[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]





     BROWNFIELDS LEGISLATION: ``THE BROWNFIELDS REVITALIZATION AND 
   EVIRONMENTAL RESTORATION ACT OF 2001,'' AND ``GILLMOR DISCUSSION 
              DRAFT,'' AND ``DEMOCRATIC DISCUSSION DRAFT''

=======================================================================

                                HEARING

                               before the

          SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 28, 2001

                               __________

                           Serial No. 107-43

                               __________

      Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house


                                _______

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                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                    HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio                RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania     EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia                 SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma              BART GORDON, Tennessee
RICHARD BURR, North Carolina         PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa                    ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia             BART STUPAK, Michigan
BARBARA CUBIN, Wyoming               ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois               TOM SAWYER, Ohio
HEATHER WILSON, New Mexico           ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona             GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING,          KAREN McCARTHY, Missouri
Mississippi                          TED STRICKLAND, Ohio
VITO FOSSELLA, New York              DIANA DeGETTE, Colorado
ROY BLUNT, Missouri                  THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia                  BILL LUTHER, Minnesota
ED BRYANT, Tennessee                 LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland     MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana                 CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California        JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska

                  David V. Marventano, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Environment and Hazardous Materials

                    PAUL E. GILLMOR, Ohio, Chairman

JAMES C. GREENWOOD, Pennsylvania     FRANK PALLONE, Jr., New Jersey
STEVE LARGENT, Oklahoma              EDOLPHUS TOWNS, New York
GREG GANSKE, Iowa                    SHERROD BROWN, Ohio
JOHN SHIMKUS, Illinois               GENE GREEN, Texas
  (Vice Chairman)                    KAREN McCARTHY, Missouri
HEATHER WILSON, New Mexico           THOMAS M. BARRETT, Wisconsin
VITO FOSSELLA, New York              BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland     LOIS CAPPS, California
STEVE BUYER, Indiana                 MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California        JANE HARMAN, California
CHARLES F. BASS, New Hampshire       HENRY A. WAXMAN, California
JOSEPH R. PITTS, Pennsylvania        PETER DEUTSCH, Florida
MARY BONO, California                JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon                    (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)


                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Billings, Hon. Leon G., State of Maryland Legislator.........    52
    Bollwage, Hon. J. Christian, Mayor, City of Elizabeth, New 
      Jersey.....................................................    48
    Crotty, Hon. Erin M., Commissioner, Department of 
      Environmental Conservation, State of New York..............    39
    DeMarco, Daniel R., Managing Director of Real Estate, 
      Campanelli Companies.......................................    77
    Fisher, Hon. Linda, Deputy Administrator, Environmental 
      Protection Agency..........................................    17
    Garczynski, F. Gary, First Vice President, National 
      Association of Home Builders...............................    70
    Gonzales, Hon. Javier, Commissioner, Santa Fe County, New 
      Mexico.....................................................    44
    Hopkins, Ed, Director of Environment Quality, Sierra Club....    92
    Johnson, Gordon J., Deputy Bureau Chief, Environment 
      Protection Bureau, New York Attorney General's Office......    56
    Lynch, John, Broker/Owner, Lynch & Company...................    84
    Roth, Larry, Deputy Executive Director, American Society of 
      Civil Engineers............................................    86
Material submitted for the record by:
    Crotty, Hon. Erin M., Commissioner, Department of 
      Environmental Conservation, State of New York, letter dated 
      July 26, 2001, to Hon. Paul Gillmor........................   105
    Hardy, Clifford B., Chairman, Mortgage Bankers Association 
      Legislative Committee, letter dated July 19, 2001, to Hon. 
      Paul E. Gilmor.............................................   108
    National Governors Association, prepared statement of........   105
    Sierra Club, et al, letter dated June 27, 2001...............   109
    Taft, Hon. Bob, Governor, State of Ohio, letter dated July 
      27, 2001, to Hon. Paul Gillmor.............................   108
    Whitman, Hon. Christine Todd, Administrator, United States 
      Environmental Protection Agency, letter dated June 27, 
      2001, to Hon. Paul Gillmor.................................   107

                                 (iii)

  

 
                 BROWNFIELDS LEGISLATION: ``THE BROWN-
                   FIELDS REVITALIZATION AND EVIRON-
MENTAL RESTORATION ACT OF 2001,'' AND ``GILLMOR DISCUSSION DRAFT,'' AND 
                    ``DEMOCRATIC DISCUSSION DRAFT''

                              ----------                              


                        THURSDAY, JUNE 28, 2001

              House of Representatives,    
              Committee on Energy and Commerce,    
                        Subcommittee on Environment and    
                                       Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2322, Rayburn House Office Building, Hon. Paul E. Gillmor 
(chairman) presiding.
    Members present: Representatives Gillmor, Greenwood, 
Largent, Shimkus, Fossella, Ehrlich, Buyer, Bass, Pitts, Terry, 
Tauzin (ex officio), Pallone, Towns, Brown, Green, McCarthy, 
Barrett, Luther, Capps, and Dingell (ex officio).
    Staff present: Amit Sachdev, majority counsel; Jerry Couri, 
policy coordinator; Nandan Kenkeremath, majority counsel; 
Hollyn Kidd, legislative clerk; and Richard Frandsen, minority 
counsel.
    Mr. Gillmor. The committee will come to order.
    First, let me apologize to those who are here for the late 
start of the committee. We just completed a series of five 
back-to-back votes, which is the reason we are late. And that, 
unfortunately, is something over which we have no control.
    Today marks the second major hearing this year in this 
subcommittee on the subject of brownfields. Our first hearing 
featured, among others, our new EPA Administrator, Christine 
Whitman, and Governor Minor of Delaware representing the 
National Governors Association. And I am very pleased to see 
with us today the outstanding members that we have on today's 
panels.
    Brownfield reform is necessary, both to protect the 
environment and to protect public safety. Too often today fair 
law produces an outcome that is very anti-environment.
    In our previous hearing, several witnesses testified that 
fear of liability kept them from cleaning their brownfields. 
And when people are afraid because of the resulting expense and 
aggravation involved, they go out and acquire green spaces and 
virgin farmland for development instead of safely cleaning up 
and developing a brownfield.
    At a minimum, reform is required to stop the unnecessary 
plowing up of green spaces and farmland so that they can be 
covered with asphalt and concrete. I have been a member of this 
committee for five terms, and throughout that time I have heard 
members of both parties, of the public, and two administrations 
talk about reforming Superfund. It has not happened.
    This year Chairman Tauzin and I decided to deal with the 
problem of Superfund in separate parts with separate bills for 
each part. And so far that effort has been successful. Earlier 
this year we dealt with small business liability relief, with 
the introduction of H.R. 1831 by Representative Pallone and 
myself. That bill passed this committee, and on May 22 passed 
the House 419 to nothing.
    During this session, it is my goal--and I expect that we 
will see--passage of a brownfields reform bill. The purpose of 
this hearing is to obtain views from a wide variety of people 
on nearly all of the possible provisions that have been 
suggested for brownfields reform. And I am not wedded to any 
particular provisions at this point.
    Before us we have for consideration S. 350. The Senate bill 
makes a good start, but we have heard from many people on both 
sides of the aisle, and from outside groups, about improvements 
that they believe should be made to it, and those views should 
be considered.
    We also have before us two discussion grants. The one that 
has been called the Gillmor grant is certainly not intended as 
a final document. It is a discussion draft intended to 
stimulate discussion and to solicit views.
    But I do want to thank those groups who have expressed 
support for my efforts and for the provisions in the draft, 
including the National Governors Association, National 
Conference of State Legislatures, National Association of 
Counties, the Real Estate Roundtable, National Association of 
Realtors, United States Chamber of Commerce, National 
Association of Industrial Office Properties, and the National 
Association of Home Builders.
    Following this hearing, it is my intention to work with my 
colleagues and with this administration to finalize a bill that 
will be introduced before this committee, and I expect that 
process to be completed fairly soon. But I am not going to 
prejudge the specific provisions which would be in that bill.
    However, based on what we have heard so far, some of the 
principles which I would expect would be contained within the 
bill would be respecting the ability of States to perform 
cleanups, removing the fear of investors who are reluctant to 
invest in brownfields redevelopment, helping innocent 
landowners, prospective purchasers, and contiguous property 
owners, cutting back regulatory red tape, and getting the most 
cleanup money feasible to the most sites for dirt-moving 
activities.
    And, again, I want to thank the witnesses who have joined 
us today and to let them know how much their testimony means to 
a House legislative product.
    And at this time, I would like to recognize the ranking 
member of the subcommittee, Mr. Pallone of New Jersey.
    Mr. Pallone. Thank you, Mr. Chairman, for not only holding 
this hearing today but also for working with us on trying to 
come up at some point I think in the future with a bill that we 
can pass out of the subcommittee on a bipartisan basis.
    I do believe, and I have said before, that the time has 
come for passage of a strong, effective brownfields bill, and I 
am hoping that we can continue to work together in the future 
to accomplish this goal on a bipartisan basis. But to achieve 
this, I believe two things must happen. First, we have to stay 
very close to S. 350, the bipartisan Senate-passed brownfields 
bill; and, second, that the bill must maintain a strong, 
effective Federal safety net.
    Many State and local governments, as you know, have 
discovered the potential brownfields can create for their 
communities, and over the last couple of years have begun to 
revitalize these lands.
    However, this revitalization does not come without a price 
tag, nor should it come without what should be a meticulous 
process to ensure that contamination is vigorously addressed at 
the site before development takes place. I believe these are 
areas where the Federal Government can play a role in helping 
State and local governments tackle these problems.
    Currently, Mr. Chairman, the Environmental Protection 
Agency provides small grants to State and local governments. It 
is now time, however, to pass a stand-alone brownfields bill 
that provides the legislative framework and increases funding. 
This will better serve State and local governments, while at 
the same time ensuring the health and safety of local 
residents.
    I was pleased to hear during her testimony before the 
subcommittee a few months ago that the EPA Administrator--I 
keep calling her Governor--Christine Todd Whitman endorsed a 
stand-alone brownfields approach. Administrator Whitman also 
said enacting brownfields legislation this year was an 
important priority for President Bush.
    There are several critical areas that I believe need to be 
addressed in any successful brownfields legislation. First, it 
is important that any brownfields legislation include 
provisions protecting prospective purchasers and developers of 
brownfields, as well as liability for innocent landowners and 
contiguous property owners.
    I think there is broad agreement that a new purchaser or 
developer who did not cause the existing contamination should 
not be liable for cleanup of the property. I believe there 
needs to be a healthy partnership between the Federal 
Government and the States in cleaning up these lands.
    While some States are dealing with brownfields in a 
productive and healthy manner, others are not. That is why I 
believe there are basic criteria that all State programs should 
meet, such as meaningful public participation, adequate 
oversight and enforcement resources to ensure that public 
health and the environment are protected, and a mechanism to 
provide certification that response action has been completed. 
These are widely recognized criteria that form the basis of 
voluntary cleanup agreements, or most agreements, between the 
EPA and 16 States right now.
    With the array of voluntary cleanup programs, we should be 
very careful in placing restrictions on Federal enforcement 
authorities. And, therefore, I believe we must maintain a 
strong and effective Federal safety net.
    If a site presents an imminent and substantial danger to 
human health or the environment after a voluntary cleanup, it 
is vital that the affected citizens and communities can rely on 
the Federal Government if State authorities lack the resources 
or the political desire to address their concerns and protect 
their health and their neighborhoods. And I was glad to hear 
Administrator Whitman recognize the importance of an effective 
Federal safety net.
    It is for these reasons that the Democratic discussion 
draft that I have worked on includes provisions for a strong 
Federal safety net and establishes general minimum criteria for 
State response programs. In addition, the Democratic draft has 
provided for an Advisory Commission to evaluate the 
concentration and impact of brownfield sites on minority and 
economically disadvantaged neighborhoods.
    It adds clarification of S. 350 to ensure the continued 
applicability of Davis-Bacon to EPA brownfields grants. It has 
worker training and safety programs and a reopener that allows 
the President to bring an enforcement action if the cleanup 
under a State program no longer protects human health or the 
environment because of a change in the use of the site.
    Mr. Chairman, with all due respect, I have to say that I 
don't feel that your discussion draft provides the same level 
of safety for the health of the public and the health of the 
environment. The chairman's discussion draft changes, in my 
opinion, the focus of the Senate compromise from lesser 
contaminated brownfield sites to more seriously contaminated, 
higher risk, Superfund-type sites.
    At the same time, it changes S. 350 to place even more 
severe restrictions on the EPA's ability to take enforcement 
action under Superfund at sites where a serious problem remains 
after a voluntary cleanup.
    And, unfortunately, my concerns don't end there. The 
chairman's discussion draft I think goes beyond the parameters 
of brownfields by expanding on S. 350 to severely restrict the 
current citizen's suit authority under Section 7002 of the 
Solid Waste Disposal Act and the EPA authority under Section 
7003, where toxic contamination may pose an imminent and 
substantial endangerment to human health.
    Furthermore, the parties benefited by Title 3 I think are 
those who do not responsibly--do not act responsibly to perform 
due diligence, the parties who knew of the contamination at the 
time they acquired the property and have not yet acted to clean 
it up, or the parties who were responsible for the 
contamination in the first place.
    In my opinion, the chairman's draft deviates significantly 
from S. 350, the permit elimination provision, the addition of 
the Governor's concurrence on the NPL list, the restrictions on 
public right to know, and the significant changes in Title 3 
finality.
    So I still think we have a long way to go in negotiations. 
But let me say I believe it is important for Congress to strike 
a balance between the desire to provide redevelopment 
incentives that will work for the broad variety of sites, while 
at the same time maintaining the assurance to affected citizens 
that these sites will no longer threaten the health of the 
community environment.
    And I think we can find agreement on the main principles. 
And I also know, having worked with Chairman Gillmor for the 
last few months, that he is always willing to work together to 
find a compromise. So even though I have significant 
differences I think between the chairman's draft and the 
Democratic draft, I still think we can work this out, mainly 
because I know that it is easy to work with Mr. Gillmor. He is 
very cooperative.
    Thank you.
    [The prepared statement of Hon. Frank Pallone follows:)

  Prepared Statement of Hon. Frank Pallone, Jr., a Representative in 
                 Congress from the State of New Jersey

    Thank you, Mr. Chairman, for holding this important hearing today. 
I believe that the time has come for passage of a strong, effective 
brownfields bill. I'm hoping that we may continue to work together in 
the future to accomplish this goal on a bipartisan basis. But to 
achieve this, I believe two things must happen:

