Parties developing
brownfields want to know that the state can provide the last word on
liability, and that there will be only one ``policeman,'' barring
exceptional circumstances. Moreover, it is clear that U.S. EPA lacks
the resources or ability to provide the assistance necessary to
remediate and redevelop the hundreds of thousands of brownfields sites
in our communities.
S. 2700 provides that EPA will not take Superfund enforcement or
cost recovery action against a person who is conducting or has
completed a response action regarding the specific release that is
addressed by the response action that is in compliance with a State
program that specifically governs response actions for the protection
of public health and the environment. The approach taken by S. 2700
will help effective State brownfields programs to take a lead in
brownfields cleanup, and give confidence to brownfields developers that
they can get the job done.
At the same time, local officials are also concerned that citizens
need to be protected from inadequate brownfields cleanups, in which a
state program does not effectively protect public health or in other
exceptional circumstances. States vary in the technical expertise,
resources, staffing, and commitment necessary to ensure that
brownfields cleanups are adequately protective of public health and the
environment. If brownfields sites are improperly assessed, remediated
or put into reuse, it is most likely that the local government, will
bear the largest impact from any public health emergency or
contamination of the environment. Thus, it is important to keep the
safety net of U.S. EPA Superfund authority intact for those exceptional
circumstances in which a state needs help at a particular brownfields
cleanup, the sites presents an imminent and substantial threat to
health or the environment, or in other limited situations. The approach
in S. 2700 keeps this important safety net for our citizens and the
environment in place, and provides a balanced and workable state-
Federal approach.
The approach provided in S. 2700 goes even further, by providing
resources and assistance to enable States to develop and improve their
brownfields cleanup programs, so that brownfield cleanups are effective
and circumstances of public health threat remain truly exceptional. By
tying grants to States for the enhancement of cleanup programs to
criteria to ensure that the state programs have adequate provisions for
meaningful public participation, enforcement, and mechanisms for the
approval of cleanups, S. 2700 will help promote state leadership on
brownfields cleanup.
IV. Addressing the Local Need to Clean Up Brownfields with Lead,
Asbestos, and Petroleum Contamination
NALGEP suggests one major improvement for the proposed brownfields
legislation, which is needed to address a priority local problem--the
cleanup of brownfields impacted by petroleum, or by lead and asbestos
in the structures of buildings.
Under the current law and agency programs, these pollutants are
excluded from Federal brownfields assistance. These environmental
contaminants are some of the most difficult problems facing local
communities in their public health protection and revitalization.
Abandoned gas stations, housing with severe lead paint hazards, and
buildings contaminated with asbestos blight communities across America,
and represent a top local priority for cleanup. In fact, EPA reports
that there are nearly 200,000 abandoned gas stations in the United
States.
``Brownfield sites'' with these pollutants should be eligible for
funding. Local governments should be granted the flexibility to direct
their brownfields resources, including Federal funds provided by S.
2700, to their priority brownfields projects, including those that are
blighted by petroleum, lead or asbestos. In addition, these sites
should also be eligible to take advantage of the liability protections
offered to innocent landowners, prospective purchasers, and contiguous
property owners.
V. Liability Clarification at Brownfields Sites
On the issue of Federal Superfund liability associated with
brownfields sites, NALGEP has found that the Environmental Protection
Agency's overall leadership and its package of liability clarification
policies have helped establish a climate conducive to brownfields
renewal, and have contributed to the cleanup of specific sites
throughout the nation. Congress can enhance these liability reforms by
further clarifying in legislation that Superfund liability does not
apply to certain ``non-responsible'' parties such as innocent
landowners, prospective purchasers and contiguous property owners. S.
2700 clearly addresses these issues, and overcomes a hurdle that has
kept innocent parties from voluntarily cleaning brownfields sites.
VI. Enhancing the Role of the States in Brownfields Cleanup, Improving
State Programs, and Keeping the Safety Net of EPA Protection
Addressing the American brownfields problem will require Federal
law that provides effective State brownfields cleanup programs with the
authority to foster cleanups and clarify liability at these sites.
Moreover, resources and support are needed to improve the effectiveness
of many state brownfields cleanup programs. At the same time, the law
must preserve the ability of U.S. EPA to protect citizens and local
governments from bad cleanups and ineffective state programs. The
approach proposed by S. 2700 puts forth a well crafted, workable
approach that can help foster increased brownfields revitalization.
It is clear that effective brownfields revitalization is most
likely to take place in states with effective voluntary cleanup
programs. NALGEP has also found that states are playing a critical lead
role in promoting the revitalization of brownfields. More than 40
states have established voluntary or independent cleanup programs that
have been a primary factor in successful brownfields cleanup, including
my home state of Iowa. The effectiveness of state leadership in
brownfields is demonstrated by those 14 states that have taken primary
responsibility for brownfields liability clarification pursuant to
Superfund ``Memoranda of Agreement'' (MOAs) with U.S. EPA. These MOAs
defer liability clarification authority to those states, and have
resulted in increased brownfields activities in local communities that
can make use of these state-EPA agreements.
The Federal Government should further encourage states to take the
lead at brownfields sites. States are more familiar with the
circumstances and needs at individual sites. A state lead will increase
local flexibility and provide confidence to developers, lenders,
prospective purchasers and other parties that brownfields sites can be
revitalized without the specter of Superfund liability or the
involvement of Federal enforcement personnel. Parties developing
brownfields want to know that the state can provide the last word on
liability, and that there will be only one ``policeman,'' barring
exceptional circumstances. Moreover, it is clear that U.S. EPA lacks
the resources or ability to provide the assistance necessary to
remediate and redevelop the hundreds of thousands of brownfields sites
in our communities.
S. 2700 provides that EPA will not take Superfund enforcement or
cost recovery action against a person who is conducting or has
completed a response action regarding the specific release that is
addressed by the response action that is in compliance with a State
program that specifically governs response actions for the protection
of public health and the environment. The approach taken by S. 2700
will help effective State brownfields programs to take a lead in
brownfields cleanup, and give confidence to brownfields developers that
they can get the job done.
At the same time, local officials are also concerned that citizens
need to be protected from inadequate brownfields cleanups, in which a
state program does not effectively protect public health or in other
exceptional circumstances. States vary in the technical expertise,
resources, staffing, and commitment necessary to ensure that
brownfields cleanups are adequately protective of public health and the
environment. If brownfields sites are improperly assessed, remediated
or put into reuse, it is most likely that the local government will
bear the largest impact from any public health emergency or
contamination of the environment. Thus, it is important to keep the
safety net of U.S. EPA Superfund authority intact for those exceptional
circumstances in which a state needs help at a particular brownfields
cleanup, the sites presents an imminent and substantial threat to
health or the environment, or in other limited situations. The approach
in S. 2700 keeps this important safety net for our citizens and the
environment in place, and provides a balanced and workable state-
Federal approach.
The approach provided in S. 2700 goes even further, by providing
resources and assistance to enable States to develop and improve their
brownfields cleanup programs, so that brownfield cleanups are effective
and circumstances of public health threat remain truly exceptional. By
tying grants to States for the enhancement of cleanup programs to
criteria to ensure that the state programs have adequate provisions for
meaningful public participation, enforcement, and mechanisms for the
approval of cleanups, S. 2700 will help promote state leadership on
brownfields cleanup.
VII.Addressing the Local Need to Clean Up Brownfields with Lead,
Asbestos, and Petroleum Contamination
NALGEP suggests one major improvement for the proposed brownfields
legislation, which is needed to address a priority local problem the
cleanup of brownfields impacted by petroleum, or by lead and asbestos
in the structures of buildings. Under the current law and agency
programs, these pollutants are excluded from Federal brownfields
assistance. These environmental contaminants are some of the most
difficult problems facing local communities in their public health
protection and revitalization. Abandoned gas stations, housing with
severe lead paint hazards, and buildings contaminated with asbestos
blight communities across America, and represent a top local priority
for cleanup. In fact, EPA reports that there are nearly 200,000
abandoned gas stations in the United States. ``Brownfield sites'' with
these pollutants should be eligible for funding. Local governments
should be granted the flexibility to direct their brownfields
resources, including Federal funds provided by S. 2700, to their
priority brownfields projects, including those that are blighted by
petroleum, lead or asbestos. In addition, these sites should also be
eligible to take advantage of the liability protections offered to
innocent landowners, prospective purchasers, and contiguous property
owners.
VIII.Facilitating the Participation of Other Federal Agencies in
Brownfields Revitalization
The cleanup and redevelopment of a brownfields site is often a
challenging task that requires coordinated efforts among different
government agencies at the local, state and national levels, public-
private partnerships, the leveraging of financial resources from
diverse sources, and the participation of many different stakeholders.