1. We must stay very close to S.350, the bipartisan Senate-passed 
        brownfields bill; and
2. That bill must maintain a strong, effective federal safety net.
    We all know that Brownfield sites are parcels of land that contain 
abandoned or under-used commercial or industrial facilities where 
contamination has been found. What distinguishes a brownfield from a 
Superfund site, is that brownfield sites do not contain nearly as much 
contamination as Superfund sites. Over time, this distinction has kept 
many communities from dealing with brownfields, since these sites do 
not always pose obvious threats to public health.
    It's time for all of us, at the federal, state and local levels, to 
change our thinking on brownfields. Rather than ignoring these sites, 
it is time for us to envision the possibilities these lands create for 
our communities. Not only can these sites spark economic development 
with the opening of a new business on land that is cleansed of its 
contamination, but they also create a perfect opportunity to create 
more open, green space for recreation. Revitalizing these areas can 
improve a neighborhood by creating new jobs and cutting down on crime. 
Why should these sites lay barren, as an eyesore in the future?
    Many state and local governments have discovered the potential 
brownfields can create for their communities and over the last couple 
of years have begun to revitalize these lands. However, this 
revitalization does not come without a price tag, nor should it come 
without what should be a meticulous process to ensure that 
contamination is vigorously addressed at the site before development 
takes place. I believe these are areas where the federal government can 
play a role in helping state and local governments tackle these 
problems.
    Currently, the Environmental Protection Agency (EPA) provides small 
grants to state and local governments. It is now time, however, to pass 
a stand-alone brownfields bill, that provides a legislative framework 
and increases funding. This will better serve state and local 
governments, while, at the same time ensuring the health and safety of 
local residents.
    I was pleased to hear during her testimony before this 
Subcommittee, that EPA Administrator Christine Todd Whitman endorsed a 
stand-alone brownfields approach. Administrator Whitman also said 
enacting brownfields legislation this year was an important priority 
for President Bush.
    There are several critical areas that I believe need to be 
addressed in any successful brownfields legislation:
    First, it is important that any brownfields legislation include 
provisions protecting prospective purchasers and developers of 
brownfields, as well as liability for innocent landowners and 
contiguous property owners. There's broad agreement, that a new 
purchaser or developer who did not cause the existing contamination 
should not be liable for cleanup of the property.
    I believe that there needs to be a healthy partnership between the 
federal government and the states in cleaning up these lands. While 
some states are dealing with brownfields in a productive and healthy 
manner, others are not. That is why I believe there are basic criteria 
that all state programs should meet, such as meaningful public 
participation, adequate oversight and enforcement resources to ensure 
that public health and the environment are protected, and a mechanism 
to provide certification that response action has been completed. These 
are widely recognized criteria that form the basis of voluntary cleanup 
agreements between the EPA and 16 states.
    The General Accounting Office (GAO) has reported that state 
voluntary programs vary dramatically. About half the state programs GAO 
surveyed in 1997 had not made any provision for either monitoring 
nonpermanent cleanups or for overseeing their accomplishment.
    State plans also deal with cleanups in many different ways. In 
Illinois, for example, a new developer may decide to cleanup just one 
of several chemicals at a site and receive a certification for that 
chemical alone. In my home State of New Jersey, the liable party 
responsible for creating the contamination is not eligible for any 
liability protection under the brownfields program. In other states, 
the person or company who polluted the site is eligible for liability 
protection.
    With the wide array of voluntary cleanup programs, we should be 
very careful in placing restrictions on federal enforcement authorities 
and, therefore, we must maintain a strong and effective federal safety 
net. If a site presents an imminent and substantial danger to human 
health or the environment after a voluntary cleanup, it is vital that 
the affected citizens and communities can rely on the federal 
government if state authorities lack the resources or the political 
desire to address their concerns and protect their health and their 
neighborhoods. I was glad to hear Administrator Whitman recognize the 
importance of an effective federal safety net.
    It is for those reasons, that the Democratic Discussion Draft that 
I have worked on includes provisions for a strong federal safety net 
and establishes general minimum criteria for state response programs. 
In addition, the Democratic Draft has provided for: an advisory 
commission to evaluate the concentration and impact of brownfields 
sites on minority and economically disadvantaged neighborhoods; 
clarification of S.350 to insure the continued applicability of Davis-
Bacon to EPA brownfield grants; a worker training and safety program; 
and a re-opener that allows the President to bring an enforcement 
action if the cleanup under a State program no longer protects human 
health or the environment because of a change in the use of the site.
    I do not feel that the Gillmor Discussion Draft provides the same 
level of safety for the health of the public and the health of the 
environment. The chairman's discussion draft changes the focus of the 
Senate compromise from lesser contaminated brownfields sites to more 
seriously contaminated, higher-risk Superfund-type sites. At the same 
time, it changes S. 350 to place even more severe restriction on the 
EPA's ability to take enforcement action under Superfund at sites where 
a serious problem remains after a voluntary cleanup. Unfortunately, my 
concerns do not end there.
    The Gillmor Discussion Draft goes beyond the parameters of 
brownfields by expanding on S.350 to severely restrict the current 
citizen suit authority under Section 7002 of the Solid Waste Disposal 
Act and EPA authority under Section 7003 where toxic contamination may 
pose an imminent and substantial endangerment to human health. 
Furthermore, the parties benefited by Title III are those who did not 
act responsibly to perform due diligence; the parties who knew of the 
contamination at the time they acquired the property and have not yet 
acted to clean it up, or the parties who were responsible for the 
contamination in the first place.
    In my opinion, the Gillmor draft deviates greatly from S.350. 
Before we can begin to hammer out a bipartisan agreement, I need to 
make it clear that I, and I believe many others have grave problems 
with the Gillmor proposal. From the peanut elimination provision . . . 
to the addition of Governor's Concurrence on NPL listing . . . to the 
restrictions on public right to know and the significant changes in 
Title III (finality) . . . it is clear that we have a long way to go in 
negotiations.
    However, I believe it is important for Congress to strike a balance 
between the desire to provide redevelopment incentives that will work 
for the broad variety of sites, while at the same time maintaining the 
assurance to affected citizens that these sites will no longer threaten 
the health of the community or the environment. I hope that we may find 
agreement on these main principles and that we may move forward in the 
future on bipartisan brownfields legislation that will play an 
important role in cleaning up these sites.

    Mr. Gillmor. Thank you.
    The gentleman from Pennsylvania, Mr. Greenwood. Oh, he just 
stepped out?
    On this side, the next member is Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    I had a chance within the last couple of weeks to visit a 
location that is just outside my district and Congressman 
Costello's in Alton, Illinois--Clark Properties. And they have 
actually redeveloped a brownfield, the old LaClede steel plant. 
And they are just doing a tremendous job.
    They specialize in this. They had to do a lot of bonding of 
insurance packaging to do that. One thing they have continued 
to reinforce to me is the importance of legal certainty, and 
that is going to be a big issue of our debate. That is why I am 
concerned with the additional reopeners that are in the 
Democratic draft discussion.
    People will not invest capital if there is uncertainty of 
the risks that they obtain. It is pretty simple. Alton, 
Illinois, which is an old industrial city on the river, the 
people there are just seeing a beautiful example of what can 
happen. So I think we need to be very, very careful as we 
approach this to make sure that we eventually come to an aspect 
where we finally say it is okay if you invest here. There is 
hold harmless. Especially if it is new money going into a new 
area, legal certainty is the key.
    And hopefully we will move in that direction, and I think 
there is some good give and take on both sides. But if we 
dilute the legal certainty debate, the brownfields argument 
that has been here longer than I think I have been alive will 
continue to go unresolved, because legal certainty is at the 
key of redeveloping these sites.
    I look forward to the hearing, and I yield back my time.
    Mr. Gillmor. The gentleman yields back.
    The distinguished ranking member of the full committee, Mr. 
Dingell.
    Mr. Dingell. Mr. Chairman, thank you for your courtesy. Mr. 
Chairman, I welcome this hearing today, and my colleagues on 
the Democratic side are here to offer you our assistance in 
achieving a good bipartisan bill. We hope this offer will be 
accepted.
    Members on this side of the aisle have put forward and 
strongly supported stand-alone brownfield legislation in the 
past two Congresses, and we do so again this year. We do so in 
the Democratic discussion draft.
    I note, Mr. Chairman, that S. 350 is not an illusion but a 
reality. The Senate has passed a stand-alone brownfield bill by 
a vote of 99 to nothing. That bill has the support of EPA 
Administrator Whitman and President Bush. The Senate bill is a 
remarkable bipartisan political compromise. It spans the entire 
ideological and political spectrum.
    The Democratic discussion draft respects the delicate 
compromises and fundamental policies reflected in S. 350. We 
hope we can work with our Republican colleagues on these 
matters.
    The Democratic proposal remains tightly focused on 
Superfund. It does not seek to amend other statutes like the 
Solid Waste Disposal Act. The Senate Committee on Environment 
and Public Works, under Republican control at the time, 
explicitly rejected amendments affecting the Solid Waste 
Disposal Act and a number of other statutes.
    Further, in our draft, we do not give the EPA Administrator 
the regulatory authority to amend a number of statutes, such as 
the Clean Air Act, to eliminate the need to obtain permits 
where so required.
    Finally, our discussion draft does not go into the broader 
Superfund reform issues, heeding the advice of Administrator 
Whitman and recognizing that such action could again, as it has 
in the past, stall all progress in these matters.
    Unfortunately, the discussion draft put forward by our 
colleagues on the Republican side departs dramatically from the 
scope and policies of S. 350. Under that draft, the focus of S. 
350 is changed from lesser contaminated sites to higher risk, 
seriously contaminated sites--something we believe is unwise. 
The Senate compromise on finality and the Federal safety net is 
disregarded. This is, I believe, unwise and extreme.
    Mr. Chairman, we believe we should listen to the Nation's 
Mayors. These are the people who are in the frontlines of 
brownfields redevelopment and they have the most at stake in 
these matters. They have concluded that S. 350 meets their 
fundamental needs.
    In our deliberations, I believe we must stay close to S. 
350 and avoid rolling back policies of the current, successful 
EPA brownfields program.
    Finally, I am very much saddened by the lack of bipartisan 
cooperation from the EPA and the Bush Administration in 
providing information on these issues to Democratic members of 
this committee.
    Eighty-four days ago, almost 3 months, Mr. Pallone and I 
sent Administrator Whitman a letter containing five questions 
pertinent to the precise subject of this hearing on 
brownfields. I would ask unanimous consent that our letter be 
inserted in the record at this point. Perhaps it will inspire 
the Administrator to give us an answer which is badly needed.
    I would note that as of this morning no answer, no 
information, not even an acknowledgement has been received. One 
must inquire whether it would benefit the Administrator to 
borrow the White House's form letter and at least an automatic 
signature pen, so that they may respond to inquiries from 
members on this side.
    Clearly, this is unacceptable behavior by a Federal agency 
and its senior officials who are charged with administering 
Federal laws within the jurisdiction of this committee. I would 
note that if we are to achieve a bipartisan result we should 
get responses to our inquiries, particularly since they are 
directed in a helpful fashion.
    I believe that this behavior is a disservice to the 
legislative process and to the constituents that we serve. I 
look forward to the testimony of our witnesses.
    And, Mr. Chairman, I hope that we will be able to go 
forward with a bipartisan proposal which will recognize the 
realities of the situation, and avoid things which have 
precluded us from achieving any success in this matter for the 
past two Congresses.
    Thank you.
    Mr. Gillmor. Thank you, Mr. Dingell.
    The gentleman from Oklahoma, Mr. Largent.
    Mr. Largent. Thank you, Mr. Chairman. I would just say I 
found the ranking member's opening statement most enlightening. 
It is the first time I have heard him be willing to kowtow to 
the Senate's leadership on the brownfields issue and say that 
we should rubber stamp the work in the Senate and not try to 
improve it in the House.
    But, Mr. Chairman, I am looking forward to working with you 
on this committee and the full committee in the House to get 
this important legislation passed. It is important for the 
district that I represent. In fact, I believe all districts--
most districts are affected by the brownfields issue, and this 
is a very important issue.
    And I would also concur with my colleague from Illinois to 
say that having the issue of finality addressed in these 
brownfield issues is absolutely critical to see the investment 
that we need to make in so many brownfields around the country.
    So, Mr. Chairman, with that I will yield back my time.
    Mr. Gillmor. The gentleman yields back.
    The gentleman, Mr. Luther.
    Mr. Luther. Thank you, Mr. Chairman. I will be very brief.
    I think we are fortunate to have a piece of legislation 
that has been passed by the Senate. The fact that we have S. 
350 passed on a bipartisan vote, 99 to zero--I don't know how 
you can get more bipartisan than that--means that we have an 
excellent product before us.
    And it strikes an important balance between encouraging 
State flexibility but preserving the Federal safety net, the 
balance between providing liability relief to innocent 
landowners and parties, but holding negligent participants 
accountable. And I think it is very wise that Mr. Pallone, Mr. 
Dingell, and other members of the committee have used that as a 
blueprint now for the bill that is before us.
    And basically, Mr. Chairman, I think that means that we 
have a terrific opportunity--an opportunity to not allow 1 more 
year of inaction on an important issue such as this. We have an 
opportunity this year to pass bipartisan legislation, move 
forward and not have another--some more time that is passing 
without having important legislation in this area.
    And so I thank you for the time, look forward to the 
testimony, but above all, Mr. Chairman, hope that we can move 
expeditiously forward and get the job done.
    Mr. Gillmor. The gentleman from Nebraska.
    Mr. Terry. Thank you, Mr. Chairman. I appreciate your 
holding these hearings and appreciate the draft proposals that 
have been submitted. I look forward to the discussion from our 
witnesses today, particularly on the issues of finality and 
reopeners.
    I believe that S. 350 is weak, and we should improve it, 
particularly in those areas. I have mentioned at this committee 
before, Mr. Chairman, that I spent 8 years on the Omaha City 
Council. And probably the most contentious issue during that 
time wasn't new trash contractors or major road construction 
projects, but when the city felt it was so important to 
redevelop the industrial riverfront property and could find no 
subsequent purchasers willing to accept the risk of accepting 
title to property even after a cleanup.
    So the city decided it would become the subsequent 
purchaser of those properties. We would receive title to those 
properties. It put us in a position of relying on all of the 
expert witnesses that we hired, engineers, on whether the 
cleanup was appropriate. It was run under the State Department 
of Environmental Quality.
    We asked the EPA for a letter reviewing that. We had a 
letter--I know it was unique--but had a letter from the EPA 
saying, ``The cleanup looks fine to us.'' What we found out is 
we could not rely on that letter at all. We could not rely in 
any way feeling confident that we could avoid subsequent 
litigation in the future.
    Now we have agreements with the first--the polluter, Sarco. 
But, nonetheless, it became the focus of the discussion of 
whether or not to rehabilitate this abandoned industrial 
property in the heart of our downtown. If we don't address the 
issues of finality and limit the reopeners we really aren't 
going far enough to incent the brownfields cleanup that is the 
purpose of this legislation.
    So I look forward to hearing from the witnesses. I look 
forward to a good discussion on those issues, Mr. Chairman. And 
whatever time I have left I yield back.
    Mr. Gillmor. The gentleman yields back.
    The Chair would request unanimous consent that all members 
be able to submit their statements in writing, those who wish 
to. Is there any objection? The Chair hearing none, members may 
submit them.
    The gentlelady from California.
    Ms. Capps. Thank you, Mr. Chairman, for holding this 
important hearing today.
    The redevelopment of brownfields is a critical issue, not 
only for our big cities but our smaller cities and towns across 
this Nation. Encouraging this redevelopment means reducing the 
threat of urban sprawl and strains on our transportation 
systems. It means taking advantage of the infrastructure 
already in place in many urban or older industrial areas, and 
it means creating jobs and economic opportunity for 
neighborhoods often neglected.
    I know this because I have seen it work in my district in 
California. The redevelopment of a brownfield in Goleta is a 
good example. Here is an example of a small and growing 
community recapturing valuable property and improving the local 
economy and quality of life. We need to encourage more of this 
kind of revitalization of our communities.
    And as I said in our brownfields hearing back in March, 
over the past few years a bipartisan consensus on brownfields 
legislation has emerged--the most recent evidence being the 
Senate action on S. 350 with 69 co-sponsors and a vote of 99 to 
zero, and the administration's support.
    I am very supportive of the discussion draft that many of 
us on our side of the aisle have put together on brownfields. 
This measure closely tracks S. 350. Our draft both encourages 
the redevelopment of brownfields and continues to ensure that 
the public health is always safeguarded.
    The liability protections for prospective purchasers of 
brownfields, innocent landowners, and contiguous property 
owners contained in S. 350 and in our draft are particularly 
important. They offer much-needed assurances to developers and 
property owners who are trying to do the right thing by 
revitalizing brownfields.
    Clearly, we want to ensure finality for those involved in 
cleanup, but we also want some finality in the reduction of 
threats to public health and safety, which are opposed by 
brownfields, and only effective cleanup will do that.
    I have yet to examine the majority's draft closely, but I 
am concerned that it appears to change the focus of the bill 
from lesser contaminated sites to much more seriously 
contaminated sites. It also restricts EPA and citizen action to 
protect the health and safety of our community, and I believe 
these changes veer away from the carefully crafted compromise 
in S. 350. And I don't think that is where we want to go with 
this legislation.
    I hope we can build on the progress made earlier this year 
on liability relief for businesses that have contributed 
minimal amounts to Superfund sites. In that effort, a carefully 
negotiated and crafted compromise was arrived at through 
painstaking discussions that will benefit businesses and our 
constituents.
    Quite frankly, I think S. 350 provides us with a similar 
opportunity for common sense legislation, and we should waste 
no time in seizing it.
    Thank you, and I yield back the balance of my time.
    Mr. Gillmor. The gentlelady yields back.
    The gentleman from Pennsylvania. Mr. Pitts, did----
    Mr. Pitts. Thank you, Mr. Chairman. I will submit my 
opening statement for the record. Thank you for holding this 
hearing, and I am looking forward to working with you and 
hearing the distinguished panel.
    Mr. Gillmor. Thank you very much.
    The gentlelady from Missouri.
    Ms. McCarthy. Thank you, Mr. Chairman, and I thank you for 
having this hearing today. I am particularly pleased that on 
panel two we will have a representative from the National 
Conference of State Legislatures addressing us, because this is 
truly a Federal, State, and local effort.
    And having served 18 years in the Missouri General 
Assembly, I am very concerned about striking the proper balance 
between Federal oversight and State and local flexibility and 
control regarding the brownfields initiative. Our actions at 
the Federal level should complement the successes of the local 
brownfields programs while also providing the EPA with the 
necessary authority to ensure that sites are satisfactorily 
cleaned up.
    I would like to take a moment to highlight some of the 
successes that have occurred in my community, because in 1998 
the Kansas City Region was designated as one of only 16 awarded 
a showcase community by the Environmental Protection Agency. In 
this posture, the program earned the EPA Region 7's Phoenix 
Award, a national honor recognizing excellence in brownfields 
development work.
    Some results in my district, for example, with the Lewis 
and Clark redevelopment area located in historic West Bottoms 
and known for years in Kansas City as the stockyard was indeed 
impressive. This area was ravaged by a devastating fire in 
1998, leaving businesses and abandoned buildings gutted.
    And normally a rebuilding process would begin except if 
there is contamination that complicates the process, as we 
know. In this instance, there were mitigating factors 
associated with contamination.
    But the Federal brownfields program provided the trained 
technical staff to help eliminate the contamination and allow 
this program to go forward in an expedited way. And I am 
concerned that the discussion draft before us will restrict 
that in the future.
    But in all parts of my district there are similar success 
stories, whether it is to historic 18th and Vine, jazz 
entertainment district, the Beacon Hill neighborhood housing 
redevelopment, or the Blue River industrial corridor. The 
results are real with business and job growth improvements and 
quality of life and reinvestment in our communities in what 
would otherwise be a depressed area.
    Mr. Chairman, in March this subcommittee held a hearing on 
removing barriers to brownfield cleanups. And I spoke of my 
interest in seeing that brownfields funding for petroleum and 
lead-based paint asbestos sites be considered and addressed in 
any brownfields legislation.
    A bill is needed to move beyond CERCLA limits that prevent 
assistance for worthy brownfields projects which involve these 
contaminants. At that hearing, EPA Administrator Whitman 
testified and assured me that she wanted to work with Congress 
to ensure that any legislative language drafted is flexible 
enough to provide for cleanup of these type of sites.
    I do not see that in the draft before us, but I am very 
pleased that S. 350 and the Democratic discussion draft include 
provisions to fund the cleanup of petroleum contaminated sites. 
These two bills authorize $50 million to be made available for 
these type of sites, or, if the amount is less than $200 
million, 25 percent of the amount made available should be used 
for site characterization, assessment, and remediation.
    Mr. Chairman, I would not want to do anything to reduce 
funding that is provided in S. 350 and the Democratic draft. I 
think it--rather than create a ceiling, as the chairman's draft 
does, I think we should talk about a floor for funding that 
allows for no more than 25 percent of the amount made available 
be used for site characterization, assessment, and remediation.
    I am concerned because exclusion and limitation of CERCLA 
and most of the EPA assessments and remediation loan funding 
tools of brownfields need to be used for these petroleum 
contaminated sites but cannot in the draft before us.
    So for an urban area such as mine, these are real sites, 
and people are interested in cleaning them up and redeveloping 
them. We need to be helping in that regard, because in my 
district where there is a serious urban core they were once 
former gas stations and tire stores and auto salvage shops. 
Closed and now vacant, these sites have a strategic location 
and the potential for future commerce.
    Mr. Chairman, I thank you for this hearing today and will 
submit the entirety of my remarks for the record.
    [The prepared statement of Hon. Karen McCarthy follows:]

Prepared Statement of Hon. Karen McCarthy, a Representative in Congress 
                       from the State of Missouri

    I would like to thank you Mr. Chairman and the Ranking Member for 
holding this hearing today. I welcome the opportunity to have a 
dialogue on the key Brownfields legislative proposals before us and 
look forward to hearing the testimony of our distinguished witnesses. I 
am particularly pleased that on the second panel we have Delegate Leon 
Billings addressing us on behalf of the National Conference of State 
Legislators (NCSL), because this is truly a federal, state and local 
effort. As a longstanding advocate of the Brownfields program, I am 
pleased that this Committee is moving forward to examine how best to 
improve this most successful initiative.
    The Democratic discussion draft that we have before us recognizes 
the delicate balance of S. 350. However, Mr. Chairman, I am concerned 
that the ``Gillmor Discussion Draft'' changes the focus of S. 350 may 
result in no Brownfields reform legislation will come to pass.
    Having served 18 years in the Missouri General Assembly, I am very 
concerned about striking the proper balance between federal oversight 
and state and local flexibility and control regarding Brownfields. Our 
actions at the Federal level should compliment the successes of the 
local Brownfields programs, while also providing the EPA with the 
necessary authority to ensure that sites are satisfactorily cleaned up. 
I would like to take a moment to highlight some of the successes that 
have occurred in my community.
    In 1998 the Kansas City Region was designated as one of only 16 
awarded as a ``Showcase Community'' by the Environmental Protection 
Agency (EPA). This past year the program earned the EPA Region 7's 
Phoenix Award, a national honor recognizing excellence in Brownfield 
redevelopment work. Results in my district include the Lewis and Clark 
Redevelopment Area located in the historic West Bottoms, known for 
years in Kansas City's growth as the ``stock yards.'' This area was 
ravaged by a devastating fire in 1998, leaving business and abandoned 
buildings gutted. Normally a rebuilding process would begin except when 
there is a contamination complicating the process. In this instance, 
there were mitigating factors associated with contamination and the 
federal Brownfields program was used to partner with the city and 
economic development agencies to eliminate the contamination. With the 
involvement of the Brownfields program, a blighted eyesore on the 
threshold of downtown Kansas City has been removed and rejuvenated to 
restore and create jobs and economic development. A success story 
through the partnership of Brownfields and Superfund.
    In all parts of my district there are similar success stories 
whether it is the Historic 18th and Vine Jazz Entertainment District, 
the Beacon Hill Neighborhood housing redevelopment, or the Blue River 
Industrial Corridor.
    The results are real with business and job growth, improvement of 
quality of life, and reinvestment in our communities in what would 
otherwise continue to be a depressed area.
    In March, this Subcommittee held a hearing on removing barriers to 
Brownfields cleanups and I spoke of my interest in seeing that 
Brownfields funding for petroleum and lead-based paint and asbestos 
sites be considered and addressed in any Brownfields legislation. A 
bill is needed to move beyond CERCLA limits that prevent assistance for 
worthy brownfields projects which involve these contaminants. EPA 
Administrator Whitman testified that day, and she assured me that she 
wanted to work with Congress to ensure that any legislative language 
drafted is flexible enough to provide for cleanup these types of sites.
    I am very pleased that S. 350 and the Democratic discussion draft 
includes provisions to fund the cleanup of petroleum-contaminated 
sites. Both bills authorize $50 million to be made available these 
types of sites, or if the amount is less than $200 million, 25% of the 
amount made available shall be used for site characterization, 
assessment, and remediation. However, I am concerned with the 
Chairman's proposal which drastically cuts the necessary funding that 
is provided in S. 350 and the Democratic draft to do the necessary 
cleanup of these sites. The Chairman's draft creates a ceiling, rather 
than a floor, for funding by allowing for no more than 25% of the 
amount made available be used for site characterization, assessment, 
and remediation. In addition, the proposal completely strikes the $50 
million in funds authorized for these types of activities.
    This concerns me because due to exclusion and limitations of 
CERCLA, most of the EPA assessments and remediation loan funding tools 
for brownfields cannot be used on these petroleum-contaminated sites. 
In urban areas such as mine, these are real sites that people are 
interested in cleaning up and redeveloping, the ``heart and soul'' of 
any brownfields legislation. There are low risk sites in my urban core 
that were once former gas stations, tire stores and auto salvage shops, 
that have closed and are now vacant. These sites have a strategic 
location and the potential for future commerce.
    There are additional measures in the Chairman's Discussion draft 
that I have concern with, including changing the definition of 
brownfields sites from applying to lesser contaminated sites to 
seriously contaminated, high-risk Superfund-type sites and removing 
brownfields training and technical assistance programs. Mr. Chairman, 
the redevelopment of brownfield sites is important for the health and 
economies of the communities across the nation and I hope that we can 
work in a bipartisan spirit to overcome our differences to reach a 
compromise that we can all agree on. Thank you Mr. Chairman, I yield 
back my time.

    Mr. Gillmor. Thank you.
    The gentleman from Maryland.
    Mr. Ehrlich. Mr. Chairman, thank you for having this 
hearing.
    I guess folks in the room can understand, just from what 
they have heard already, that there is a deep and wide 
philosophical divide with regard to what this bill should look 
like. And I think that is good, that is why we get paid.
    I do not have a prepared statement, Mr. Chairman. Clearly, 
we all know why we are here. A strong brownfields bill, a 
substantive bill, is long overdue.
    Maybe the most abused term in American politics today is 
compromise, second only to bipartisanship. And I have seen in 
my home State what a watered-down compromise brownfield statute 
does, which is basically nothing. And that is clearly 
unfortunate.
    I understand that it is not to denigrate either side of 
this debate or the executive branch, because people love press 
conferences and bills and numbers and titles. However, I would 
hope that once we have this hearing and we fully understand the 
philosophical divide even in clearer terms, we have to really 
get down to true compromise.
    If possible, because I--as one legislator from Maryland who 
has seen this area develop over the years, I would rather have 
no bill than a bad bill, because a bad bill raises false 
expectations. We have lived with that far too long with regard 
to this area.
    I represent a district outside of Baltimore, and ask any 
member of this committee, as a committee Member of Congress who 
represents either an urban area or the suburbs outside of an 
urban area, and they will identify tens, dozens, hundreds of 
brownfield sites that need to be cleaned up and are not cleaned 
up, and I would suspect would never be cleaned up under the 
Senate bill or the Democrat version that we see from our House 
members so far.
    Mr. Terry talked about the importance of finality. It 
stands to reason, and we also clearly marry that with respect 
to liability, we are talking about incentives with respect to 
bona fide purchasers, innocent landowners, and the whole 
category of people we should protect with regard to liability. 
And if we can't, this statute will mean nothing. Nothing.
    Mr. Chairman, this is a very important hearing. Clearly, 
any bill that is not incentive-based will not work. Clearly, 
the platitudes that you are going to hear and have heard 
probably on both sides of the aisle do not move this discussion 
forward.
    And I hope in the end, at the end of the day, at the end of 
the weeks and the months, that we see in our immediate future 
we can get down to a bill that means something in the real 
world for poor people who live in urban areas, who live in 
these neighborhoods, who always live in these neighborhoods, 
and who are forced to live in the midst of brownfield sites 
that should be cleaned up and are not, because we cannot as a 
Congress of the United States come up with a legitimate bill to 
provide real relief in the real world for real people.
    I yield back my time.
    Mr. Gillmor. The gentleman yields back.
    The gentleman from Texas.
    Mr. Green. Thank you, Mr. Chairman.
    It is interesting where we come down on the brownfields 
issue. This is my third term on the committee, and it has been 
frustrating because we haven't had a brownfields legislation, 
and maybe no bill is better than a bad one, but we have 
experienced that from my three terms.
    And I would hope to see something come out that would be a 
bipartisan effort in the opportunity today to look at the three 
bills. And maybe we don't need to have 99 to zero as the Senate 
did, but I would hope to have a very bipartisan bill as it 
comes out.
    Brownfields pose a roadblock to the redevelopment. It is 
not polluted enough for a Superfund site, and yet many 
developers will--don't want to take that liability on the 
cleanup costs. I do, coming from area in--a very urban area in 
Houston have some success, like other colleagues, with 
cooperation between State and city and the Federal Government 
and also the private sector on redevelopment of brownfields.
    The city of Houston has literally a showcase of 550 acres 
of brownfield site that was redeveloped. It is now creating 
2,400 jobs and returning $2 million in taxes to the city, the 
county, and the school districts.
    The program helped to reduce eyesores in our communities 
just east of downtown, and improved neighborhood quality of 
life, and spurred different development types, and that is 
including not only our new baseball stadium but new performing 
arts center and almost 1,000 units of new housing.
    In my own district, just to the east of where the new 
stadium is at, we have some success with the redevelopment of 
what was Hughes Tool Company, Central City Industrial Park, 
located just east of downtown in Hispanic east end. It is a 
former heavy industrial site that now has a State office 
building and created over 5,800 new jobs. The current occupancy 
rate on that facility is 96 percent.
    Again, it is an example of what can be done with State, 
with government and private sector cooperation, and we couldn't 
have done it without Baker Hughes Industries, who did that.
    Another site we have is the Latino Learning Center. It was 
a former staging area for a trucking company, and no one wanted 
to do anything with that property. For 17 years it was vacant. 
It became a neighborhood dump. And now, because of the effort 
of both the city and community development dollars, we have a 
64-unit senior citizen housing complex, health center, and a 
5,500 square foot community center.
    So there are redevelopment of brownfields that are 
happening. We just need to make sure it can happen more, and 
that is why we need to pass Federal legislation to move that 
process along. I hope our committee will work on a bipartisan 
basis on a consensus on a bill, and hopefully help many more 
success stories from all of our districts to happen.
    I yield back my time.
    Mr. Gillmor. The gentleman from New York, do you have an 
opening statement? The gentleman from New Hampshire?
    Mr. Bass. It is in the record, Mr. Chairman.
    Mr. Gillmor. Thank you very much.
    And the gentleman from Indiana has departed. That 
concludes, to the best knowledge of the Chair, all of the 
opening statements, and we will then proceed to the questions.
    [Additional statement submitted for the record follows:]

Prepared Statement of Hon. Vito Fossella, a Representative in Congress 
                       from the State of New York

    I'd like to thank Chairman Gillmor for holding this hearing on this 
important and timely legislation. Federal Brownfields legislation is 
much needed, and I feel, will go a long way to expediting and improving 
site assessments and cleanups.
    Brownfields are generally accepted to be abandoned or underutilized 
former industrial properties in which potential or real environmental 
contamination hinders or prevents redevelopment and reuse. Being 
considered a brownfield site is often a double edged sword--they are 
usually not eligible for Superfund remediation funding under the 
Superfund program because they pose a low public health risk while, at 
the same time, developers may avoid them because of cleanup costs, 
potential future liability, or related reasons, thereby stalling 
economic redevelopment.
    I support the Gillmor Discussion Draft and feel that this 
legislation will go a long way to protect our environment and public 
health, will reduce litigation and will enable small businesses to 
develop Brownfields sites by providing liability protection for a 
number of non polluters. Under this draft, contiguous property owners, 
innocent landowners and prospective purchasers are exempted from 
liability. In addition, liability relief is provided for small 
businesses, municipalities, recyclers, service station and response 
action contractors. This Draft goes further than S.350 by extending 
prospective purchaser relief to cover petroleum contamination, RCRA 
sites and underground storage tanks.
    This draft establishes a Brownfield Assessment Grant Program, by 
which a state or local government may receive assistance for developing 
an inventory and collecting an assessment of one or more eligible 
Brownfield sites. Also established is a Brownfield Remediation Program 
through which a state or local government may receive money to 
establish a revolving loan fund. These are all positive steps forward 
to improving the environment, reducing litigation, and fostering 
economic redevelopment.
    Over the past several years, one issue of particular concern 
throughout this debate has been liability. It makes no sense to saddle 
new owners with liability for pollution they did not cause or create. 
In my district, there are numerous actual and potential Brownfield 
sites scattered across areas such as Richmond Terrace and Port 
Richmond. While it has much property available to potentially develop, 
business owners are leery to purchase these properties for fear of 
being held liable for cleanup and damages. Banks and insurance 
companies are skeptical of putting any financial backing behind 
potential investors. A GAO report from December of 2000, entitled 
Brownfields affirmed this theory:
        ``The potential for being held liable under CERCLA for the 
        contamination on brownfield properties is a significant barrier 
        to redevelopment, according to lenders; property purchasers, 
        such as developers; and property owners. Most brownfields are 
        not likely to be added to the list of potential NPL sites 
        because they are not severely contaminated. However, investors 
        are still wary of the cleanup liability provisions of both 
        federal and state legislation because these can apply even at 
        non-NPL sites. As a result, lenders and developers may avoid 
        investing in potentially contaminated properties, and current 
        owners may avoid selling them.''

   United States General Accounting Office Report to Congressional 
                                                        Requesters,
             GAO-01-52, Brownfields--Information on the Programs of
                   EPA and Selected States, December 2000, Page 34.

    In addition, I believe the States should be primarily responsible 
for overseeing the redevelopment of Brownfield sites and that if a 
State does indeed have a qualified state program, those sites should be 
free of the risk of being examined by the EPA. As it stands now, 
businesses, municipalities and potential landowners are fearful of the 
EPA second guessing the judgements of states and having to face 
potentially insurmountable problems down the road. The Gillmor Draft 
addresses this issue by limiting federal reopeners for state 
brownfields cleanups and increases the finality of these cleanups.
    Fortunately, New York, under the leadership of Governor Pataki, 
already has programs, procedures and policies in place for the 
remediation of Brownfields, including a Voluntary Cleanup Program. Our 
great state has made vast strides in assessing and remediating 
contaminated sites, with over 125 cleanup projects approved, almost 200 
ongoing or completed investigations and over 50 completed cleanups. New 
York has become one of the leading states in this environmental arena. 
New York itself set aside $200 million in the 1996 Clean Water/Clean 
Air Bond Act for assessment and cleanup of these sites--one of the 
biggest financial commitments in the country. But there is much work 
left to be done.
    I strongly believe that we must all work together to foster the 
redevelopment of Brownfields sites and help small businesses and others 
utilize these properties--making them once again viable community areas 
as well as economically productive sites. Businesses, the financial 
industry, government and environmentalists have an excellent 
opportunity to work together to give these properties new leases on 
life. We all need to strike a balance that guarantees that these sites 
are cleaned up thoroughly, safeguards our environment and yet also 
provides businesses with protection to take them over.
    I thank the Chairman and give back the balance of my time.