Many different Federal agencies can play a valuable role in providing
funding, technical expertise, regulatory flexibility, and incentives to
facilitate brownfields revitalization. For example, HUD, the Economic
Development Administration, the Department of Transportation, and the
Army Corps of Engineers have all contributed important resources to
expedite local brownfields projects. The U.S. EPA and the
Administration have provided strong leadership through the Brownfields
Showcase Community initiative that is demonstrating how the Federal
Government can coordinate and leverage resources from many different
Federal agencies to help localities solve their brownfields problems.
Congress can help strengthen the national brownfields partnership
by further clarifying that the various Federal partners play a critical
role in redeveloping brownfields, and by encouraging the agencies to
meet local needs and to create innovative new approaches. For example,
Congress should be commended for legislation passed in 1998 to clarify
that HUD Community Development Block Grant funds can be used for all
aspects of brownfields projects including site assessments, cleanup and
redevelopment. This simple step has cleared the way for communities
across the country to use these funds in a flexible fashion to meet
their specific local needs. In addition, Congress has provided $25
million in each of the past 2 years for HUD's Brownfields Economic
Development Initiative.
Similarly, Congress should consider clarifying that it is
appropriate and desirable for the Army Corps of Engineers to use its
resources and substantial technical expertise for local brownfields
projects. In Des Moines, for instance, we need the Corps of Engineers'
help to succeed in our revitalization of the Riverpoint West area,
which is severely impacted by flooding, environmental contamination,
and the need for restoration of the local aquatic ecosystem. The Corps
of Engineers is already conducting a major flood control study for
Riverpoint West, and Des Moines is seeking to expand this study to
address ecosystem and environmental contamination issues.
I understand that the Administration has proposed a new authority
in the Water Resources Development Act 2000 legislation for brownfields
cleanup, in order to protect the water quality and promote the
revitalization of communities across the nation. Likewise, Senator
Chafee has introduced S. 2335, the ``State and Local Brownfields
Revitalization Act of 2000,'' which also provides the Corps with clear
authority to conduct brownfields activities along America's waterways.
NALGEP believes this is an excellent proposal that will make a big
difference for our city and many other communities.
Congress also should work with EPA and the Administration to
determine how other agencies can help facilitate more brownfields
revitalization. By taking these steps, Congress can give communities
additional tools, resources, and flexibility to overcome the many
obstacles to brownfields redevelopment.
Conclusion
Senator Robert Kennedy once declared ``give me a place on which to
stand, and I shall move the earth!'' The people of America, the people
of our local communities, people in this Congress, are standing up on
our brownfields and in our streets and in our neighborhoods and we are
shouting, let's move the earth! Let us take these places that have been
abandoned, and let us turn them back to jobs and business and parks and
homes. Let us show that we can bring business people and environmental
groups and City Hall and the Federal agencies together toward a common,
exciting goal. Let us work together to let entrepreneurship thrive. Let
us take this notion that jobs and the environment are a tradeoff, and
recycle it into a new notion of livable communities where these goals
are linked and supportive of each other. And let's do it now.
In conclusion, local governments are excited to work with the
Federal Government to promote the revitalization of brownfields,
through a combination of increased Federal investment in community
revitalization, further liability clarification, and other mechanisms
to strengthen the national partnership to cleanup and redevelop our
communities. On behalf of NALGEP, I thank the subcommittee for this
opportunity to testify, and we would be pleased to provide further
input as the process moves forward.
__________
Statement of Jan H. Reitsma, Director, Rhode Island Department of
Environmental Management
Introduction
Good afternoon Mr. Chairman and members of the committee. My name
is Jan Reitsma. I am the Director of the Rhode Island Department of
Environmental Management. I appreciate the opportunity to speak to you
today regarding Rhode Island's perspectives on, and support of, Senate
bill S. 2700 on Brownfields.
I would like to commend Senator Chafee and the other committee
members for crafting a Brownfields bill that has bi-partisan
sponsorship and addresses many of the concerns we have had with the
Superfund program. I am also pleased to see that the tremendous effort
invested in cleaning up this country's contaminated sites by the late
Senator John Chafee is being continued by this subcommittee and its
chairman, Senator Lincoln Chafee. Rhode Islanders are proud to see our
Senator continuing to lead the effort to improve the Superfund and
Brownfields programs.
Summary Rhode Island strongly supports Senate bill S. 2700 as a
much needed and significant step forward toward improving the Superfund
program, and particularly as a measure that would give us the
additional backup, tools and flexibility to carry out our Brownfields
program at the state and local levels. The proposed statutory changes
would address the most frequently encountered obstacle to closing a
Brownfields deal, lack of finality, even when the State has negotiated
a comprehensive agreement and is willing to provide liability relief.
The funding aspects of the bill are also of great interest to us,
including the funding for actual cleanup work in addition to existing
programs that focus onsite investigation and inventories, and funding
that will help develop capacity at the municipal level to deal with the
complexities of Brownfields redevelopment. At least as important is the
new funding for projects that restore Brownfields to a public use, such
as a waterfront park, and that, unlike commercial redevelopment
projects, do not have the revenue stream to pay off loans. Together,
these provisions will greatly enhance the State's ability to expand on
its efforts to date and to realize the full potential of Brownfields
redevelopment as we seek to revitalize our urbanized communities,
improve and preserve our quality of life, and promote sustainable
economic growth statewide. Finally, the bill strikes a reasonable
balance between giving the States more flexibility and more of a lead
role on the one hand, and requiring accountability from the States on
the other.
Background: The Rhode Island Perspective on Brownfields
Brownfields present a tremendous challenge in Rhode Island. Prior
to 1991, Rhode Island had relied exclusively on the Superfund program
and our RCRA hazardous waste management program to address sites
contaminated with chemicals and petroleum. Unfortunately, we were
discovering sites at a rate faster than those programs could address
them. After evaluating the pace of discovery of new sites and the
backlog of sites that existed at that time, we decided to follow the
lead of several other States and establish our own state program.
Through a collaborative stakeholder effort, Rhode Island promulgated
its site remediation regulations in 1993 and the pace of cleanup
throughout the state quickly accelerated. Those regulations lay out a
process for notification, investigation, and remediation of
contaminated properties. It is a flexible process designed to be
adapted to the many types of contaminated sites that we have
encountered. While these new regulations and the alternative regulatory
framework that they provide to responsible parties clearly increased
the amount of cleanup in the State, we believe that it is the
continuing threat of listing in the Superfund program, coupled with our
own enforcement actions, that provide the impetus for cooperation.
In 1995, Governor Lincoln Almond proposed the Industrial Property
Remediation and Reuse Act, or the Rhode Island Brownfields bill, to
build on the early successes of our State program and provide more
tools to facilitate the cleanup of contaminated sites and support their
return to beneficial use in the community. This bill was passed into
law with overwhelming support by the legislature and provides DEM with
the ability to enter into Settlement Agreements, which include
Covenants Not to Sue, with performing parties. While the law provides
specific relief from liability to bona fide perspective purchasers and
secured creditors, it also allows other performing parties, including
cooperative responsible parties, to enter into Settlement Agreements.
These new tools prompted the cleanup and redevelopment of 48 sites,
restoring 532 acres of contaminated property and creating or retaining
1010 jobs and $76.9 million dollars in property and income tax
annually. The key aspect of this program improvement was the certainty
and finality that the law and the Settlement Agreements provided to
performing parties.
Further program improvements came in 1997 with the amendment of the
site remediation regulations to include a series of cleanup standards
proportionate to the future use of properties. These amendments added
three options for a performing party to use to determine the end goal
of their cleanup. The first option, or tier, involves a series of
tables for performing parties to use to look up the appropriate cleanup
goals corresponding to the groundwater classification and future use of
the site. The second tier provides an accepted model where performing
parties could input unique, site specific information to come up with a
site-specific goal. Finally, the third tier preserved the traditional
risk assessment option. The selection of the method is left to the
performing party.
The end result of these efforts is our existing program, which
provides us with all the regulatory tools needed to respond to proposed
projects, compel the investigation and remediation of sites, and
support redevelopment efforts involving Brownfields. These regulations,
however, strictly address the Department's reaction to issues presented
to us through either notification of contamination or other proposed
projects.
The need to support economic redevelopment in Rhode Island's urban,
and historically industrial, communities and initiate cleanup
activities in these areas prompted Rhode Island's effort to seek a
Brownfields Demonstration Pilot grant from EPA in 1996. The pilot was
focused on a proactive approach, undertaken with many municipal and
economic development partners, to identify Brownfields sites, assess
their condition, estimate the costs of cleanup, and support the
marketing of the sites for reuse. The project was an ecosystem based
approach to identifying vacant or underutilized sites along the
Blackstone and Woonasquatucket Rivers. Rhode Island was awarded a two
hundred thousand dollar grant in 1997, which the State matched with an
additional two hundred and ten thousand dollars. To date 54 baseline
site assessments and 8 Remedial Evaluation Reports (which include cost
estimates for cleanup) have been completed at Brownfields sites in the
pilot area. Also, and perhaps more importantly, a healthy dialog and
productive working relationship has been established between the
economic development agencies, the Department of Environmental
Management and the municipalities.
In 1998, our proactive Brownfields efforts were supplemented by the
designation of Providence as a Brownfields Showcase Community. This
designation provided a higher level of involvement by EPA and several
other Federal agencies, most notably Housing and Urban Development, in
supporting the reuse of contaminated sites in Providence.
Recent efforts under the Brownfields Pilot and Showcase Community
projects have primarily been focused on supporting the investigation
and cleanup of properties along the proposed route of the
Woonasquatucket River Greenway and bike path. The investigation and
remedial design activities have largely been completed but securing
funding for the remediation has proved to be a major problem. The
funding problem mainly is due to the fact that the properties of
concern, the former Lincoln Lace and Braid and the former Riverside
Mills properties, are designated for use as open space, bike path
areas, and other recreational facilities, and do not have a future
income stream to support a loan to fund remediation costs. The current
lack of funding support for projects of this type, i.e. restoration to
a natural resource or public use function rather than commercial
redevelopment, has slowed progress on this very important project.
We have leveraged our success and relationships developed under the
pilot and Showcase Community projects to approach other municipalities
and support their Brownfields redevelopment efforts across the State.
In addition, DEM and the Rhode Island Economic Development Corporation
were recently awarded a $1,000,000 grant to establish a statewide
revolving loan program to assist in the funding of remediation costs.
The evolution of our State program is in many ways similar to the
process other States have followed. Each State has adjusted its
approach somewhat to meet the needs and desires of its constituencies
and to strive for the most efficient and effective models based on its
particular circumstances. This has led to many innovative approaches
supporting the cleanup of thousands of sites of all shapes and sizes
nationally.
Rhode Island's Support of Senate Bill S. 2700
Senate Bill S. 2700 provides a strong Federal parallel to the
Brownfields statutes and programs adopted in Rhode Island and other
States. While administrative reforms to Superfund have provided much
improvement and relief in our efforts to bring these sites back to
beneficial reuse, those efforts have been limited by the confines of
the existing CERCLA statute. S. 2700 incorporates many of the concepts
espoused in Superfund administrative reforms directly into the statute
and expands the boundaries of CERCLA to address some of the obstacles
to cleanup and redevelopment that are created by the existing law.
Funding is addressed in S. 2700. Cooperative agreements for site
investigations, characterization, and inventory are specifically
outlined in the bill and revolving loan funds are established and
funded. In addition to reaffirming these existing programs in the
statute, S. 2700 includes provisions for financial assistance in
remediation of Brownfields. One of the most frequent barriers cited
when negotiating Brownfields project agreements is the lack of funding
assistance for the actual cleanup work.
We also support and applaud the provisions of S. 2700 that provide
funding to develop the capacity for local government agencies to
evaluate, clean up and redevelop Brownfields properties. Our
experiences, as well as the experiences of States across the country,
show that the most effective projects include active participation and
support from the local government in partnership with State, Federal
and private partners. This investment in developing more program
expertise at the municipal level is money well spent.
A key provision of S. 2700 establishes grants for properties where
the projected future use is for the public benefit, and there is not an
anticipated future income stream to repay a loan. This provision
recognizes the full potential of brownfields to contribute to the
revitalization of our urban areas. These areas have typically suffered
loss of jobs and tax revenue, but also loss of environmental quality.
Brownfields offer not only an opportunity for economic revitalization,
but also for environmental improvements, from parks and trails to
wetlands restoration. Both types of improvements are critical to
improving the quality of life in our urbanized communities. In Rhode
Island, the Almond Administration has consistently made this a top
priority. The State has invested heavily in urban parks, greenways and
bike paths and our watershed protection efforts focus as much on our
urban watersheds as the more pristine, rural areas of the state. And of
course, we now know that improving the quality of life in our cities is
an absolutely necessary ingredient of any effort to control sprawl,
limit unplanned and uncontrolled development in our suburban and rural
communities, and develop more sustainable growth patterns.
Although the $150 million allocated for these new purposes is small
in comparison to the magnitude of the challenges we face nationally, we
support this investment as a tremendous step forward. It will help the
States integrate Brownfield properties more fully in our efforts to
revitalize our urban economies, improve the quality of life both in our
urban, suburban and rural communities, and promote Smart Growth
statewide.
S. 2700 provides relief to innocent parties, including the owners
of contiguous properties, bona fide prospective purchasers, and down
gradient receptors. Rhode Island has historically provided these
parties with relief from liability through statutory protection or
enforcement discretion provided that they cooperate with ongoing
investigations and provide access. We have seen areas in our cities and
towns become virtual dead zones because they are in close proximity to
contaminated sites. The fear of liability spilling over from one
property to another has pushed people to look elsewhere when
considering expansion or relocation of their businesses or activities.
We believe the proposed statutory changes incorporate fairness and
reasonableness into the liability structure of the program and will
facilitate economic activity around contaminated sites. Furthermore,
the windfall lien provisions will protect the taxpayer's investment in
Brownfields properties and will eliminate the potential of owners of
contaminated sites profiting inappropriately from government efforts to
support redevelopment through assessment or cleanup.
Perhaps the most significant and potentially beneficial aspects of
S. 2700 are the provisions included in Title III on the State Role. We
support the provisions in Title III that prevent a Federal enforcement
action that would be duplicative of the State's oversight role. While
we recognize that the Superfund program has evolved away from the
duplication of effort and heavy-handed Federal supervision sometimes
seen in the past, developers and other parties interested in reusing
Brownfields sites continue to cite the potential double jeopardy issues
as a cause for concern. Administrative reforms, including comfort
letters and interagency memoranda of agreement for voluntary cleanups,
reflect the more cooperative approach that EPA and many States have
managed to develop and that we in New England are now more used to as
we seek to address together the still challenging universe of
contaminated sites in our region. However, these administrative fixes
are not always sufficient to satisfy all interested parties. We believe
the changes proposed in S. 2700 will provide definitive answers to
those concerns and as such will encourage more participation in our
redevelopment efforts.
Finally, from our perspective the bill proposes reasonable
standards for a State program. Some States may disagree and seek even
greater autonomy but we believe the requirements make sense from an
accountability point of view. We are concerned that future regulations
not expand on these requirements so as to establish a burdensome
paperwork process that would defeat the very purpose of this
legislation. The eligibility criteria must remain simple,
straightforward and relatively easy to meet, and we hope this objective
will be clearly articulated in the remaining deliberations.
Summary and Closing In summary, Rhode Island supports Senate bill
S. 2700 on Brownfields as a strong step toward improving Superfund and
supporting the reuse and redevelopment of Brownfields nationwide and in
particular in our Ocean State. As we all know, the key issue under
Superfund, State cleanup programs, Brownfields programs and voluntary
cleanup programs has been to develop more tools and more flexibility to
allow us to more efficiently facilitate the cleanup of many types of
contaminated properties. Flexibility will be especially critical as we
respond to new challenges, such as the sites that we have begun to
identify as a result of new initiatives, in particular initiatives that
pursue watershed protection, urban environmental improvements, Smart
Growth, and Total Maximum Daily Load limits for our water bodies that
are still not meeting their water quality standards.
We believe S. 2700 adds much needed new provisions for flexibility
and efficiency to the CERCLA statute. We strongly support, and need,
the liability relief and finality provisions at the Federal level so
that we can offer more certainty in our negotiations at the state
level. We believe that requirements for state program eligibility, as
written in this bill, are a reasonable way to ensure accountability and
thereby balance the finality and flexibility of state level
decisionmaking. We very much need the proposed funding to States and
local governments to continue to develop program capabilities as well
as continue to directly evaluate, clean up and redevelop Brownfields
properties. This bill will strengthen participation in and coordination
of Brownfields redevelopment all government levels.
Once again, I would like to commend Senator Chafee and the other
committee members for crafting a Brownfields bill that has bi-partisan
sponsorship and addresses many of the concerns we have had with the
Superfund program. Thank you again for the opportunity to testify, from
the Rhode Island perspective, on this most important legislation. .
__________
STATEMENT OF VERNICE MILLER-TRAVIS, EXECUTIVE DIRECTOR, PARTNERSHIP FOR
SUSTAINABLE BROWNFIELDS REDEVELOPMENT
Introduction
Good afternoon, My name is Vernice Miller-Travis, and I currently
serve as the Executive Director of the Partnership for Sustainable
Brownfields Redevelopment, based in Baltimore, Maryland. I also serve
as a member of the National Environmental Justice Advisory Council
(NEJAC), where I chair the Waste and Facility Siting subcommittee.