    Mr. Gillmor. I, first of all, want to thank--I want to 
thank you for coming today. Congratulations on your 
confirmation, and the floor is yours.

     STATEMENT OF HON. LINDA FISHER, DEPUTY ADMINISTRATOR, 
                ENVIRONMENTAL PROTECTION AGENCY

    Ms. Fisher. Thank you, Mr. Chairman. If it is all right 
with you, I will summarize my comments and have my full 
statement inserted in the record.
    It is a pleasure to be here today to have the opportunity 
to appear before this committee in my new role as Deputy 
Administrator. I look forward to working with the members of 
the Energy and Commerce Committee on brownfields and on the 
many other issues on the environment in the future.
    I am pleased to see that Chairman Gillmor and Congressman 
Pallone have developed legislative discussion drafts that seek 
to promote the cleanup and development of brownfield 
properties. As Governor Whitman has stated, enacting 
brownfields legislation this year is an important legislative 
priority for the Bush Administration, and we are committed to 
working with Congress to achieve that goal.
    As the committee continues its deliberation and moves 
forward with the brownfields bill, EPA would like to work with 
you on legislative refinements.
    Mr. Chairman, I believe that EPA and the members of this 
committee--in fact, the vast majority of the members of the 
House and Senate--all share the same goal, and that is to 
encourage cleanup and development of brownfields properties 
throughout this Nation. While many of us share the same goals, 
there are genuine differences of opinion as to how to get 
there. But I believe that none of these differences that we 
have are insurmountable.
    We are pleased to see that Chairman Gillmor's discussion 
draft authorizes a grant and loan program to provide the States 
and local communities the resources to identify, assess, and 
clean up brownfield properties while providing more flexibility 
to implement these programs.
    We are also pleased to see that the discussion draft 
clarifies Superfund liability for contiguous property owners 
and, perhaps more importantly, prospective purchasers and 
innocent landowners.
    Further, Chairman Gillmor's discussion draft provides 
resources to States to continue cleanup program developments 
and seeks to strike a balance between the need for liability 
and enforcement certainty to encourage brownfield cleanups and 
development, with the need for a strong, Federal safety net to 
ensure that EPA has the necessary authority to protect human 
health and the environment.
    Finding the appropriate balance between enforcement and 
liability certainty and maintaining a protective Federal safety 
net will go a long way in achieving our shared goal of enacting 
brownfields legislation this year.
    Thank you for the opportunity to appear before you today to 
discuss this legislation.
    I also want to take the opportunity to apologize to Mr. 
Pallone and Mr. Dingell for not getting our letter back to him. 
If I hadn't been in the hearing today I wouldn't know that it 
was still in the agency. So we will do whatever we can to get 
it up to you as quickly as we can. It is not our intention to 
have you wait for almost 3 months to get a letter in return 
from us.
    So I do look forward to working with all of you on the 
subcommittee, and I would be happy to take your questions on 
this legislation.
    [The prepared statement of Hon. Linda Fisher follows:]

    Prepared Statement of Linda Fisher, Deputy Administrator, U.S. 
                    Environmental Protection Agency

    Good morning, Mr. Chairman, and members of the subcommittee. It is 
my pleasure to appear before you today to discuss brownfields 
legislation. This is my first opportunity to appear before the House 
Energy and Commerce Committee as Deputy Administrator of EPA. I look 
forward to working with the members of the committee on this and many 
other issues in the future. I commend Chairman Gillmor, Representative 
Pallone, and all of the members of the subcommittee for developing 
brownfields discussion drafts that seek to promote the cleanup and 
development of brownfield properties and remove the barriers preventing 
the successful assessment, cleanup and redevelopment of brownfields 
across this country. While the Administration has a policy on not 
taking a position on a legislative discussion draft, I am pleased to 
say that the Administration supports the direction of many of the 
provisions that are being developed in Chairman Gillmor's discussion 
draft and we look forward to the opportunity to support a bill as the 
committee completes its work. As Governor Whitman has stated, enacting 
brownfields legislation this year is an important priority for 
President Bush and this Administration and we are committed to working 
with Congress to achieve that goal.
    As we continue a more thorough review of the draft, and the 
committee continues its deliberations and introduces a bill, we would 
appreciate the opportunity to work with Chairman Gillmor, and other 
members, on legislative refinements that would be consistent with the 
President's principles and budget. EPA remains ready to work with all 
members of the Energy and Commerce Committee as we work for enactment 
of brownfields legislation this year.
    Currently, EPA is working in partnership with States and local 
communities to promote the cleanup and development of brownfield 
properties. States are developing significant expertise in the cleanup 
and development of brownfield properties, and together with local 
communities, will continue to have the primary role.
    Over the past few years, as EPA developed and implemented its 
brownfields program, we have seen that barriers may exist through 
uncertainty over Federal liability and the role of EPA authority in 
cases where a State has taken action. When a State approves a cleanup 
that is protective of human health and the environment, there should be 
limited circumstances where EPA would need to take further action. 
There should be a compelling reason for EPA to become involved in the 
cleanup. We do not want to stifle State cleanup programs and fail in 
our goal of removing barriers that prevent brownfields cleanup.
    Brownfields cleanup is an important urban redevelopment tool that 
provides an alternative to development of greenfields. The 
Administration believes that brownfields legislation is important 
enough to be considered independently from other statutory reform 
efforts, such as Superfund. I know that some members of this 
subcommittee are interested in reforming Superfund and EPA remains 
ready to work with them, but I would continue to urge that Superfund 
issues not hold up brownfields legislation.
    President Bush is committed to strengthen state and local 
brownfields programs based on the following principles:

 Brownfields legislation should remove a significant hurdle to 
        brownfields cleanup by providing redevelopers with protection 
        from federal Superfund liability;
 Brownfields legislation should ensure that states have the 
        authority and resources to run their own brownfields programs 
        while ensuring those cleanups are protective of human health 
        and the environment;
 Brownfields legislation should direct EPA to work with the 
        States to ensure that they employ high, yet flexible cleanup 
        standards, and allow EPA to step in to enforce those standards 
        only when necessary;
 Brownfields legislation should streamline and expedite the 
        process by which grants are given to states, and in turn to 
        local communities, so that they have maximum flexibility to use 
        the funds according to their unique needs;
 The federal government should focus additional research and 
        development efforts on new cleanup technologies and techniques 
        to clean up brownfields; and
 While not under the jurisdiction of this committee, the 
        brownfields tax incentive should be made permanent. The 
        incentive expires at the end of 2003. The Administration 
        supports legislative efforts to make the tax incentive 
        permanent, which is reflected in the President's FY 2002 
        budget.
    The States and the U.S. Environmental Protection Agency have been 
at the forefront of encouraging the cleanup and economic redevelopment 
of brownfields. EPA has awarded more than 399 assessment pilots of up 
to $200,000 each to states, Tribes, and local governments to assist 
them with brownfields redevelopment. Grantees report that EPA funding 
supported assessments at over 2000 properties and helped leverage more 
than $3.1 billion in economic development and generated more than 
12,000 jobs. EPA's job training pilots have trained more than 640 
people and put more than 480 to work. In addition, EPA has funded 127 
revolving loan fund pilots, provided over $90 million in funding for 
state programs, and worked with states to perform Targeted Brownfields 
Assessments at more than 570 properties.
    However, much remains to be done to facilitate the rapid, high-
quality assessment, cleanup and sustainable economic development in 
communities across the nation. With your help, this Administration is 
committed to providing the tools that communities need to address the 
problems posed by brownfield properties, and it is committed to 
encouraging redevelopment while fully protecting human health and the 
environment.
    Chairman Gillmor's discussion draft, the Brownfields Revitalization 
and Environmental Restoration Act of 2001, is developing as a major 
step forward in encouraging the cleanup and development of contaminated 
brownfield properties. The draft authorizes grants and loan programs to 
identify, assess and clean up brownfields properties, and provides more 
flexibility to implement these programs.
    The draft clarifies Superfund liability for contiguous property 
owners, prospective purchasers, and innocent landowners. While these 
provisions differ from similar provisions in S.350 and some previous 
legislation, we are prepared to discuss them with you and others as the 
committee continues development of a bill.
    The real or perceived threat of federal liability can be a barrier 
to brownfields redevelopment. The draft places clear limits on federal 
enforcement authority for sites cleaned up under a state response 
program. Furthermore, this legislation also recognizes the necessity of 
striking an appropriate balance between providing the finality needed 
to induce redevelopment and ensuring the ongoing protection of public 
health and the environment. The draft does this by maintaining a 
federal safety-net granting EPA authority to respond to real threats to 
human health or the environment when a state is unwilling or unable to 
do so.
    The provisions that provide for a federal safety-net are more 
limited than those found in S.350. EPA is concerned that a brownfields 
bill not place too great a limit on EPA authority and the federal 
safety net. We would like to work with the committee on these 
provisions as the committee continues to develop a bill. Whatever 
approach Congress chooses, we at EPA will only exercise Agency 
authority under compelling circumstances--as demonstrated by the 
Agency's history of never stepping in on its own at a brownfields site.
    The Administration supports brownfields legislation that encourages 
the identification, assessment, cleanup, and redevelopment of a full 
range of contaminated brownfields properties by specifically 
authorizing a federal program for grants and loans to states, Tribes, 
and local governments. In addition, legislation should relieve EPA's 
current brownfields program of unnecessary Superfund regulatory 
procedures for the Brownfields Cleanup Revolving Loan Fund, and provide 
for expedited grant funding of cleanup of contaminated properties.
    Brownfields legislation that is consistent with the President's 
principles should provide flexible grant funding to the states, local 
communities, and Tribes to support their brownfields programs in ways 
that will enhance the already impressive achievements of the 47 state 
programs that address brownfields currently. According to a study by 
the Northeast/Midwest Institute, more than 16,000 sites have enrolled 
in state voluntary cleanup programs. States with emerging programs 
would benefit from resources and support that enable them to use 
creative approaches in encouraging protective assessment, clean up and 
redevelopment of property. States with established brownfields 
programs, such as Ohio and New Jersey, would benefit from support that 
enhances successful brownfields redevelopment work.
    The Administration also supports funding for technical assistance, 
training, and technology to encourage the best methods and approaches 
to cleaning up brownfields. New tools that improve the ability to 
conduct protective cleanups while reducing cost can help promote the 
redevelopment of brownfields across the Nation. EPA would like to work 
with the committee to address these issues as the committee continues 
work on the draft.
    Whether states and localities receive Environmental Protection 
Agency grants for assessment and cleanup, Housing and Urban Development 
grants for redevelopment, Economic Development Administration grants--
or whether redevelopment is encouraged by the Federal Brownfields tax 
incentive--this Administration is committed to providing the tools 
necessary to address the problem of contaminated brownfields 
properties.
    Thank you for the opportunity to appear before you today to discuss 
brownfields legislation. I look forward to working with you to achieve 
swift passage of a brownfields bill.
    Mr. Chairman, I will be happy to answer any questions you or the 
committee members may have.