Through my participation in the NEJAC I have worked closely over a
period of several years with EPA's Office of Solid Waste and Emergency
Response in the development of it's National Brownfields Action Agenda.
In my previous appearances before this sub-committee I represented the
Natural Resources Defense Council and the environmental justice
community. Today I am pleased to add my voice to the chorus of those
that support this legislation. I would also like to take this
opportunity to introduce Ms. Donele Wilkens, Founding Director of
Detroiters Working for Environmental Justice. Ms. Wilkens is one of the
leading environmental justice advocates in the state of Michigan, and
serves on the Detroit Brownfields Redevelopment Authority. She is
submitting her own comments about this legislation for your
consideration representing the perspective of community residents at or
near urban Brownfields sites. Today I am pleased to be able to speak
affirmatively about S. 2700 and it's provisions, as opposed to speaking
against the legislation which has been my posture in my previous
appearances before this body. However, I do have a few areas of concern
about some of the provisions contained within this legislation which I
will share with you this afternoon.
General Comments
My general review of the legislation in consultation with members
of the Board of the Partnership for Sustainable Brownfields
Redevelopment, as well as consultations with several other Brownfields
stakeholders is that S. 2700 is a well crafted, useful, creative
approach to Brownfields redevelopment. That being said I want to raise
the following general concerns about this legislation.
The bill does not address the question of the presence of lead and/
or asbestos removal from buildings on Brownfields sites (buildings that
themselves will either be refurbished or demolished). The bill does not
address the remediation of abandoned gas stations as an eligible
recipient activity for Federal Brownfields grant moneys. My biggest
area of concern is the blanket delegation of enforcement authority for
Brownfields redevelopment to State Voluntary Clean-up Programs. The
legislation assumes that all states have the resources to implement a
vigorous VCP program that can assume the enforcement responsibilities
that EPA has heretofore held. For a variety of reasons this assumption
is not accurate. All states are not equal in terms of the resources
available to them to implement and maintain strong VCP's. Some states
as a matter of political philosophy are opposed to vigorous enforcement
actions that they believe will diminish the interest by private
developers in purchasing and redeveloping Brownfields sites within
their states. In these states local communities, especially low income
and communities of color, are facing an up hill battle when trying to
get state and local agencies to balance economic development
considerations with the need for environmental and public health
considerations. To address this particular concern I suggest that the
legislation include language that states would have to demonstrate to
EPA the existence, and effectiveness of a state Voluntary Clean-up
Program before the state could receive delegated enforcement authority
for a Brownfields program. Through this process the state would need to
certify that they indeed have an established program of corrective
action to clean-up and redevelop Brownfields sites. The state would
also need to demonstrative that their corrective action program has
been and can be implemented consistently across the state in all
communities regardless of race, ethnicity or economic status. Title II
of the Bill--Brownfields Liability Clarifications--is perhaps the most
creative and forthright legislative attempt to address innocent third
party and prospective purchasers in the chain of liability, while
maintaining and preserving the principle of strict, joint and several
liability. The proposed amount of the appropriation of Federal moneys
to accompany this bill is a welcome increase in proposed Federal
Brownfields dollars. As is the definition of eligible entities who can
access these dollars (see specific comments) and the expanded
definition of what is an eligible recipient activity or use. The
section of the bill entitled (C) Mechanisms and resources to provide
meaningful opportunities for public participation, and (D) Mechanisms
for approval of a clean up plan, are especially appreciated as
delineated sections of this legislation. Last, the language included in
Sec. 128. Brownfields Revitalization Funding, sub section (3)
CONSIDERATIONS--(A) ``the extent to which a grant will facilitate the
creation of, preservation of, or addition to a park, is a welcome
addition to the legislative thinking about what constitutes a
beneficial reuse of a Brownfields site? It also affirms the perspective
that a beneficial reuse can be something other than a commercial or
industrial reuse of a Brownfields site. Additionally sub section (B)
the extent to which a grant will meet the needs of a community is the
first legislative attempt to codify the needs of local communities as a
paramount consideration in Brownfields redevelopment considerations.
Specific Comments
Title I.
Sec. 128. BROWNFIELDS REVITALIZATION FUNDING. ``DEFINITION OF
ELIGIBLE ENTITY. The term ``eligible entity'' should include community
development corporations and non profit organizations.
In the same section the sub-section entitled (3) RANKING
CRITERIA, (B) The potential to stimulate economic development The
definition of economic development should specifically delineate
enhanced economic opportunity for community residents and area small
businesses. Currently economic development is being defined as a
remediated site that is being reused. The reuse does not always create
new or enhanced economic opportunity for area residents and existing
small businesses.
Letter (I) of this section--The extent to which the grant
provides for involvement of the local community in the process of
making decisions We suggest that here you insert the following
recommendation: with respect to establishing a process for the
involvement of local communities in the process of Brownfields
decisionmaking a recipient can utilize the ASTM E 1984-98 Standard
Guide for the Sustainable Restoration of Brownfields Properties. This
is a multi-stakeholder guidance which I and several members of the
Partnership for Sustainable Brownfields Redevelopment helped to draft.
Section 203. INNOCENT LANDOWNERS, sub section (iii)
CRITERIA (II) should read as follows: Interviews with past and present
owners, operators, and occupants of the facility, and past and present
residents or commercial businesses at or near the site in question, for
the purposes of gathering information regarding
Section 129. STATE RESPONSE PROGRAMS, sub section (1)
ENFORCEMENT, sub section (C) PUBLIC RECORD should read as follows: The
public record shall identify whether or not the site, on completion of
the response action, will be suitable for unrestricted use and, if not,
shall identify the institutional controls relied on in the remedy and
how the institutional control will be enforced and monitored over time.
Conclusion
I believe that this bill goes a long way toward advancing the cause
of Brownfields clean-up and redevelopment. I want to caution the
drafters of this bill to recognize that all your efforts to craft a
comprehensive and inclusive bill will be for naught, if state and local
government entities do not take the opportunities afforded in this bill
to work with local communities in meaningful and measurable ways toward
the goal of Brownfields redevelopment and community revitalization.
The environmental justice perspective on Brownfields redevelopment
is that these sites must be viewed as a component of a broader economic
and community revitalization strategy. A strategy that seeks to rebuild
and revive these long dormant communities into healthy, safe and
economically viable areas. This is what is meant by the term
``sustainable Brownfields redevelopment.''
Back home in our respective communities, we are witnessing
Brownfields programs and projects that promote economic opportunities
for entities other than the long suffering residents and small business
owners in our nations most economically and environmentally deprived
communities, where the bulk of the Brownfields sites are located. We
are also witnessing successful Brownfields projects that have
mushroomed into wholesale gentrification of our communities, for
example: Jersey City, New Jersey, Downtown Detroit, the 125th Street
commercial corridor in Harlem, New York, and many other examples across
the country. We believe that real economic development is that which
enhances the quality of life of community residents and improves
economic opportunities for community businesses.
We believe that the issue of sustainable Brownfields redevelopment
is crucial to pursuing a different path toward community redevelopment
and revitalization in this new century. Sound and sustainable
Brownfields redevelopment is one of the critical issues of our time,
and this bill takes a significant step in the right legislative
direction.
It is clear to me that the crafting of this bill was achieved
through major bipartisan give-and-take and consensus building. Please
know that your staff efforts and Congressional leadership are very much
appreciated, and we look forward to your continued support of
Brownfields redevelopment and community revitalization.
Thank you for the opportunity to share my thoughts with you on the
``Brownfields Revitalization and Environmental Restoration Act of
2000.''
__________
STATEMENT OF WILLIAM MCELROY, AMERICAN INSURANCE ASSOCIATION
Mr. Chairman and members of the subcommittee: This testimony is
submitted on behalf of the American Insurance Association (``AIA'').
The AIA is the principal trade association for property and casualty
insurance companies, representing more than 370 major insurance
companies which provide all lines of property and casualty insurance
and write more than one-third of all direct commercial property and
casualty insurance in the United States.
We are delighted to have this opportunity to comment on S. 2700,
the Brownfields Revitalization and Environmental Restoration Act of
2000. We believe the bill constitutes a small, but positive step toward
cleaning up hazardous waste sites. We are especially happy to observe
that the bill does this through a mechanism other than litigation.
Finally, we are pleased to note the bill is the product of a bipartisan
consensus of the leadership of the Senate Environment Committee and we
congratulate the sponsors of this bill for this achievement.
Mr. Chairman, we believe S. 2700 will help facilitate the cleanup
and redevelopment of hazardous waste sites throughout the country.
Brownfields redevelopment facilitated, encouraged, and stimulated by
this bill is undeniably good environmental policy and it is also good
business. In fact, insurance related to the redevelopment of old
industrial sites and even Federal facilities is a small, but growing
area of business for the insurance industry. Thus we are seeing a
welcome conjunction between the interests of cities and towns in need
of revitalization and the interests of businesses seeking new markets.
The brownfields problem this bill helps address is being faced by
cities throughout the country. The contaminated properties we call
``brownfields'' are typically abandoned industrial or commercial
properties that are no longer owned by the parties who were responsible
for the contamination. Usually these properties have been obtained by
local governments through foreclosure on mortgages, taxes, or other
assessments that were in arrears. In other cases the sites are owned by
trusts or estates that are financially unable to clean up the
contamination. Neither the local governments nor the estates are in a
position to indemnify potential purchasers against environmental
liability for known or unknown contamination. Some cities now own
hundreds of such properties and simply cannot afford to hire
consultants to characterize the environmental condition of these sites
and certainly cannot afford to pay for cleaning up the contamination.
If cities offer some limited form of indemnity for purchasers or
developers of these properties, they risk a downgrading of their
financial ratings due to the requirement to report contingent
liabilities to auditors and rating organizations. For most cities this
would be disastrous.
The predicament for many cities is that they don't have the
resources to address the brownfields problem, but they can't develop
the resources without addressing the brownfields problem. This would
seem to provide an appropriate opportunity for Federal legislation,
such as S. 2700.
Title I authorizes grants to state and local governments, and to
various redevelopment agencies for site assessment and remediation.
While we will leave detailed comments on this provision to the mayors
who are testifying today, we would point out that ``grants'' as opposed
to ``loans'' are exactly what is needed. That's because as one might
expect, the cities and towns most in need of brownfields redevelopment
activity are often those that can least afford it, by definition. A
loan simply digs the financial hole they are already in a little
deeper. Therefore, grants are often the only practical way for these
cities to begin to address the problem.
Title II makes modest amendments to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (``CERCLA'' or
commonly referred to as ``Superfund'') by exempting from liability
innocent contiguous property owners; innocent prospective purchasers;
and innocent landowners. All of these exemptions would apply only under
very limited circumstances, detailed with great specificity in the
bill. It is uncertain whether many parties would be affected by the
contiguous property and innocent landowner provisions; no doubt the few
who may be affected will certainly be enthusiastic supporters of these
exemptions. It should be noted, however, that there are a number of
risk management techniques, including insurance, currently available to
prospective purchasers. Some of the types of insurance available to
prospective purchasers and others involved in these transactions are
mentioned below. Title III sets standards for Federal intervention
during or after a state-supervised cleanup. We realize this issue has
been a source of significant controversy. In any event, we also
recognize that as a matter of public policy no cleanup is ever going to
be entirely ``final'' in the sense that there will never be an
opportunity for future government intervention. This is one of the
areas where a combination of risk management techniques, including
insurance, can facilitate the redevelopment of contaminated properties
notwithstanding this lack of ``finality.'' Insurance is currently
available to pay the costs of additional cleanup of specified
contaminants after the initial cleanups have been completed and
approved by state or Federal regulators. In some cases, insurance
policies may also be written to respond to additional cleanup that is
required due to changes in the environmental laws.
Insurance is now emerging as one of the most useful tools for
managing environmental liability risk in the redevelopment of
contaminated properties. In addition to insurance for the re-opening of
completed cleanups as discussed above, insurance is now being written
to cover: cost overruns for specific remedial action plans; the
discovery and remediation of new contaminants; third party bodily
injury, property damage, and cleanup claims arising from newly
discovered contaminants; and, in some cases, all parties to a
brownfields redevelopment transaction, including the sellers and
buyers, the banks making the loans for the purchase and for the cleanup
itself, and the engineers and contractors involved in the cleanup.
Mr. Chairman, as you and the members of this committee well know,
AIA, along with most of the private sector, has long sought
comprehensive reform of the Superfund program. For the insurance
industry, Superfund has long been a quagmire of litigation into which
we were unwillingly dragged. Frankly, we are frustrated that after all
these years substantial reform still eludes us. But we understand the
political obstacles to reform which have contributed to make the larger
debate so intractable.
S. 2700 will provide necessary relief to many cities struggling
with the problem of abandoned, contaminated properties. Significantly,
we note that no attempt has been made to reinstate the Superfund taxes
as part of this bill and no attempt has been made to add other special
liability exemptions for favored parties. We heartily endorse this
approach. In addition, whereas we think this bill is beneficial in its
current form, we will very strongly oppose any attempt to reinstate the
expired Superfund corporate taxes without the enactment of
comprehensive liability and remedy selection reform. Likewise, we will
oppose any special liability exemptions that may be added for
sympathetic groups of responsible parties if the costs of those
exemptions are shifted to the remaining parties.
Mr. Chairman, once again we congratulate you on this consensus bill
and we sincerely hope this is the first in a long line of consensus
legislation to come.
__________
STATEMENT OF ALAN FRONT, SENIOR VICE PRESIDENT, THE TRUST FOR PUBLIC
LAND
Mr. Chairman, my name is Alan Front, and I am pleased to appear
before the subcommittee today to share the perspective of The Trust for
Public Land, a national nonprofit land conservation organization,
regarding the vision for community revitalization embodied in S. 2700.
I welcome this opportunity to discuss my organization's enthusiastic
support for this legislation.
First, I want to express my gratitude to Chairman Chafee and
Senator Lautenberg for your leadership in introducing a legislative
initiative that holds so much promise for our nation's neighborhoods.
The subcommittee's expeditious consideration of the bill and the many
cosponsors working with you to advance it affirm the central,
transformative importance of brownfields restoration and reuse. In our
own work with local partners across America, The Trust for Public Land
has witnessed first-hand how reclamation of derelict properties can
bring new life not only to the landscape, but to the economies and the
spirit of communities as well.
TPL, Green Spaces, and Brownfields
Since 1972, TPL has worked to protect land for people, helping
government agencies, property owners, and local interests to establish
and enhance public spaces for public use and enjoyment. By arranging
conservation real estate transactions, TPL has facilitated the
protection of well over a million acres of park, forest, agricultural,
and other resource lands. Through these ``win-win'' partnerships, many
communities have woven an appropriate open-space thread into their
overall land-use fabric. In the process, they have recognized the
interdependence of the built environment and the natural one, and have
reaped the benefits of balanced growth. . At the same time, land-use
trends on a national scale are raising new concerns about whether this
tenuous balance can be maintained. We have seen the rate of open space
conversion more than double in the past decade; according to recent
Department of Agriculture statistics, farmland and other open space is
yielding to development at an average rate of nearly 400 acres every
hour. And from the wilderness to the inner city, even as these open
spaces are being lost, Americans are more and more urgently expressing
their need for more parks, greenways, wildlife areas, community
gardens, and scenic protection.
From TPL's earliest days, it has been clear that brownfields even
before the word was coined have been a necessary, integral component of
any full-fledged strategy to meet the needs of both development and
conservation. Left unremediated, these idled properties pose a serious,
often-insurmountable threat to neighborhood stability, economic
development, public health and safety, and quality of life. Conversely,
brownfields reclamation through new commercial or residential
development, or through creation of new community parks or playgrounds,
or through a combination of these land uses can spark a true
neighborhood renaissance.
In some of TPL's first projects, in the inner cities of Newark and
Oakland, we watched just this sort of redemption as community groups
turned trash-strewn, contaminated lots into gardens and pocket parks.
Since then, we have participated in a wide range of brownfields-to-
parks conversions. In Atlanta, new visitor facilities at the Martin
Luther King National Historic Site have replaced an old Scripto Pen
factory. On Seattle's Elliot Bay, a contaminated former Unocal site is
being cleaned up and transformed into a waterfront sculpture garden.
And along the Los Angeles River that desolate concrete channel best
known as a film location for ``Terminator'' movies new parks and
recreation areas are rising up on previously contaminated factory
sites.
There is ample historical precedent for these powerful symbols of
neighborhood renewal. In Kansas City, for example, abandoned industrial
sites were the foundation for the city's entire park system. Chicago's
long-admired lakefront park system sits on the site of the city's
former tannery district; New York's Bryant Park and Boston's Charles
River greenway have similarly challenged pedigrees. And in each case,
the greening of abandoned lands brought new private investment, new
economic opportunity, and new urban vitality.
Moreover, just as newspaper recycling saves trees, brownfields
recycling saves undeveloped landscapes. The simple fact is that there
is not enough ``new'' land in our urban areas and rapidly growing
suburbs to provide for the mix of open space and development upon which
healthy communities depend. Each of the estimated 450,000 to 600,000
brownfields in America is a missed opportunity for a public recreation
facility, a housing complex, or an office park that likely will be
built elsewhere. Consequently, unrestored brownfields serve only to
ramp up the competing land-use pressures on the ever-shrinking
inventory of pristine lands.