    Mr. Gillmor. Thank you very much, Deputy Administrator. We 
do look forward to working with you, not only on brownfields 
but on a host of other issues.
    And as you know, both sides of the Capitol have been 
working on brownfields legislation. Has USEPA, on behalf of the 
Bush Administration, endorsed any one bill?
    Ms. Fisher. No, Mr. Chairman. We have expressed support for 
S. 350 with refinements, but we have not endorsed the specific 
language of any one bill.
    Mr. Gillmor. Last week there were certain press accounts 
that maintained that your agency had some concerns about 
finality provisions in my discussion draft, and later it was my 
understanding that there were some misunderstandings as to how 
my legislation really worked.
    Now that you have had time to review the proposals, does 
the administration have any official position on that 
discussion draft?
    Ms. Fisher. Yes. Let me say one thing. I think the 
Administrator was taken out of context. She was asked at a 
speech she was giving what she thought about, I think, the 
finality language in your bill. And, in fact, she hadn't really 
had an opportunity to even look at your bill.
    Her comments on the finality language were more general in 
nature, and she was trying to express that she is very 
concerned that the debate over finality might actually get in 
the way of our achieving the enactment of brownfields 
legislation this year. And she hopes that doesn't happen and 
that we can work this out. So that is the context of her 
comments.
    In terms of your particular bill or your particular 
discussion draft, we have had an opportunity to look at it. And 
as with S. 350, we do support it, but we would like to see some 
refinements.
    Mr. Gillmor. Thank you very much. As you may know, or will 
soon find out, many of the people on our subcommittee have 
questions about how USEPA is interacting with the States with 
regard to brownfields cleanup. And on March 7, the 
Administrator testified that uncertainty is what prevents 
people from maximizing the opportunity to clean up brownfield 
sites.
    And the Administrator then added that, to her knowledge, 
USEPA ``has never come in on our own to file an oversight, to 
take over the responsibility for a brownfield site.'' So my 
question to you has two parts. First, has there ever been an 
instance in which EPA has overfiled on a site? And, second, can 
I expect that since the agency's toward reopening the site has 
been consistent that this will be the policy of the Bush 
Administration in regard to brownfield sites?
    Ms. Fisher. Yes. In terms of the past, as an agency we have 
not ever overfiled on a State at a brownfield site. And 
absolutely that will continue to be the policy of the Bush 
Administration.
    Mr. Gillmor. Thank you very much. I would like to explore 
one other area that the Administrator testified to on March 7, 
and she held that at that time it was a standing policy of 
USEPA to notify a Governor of its concerns about an ongoing 
State cleanup and to provide the State with a reasonable 
opportunity to correct the problem before USEPA could 
intervene. Would that still be the policy, and can we expect it 
to continue?
    Ms. Fisher. Yes. Mr. Chairman, let me say both specifically 
to this program and generally, EPA really believes in working 
in partnerships with the States. And we don't try to take 
action at any site under any program, really, that the State is 
active at without working--without first trying to work very 
constructively with them.
    And particularly in those programs such as brownfields 
where they have the lead we do everything we can to defer to 
them. And we will continue to have that policy.
    Mr. Gillmor. Very good. Let me just touch on the issue of 
petroleum contamination. S. 350 and the Democratic discussion 
draft provide a definition of brownfield site that does not 
adequately cover sites contaminated with petroleum. S. 350 and 
that draft excludes petroleum contaminated sites from liability 
protections and Federal enforcement actions even though the 
clean up was pursuant to an improved State cleanup program.
    What has been called the Gillmor discussion draft takes a 
more expansive approach by including a broader range of 
petroleum contaminated sites within the definition of 
brownfields. One is EPA's view of expanding the definition of 
brownfield sites to cover more broadly petroleum contamination.
    Ms. Fisher. Mr. Chairman, we are supportive of expanding 
the brownfields grant and loan program, so that it could 
include even the more contaminated petroleum site. And we would 
be happy to work with Congress to try to codify the provisions 
that would allow for the prospective purchasers of these sites 
to obtain liability protection.
    We also would like to work with you to ensure that if there 
are further liability protections, that they are limited to the 
cleanup that is subject to the appropriate State oversight and 
don't go beyond what the State is working on, and that any 
liability protection does not apply to past owners or 
operators, and that it would continue to protect our ability to 
deal with any current regulatory requirements, particularly 
under the UST program, that would apply to those sites.
    So with some drafting, we are open to expanding the program 
so it can cover a broader set of sites.
    Mr. Gillmor. Thank you very much.
    Mr. Towns, we have concluded the opening statements. But if 
you have one you want to submit to the record, or if you feel a 
compulsion to make one----
    Mr. Towns. No, no, no.
    Mr. Gillmor. [continuing] out of regular order----
    Mr. Towns. No, Mr. Chairman.
    Mr. Gillmor. We would, of course----
    Mr. Towns. I would be glad to submit my opening statement 
for the record.
    Mr. Gillmor. Thank you very much.
    Mr. Towns. I would not interfere with the flow of the 
events of the meeting.
    Mr. Gillmor. Thank you.
    The Chair recognizes the gentleman from New Jersey for 
questions.
    Mr. Pallone. Thank you, Mr. Chairman, and I am pleased to 
see that Ms. Fisher is here. I see behind you Mr. Krennick, who 
is also from New Jersey, and who I worked a lot with when he 
worked for Congressman Frelinghuysen. So I don't know--this New 
Jersey connection here in the EPA is a little dangerous. But--
--
    Ms. Fisher. And you are from New Jersey.
    Mr. Pallone. That is right.
    And then we have the Mayor of Elizabeth who is going to be 
here who will testify a little later, too.
    I just very simply, if I could, Ms. Fisher--if S. 350, you 
know, passed out of the House and went to the President's desk, 
would he sign it?
    Ms. Fisher. I never want to prejudge my President. We are 
very enthused to have this legislation passed, and we are 
hopeful that whatever legislation passes through the Congress 
the President will sign. We are hoping that we can----
    Mr. Pallone. So you are not going to tell me yes or no, but 
you are giving me a strong indication that he probably would 
sign it.
    Ms. Fisher. I am hoping that he is going to sign any 
brownfields legislation that gets to his desk.
    Mr. Pallone. Okay. Now, 2 weeks ago my staff met with the 
senior career management officials in charge of EPA's 
brownfields program and the EPA's enforcement program. And they 
told us they were not seeking any changes or refinements to S. 
350.
    But now I just heard you say in response to the chairman 
that you were seeking refinements to both S. 350 as well as Mr. 
Gillmor's draft. So I guess I am confused. What specific 
changes would the EPA and the Bush Administration seek to make 
to S. 350?
    Ms. Fisher. Well, there are some different areas that we 
think would build a better program. We think that the way S. 
350 addresses the connection between the NCP and the 
brownfields program is not quite drafted the way we would like 
it. We would like a little bit more flexibility there. That is 
one change.
    We talked earlier about how S. 350 deals with petroleum. I 
think we could broaden that a little bit and still have a very 
protective program. But I think that some of these petroleum 
sites we wouldn't be able to deal with under the brownfields--
particularly under the brownfields grant program, and we think 
that would be an improvement that we would hope the Congress 
would consider.
    I think it is both the prospective purchaser and the 
liability section--we think with careful drafting we actually 
would add protection--under RCRA 7003. So there are some areas 
of modification I think that would make S. 350 a better bill.
    Mr. Pallone. Well, let me get to this liability issue, 
because, you know, as I said, I said that any bill I can 
support has to have a strong, effective Federal safety net. And 
when Administrator Whitman testified in March before this 
subcommittee she discussed a reopener in terms of where a 
site--you know, a particular site--and I am just going to give 
you her quote. She said, ``Where a site became problematic and 
became a threat to human health or the environment in the 
context of the reopener.''
    Now, you know that S. 350 provides the reopener if a 
citizen or neighborhood may be facing an imminent and 
substantial endangerment to their health or the environment. 
And one of the major problems that I have with the chairman's 
draft is that he adds the sort of second concept to that by 
saying, ``Additional response actions are likely to be 
necessary to address, prevent, limit, or mitigate an emergency, 
and the State will not take the necessary response actions in a 
timely manner.''
    It is this word ``emergency''--in other words, we have 
the--you know, the imminent and substantial endangerment 
requirement from S. 350, but now he is adding this language 
that is saying the EPA would have to wait to bring an action 
until there is also an emergency.
    And I notice that you in your statement said that the 
provisions that provide for a safety net are more limited in 
the Gillmor draft than in S. 350, and that you are concerned 
that a brownfields bill not place too great a limit on EPA's 
authority and the Federal safety net.
    So would you oppose this additional requirement, this 
emergency language? It seems to me it is unnecessary.
    Ms. Fisher. Well, and what we would actually like to do is 
work both with members of this committee and ultimately the 
Senate to come up with the right language that we think 
satisfies the need that we have and that you have raised, as 
have others, that there be a proper safety net.
    Mr. Pallone. But, I mean, do you have a problem with that 
reopener language in the Senate bill? Because I notice you 
didn't mention that as one of the refinements.
    Ms. Fisher. In the Senate bill.
    Mr. Pallone. Right.
    Ms. Fisher. We don't have a problem with the way the Senate 
has drafted their reopeners. But we are not wedded to any 
particular language. And so, you know, we are very happy to 
work with members of this committee and others to take a look 
at this.
    Mr. Pallone. Just let me ask you this--I know that time is 
up--but I just--what circumstance is required for an emergency? 
What possible benefit would there be by adding this other 
language about an emergency that the chairman has in there? Can 
you imagine any?
    Ms. Fisher. What circumstances would give rise to an 
emergency that----
    Mr. Pallone. Well, why would you need this extra language 
in order to provide for the EPA to reopen the case?
    Ms. Fisher. Well, we are not specifically asking for that 
particular language, and we have internally given some thought 
to, you know, what circumstances distinguish one--the 
opportunity to go in under one reopener versus the other. And 
so we are looking at what the differences of that would be.
    I guess the most--a couple of things I think are important 
and worth noting. To date we haven't found an opportunity that 
we would need to go back in. And so in some ways we have this 
debate over language that is a bit absent from real-world 
examples. That is No. 1.
    And second, again, I think we do want to try to strike the 
same balance that others have spoken of. And, you know, trying 
to parse the exact circumstances when one reopener would work 
and another wouldn't gets to be a little bit difficult.
    Mr. Pallone. Thank you.
    Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman from Illinois.
    Mr. Shimkus. Thank you, Mr. Chairman. I want to follow up 
on this discourse on--it is my understanding that when we use 
the terminology--I am not a lawyer, and so I have never gone 
before the courts and bought their language of law----
    Mr. Gillmor. You are fortunate.
    Mr. Shimkus. Yes, I am fortunate.
    Yes. No apologies, though.
    But when the terminology that we use--my friend from New 
Jersey talks about imminent substantial endangerment. But 
always what is left off is ``may present,'' which is in front 
of that. And we feel--and I think part of our drafting has been 
that the ``may present'' portion allows you all to come in when 
there is not an imminent substantial endangerment.
    And so the importance of the emergency provision of the 
Republican draft is in the hopes of, again, providing the legal 
certainty with the opportunity. So, in a discourse, if the 
``may present'' was dropped and we use an imminent substantial 
endangerment to replace the emergency language, that is really 
the context of what we are trying to work on. I would like to 
hear your comments on that.
    Ms. Fisher. I think that it is important to really take a 
bit of a step back here and appreciate the sites that we are 
actually talking about. EPA's enthusiasm over brownfields stems 
from a number of centers. One is obviously the wonderful good 
it is bringing to the communities, that we are actually taking 
these old sites and getting them cleaned up and making them 
productive.
    But another one is it is really addressing a class of sites 
that the Federal Government doesn't have the time or the 
resources to deal with. And we are not really looking at them, 
by and large, under the Superfund program or our authority.
    So we have worked over the past several years to get States 
to have programs so that they can address these sites. And the 
brownfields are, in a sense, a subset of all the sites that the 
States are really working on.
    So from the beginning these are sites that we really are 
looking to the States to have the lead. The discussion of will 
we come back in by its very nature has to be taken into that 
context. I mean, these are sites that--they are not our 
priority. They are on someone else's priority list.
    So the chances of us coming in are truly going to be 
focused on only those, you know, very unique circumstances 
where something has gone wrong at the site and the State is not 
on top of it. That situation has not occurred under the 
brownfields program to date--no, really under the Superfund 
program where States have already taken the lead on a number of 
big cleanups.
    So I think that context is important because people are 
reading the language I think with the fear that at these, you 
know, hundreds and hundreds of brownfield sites we are really 
hanging over people's shoulders waiting. And the reality is we 
have stepped very far back from these sites.
    Mr. Shimkus. But it is our understanding under the courts 
and the ruling that the--again, the ``may present'' has--the 
courts have always consistently ruled this in a very broad 
area. And it is not the emergency type situation that we are 
concerned it may present----
    Ms. Fisher. The ``may present''----
    Mr. Shimkus. [continuing] to present the chilling effect 
which then slows up investment and it is not--it provides 
uncertainty. And the whole aspect of a brownfields bill is to 
get legal certainty.
    Ms. Fisher. The ``may present'' language under the 
Superfund program has been interpreted broadly. That is true. 
The way it is applied here--again, given the context of the 
program and where we are headed with it, it is not our 
intention or practice to be going back into these sites unless 
there was a very serious problem there, and, again, that the 
States weren't dealing with it.
    Mr. Shimkus. Okay. And I will just continue. Our position 
is--I think we are very supportive, if we can define emergency 
life, health, safety concern. What we are not supportive of is 
an overly broad ``may present,'' which, again, continues to 
throw a chilling effect.
    So if there is language that we can work with the ranking 
member to I think approach his concern on life, limb--and I 
agree with you. I mean, these are brownfield sites. They are 
not Superfund sites. And that is where we want to get to, and I 
think we would encourage any evaluation from you all to help us 
get at a point where you all can come in. But it had better be 
for emergencies, and it should not be for something other than 
emergency situation.
    Mr. Chairman, if she would like to respond--if not, I will 
yield back my time.
    Ms. Fisher. We will be glad to work with you.
    Mr. Gillmor. The gentleman from New York. Do you have some 
questions?
    Mr. Towns. Yes. Thank you very much.
    Ms. Fisher, since 1996, the EPA has deemed it important for 
State programs to meet six baseline criteria as a condition of 
entering memorandum of agreements with a State to limit EPA's 
enforcement discretion. I believe 16 States have finalized and 
probably more are underway.
    The State qualifying criteria, which is on pages 55 and 56 
of the Democratic draft, are modeling the EPA's baseline 
criteria and were supported by the EPA in testimony in the last 
Congress. If the EPA thinks it is a good idea for a memorandum 
of agreement with States, wouldn't you agree that a volunteer 
program should meet these basic criteria before EPA's 
enforcement authority is restricted?
    Ms. Fisher. Mr. Towns, we are comfortable having, which I 
think we currently do, policies and guidance for the States in 
terms of how they develop their programs. We don't really want 
to get into having to authorize or approve every State program, 
because States are approaching these very differently, and so 
we--I think we would like to have perhaps not quite the level 
of rigor that we think is anticipated in the Pallone draft 
where we actually have to approve all of the various State 
programs. We would much rather have it be a little bit more 
flexible, but give the States clear guidance on what would be 
expected in terms of how the programs are.
    Mr. Towns. Well, in other words you are saying--you know, I 
just think we need to have a baseline, because some States, you 
know, are more eager to clean up than others. And I think that 
is--you know, and I come from a State where the Governor has 
been really good on these kind of issues.
    But I know other States where that is not the case, and I 
just feel that you sort of have a responsibility to say, ``This 
is where we are, and you have to meet these guidelines.'' You 
know, and I think that we have to have a base.
    Ms. Fisher. And I think we can do that in terms of laying 
out the criteria of what States need to have to get the grants 
and loans.
    Mr. Towns. Right. In New York and throughout the country, 
many brownfield sites are located in economically disadvantaged 
or minority communities. Title IV of the Democratic draft 
addresses this problem by setting up a commission to evaluate 
the concentration and impact of brownfield sites on these 
communities. Does EPA have a position on this issue?
    Ms. Fisher. Yes. First of all, let me say that, because it 
is important in the context of the Democratic draft, we have a 
very active Office of Environmental Justice that is in fact 
active on helping us--or working with the brownfields program 
and working with the program as they make grants to States and 
the communities for these particular sites. They are active 
even in helping select the sites.
    In addition to that, we also have a National Advisory 
Committee on Environmental Justice that gives a national 
perspective and, again, focuses not only on this program but 
other parts of EPA.
    So our feeling on this section is I guess twofold. One, we 
are not sure it is a necessary addition to what we already have 
operating and that is actually operating quite aggressively at 
some sites. And, specifically, it gives this new group I think 
a veto in terms of--a veto over both the Federal and the State 
programs that are already underway.
    So we totally appreciate the importance of the 
environmental justice community. I guess I would ask that you 
look at what we have underway and see where what we have that 
is not working or not working successfully before we set up 
what would be a third environmental justice effort, 
particularly given the fact that they are all really looking at 
the same sets of sites.
    Mr. Towns. I hear you. Let me say that I agree with the 
whole idea of some flexibility. I think that is very, very 
important. I would even go further than some by saying based on 
what you are going to do with the brownfield, and all of that, 
I mean, it also determines it in terms of the level.
    But I really think you need to have some kind of baseline, 
and I think that is something you need to really look very 
carefully at.
    Ms. Fisher. Okay.
    Mr. Towns. Thank you very much. I yield back, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Towns.
    The gentleman from Oklahoma.
    Mr. Largent. Thank you, Mr. Chairman.
    And we welcome you, Ms. Fisher, before our committee for 
what will be the first of many such meetings, and we are glad 
you are here. Welcome to Washington.
    You mentioned that you felt like that the potential exists 
at least to improve upon S. 350, which is what we are trying to 
do. And there has been several attempts, both on the Republican 
draft and in the Democrat draft, to try to do so.
    And I guess I wanted to follow up first on--well, follow--
ask you three questions specifically about three issues 
specifically that are found in the Democrat draft, and ask you 
if you feel like as representing the EPA that they improve S. 
350.
    And the first would be this Environmental Justice 
Commission. It is my understanding that this particular 
provision that is contained in the Democratic discussion draft 
would provide for authority to an Environmental Justice 
Commission to waive the Federal enforcement protections 
provided under Federal law at all sites in a particular State 
whenever 3 of the 5 members of the commission determine that 
citizens in any minority neighborhood are not being provided 
meaningful opportunities for participation.
    Does the EPA believe that giving three non-elected members 
of an advisory commission in Washington, DC the power to waive 
Federal protections for brownfields sites in my State, based on 
a complaint by one neighborhood in my State, seems--it seems to 
me that that is fraught with problems for potential--potential 
problems and potential abuse.
    Ms. Fisher. Well, I was saying we do already have a very 
aggressive environmental justice program at EPA. We have 
found--and they are very active at many of the brownfield 
sites, and we have found that has been an essential part of 
making these sites successful in communities.
    I would encourage the Congress to look at the program we 
have at EPA--we also have a National Advisory Committee that 
looks not only at brownfields but some of our other programs--
and see where those two efforts that are currently underway 
perhaps are missing the mark before we set up a third 
environmental justice initiative.
    So it is not that we don't think these are important 
components, an important attribute to be dealt with at the 
brownfield sites. We just already have two vehicles underway 
that we think brings the environmental justice----
    Mr. Largent. So you feel like the protections that you have 
currently--that currently exist are adequate?
    Ms. Fisher. Yes. I think the programs we have are adequate.
    Mr. Largent. The second question I have, it is also another 
item that is contained in the Democratic discussion draft, is 
applying Davis-Bacon to the over $1 billion in grants and loans 
authorized by this legislation. Do you feel like--does the EPA 
think that this will increase the cost for the cleanups, by 
applying Davis-Bacon to all cleanup funds?
    Ms. Fisher. I know that Davis-Bacon is an important issue 
to a lot of members. From our perspective, it is not really a 
brownfields issue, and we would rather not see it dealt with in 
this bill.
    Mr. Largent. Okay. And the final thing is, also contained 
in the Democratic discussion draft, it contains an additional 
$20 million for worker training grants that includes life 
skills training for employees at nonprofit organizations. Why 
do we need that in a brownfields bill?
    Ms. Fisher. From our perspective, we don't think we need a 
separate program for worker training. Under our current 
brownfields program, however, we do have very successful worker 
training programs at some of these sites, where we have 
actually been able to train some local residents, particularly 
in intercity areas.
    And we would like to preserve the ability to use brownfield 
grant and loan programs for worker training. And if we can do 
that and maintain that ability, we don't think there is any 
reason to set up a separate program with a separate----
    Mr. Largent. And do you do life skills training?
    Ms. Fisher. No, we don't.
    Mr. Largent. What is life skills training?
    Ms. Fisher. Well, I can tell you what I think it is. And, 
actually, I think some of the Department of Labor work training 
programs have a component. And it is my understanding basically 
it helps teach people how to--the components of, going to work.
    For some of our chronically unemployed people, 
understanding and knowing just the personal habits of what it 
takes to get to work on time and be ready to go to work are 
part of the training that the Department of Labor I think 
includes in some of their programs. But it is not what ours 
encompasses.
    Mr. Largent. Okay. I had one other question.
    Ms. Fisher. Okay.
    Mr. Largent. Knowing that the Secretary at EPA was also a 
former Governor, I am wondering if she believes that a site 
should be listed on the national priorities list without the 
concurrence of the Governor of any given State.
    Ms. Fisher. That is an issue close to her heart as a former 
Governor. And as you may or may not know, it is the EPA policy 
to seek the concurrence of Governors before we list sites on 
the NPL. And, in fact, we have done that in every instance.
    I think our feeling is it is not really a brownfields 
issue. It is something we think our policy is adequately 
covering. We haven't had any real complaints from Governors. I 
think there has only been one site that we even had a dispute 
with a Governor, and that site hasn't been listed yet.
    So we think it is--our policy is taking care of it, and, 
again, I am not sure it is something we really have to deal 
with in the brownfields bill.
    Mr. Largent. Thank you.
    Mr. Chairman, I yield back.
    Mr. Gillmor. The gentlelady from Missouri.
    Ms. McCarthy. Thank you, Mr. Chairman.
    I would like to ask just a couple of questions in followup 
to some things that we have been talking about here today. When 
Administrator Whitman was with us, I talked with her about 
something that her State and also I think it was the State of 
Wisconsin had done very successfully, which was to post on the 
website an inventory of brownfields locations that were being 
cleaned up, worked on, identified, etcetera--very successful in 
both of those States. And she embraced the concept at the 