Plainly put, brownfields recovery can green neighborhoods, resolve
development-versus-preservation conflicts, promote economic expansion,
and inhibit sprawl. For all of these reasons, TPL encourages the
subcommittee to add some much-needed arrows to the brownfields-
conversion quiver by considering and reporting S. 2700. The work of
local governments and other community partners with whom we work would
be enhanced exponentially by the resources provided in Title I of the
bill. We particularly appreciate the significant increase in local
capacity that the bill's various funding provisions would afford.
S. 2700 New Tools to Renew Lands
The structure and mechanisms of Federal funding under the
Brownfields Revitalization and Environmental Restoration Act will
provide a substantial and much-needed Federal commitment to urgent
community needs. In tandem with the considerable nonFederal partnership
support that this legislation will leverage, S. 2700 will spur the
clean-up and reuse of a broad spectrum of currently idle properties. In
turn, these restoration success stories will promote precisely the kind
of economic, environmental, and quality-of-life balance discussed
above.
The Trust for Public Land is especially encouraged by the inclusion
of the following specifics in S. 2700.
TPL believes that the criteria for entities eligible to
receive grants and loans are appropriately inclusive. This section
permits an appropriate diversity of conservation and/or redevelopment
partners including Indian tribes and state-created conservancies to
participate.
The bill's Site Characterization and Assessment Grants
are similar to the successful model of EPA's assessment demonstration
pilot program, which already have been an important component in
brownfields-to-parks conversions.
Within the proposed revolving loan funds, we appreciate
the bill's tailored seed-money approach regarding remediation funding,
including the authorization of grants where recipients are unable to
draw upon other funding sources. This provision will address concerns
that underserved communities might not be able to benefit from this
bill. It is precisely these communities that have some of the greatest
needs for, and stand to reap the greatest benefits from, brownfields
revitalization.
Along similar lines, we strongly endorse the bill's
encouragement of grants for the ``creation of, preservation of, or
addition to a park, a greenway, undeveloped property, recreational
property `` This provision puts brownfields-to-parks conversions, which
do not typically generate an ongoing revenue stream from which a loan
might be repaid, on an even footing with economic redevelopment. As a
result, it will ensure that parkland conversions will improve life in
brownfields-affected neighborhoods as well as securing outlying lands
against the tide of sprawl.
The bill as introduced also contains a number of
important flexibilities for EPA to adaptively apply resources to areas
where the need is greatest. Among these are provisions allowing for
increased assessment grants for more critical and difficult projects;
additional support for communities best able to leverage nonFederal
commitments; assistance for communities to develop site remediation
programs; and the potential waiver of the program's matching
requirement for communities truly unable to meet this obligation.
We also support the bill's grant ranking criteria. Among
these are further encouragements for environmental justice projects,
economic stimulus, brownfields-to-parks conversion, synergy with
nonFederal funds, and use of existing infrastructure. This latter
preference is a particularly useful inducement for smart growth.
Last and certainly not least, the meaningful annual
funding levels for these programs will allow the Federal Government to
become a true partner to state and local entities working to reclaim
their landscapes.
With all these benefits, the Brownfields Revitalization and
Environmental Restoration Act of 2000 will enable urgently needed,
place-specific Federal participation in efforts across the country to
foster recreation, open space opportunities, and redevelopment on
appropriate sites, and by extension will help to conserve undeveloped
resource lands that might otherwise be built upon.
Mr. Chairman, please accept the thanks of the Trust for Public Land
for your commitment to and craftsmanship of S. 2700 and we look forward
to working with you, Chairman Smith, Senators Lautenberg and Baucus,
and the bill's other cosponsors toward enactment.
__________
STATEMENT OF KEVIN FITZPATRICK, CHAIRMAN, ENVIRONMENTAL POLICY ADVISORY
COMMITTEE, THE REAL ESTATE ROUNDTABLE
The Real Estate Roundtable is the vehicle through which the
nation's leading public and privately held real estate owners,
investors, lenders and managers work, together with the leadership of
major national real estate trade organizations, on Federal policy
issues. It actively coordinates policy positions with major national
real estate organizations and communicates with lawmakers, regulators
and the public about real estate. Priority is given to the
identification, analysis and coordination of advocacy on national
policies relating to capital and credit availability, environmental
matters, taxation and technology-related issues.
Introduction
Thank you Chairman Chafee, Senator Lautenberg. My name is Kevin
Fitzpatrick. I am president and CEO of AIG Global Real Estate
Investment Corp., part of the American International Group, the
insurance and financial services companies. Our company has national
and international experience with the full range of real estate
ownership and financing issues including the specific challenges
associated with ``brownfields'' redevelopment. We operate in all 50
states, 150 counties and jurisdictions, and throughout the world.
I am speaking today on behalf of The Real Estate Roundtable. The
Roundtable represents the nation's leading private- and publicly held
real estate owners, investors and managers. Its members have long
advocated Federal policy reforms that will facilitate, rather than
undermine, the efforts of local communities across the country to
advance ``smart growth.'' ``The Brownfields Revitalization And
Environmental Restoration Act Of 2000'' or S. 2700 includes just these
kinds of policy reforms.
S. 2700 Provides a Roadmap for Brownfields Redevelopment
We have done a good job in this country of encouraging recycling in
the area of consumer goods, such as plastics, bottles, and paper. In
our view, it is time that we made the same national commitment to
recycling our nation's blighted urban and rural brownfields properties.
S. 2700 provides the real estate industry, and its partners in state
and local governments, with a detailed roadmap for doing just that.
Among those blighted properties, the ones that often suffer the
greatest market stigma are those with actual, or even simply perceived,
environmental issues. We know them when we see them. They include the
hulking warehouses, dormant smokestacks and abandoned shells of
industrial plants that still line some of the nation's inland waterways
and railroads. They stand as monuments to the ``old economy.'' With the
help of the economic and regulatory incentives included in S. 2700,
many of these properties can be recycled to serve the commercial,
residential, retail, and recreation needs of the information age and
its so-called ``new'' economy.
Status Quo Remains Highly Unfriendly to Brownfields Redevelopment
Today, companies that acquire certain environmentally distressed
real estate also end up acquiring the market stigma and the
uncertainties associated with Superfund cleanup liability. In the past
our members have testified before this subcommittee, and others in
Congress, that innocent parties that act responsibly in the
redevelopment of these sites should not be punished by Federal laws
(Copies of that testimony are attached.) They should not be asked to
take the risk that a $500,000 investment will become a $10 million
dollar liability. The real estate industry is fully prepared to take
the business risks associated with any prudent real estate development
project. For the most part, however, the development community is not
prepared to take the kind of litigation and liability risks presented
by many brownfields projects.
In short, when the Congress passed the Superfund law in 1980 its
purpose was to cleanup contaminated properties, whether industrial,
commercial or residential. Nobody contemplated the possibility that the
law would actually serve as a barrier to cleanups, cleanups the real
estate companies might otherwise be willing to pursue at their own
expense. S. 2700 will go far to correct this unintended consequence of
Federal policymaking.
S. 2700 Will Encourage the Highly Constructive Role of State Voluntary
Cleanup Programs in Facilitating Brownfields Redevelopment
A growing number of states have taken highly constructive steps to
encourage brownfields redevelopment. They have initiated voluntary
cleanup programs (VCPs) that provide participants with authoritative
``comfort'' regarding the limits of their residual risk of cleanup
liability under state law. Building on principles included in
legislation offered by Senator Lautenberg almost 10 years ago, S. 2700
will strengthen these programs in a number of ways, both legally and
financially.
In our view, the greatest asset this legislation will offer state
VCPs is the ability to extend the zone of ``comfort'' many now offer
brownfields redevelopers so that it responds to liability concerns
under the Federal Superfund law. S. 2700 includes a provision that
will, in most cases, reassure participants in state voluntary cleanup
programs that their state-approved cleanup is not likely to be
``second-guessed'' by Federal officials. This so-called ``finality''
assurance is crucial not only to potential buyers and sellers of
brownfields properties but to their financial partners as well. We are
very aware of the leadership shown by the authors of this bill in
finding the highly elusive middle ground on this critical finality
issue. Their creativity in doing so will prove highly valuable to
communities across this country.