hearing as something that she would like to see done.
    S. 350 provides for a public record of voluntary cleanup 
sites in Title III. The discussion draft before us today does 
not. I am not asking you to take sides, but the Administrator, 
you know, has done it in her own State when she was Governor, 
embraced it as a concept for our consideration. Could you give 
the committee some insight on why it would be important 
nationally to have this?
    And second thought while I get my moment, and then I will 
turn it over to you, is, I would like some thought on your 
feelings on whether or not we should have a floor or a ceiling 
when we address these petroleum contaminated sites.
    The funding issue is different in S. 350, and the 
discussion draft of the chairman, you know, S. 350 requires a 
$50 million, you know, total grant, but I think 25 percent be 
made--must be made available to petroleum contaminated sites, 
and the chairman's discussion draft kind of does this sort of 
no more than 25 percent.
    So you can go from zero to 25 percent on petroleum 
contaminated sites--of the money. So it is a concept of whether 
you have a floor guarantee of $50 million or, you know, a 
ceiling of no more than--up to 25 percent.
    Will it matter? Because this petroleum cleanup issue is 
huge in urban areas all over this country. And the way funding 
and appropriations works up here is sometimes mysterious.
    Could you offer some philosophical thoughts on which 
direction it would be better to go for facing the issue 
nationwide?
    Thank you.
    Ms. Fisher. So I am going to give you an answer that is 
neither. How about that? I think the most important limit is 
actually the $1 million limit, because that assures that we 
won't kind of lose whatever amount of funding we allocate to 
any one site.
    I think your point is correct. There is a huge number of 
these petroleum-related sites, a lot of corner gas stations 
that are boarded up and are creating problems in neighborhoods, 
and even some tank farms. And that is why we were supportive of 
actually expanding the concept to include the larger sites.
    So I think the $1 million limit is an important one. We 
haven't really focused--we can do that--on whether the 25 
percent or the $50 million is better. Your comment is correct. 
Probably the appropriations won't contemplate either. So it 
will----
    Ms. McCarthy. Having been a State legislator, and, you 
know, understanding that when the Federal Government speaks and 
wants us to do this then they don't provide the money, this 
sort of unfunded mandate thing that we actually----
    Ms. Fisher. We feel that way at the agency----
    Ms. McCarthy. [continuing] that we wouldn't do any more. 
Okay.
    Ms. Fisher. [continuing] when Congress asks us to do 
something and doesn't provide the funding.
    Ms. McCarthy. I would appreciate your getting back to me on 
some thoughts on that.
    Ms. Fisher. Okay. But I guess I would say I think, just to 
emphasize, we wouldn't want to lose the $1 million limit.
    Ms. McCarthy. Right.
    Ms. Fisher. Because I think that is the one that assures we 
can get to a large number of sites.
    On your other issue about the listing, it is true a lot of 
States do have a publicly available list. And I think those 
have been helpful in many instances to people who want to find 
property that might be eligible for this and start the 
initiative to clean it up.
    I think on the other side, although I haven't had a chance 
to talk to the authors about this provision, I think there is 
concern about stigmas--the stigma of being associated, as a 
contaminated site. But we have seen the listing work pretty 
well in States that have it thus far.
    Ms. McCarthy. We will do a little more research on New 
Jersey and whether there was a stigma or not. I thank you for 
your answers.
    Mr. Chairman, I yield back.
    Mr. Gillmor. The gentlelady yields back.
    The gentleman from Nebraska.
    Mr. Terry. Thank you, Mr. Chairman.
    I appreciate your being here today. I do want to follow up 
with my opening statement that I strongly believe that a strong 
Federal safety net with broad reopeners is counterproductive to 
some of the goals--the goals of encouraging States to take 
control of brownfields, encouraging redevelopment, encouraging 
subsequent purchasers.
    I really believe that if--with broad reopeners that we 
chill everything that we want to occur here. And I am telling 
you from my real-life experiences that even though you may say, 
``We don't go back in, that we are pushing ourselves away,'' 
that subsequent purchasers, because of that chance that you may 
come back in, see the EPA and the Federal Government as 
``hovering over.'' That is their perspective. You have a 
different one of seeing yourself being--pushing yourselves 
away. We have heard on the record before that there hasn't been 
an incident where the EPA has come back in. That is still not 
good enough.
    So I want to work through an issue here to kind of 
highlight or show as an example of what I am trying to refer to 
here. When you have a reopener like imminent threat to public 
health and environment, it is such a broad term.
    For example, cleanup along the Missouri River where there 
is arsenic in the soil. The cleanup as it currently sits--you 
know, this is just kind of a hypothetical. I am sure this would 
never happen in real life, but let us just set it for 
hypothetically. A cleanup occurs, massive cleanup of property, 
taking away six feet of dirt, replacing it with clean dirt. But 
it leaches out still into the river at about 30 parts per 
billion.
    I mean, I would never say that the standard would be 50 
parts per billion, and a new administration would come in and 
lower it to 10, let us say, just in theory, hypothetically.
    See, that is what people worry about is that 1 year it is 
not a threat to public health at 50 parts, because that is the 
current standard, but maybe just theoretically a new 
administration comes in and lowers that, with the EPA working 
to help that to a lower standard that now puts it below. It 
wasn't a threat 1 year, but the next year it is a threat.
    The Environmental Defense Fund comes in because you have 
pushed yourself away. Now the courts are saying that, gee, the 
EPA's own standards, this is now an imminent threat because the 
leaching is occurring currently. And it is a threat to public 
health.
    You know, this is the type of thought process and 
discussions that are going on in real life. So I just want to 
point that out as an example of how people perceive the Federal 
Government and EPA continuing to hover.
    But let us just--here is my specific question to you, then. 
On this type of example, let us say the Environmental Defense 
Fund is successful in asking the Federal court to force the EPA 
to come in and say, ``This needs to be cleaned up because the 
standards have changed.'' Would the EPA support, at least in 
those circumstances, allowing the States to stay in control of 
the cleanup? Allowing us some language where States continue to 
be in control, is that possible?
    Ms. Fisher. Absolutely. I mean, our goal is to let the 
States take the lead on these sites and continue to ensure 
their protection. I guess--and I may seek the advice of counsel 
on this--the question you raise is something we would face at 
any Superfund site, and we don't go back because we have 
changed, a safe drinking water standard--you referred to 
arsenic--and redo every Superfund site that we have cleaned up.
    So I am not quite sure that that situation would give rise 
to our going back in. But to answer your real question----
    Mr. Terry. The subsequent purchaser is still out there 
wondering, though.
    Ms. Fisher. Well, a subsequent purchaser--we think the 
prospective purchaser protection in this is probably one of the 
most important components of the bill and gives----
    Mr. Terry. Absolutely.
    Ms. Fisher. [continuing] gives them, I think very good 
protection under it. And, you know, when we talk about our goal 
in getting this bill passed, I mean, clearly that--that is 
going to be I think a critical component of it.
    Mr. Terry. Just one quick thing. I want to follow up on 
something on Davis-Bacon that my friend from Oklahoma, Mr. 
Largent, brought up. Have there been any instances where 
communities have backed off or recipients of grant money have 
backed off because of Davis-Bacon?
    Ms. Fisher. I am advised that there have been two.
    Mr. Terry. Where? Do you know? That is interesting.
    Ms. Fisher. I can get back to you on what those are, but--
--
    Mr. Terry. I would appreciate receiving that.
    Ms. Fisher. Okay.
    Mr. Terry. Real-life examples are important to us. Thank 
you.
    Mr. Gillmor. The gentleman from Louisiana, the chairman of 
the full committee, Mr. Tauzin.
    Chairman Tauzin. Thank you very much, Ms. Fisher, for being 
here today. I wanted to take you through a couple of broad 
position questions and then ask you a few specific ones. First 
of all, does your Department support ensuring the brownfield 
sites are not treated like Superfund sites?
    Ms. Fisher. That is a broad question. I am not sure 
specifically what you mean, but our goal is to particularly get 
these sites through a much different, more flexible program, 
which is what we are structuring here in terms of the 
underlying program.
    Chairman Tauzin. Then the answer is yes.
    Ms. Fisher. Yes.
    Chairman Tauzin. You believe that this program ought to be 
different from the treatment provided for Superfund sites.
    Ms. Fisher. Yes.
    Chairman Tauzin. Second, do you believe that the bill that 
we pass, the program we provide, should provide needed relief 
to innocent parties from Superfund's overly broad liability 
scheme?
    Ms. Fisher. Yes. We support the prospective purchaser in 
this.
    Chairman Tauzin. And do you also believe that the bill 
ought to increase the certainty for property owners and 
developers to encourage participation in the State cleanup 
programs?
    Ms. Fisher. Yes. Yes, we do.
    Chairman Tauzin. We can argue about how certain, but we----
    Ms. Fisher. Right.
    Chairman Tauzin. [continuing] certainly those are broad 
principles. Do you also believe that we ought to extend 
coverage of Superfund policy to petroleum contaminated sites?
    Ms. Fisher. We think we should include coverage of 
brownfields to some of the petroleum sites, yes.
    Chairman Tauzin. Thank you very much. Let me ask you two 
specific ones. The first one is in regard to the question of 
EPA's role in regard to the State cleanups.
    Let me first thank both the Democratic members and their 
staff, as well as you, Mr. Chairman, for putting discussion 
drafts before us. I think it is very helpful. In examining the 
Democratic discussion draft, there are several changes to the 
Senate bill that I want to ask you about.
    Am I correct in my understanding that it is not EPA's 
desire to increase its authority with respect to State cleanup 
programs or to oversee them?
    Ms. Fisher. That is correct.
    Chairman Tauzin. So that you do not support the notion of 
an upfront approval by EPA of the cleanup.
    Ms. Fisher. That is correct. We are very comfortable having 
principles and guidelines that a State program would be 
expected to meet. But we don't want to get in the situation of 
having to approve all of the different programs some of the 
States run.
    Chairman Tauzin. Second, in order to get brownfields 
cleanup accomplished today, approval has to be obtained from a 
number of different agencies regarding the environmental 
impacts of this cleanup.
    The suggestion we make in our discussion draft is that EPA, 
on its own rulemaking--we don't tell you how to do it or what 
to do or certainly not to diminish the environmental 
requirements of those permits, but we suggest a one-stop 
procedure for this to accommodate to the state's needs to 
expedite and get less complicated bureaucratic approval of 
their cleanup plan.
    That is, we suggest a rulemaking that would combine a 
single permit process respecting all of the agencies that have 
some current say in that process. Do you support that notion?
    Ms. Fisher. Here is the issue with that. By and large, we 
are talking about state-delegated programs. EPA has delegated 
already to the States the authority to write the permits under 
the clean air and the clean water and the RCRA laws.
    So our challenge in doing a Federal rulemaking on this now 
is how we would structure that kind of a program that kind of 
tells all the States who run their different permitting----
    Chairman Tauzin. Don't we have a permit waiver for 
Superfund cleanups right now?
    Ms. Fisher. There is a permit waiver under Superfund 
because under Superfund, first of all, most of them are run at 
the Federal level. And, second, Superfund itself provides a lot 
of the procedures that are very similar to what we would 
require under the Federal programs.
    Chairman Tauzin. What we are suggesting is not changing the 
necessities, nor would we suggest exempting any party, any 
State from compliance with the Federal standards. What we are 
simply asking is: would you support--we would love to give you 
the authority to do it--a process whereby your agency could 
provide a streamlined permit authority for the States to move 
forward once they have satisfied this regulatory process, that 
the State is meeting all of the other requirements of the other 
agencies. To put it simply: a one-stop shopping permit for 
States to expedite brownfield cleanups.
    Ms. Fisher. And I am not opposed to States doing that. In 
fact, some already have.
    Chairman Tauzin. I am asking you: would your agency be 
supportive of our attempts to give you the authority to set up 
such a structure at the Federal level?
    Ms. Fisher. Yes. We will take the authority to look at it. 
The----
    Chairman Tauzin. To look at it.
    Ms. Fisher. Yes. Here is the problem----
    Chairman Tauzin. You can look at anything. You don't need 
me to tell you to look at it.
    Ms. Fisher. Because I am not quite sure of the problem I am 
trying to fix. We have already delegated the permit programs to 
the States. They have the authority to set up one-stop shopping 
if they want to, and some of them already have.
    To the extent the Federal Government is creating a 
roadblock from States doing it, we definitely would be happy to 
look at it. And if a rule--if we could do a rulemaking and that 
would fix some of those problems, we would be happy to do that. 
But----
    Chairman Tauzin. Let me try to simplify it, because we are 
getting a little complex. Are you supportive of the Gillmor 
provisions which authorize a streamlined process?
    Ms. Fisher. I am supportive of the provision if it includes 
the ability to include both substantive and procedural 
requirements, that if we did a streamlined permitting process 
we would be able to maintain substantive and procedural 
requirements.
    Chairman Tauzin. All it does is authorize a rulemaking 
which you conduct.
    Ms. Fisher. Right.
    Chairman Tauzin. Are you not comfortable with that kind of 
an authority in----
    Ms. Fisher. All it does is authorize us to do that. We will 
be happy to take the authority.
    Chairman Tauzin. Would you exercise the authority?
    Ms. Fisher. Yes, as long as I can figure out what the 
problem is we are trying to solve.
    Chairman Tauzin. We will help you see that.
    Thank you very much, Mr. Chairman.
    Ms. Fisher. That is great. I am more than happy to do that.
    Mr. Gillmor. Thank you, Mr. Chairman.
    The gentleman, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman. I hope I am not too 
much out of sync here having just walked in.
    I am concerned, Ms. Fisher, about the provision in the 
draft legislation which would I think significantly curtail the 
EPA's protective authority without adequate assurances that 
States would pick up the slack. I am particularly troubled by 
Section 302 of the discussion draft which would give a Governor 
veto authority over the listing of any Superfund site.
    What concerns me--there are a couple of things that concern 
me about this. What if you have a situation where a mayor, 
county executive, local health officials feel one way and the 
Governor feels another way. Who should have the greater sway in 
that situation?
    Ms. Fisher. I think the provision you are talking about is 
the requirement for Governor's concurrence before we list a 
site on the NPL. And as I said earlier before you came in, it 
is our practice, really, at the agency today to get the 
Governor's concurrence before we list a site on the NPL, and we 
have actually done that in every instance.
    There is one site that we propose that we don't yet have 
the Governor's concurrence, but it has not gone final. So my 
sense is I think our policy gets us where we need to be, and I 
am not sure that we would recommend having this provision put 
in the brownfields bill. It is really a Superfund issue. It is 
not really a brownfields issue.
    Mr. Barrett. So you don't think that that provision is 
necessary?
    Ms. Fisher. Right.
    Mr. Barrett. Okay. That is the only question I had.
    Mr. Gillmor. Thank you, Mr. Barrett.
    The gentleman from Maryland.
    Mr. Ehrlich. Ms. Fisher, thanks for your testimony today. 
It has been clear, concise. Appreciate it. Congratulations.
    Ms. Fisher. Thank you.
    Mr. Ehrlich. I particularly appreciate I guess the 
philosophical drift I am hearing here with regard to Governor 
attention from your agency and allowing the States to do what 
you want them to do. That is an answer with regard to various 
questions.
    As you all know, money here and money issues are relatively 
easy in this context. That can be worked out. It is the real 
issue with regard to autonomy and State finality, and you have 
heard about 14 different questions asked different ways with 
different nuances regarding the importance of finality, the 
Gillmor draft language with regard to the singular issue of 
finality.
    Could you give me your concise policy statement with regard 
to that issue? And then I want to get into Davis-Bacon for a 
second--the easy stuff.
    Ms. Fisher. We totally share the interest of the committee 
to strike the appropriate balance between the need for 
finality----
    Mr. Ehrlich. Okay. That is a platitude. I want to get the 
answer to--I want to get specifically your policy, your current 
policy, your opinion with regard to the Gillmor draft.
    Ms. Fisher. In terms of the Gillmor----
    Mr. Ehrlich. Finality.
    Ms. Fisher. The finality provisions?
    Mr. Ehrlich. Correct.
    Ms. Fisher. Well, we would like to continue to work with 
the chairman to make refinements to it.
    Mr. Ehrlich. Okay.
    Ms. Fisher. Okay.
    Mr. Ehrlich. Let me get back and try to ask a question with 
regard to Davis-Bacon. And you had--one of your counsels helped 
you with regard to two instances where there has been a backing 
off because of Davis-Bacon. Can you give me--or can one of the 
counsels give me precisely the application of Davis-Bacon in 
this context? I am not sure what the application is.
    Is it simply a general application because your agency is 
involved and Federal dollars are involved? Is it a function of 
that?
    Ms. Fisher. Currently, the brownfields program is run under 
Superfund.
    Mr. Ehrlich. Right.
    Ms. Fisher. And the funds come pursuant to Section 104 of 
Superfund.
    Mr. Ehrlich. Right. Federal dollars.
    Ms. Fisher. And Davis-Bacon applies to that. So that is 
what triggers it.
    Mr. Ehrlich. This may be a difficult question, but I would 
ask you to put the answer in written form. With regard to the 
two instances cited earlier, the specific facts and the 
chronology of events that lead to the conclusion that is pretty 
relevant to us here regarding this language.
    Ms. Fisher. Can I provide that?
    Mr. Ehrlich. you sure can.
    Ms. Fisher. Okay.
    Mr. Ehrlich. Thank you. I will yield back.
    Mr. Gillmor. Thank you very much.
    The gentleman from New York.
    Mr. Fossella. Thank you, Mr. Chairman.
    Just to follow up briefly--it has been asked twice--on the 
Environmental Justice Commission. I was wondering whether aside 
from the merits of whether it is necessary or not--and I gather 
from your discussion that it is--you don't believe it is 
necessary--whether it is, or, in the opinion of counsel, is it 
even constitutional to empower this commission to potentially 
override Federal law? Do you have an opinion on that?
    Ms. Fisher. I don't right now. I can--it is not a question 
I have put to our counsel and would want to have a little bit 
more opportunity to think about it before we respond.
    Mr. Fossella. Is it possible to ask your counsel and then 
forward it to me or----
    Ms. Fisher. Sure, we can get----
    Mr. Fossella. [continuing] this committee as to the 
constitutionality of that? Thanks.
    And just look at environmental justice through a different 
prism. I believe--you probably believe that if something is 
harmful or unhealthy to one individual, it doesn't matter what 
color or creed you are, right?
    Ms. Fisher. Correct.
    Mr. Fossella. We had a situation on Staten Island, home 
to--was home to the Fresh Kills landfill, it was the largest 
landfill in the country, 3,000 acres--and, fortunately, we 
closed this landfill this year.
    But over the past few years while the city of New York 
embarked on closing the landfill there were efforts around 
other parts of the city that had to now assume some 
responsibilities. In short, all of the residential garbage 
generated in the city of New York was dumped on Staten Island 
at the landfill.
    So once it became apparent that other parts of the city had 
to assume a degree of responsibility, we started seeing 
lawsuits. And one of the actions brought was under the 
jurisdiction or pursuant to environmental justice regarding a 
transfer station or a potential transfer station in an area of 
the Bronx.
    To my knowledge, that is still open as to whether, you 
know, EPA has an opinion. I am not sure. The fact of the matter 
is that you had a community, just by nature of its 
demographics, that were allowed to bring an action pursuant to 
environmental justice, that the EPA spend a lot of money and 
time reviewing it, and yet when we try to bring the same action 
pursuant to environmental justice regarding the Fresh Kills 
landfill--again, the largest open landfill in the country--we 
were denied because we didn't meet the criteria.
    I just found it odd that how the same government can look 
at an open, unlined, environmentally unfriendly, unsafe 
landfill and say you do not have a cause of action under 
environmental justice, and just because of the makeup of your 
community and demographics, and look at a transfer station 
minuscule in comparison and say you do.
    So I would just urge you--I know you mentioned that you 
have a lot of folks who are very aggressively pursuing 
environmental justice. If you take back that--there is another 
side to the story and another side to other perspectives on 
this matter.
    So with that, thank you.
    Ms. Fisher. Okay.
    Mr. Gillmor. Thank you.
    The gentleman from New Hampshire.
    Mr. Bass. Thank you very much, Mr. Chairman. My question 
will be very quick.
    Both of the bills, the Senate bill and the House bill, have 
authorized $200 million. The agency isn't spending anywhere 
near that much. Why aren't you and will you be able to? Is that 
too quick a question or should I elaborate more?
    Ms. Fisher. No, I understand the question. I think the 
program is currently limited because it is basically an 
offshoot of Superfund and doesn't have its own funding 
authority. And I am advised that we basically get a separate 
appropriation for it that comes from the----
    Mr. Bass. Is it a $100 million appropriation now?
    Ms. Fisher. It is $90.
    Mr. Bass. Ninety. How much of it have you spent, for 
example, in the last--any fiscal year? Are you spending what is 
getting appropriated?
    Ms. Fisher. Yes, we are.
    Mr. Bass. You are? Okay. But that--Okay. I understand. So 
there is a difference between the appropriation and the loan 
program that you have, which you are not spending very much 
money at all on, is that right?
    Ms. Fisher. The loan program is much smaller.
    Mr. Bass. Very small. All right.
    That is the only question I had, Mr. Chairman.
    Mr. Gillmor. Thank you very much.
    The gentleman from----
    Mr. Bass. I understand that--excuse me, reclaiming my 
time--if we do authorize $200 million, you are going to be able 
to spend it?
    Ms. Fisher. We usually, working with the Appropriations 
Committee, are able to spend what they give us. And they 
generally----
    Mr. Bass. All right. That is fine. I understand.
    Ms. Fisher. [continuing] give us far different than what is 
authorized.
    Mr. Bass. Thank you very much, Mr. Chairman.
    Mr. Gillmor. The gentleman from Indiana who has been 
waiting exceedingly patiently.
    Mr. Brown. Ma'am, I have the largest Superfund cleanup site 
by money in Continental Steel in Indiana. And I want to extend 
compliments. It has been a long time, but the site is moving, 
and you are doing some pioneering work out there. It is a 
state-led site. But I want to extend the compliments, and 
please let everyone know.
    Ms. Fisher. Thank you. I will share that with the staff.
    Mr. Brown. I also want to extend compliments to Mr. Pallone 
and Mr. Gillmor. Putting the discussion drafts out is very 
helpful to all of us. I am concerned--here is a question I have 
for you.
    If the intention here of brownfields really is to provide 
greater flexibility, incentives, and the resources to State and 
localities, to put these sites back into productive use, in the 
Democrat discussion draft it adds minimum criteria for State 
programs to qualify for funding and Federal enforcement and 
liability protections, and it requires EPA to determine if 
these criteria have been met upfront. Could this hamper such 
cleanup efforts by States across the country?
    Ms. Fisher. Yes. We would prefer a bit more flexibility 
than what is provided there. We would rather not get in the 
situation of having to approve every state's program. Some of 
them run their brownfields under a couple of different cleanup 
programs.
    We do think, however, States do need to have guidance and 
principles about what their programs are going to look like. We 
think we can manage that through our grant program. So we do 
have some handle on being sure that the States have met some 
criteria, but we don't want to get into affirmatively having to 
prove each of these.
    Mr. Brown. Right. I want to thank you for working with the 
chairman on the subsequent purchaser liability protections.
    I yield back my time.
    Ms. Fisher. Thank you.
    Mr. Gillmor. The gentleman yields back, and that concludes 
the questions. I want to, once again, thank you for coming. We 
do look forward to working with you in the very near future to 
produce a product that we can all support without refinements.
    Ms. Fisher. Thank you, Mr. Chairman.
    Mr. Gillmor. We have a series of three votes which have 
started, and I think we will recess the panel now, so that we 
can take those votes, and come back at 12:45 and start the 
second panel. And the meeting stands recessed.
    [Brief recess.]
    Mr. Gillmor. The subcommittee will reconvene, and we will 
begin with panel two. And I, once again, want to express my 
appreciation to all of you for coming, and we will proceed with 
your opening statements. We have your full testimony, and 
hopefully you can summarize it in about 5 minutes, and then we 
can go to questions.
    Ms. Crotty?

STATEMENTS OF HON. ERIN M. CROTTY, COMMISSIONER, DEPARTMENT OF 
  ENVIRONMENTAL CONSERVATION, STATE OF NEW YORK; HON. JAVIER 
 GONZALES, COMMISSIONER, SANTA FE COUNTY, NEW MEXICO; HON. J. 
CHRISTIAN BOLLWAGE, MAYOR, CITY OF ELIZABETH, NEW JERSEY; HON. 
 LEON G. BILLINGS, STATE OF MARYLAND LEGISLATOR; AND GORDON J. 
 JOHNSON, DEPUTY BUREAU CHIEF, ENVIRONMENT PROTECTION BUREAU, 
               NEW YORK ATTORNEY GENERAL'S OFFICE

    Ms. Crotty. Thank you very much, Mr. Chairman. I appreciate 
the opportunity to be here today to share with you the position 
of the State of New York, as well as The Environmental Council 
of the States, on an issue that is so important to public 
health and environmental protection as well as our economic and 
social well being for our citizens.
    I am also fortunate to have the opportunity to, once again, 
work with Congressmen Fossella and Towns, who are incredible 
advocates for brownfields redevelopment, and New Yorkers are 
truly fortunate to have them representing us here in Congress.
    Governor Pataki, Congressmen, asked me to relay to you the 
State of New York's strong support for congressional action 
that will make it easier for States, local governments, and 
private entities to investigate, remediate, and ultimately 
redevelop brownfields. Under Governor Pataki's leadership, New 
York is considered actually a national leader in brownfield 
cleanup and redevelopment.
    We think that creativity and innovation at the State level 
has been the hallmark of cleaning up and redeveloping many 
brownfield sites, and we have a lot of programs in New York 
State that are geared toward brownfields cleanup and 
redevelopment.
    But one I want to highlight because it is important to you 
if your initiative passes and that is the--in 1996, the 
Governor proposed and championed a $1.75 billion bond act. Of 
that amount, $200 million is available to municipalities to 
investigate and remediate brownfield sites.
    Right now, it allows a grant of 75 percent of eligible 
costs. The Governor has proposed legislation to increase that 
to 90 percent and to actually allow other State and Federal 
funds--importantly here, Federal funds--to be used for the 10 
percent local match.
    So if the Governor's changes are enacted by the 
legislature, it will enable municipalities to utilize the 
funding provided under your initiative for their cost share, 
thereby achieving truly the Federal/state/local partnership in 
addressing brownfields and further leveraging our scarce public 
dollars.
    We really believe that as Federal and State policymakers we 
need to level the playing field between greenfield development 
and brownfield redevelopment. And as we create programs and 
policies to revitalize our urban areas, we need to make certain 
that the programs to investigate cleanup and redevelopment 
brownfields are the very foundation of those initiatives. And 
in many areas, without an effective brownfield strategy our 
attempts to revitalize our urban areas will be lost once again.
    In New York State we have over 20 years of experience in 
cleaning up contaminated sites. And we believe that the most 
important need for Federal legislation is to provide liability 
relief for those that are not responsible for the contamination 
in the first place and finality to the cleanup process.
    And if you look at it from that perspective, certainly all 
of the bills that are being discussed in Congress, the Senate 
bill and the two House discussion drafts, address those 
concerns. However, we believe that the House majority draft 
provides the greatest benefit to municipalities and non-
responsible parties that volunteer to clean up sites for three 
primary reasons.
    First, it provides a mechanism for finality. It requires 
gubernatorial concurrence for listing a site on the national 
priorities list. And it provides much needed funding for the 
investigation and cleanup of brownfields. Let me go into detail 
just briefly.
    First, the House majority draft expands and enhances the 
finality language included in Senate bill 350, which is vital 
to improving the effectiveness and the pace of brownfield 
cleanups. There is no question that brownfield redevelopments 
currently are hindered by the pervasive fear of Federal 
liability under the Federal Superfund statute, even in States 
where a site has been cleaned up to the satisfaction of the 
State regulatory agency.
    We believe, as does the National Governors Association and 
The Environmental Council of States, that the House majority 
draft effectively addresses this barrier by shielding a party 
from additional cleanup action by the Federal Government when 
such party investigates and remediates a brownfield under a 
State brownfield program that meets the criteria of the EPA, 
except in those very limited circumstances that are spelled out 
in your bill.
    So we believe that those are reasonable conditions, and we 
believe that the House majority draft's treatment of the 
finality issue provides the kind of certainty that is needed to 
encourage more parties to clean up contaminated sites across 
this country.
    Second, the House majority draft would require the 
Governor's concurrence prior to listing a site on the Federal 
Superfund list, which is very important to New York State, 
since it demonstrates a deference to the actions being taken 
under the state's programs. And it recognizes that a majority 
of our sites are actually cleaned up by the--at the State or 
local level.
    In New York, EPA's Region 2 office does not place a site on 
the NPL without the concurrence of Governor Pataki. This has 
worked out very well. It fosters an excellent working 
relationship, and we think it actually should be codified in 
law.
    And, third, the House majority draft provides another 
important tool and that is funding. I commend your effort and 
strongly urge you to make the States a full partner in this 
effort by authorizing States like New York that demonstrate 
that they have programs and policies and procedures in place to 
actually administer the grant and loan programs, so the States 
actually become the administrator of the funds instead of EPA.
    We have a proven track record, many of us, with the clean 
water and the drinking water State revolving loan funds, and we 
think that that should be used as a model.
    So with that, my time is up. Governor Pataki and I 
appreciate your leadership and your consideration of our views 
on this extremely important Federal initiative, and we are 
looking forward to working with you.
    [The prepared statement of Erin M. Crotty follows:]

  Prepared Statement of Erin M. Crotty, Commissioner, New York State 
                Department of Environmental Conservation