S. 2700 Will Codify Groundbreaking EPA Administrative Reforms
Finally, S. 2700 builds on the valuable work of the Environmental
Protection Agency in developing administrative reforms in the area of
``prospective purchaser'' and ``adjacent landowner'' protection. These
reforms reflect progressive and practical thinking on the part of EPA
regarding how to mitigate some of the highly adverse, if unintended,
consequences of the Superfund law on brownfields redevelopment. While
extremely valuable in specific circumstances, the ``guidance''
documents issued by EPA to clarify prospective purchaser and adjacent
landowner liability remain simply that policy ``guidance.'' By their
own terms these guidance documents do not carry the full force and
effect of law and the Agency remains free to take action ``at
variance'' with them at any time. The prospective purchaser and
adjacent landowner provisions in S. 2700 will provide self-implementing
and legally enforceable protections for would-be brownfields
redevelopers.
Conclusion
I hope I have made it clear that with so many other investment
options available at any given time, the prospect of open-ended
liability under Superfund remains a real deal-killer. If, however, the
Superfund law were changed along the specific lines of S. 2700 so that
the potential liability of would-be purchasers and redevelopers of
brownfields became better defined, the real estate community would be
far more ready, willing and able to invest private capital into these
sorts of projects.
We look forward to working with the members of this subcommittee
and the growing number of bipartisan cosponsors of S. 2700 to encourage
its enactment into law during this Congress. Thank you.
__________
STATEMENT OF JOHN GATES MEMBER, NATIONAL REALTY COMMITTEE
BEFORE HOUSE COMMITTEE ON ENERGY AND COMMERCE
Introduction
Thank you Chairman Boehlert. My name is John Gates. I am President
and CEO of Center Point Properties, a Chicago-based real estate
investment trust, or REIT, publicly traded on the New York Stock
Exchange. I am speaking today on behalf of the National Realty
Committee. \1\ As Real Estate's Roundtable in Washington, NRC
represents America's leading real estate companies. Many NRC member
companies, like CenterPoint, have real-world experience rehabilitating
brownfields sites. With a portfolio of more than 18 million square
feet, our company is metropolitan Chicago's largest owner of industrial
property. Our properties house factories, business parks and
warehouses. The Chicago region has more than 1.2 billion square feet of
these types of properties, making it the nation's largest and most
diverse industrial property market. To put that number in perspective,
it's more industrial property than you'll find in all of New York, all
of Los Angeles, or in six Atlantas. In fact, it's more industrial space
than in the entire United Kingdom.
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\1\ On March 4, 1997, NRC testified before the Senate Subcommittee
on Superfund, Waste Control and Risk Assessment, of the Senate
Committee on Environment and Public Works. The testimony and followup
questions and answers (attached hereto for the record) addressed EPA
administrative reforms, specific Senate legislation and the
``finality'' issue.
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Brownfields Reform Makes Good Economic Policy
At the outset let me say that reforming the Superfund law to
encourage brownfields redevelopment makes a lot of sense in terms of
national economic policy. The private market stands ready to bring a
lot more of these brownfields properties into productive, tax-
generating uses. In the process, we can create jobs and put people back
to work. Right now the Superfund law is wasting unemployment
entitlement dollars by actually contributing to that unemployment. In
addition, the law is squandering scarce EPA resources by focusing them
on only moderately contaminated properties--well within the capability
of the private sector (in cooperation with state and local officials)
to remedy.
Your prompt action to correct the skewed incentives in existing law
will be, in Washington vernacular, ``revenue positive.'' In industrial
real estate we have a rule of thumb that 600 square feet of occupied
manufacturing space produces one job. By that formula, simple
clarification of the law could create up to 50,000 new jobs in the
Chicago area alone. At a time when national policy is focusing on how
to help citizens move from welfare rolls to real and productive jobs,
brownfields redevelopment can be part of the answer.
Case Studies: Why Investors Avoid Brownfields
In my hometown a drive through its most blighted areas offers
evidence of the incredible social dysfunction that can occur when, as
in Chicago's case, approximately 1,500 acres of brownfields are
imprisoned by more than a decade of failed government policy. It is,
therefore, very unfortunate that there are substantial disincentives to
investment in brownfields sites, investments that could help pay for
cleanups by injecting new capital into rehabilitation projects.
Clearly, part of the problem here is that the Comprehensive
Environmental Response, Compensation and Liability Act simply sets up
too many obstacles to investment.
Don't get me wrong. In many cases the inner city--where so many of
these brownfields properties are located--is precisely where many
businesses want to be. The economics are often right. The resources are
there--it's where the work force is and it's where the critical
infrastructure, including transportation, is already in place. It's
where we find the vast majority of our national inventory of older
industrial buildings, ripe for redevelopment. Unfortunately, it's also
the province of an intimidating and confusing Federal cleanup law. The
unintended consequence of that law has been to perpetuate a legacy of
urban decay by inhibiting the very kinds of investment our company and
many others are in business to make.
Let me share with you, from my own personal experience, the way the
current law can undermine efforts to reinvest in our cities. In the
early 1990's one of our predecessor organizations purchased a fully
leased and occupied 250,000 square-foot manufacturing and warehouse
facility on Chicago's west side. The facility employed more than 300
people, mostly neighborhood residents. After our purchase, we
discovered sub-surface contamination. In responding to the discovery,
we obtained environmental assessments from highly reputable
environmental consultants. The experts advised us that there was no
public health risk to workers or neighbors because the contamination
had reached a depth of only four feet and was, therefore, not deep
enough to affect any water resources. Of course, that assumes there
were any water supplies present in this industrial district, and there
were none. We were further advised that much of the problem was
addressed by the thick cement floor of the building, which effectively
capped the contaminated soil.
However, because the property fell within the jurisdiction of the
Superfund law, no one could establish a clean up standard tied to the
property's real-life use as a manufacturing and warehouse facility.
Unfortunately, an impasse was reached with the regulators and, as a
result,
the building was vacated and 300 inner city manufacturing jobs were
eliminated. The building was ultimately demolished, huge quantities of
soil removed to a suburban landfill and, most discouraging of all, the
land still sits vacant. I'm convinced this entire scenario could have
been prevented. Our expert told us the cleanup should have been, at
most, a $100,000 problem--one we could have resolved ourselves.
Instead, it became a $20 million dollar problem, one that ultimately
ended up in litigation and, in the process, eliminated the livelihood
of 300 inner city workers. It's my sense that most of the jobs moved to
the suburbs and the local community continued its decline. I know
stories like this are continuing to play out in many communities today,
and let me assure you, when you face the threat of legal liability for
cleanup costs of this magnitude, it makes so-called ``greenfields''
projects a lot more attractive.
Here's another example. Last year, I volunteered a week of my time,
as part of a team of real estate professionals, researching how best to
revitalize the Collinwood community of Cleveland, Ohio, a community
stigmatized by large numbers of brownfields properties. The project was
sponsored by the Urban Land Institute, a nonprofit education and
research institute focused on land use and development. We were all
there to provide an unbiased assessment of how to revitalize this 5.6
square mile area. Its prospects should have been great. After all, it
had a tremendous transportation system, an abundant work force and was
near thriving business communities. The long and short of it is that,
like the empty lot in Chicago that used to be a factory, investors are
scared off by the risk of open-ended cleanup costs. That is the sad
reality.
Changes to the Superfund Law Are Needed
I hope I have made it clear that, with so many other investment
options available at any given time, the prospect of open-ended
liability is a real deal-killer. If, however, the CERCLA law were
changed so that the potential liability of would-be purchasers became
clear, the real estate community would be far more ready, willing and
able to invest private capital in brownfields redevelopment. In
addition, to make many of these transactions work, we will need a lot
more certainty that cleanup decisions are final determinations under
state and Federal law.
This certainty issue points up the fact that it takes a willing
seller and a willing buyer to complete a brownfields transaction. To
spur brownfields development it's appropriate, in the right situations,
to give owners who are willing to clean up properties themselves under
a state voluntary cleanup program some relief from Federal liability.
Right now there are significant economic incentives for these current
owners not to sell or redevelop these properties. In fact, as long as
these properties have not been designated for investigation and cleanup
by EPA or the states, many of these property owners consider themselves
better off simply putting a fence around their property and waiting for
market conditions to improve or Federal law to change. As long as the
owner leaves the property alone, the owner is not required to test or
otherwise investigate the contamination level at the site. Waiting
defers any environmental cleanup costs and allows time for the level of
contamination to lessen through natural processes, such as dilution.
State voluntary cleanup programs have begun to address and, in many
cases, overcome this situation. However, if such an owner is not
protected from further Federal or state enforcement actions, the cost
and time to complete redevelopment projects cannot be accurately
estimated. Without the ability to estimate these factors many property
owners will choose to wait it out. Those kinds of decisions keep the
property off the market--benefiting no one.
We also need to see more progress in resolving a problem sometimes
referred to as ``how clean is clean.'' It is critical to obtain more
standardization in this area as well as appropriate tiering of cleanup
levels so they track anticipated land uses. An industrial project is
not going to be a children's playground any time soon. To require
cleanups that assume such a land use will only result in the permanent
idling of many properties.
Conclusion
I believe companies like ours can do as much, or more, to solve
brownfields problems as any other witness you'll hear from today. But
make no mistake about it: as public companies, our first obligation is
to our shareholders, and we cannot--and will not--expose their
investments to open-ended liability under the Superfund law. Without
question, the contamination of thousands of acres of investment grade
property is one of our national tragedies. However, in large measure
that is yesterday's news. Today's news, equally tragic in my view, is
the unintended side effects of the Superfund law, which continue to
perpetuate an equally disturbing legacy of urban decay. This half of
the problem will clearly extend far into the 21st century unless
Congress acts now.
I understand many of the changes NRC supports are included in a
number of pending House and Senate bills. In addition, they were
included in legislation in the last Congress designed by the chairman
and others. We have been supportive of those efforts and are here today
to encourage the 105th Congress to take up, once again, the important
task of reforming the Superfund law so that more cleanups can be
achieved more quickly and the law is no longer an impediment to
brownfields redevelopment.
______
STATEMENT OF J. PETER SCHERER, VICE CHAIRMAN, ENVIRONMENTAL POLICY
ADVISORY COMMITTEE, NATIONAL REALTY COMMITTEE
BEFORE SUPERFUND SUBCOMMITTEE, 105TH CONGRESS
Introduction
Thank you Chairman Smith. My name is Peter Scherer and I am a
Senior Vice President with The Taubman Company. The Taubman Company is
a national real estate company specializing in the development and
management of regional shopping centers. I am speaking today on behalf
of the National Realty Committee. NRC represents the nation's leading
real estate owners, builders, managers, lenders and advisors. As such,
the organization has focused extensively on the national policy issues
associated with the redevelopment of our nation's brownfields
properties.
Several weeks ago I was here in Washington and had the pleasure of
meeting with Jeff Merrifield of the chairman's staff and Scott
Slesinger from Senator Lautenberg's office. I left that meeting
encouraged and energized, and I am delighted to have the opportunity to
share with you today some thoughts on what the real estate industry
believes it will take to get our country's nonproductive, modestly
contaminated and, therefore, hopelessly idle, real estate back into the
nation's economic mainstream.
Two very positive legislative proposals, S. 8 and S.18, include
provisions which reflect a sophisticated understanding of how current
law can best be modified to encourage brownfields cleanup and
redevelopment. NRC is on record as supporting both these bills.
We are also on record as supporting the efforts made by EPA to
foster brownfields development, and while these efforts are
encouraging, much more can and should be done to achieve the economic
and environmental objectives of S. 8 and S. 18.
As the sponsors of these bills are aware and as EPA Administrator
Browner has stated, changes to the Superfund law are required to
achieve significant long-term impact in this area. Let me specifically
mention some initiatives taken by EPA that the real estate industry
applauds. But, at the risk of striking a more sober note, let me also
explain why these well intentioned initiatives will ultimately fall
short of their intended objectives.
During the past few years, the Administration has become more
creative in its efforts to locate potential buyers for properties
stigmatized by the specter of CERCLA liability. The Administration
seems to have been motivated, in part at least, by the need to market
its own growing inventory of brownfields, including those situated on
former military installations. Certainly, in the course of pursuing
that objective the government has gotten a taste of its own medicine.
And, like the private sector, it seems to have learned that absent some
new approaches to finding willing buyers for these kinds of sites, the
properties will remain idle and, therefore, unproductive for the
foreseeable future.
First of all, EPA has removed thousands of sites from the so-called
CERCLIS list and has issued guidance encouraging regulators to consider
realistic future land uses in determining the extent of cleanup
activities. If it's known that a particular property will become a
parking structure, then why force cleanup to the level required for a
day-care facility? This is a common sense approach which the business
community finds workable.
Second, EPA has issued guidance identifying the circumstances under
which it will enter into prospective purchaser agreements. These
agreements are intended to assure potential investors in contaminated
sites that the properties in which they are investing will not become
targets of a future enforcement action. Developers are willing to take
risks, but there are simply too many other opportunities available for
any successful developer to bet his balance sheet on a project with
unlimited environmental downside. Not to mention the difficulty in
obtaining financing!
Thirdly, on the issue of migrating ground water contamination,
where land otherwise suitable for development is situated above an
aquifer contaminated by external sources, EPA has issued guidance
seeking to reassure owners or purchasers that they will not be targeted
for cleanup actions. Again, an example of action on the Agency's part
which reflects the fact that new money will not go into a project where
the only certainty is uncertainty.
In each of these situations, EPA has set a course which my industry
believes is absolutely in sync with the national policy objective of
returning our country's brownfields to productive use. So why isn't
this enough? Let me tell you--specifically--in 50 words or less. At the
end of each guidance document is a disclaimer which reads as follows:
This policy does not constitute rulemaking by the Agency and is not
intended and cannot be relied on to create a right or benefit,
substantive or procedural, enforceable at law or in equity, by any
person. Furthermore the Agency may take action at variance with this
Policy.
As well intentioned as these policies may be, they fall short of
providing the kind of certainty necessary to attract private-sector
capital.
I come here today not asking for the creation of economic or
financial incentives to encourage brownfields development. Rather, in
this case, our industry is looking only for the removal of existing
disincentives. We are looking for you to level out the playing field
and, in doing so, create the kind of certainty that permits prudent
investment and intelligent risk assumption. So what is it that we think
is needed?
The recently adopted lender protections and the proposed protection
for the new purchasers are certainly positive steps, but many
brownfields will remain undeveloped unless Congress provides protection
from Federal and state enforcement actions for property owners who
successfully participate in voluntary cleanup programs.
While recently enacted legislation protects financial institutions
from undue liability under Superfund, lenders still have concerns about
the value of the underlying collateral and the creditworthiness of
their borrowers. If a property that undergoes a voluntary cleanup may
be the subject of further Federal and state enforcement action, a
lender may consider the property inadequate for the loan. Moreover, if
the borrower may be compelled to pay for the further cleanup after
having completed a voluntary cleanup, even if the borrower is prepared
to assume the risk, a lender may consider the borrower uncreditworthy
and deny the loan. Thus, without some degree of predictability and
certainty--and without the promise of finality after a successful
voluntary cleanup--many well situated and otherwise prime brownfields
will remain idle for want of willing and able developers and lenders.
A number of these concerns would be addressed in a meaningful way
by a provision contained in both S. 8 and S. 18. This provision creates
a new and eminently workable exemption for those who acquire property
in need of some environmental remediation. The so-called ``prospective
purchaser'' provision would look beyond the existing ``innocent
landowner'' defense to address the troublesome (and not uncommon)
scenario in which contamination is discovered during the course of
preacquisition due diligence.
To utilize this kind of defense, purchasers would be required to
undertake prescribed levels of environmental due diligence, including a
site assessment in accordance with a standardized protocol. They would
also need to take circumscribed steps to limit exposure to known
contamination; and cooperate with those responsible for the cleanup. In
return for meeting CERCLA's due diligence requirements, prospective
purchasers could move forward and acquire property without fear of
incurring the associated CERCLA liability.
Here's what happens in the real world: environmental due diligence
becomes a feeding frenzy for everyone involved, particularly lawyers
and consultants. And given the laws today, it's difficult to blame
them. When do you stop peeling the onion? When will that consultant or
lawyer provide, in writing, that all information is known or that there
is no risk associated with proceeding? More samples, more tests, more
lab results are recommended. More time, more money, more risk and
uncertainty until ultimately the project dies. You hardly ever have all
the information.
Successful business decisions are made when all necessary
information is known. My point is that the various amendments to CERCLA
I have referred to today would (to a significant degree) replace the
uncertainty that kills many deals with the type of stability,
predictability and certainty needed for brownfields initiatives to
succeed. Notably, EPA has endorsed this reform and there is no doubt
its enactment would make a difference in the real world.
At the end of the day, our industry is asking for nothing more than
the kind of certainty and predictability that other Federal agencies
are authorized to provide. We ask you to empower EPA to provide the
equivalent of the ``no further action'' letters which can be obtained
from the Securities and Exchange Commission, or the private letter
rulings that the Internal Revenue Service regularly provides to parties
concerned with the consequences of contemplated activities. Certainty
inspires confidence, and with it, action.
These legislative proposals--S. 8 and S. 18--form a good base upon
which to work in this session of Congress to develop bipartisan reform
of CERCLA. In addition, EPA's continued focus on administrative reforms
should be encouraged. Agency reforms combined with legislative reform
hold the promise of reducing the stigma associated with these
properties by limiting the specter of Federal liability.
The National Realty Committee remains committed to the enactment of
policies that encourage reinvestment. Working with the other local and
national stakeholders represented here today, our members will continue
to help identify, analyze and advocate policies that will achieve the
goals I believe we all share.
Thank you.