    Chairman Gillmor, thank you for providing me with the opportunity 
to testify at this morning's hearing. I appreciate the opportunity to 
share with you the position of the State of New York on an issue that 
is so important to public health and environmental protection and the 
economic and social well-being of our citizens. I am also fortunate to 
have an opportunity to meet again with two New Yorkers who have made 
crafting effective brownfield programs a priority--Congressman Fossella 
and Congressman Towns--and New Yorkers are fortunate to have them 
representing our interests.
    Chairman Gillmor, Governor Pataki has asked me to relay to you the 
State of New York's strong support for Congressional action that will 
make it easier for states, local governments, and private entities to 
investigate, remediate and redevelop brownfields that are, 
unfortunately, blights on our urban and rural landscapes. Under 
Governor Pataki's leadership, New York has become a leader in the field 
of brownfield cleanup and redevelopment. This morning, I would like to 
share with you some of the progress that we already have made to 
remediate brownfields, and the need which we have found, based upon 
this experience, for Congressional legislation.
    Creativity and innovation at the State level has been the hallmark 
of cleaning up and redeveloping many brownfields. However, even with 
this significant progress, there are many more sites in New York and 
thousands more across this nation that are still in need of 
investigation, cleanup and redevelopment. We think the federal 
government can help remove some of the barriers to their redevelopment.
New York's Brownfields & Voluntary Cleanups Programs
    New York's Brownfields and Voluntary Cleanup Programs join our 
traditional efforts, the State Superfund and the Oil Spill Programs, 
that were put in place to clean up sites which were contaminated by 
hazardous wastes or petroleum products. The New York State Superfund, 
first enacted in 1979, provides for the investigation and cleanup of 
sites that pose a significant threat to public health and the 
environment from hazardous waste contamination. The State has 
remediated 417 sites through this program, and an additional 400 more 
cleanups are underway. Our Oil Spill Program provides for an immediate 
and long-term response to petroleum and chemical spills. On average, 
approximately 7,000 oil spill response and cleanup actions are 
conducted annually. These two programs have been very successful and 
their implementation has provided the State with extensive knowledge 
and experience relative to contaminated site cleanups.
    In an effort to transform brownfields from liabilities to assets 
for New Yorkers, in 1996 Governor Pataki proposed and championed the 
Clean Water/Clean Air Bond Act which authorizes $200 million for the 
investigation and cleanup of brownfields by municipalities. New York's 
Brownfields Program is one of the most heavily funded of its kind in 
the nation. The Program provides financial assistance to municipalities 
for up to 75 percent of eligible costs. Significantly, New York State 
provides unprecedented liability limitation benefits to a municipality, 
its successors in title, lessees, and lenders that participate in the 
Brownfields Program. Our Brownfields Program provides the tools 
necessary for municipalities to work in partnership with their 
communities, the State and the private sector to turn properties that 
were once unused into thriving, vibrant contributions to the community.
    To date, 96 investigation projects and 14 cleanup projects have 
been approved. These projects have received a total of $24 million. 
Governor Pataki has proposed legislation that is currently before the 
New York State Legislature that would increase this grant level from 75 
percent to 90 percent, and allow the use of other State or federal 
assistance for the required 10 percent local match. The Governor's 
proposal has widespread support from stakeholders, including the 
State's mayors, towns and counties and it is our hope that the 
Legislature will enact the legislation this legislative session. These 
changes will enable municipalities to utilize the funding provided by 
the House Majority draft for their cost-share thereby achieving a true 
federal, state, and local partnership to addressing brownfields and 
further leveraging our public resources.
    In addition to the Brownfields Program that provides incentives for 
municipalities to cleanup contaminated properties, the State also has 
developed a successful Voluntary Cleanup Program to encourage the 
private sector to investigate, cleanup and redevelop brownfields. The 
Voluntary Cleanup Program uses private rather than public funds, and 
also is intended to reduce the development pressures on ``greenfield'' 
sites. New York's Voluntary Cleanup Program provides a cooperative 
approach among the New York State Department of Environmental 
Conservation, lenders, developers and prospective purchasers to 
investigate and/or remediate contaminated sites and return these sites 
to productive use. When the volunteer completes the required work, the 
Department provides a release from liability for the work done and the 
contaminants addressed, with standard reservations.
    To date, the New York State Department of Environmental 
Conservation has signed 196 agreements with volunteers, addressing a 
total of 255 cleanup projects. Of these projects, 86 are ongoing or 
completed investigations, and 115 represent remediations--50 of which 
already have been completed. Each of these cleanups represents a new 
beginning for a formerly contaminated under-utilized site--from 
providing new jobs to the development of new parks for New Yorkers to 
enjoy.
The Need for Congressional Action
    As federal and state policy makers we need to level the playing 
field between greenfield development and brownfield redevelopment. We 
need to make certain that our statutes and our programs are not 
creating artificial barriers to the reuse of brownfields, and if they 
are creating barriers, we need to take appropriate action. As we create 
programs and policies to revitalize our urban areas, we need to make 
certain that programs to investigate, cleanup and redevelop brownfields 
are the very foundation of those initiatives. In many areas, without an 
effective brownfield strategy our attempts to revitalize our urban 
areas will be lost.
    Through New York's over 20 years of experience in cleaning up 
contaminated properties, we have been able to identify the barriers to 
effective cleanups and the appropriate incentives to encourage the 
investigation, clean up, and redevelopment of these sites. Many of the 
barriers to brownfield redevelopment require statutory amendment at the 
federal and state levels. The existing liability scheme, which holds 
all past, present and future owners of contaminated property liable for 
cleanup costs, regardless of when or how the property was acquired 
relative to the contamination, is a barrier to developers to purchase 
brownfields and municipalities to take title to abandoned property. So, 
too, does the potential cost of cleanup, which may not be known at the 
time of purchase. In addition, lenders are often reluctant to extend 
credit for the purchase and cleanup of brownfield sites, fearing future 
liability or diminution of the value of the property held as collateral 
should the site prove to require more extensive and costly cleanup than 
initially thought. Consequently, financing such a purchase may be more 
difficult than financing a purchase of a greenfield site.
    Based upon our extensive experience over the past 20 years, the 
most important need for federal legislation is to provide liability 
relief to those not responsible for the contamination and finality to 
the cleanup process. Looked at from that perspective, all three of the 
primary bills before Congress--S. 350, the bill which passed the 
Senate, and which forms the basis for both of the draft proposals in 
the House: the House Majority bill draft; and the House Minority bill 
draft--address these issues to differing degrees. The State of New York 
believes, however, that of these three bills the House Majority draft 
would provide the greatest benefit to municipalities and non-
responsible parties that volunteer to clean up sites. Further, we 
believe that the passage of brownfields legislation should be a 
priority for this Congress, but it must be legislation that encourages 
the actual cleanup of brownfields.
House Majority Draft
    The House Majority's draft legislation is favored by New York State 
for three primary reasons: it provides a mechanism for finality, 
requires gubernatorial concurrence for listing a site on the National 
Priority List, and provides much needed funding for the investigation 
and cleanup of brownfields. I will address these points briefly below.
    First, the House Majority draft expands and enhances the finality 
language included in S. 350 which is vital to improving the 
effectiveness and pace of brownfield cleanups. There is no question 
that brownfield redevelopments currently are hindered by the pervasive 
fear of federal liability under the Superfund statute even in instances 
where a site has been remediated to the satisfaction of the state. What 
the State of New York, as well as the National Governors Association 
and the Environmental Council of the States, strongly recommends is 
language that at brownfield sites, the burden should be on USEPA to 
show that the Governor was notified and given a reasonable opportunity 
to correct the problem, or threat of the problem, and was unwilling or 
unable to take appropriate action. Of course, if USEPA needed to take 
emergency action to protect public health or the environment, and the 
state was unwilling to respond, intervention by the federal government 
might be appropriate. Similarly, a state could ask for federal 
assistance in cleaning up any site if the circumstances warrant it.
    The House Majority draft effectively addresses this barrier by 
shielding a party from additional cleanup action by the federal 
government when such party investigates and remediates a brownfield 
under a state brownfield program that meets the USEPA's criteria; 
except in very limited circumstances. We think that the finality 
provisions of your discussion draft are a fair compromise between the 
various points of view and sufficiently narrowly outline the 
circumstances where intervention from USEPA is justifiable. In addition 
to the state-request, and state-line or federal property migration 
exceptions, your draft bars Superfund liability unless USEPA determines 
not only that a release or threatened release presents an ``imminent 
and substantial endangerment'' to public health or welfare, but also 
that an emergency situation exists, and that the State will not quickly 
respond. Your draft also provides a reasonable 72-hour period of time 
for a state to reply to USEPA of the action it intends to take, while 
maintaining an option for USEPA to take immediate action if necessary. 
These are reasonable conditions, and we believe that the House Majority 
draft's treatment of the finality issue provides the certainty needed 
to encourage more parties to cleanup brownfield properties across this 
country.
    We respectfully request, however, that the House consider including 
a provision that will further address the finality issue. The 
legislation should prevent the federal government from recovering its 
past response costs at sites remediated under a state brownfield 
program when the party conducting the cleanup is not the party 
responsible for the contamination. Such a provision was included in 
H.R.1750 of the 106th Congress introduced by Congressman Towns. To not 
give this assurance to developers who are spending thousands, or 
hundreds of thousands, of dollars to cleanup and redevelop brownfields 
reduces the chances that such redevelopments will happen--the exact 
opposite of what is intended by the legislation.
    Second, the House Majority draft would require the Governor's 
concurrence prior to listing a site on the National Priorities List 
(NPL). This requirement is important to New York State, since it 
demonstrates a deference to the actions being taken under the State's 
remedial programs. It recognizes that the majority of the activities to 
remediate brownfields will be undertaken at the State or local level. 
The right of concurrence on new NPL listings ensures that states have 
the right of first action at contaminated sites, and where a state is 
proceeding with cleanup, or has plans to do so, the federal government 
will defer. As states are closer to the sites and to the affected 
communities, such deference is entirely appropriate. This right of 
concurrence applies only to long-term cleanup and does not in any way 
limit USEPA's authority to respond to immediate problems. Nor does it 
in any way impede USEPA's ability to take action at the hundreds of 
sites that are already listed on the NPL.
    Placement of new sites on the NPL without the concurrence of the 
Governor when a state is prepared to apply its own authority would not 
only be wasteful of federal resources, it would be counterproductive, 
resulting in increased delays and greater costs. Over the years, USEPA 
has recognized that states are currently overseeing most cleanups, and 
has, as a discretionary matter, sought gubernatorial concurrence before 
listing a site. In New York State, USEPA's Region 2 office does not 
place sites on the NPL unless the State formally requests that a site 
be listed. This process works well, fosters an excellent working 
relationship between USEPA and the State, and allows for predictability 
as to what will be placed on the NPL. Therefore, New York recommends 
having this informal policy codified in law to assure that it continues 
throughout future administrations. We greatly appreciate the inclusion 
of a provision in the House Majority draft requiring gubernatorial 
concurrence before a site is listed on the National Priorities List, 
except in limited situations.
    Third, the House Majority draft provides another important tool to 
the cleanup and redevelopment of brownfields: funding. I commend your 
effort and strongly urge you to make the states a full partner in this 
effort by authorizing states, like New York, that demonstrate that they 
have programs, policies and procedures in place to administer 
brownfield grant and loan programs, to manage this effort on behalf of 
the federal government.
    States such as New York, with sophisticated environmental 
restoration management programs, should receive preferential funding 
under a Congressional brownfields bill. State population levels also 
should be a major criteria for the distribution of the funds, 
consistent with other federal programs. In addition, we recommend that 
the bill include provisions that USEPA will provide funding through 
existing state programs rather than directly to municipalities. Through 
implementation of these recommendations, New York believes that the 
federal funds will be used in the most cost-effective and efficient 
manner.
    This proposed funding structure parallels many existing 
environmental and public health protection programs and provides for an 
effective federal-state-local partnership. The existing Clean Water and 
Drinking Water State Revolving Funds, for example, are excellent 
examples of these beneficial partnerships. In addition, through such 
efforts as the Clean Water/Clean Air Bond Act and the Voluntary Cleanup 
Program, New York State already has an excellent understanding of the 
investigation and cleanup process which municipalities and others are 
undertaking. Federal legislation should take advantage of this existing 
base of knowledge.
    We also concur with the position of the House Majority draft 
regarding the necessity of dispensing with National Contingency Plan 
(NCP) compliance. While the House Majority draft clearly states that 
NCP compliance is not required, other legislative proposals have 
qualified NCP compliance in such a way as to make its applicability 
less certain. In doing so, this language would have the effect of 
discouraging participation in brownfields programs. New York's 
experience indicates that we can reach our objective of making 
brownfields cleanups protective of public health and the environment 
without requiring adherence to the NCP.
    Finally, I urge you to avoid language which would require a state 
or local government to conduct an inventory of brownfields sites in 
order to receive a brownfields grant or loan. In New York, we have 
found that communities are reluctant to identify individual properties 
as contaminated or potentially contaminated. Such an identification can 
create a stigma which negatively affects the property from an economic 
and community perspective.
    Governor Pataki and I appreciate your consideration of our views on 
this extremely important federal initiative. We commend you for your 
efforts and recognize the need for such a measure. The creation of this 
federal, state, and local partnership is crucial to return brownfields 
to productive use and improve the quality of life for our citizens.

    Mr. Gillmor. Thank you very much.
    I also wanted to mention that Congressman Fossella from New 
York who is a member of this panel was hoping to be here to 
introduce you to the panel.
    And, Commissioner Gonzales, the same is true of 
Congresswoman Wilson. But she was also detained on the floor, 
so on their behalf I will give you a special welcome.
    But go ahead, Commissioner.

                STATEMENT OF HON. JAVIER GONZALES

    Mr. Gonzales. Thank you, Mr. Chairman. Chairman Gillmor, 
Mr. Pallone, and members of the committee, thank you for 
inviting me to testify on an issue of great importance to 
America's counties and to citizens all across this country--the 
cleanup and revitalization of brownfields.
    My name is Javier Gonzales, and I am a County Commissioner 
from Santa Fe County, New Mexico, and I currently serve as 
President-elect of the National Association of Counties. 
Accompanying me is Larry Naake, the Executive Director of NACO; 
Edwin Rosado, our Legislative Director; and Stephanie Osborn, 
our Associate Legislative Director for Environmental Issues.
    Mr. Chairman, studies have estimated that there are 
hundreds of thousands of brownfield sites--sites containing 
low-level environmental contamination--in the United States. 
They are in suburban and rural America, as well as in our inner 
cities. The cleanup and revitalization of these sites presents 
a win-win scenario for States, counties, citizens, and cities.
    With the right tools, we can improve the health of our 
environment while creating opportunities for economic 
development as well as for parks, green space, and housing. By 
restoring brownfield sites to productive use, we can address 
two major priorities of the Nation's counties. First, we 
facilitate local smart growth planning by providing space for 
in-fill development instead of pushing new development to 
greenfields.
    Second, we help address the Nation's affordable housing 
crisis by clearing the way for cost-effective residential 
development in areas with existing infrastructure. For these 
reasons, NACO strongly supports the enactment of bipartisan 
brownfields legislation in as speedy a manner as possible.
    In past years we have urged the Congress to pass 
brownfields legislation only if it also contained a provision 
to codify the EPA's municipal settlement policy under 
Superfund. We still believe legislation to address municipal 
liability is needed. However, we now believe the time has come 
to enact stand-alone brownfields legislation in a timely manner 
while Congress continues to grapple with Superfund reforms.
    With regard to the three bills before us today, first let 
me say that each of them has tremendous merit. From the 
perspective of a county official, the bills have much more in 
common than they have differences.
    In particular, NACO supports the 5-year, $200 million 
annual authorization for brownfields grants to counties and 
other local governments contained in all three bills, as well 
as the provision to extend eligibility for 25 percent of those 
funds to sites contaminated by petroleum. Adequate funding for 
these programs is of paramount importance to NACO.
    NACO offered its support for S. 350 as the bill was being 
considered by the Senate earlier this year. Though we are 
encouraging the House to work its own will on brownfields, we 
believe the Senate bill contains the major elements needed in 
brownfields legislation. And we continue to recognize the 
careful bipartisan balance struck in the Senate's passage of 
the bill.
    Therefore, we are pleased that both the Gillmor discussion 
draft, the Democratic discussion draft, have used S. 350 as the 
foundation for a House brownfields bill.
    With regard to the Gillmor discussion draft, NACO has 
identified three areas that we believe represent improvements 
to S. 350. The first is the draft bill's approach to 
eligibility. NACO supports a flexible program that extends 
brownfields eligibility to portions of larger sites at which 
environmental response action is required, so long as a portion 
of the site eligible is not the subject of the response action.
    Second, NACO endorses the notion of further devolving the 
authority and responsibility to oversee the cleanup of 
brownfield sites to States and local governments--a concept 
contained in each of the three bills. We support the State 
finality provisions contained in this draft bill which outline 
the narrow circumstances where the Federal safety net may be 
necessary and EPA should intervene.
    Finally, NACO supports procedural streamlining of the 
permitting process for the cleanup of brownfield sites. 
Simplifying the permitting process would provide for more 
timely and cost-effective cleanups while not affecting 
compliance with the substantive environmental requirements 
contained in the current law.
    With regard to the Democratic discussion draft, we support 
the following revisions to S. 350. First, we support the 
addition of brownfields worker training and safety program 
authorized at $20 million annually. And, second, we support the 
inclusion of general minimum criteria that a State program must 
meet before Federal enforcement authority is restricted under 
the bill's finality provisions. These assurances help balance 
the authority devolved to the States under this legislation.
    In summary, Mr. Chairman, we commend the authors of all 
three bills being examined at today's hearing. Each of them is 
built from the same strong foundation and each has merit. 
Again, we are encouraged by the Senate's bipartisan effort in 
support of S. 350.
    NACO supports similar bipartisan efforts in attaining House 
passage, a smooth conference with the Senate, and a final bill 
that can be signed by the President. We want to work with the 
Republicans and the Democrats in this effort.
    Mr. Chairman, Mr. Pallone, on behalf of the National 
Association of Counties, I thank you for your leadership on 
this important issue and for inviting testimony from county 
government perspective.
    Thank you.
    [The prepared statement of Hon. Javier Gonzales follows:]

  Prepared Statement of Hon. Javier Gonzales, Commissioner, Santa Fe 
    County, New Mexico and President-Elect, National Association of 
                                Counties

    Chairman Gillmor, Mr. Pallone and members of the committee, thank 
you for inviting me to testify on an issue of great importance to 
counties across the country--the cleanup and revitalization of 
brownfields.
    My name is Javier Gonzales, and I am a County Commissioner from 
Santa Fe County, New Mexico. I currently serve as President-Elect of 
the National Association of Counties.
    The National Association of Counties (NACo) is the only national 
organization representing counties in the United States. Our membership 
is comprised of counties large and small, urban, suburban and rural. 
County governments have the day-to-day responsibility for local land-
use planning, environmental protection, economic growth and stability, 
and the general health and welfare of the citizens in our communities.
    Studies have estimated that there are hundreds of thousands of 
brownfields sites--sites containing low-level environmental 
contamination--in the Unites States. They are in suburban and rural 
America, as well as in our inner cities. The cleanup and revitalization 
of these sites presents a win-win scenario for states, counties, 
cities, and our citizens. With the right tools, we can improve the 
health of our environment while creating opportunities for new economic 
development, as well as for parks and green space.
    By restoring brownfields sites to productive use, brownfields 
cleanup and revitalization helps address two major priorities of the 
nation's counties. First, it facilitates the implementation of local 
smart growth plans by providing space for infill development, instead 
of pushing new development to outer-lying, previously undeveloped areas 
(green fields). And in rural areas, such as parts of my home county of 
Santa Fe, directing development to these sites enables us to better 
protect agricultural lands and the character of small town America.
    Second, brownfields revitalization addresses a county priority by 
creating opportunities for housing development. NACo believes that this 
country is facing an affordable housing crisis, and that the 
redevelopment of these sites can help clear the way for cost-effective 
residential development in areas with existing infrastructure.
    For these reasons, NACo strongly supports the enactment of 
responsible, effective and bipartisan brownfields legislation, in as 
speedy a manner as possible.
    Two weeks ago, NACo's Large Urban County Caucus, representing 
America's 100 largest counties, with over 48 percent of the U.S. 
population, conducted a legislative fly-in in which affordable housing 
and the need for brownfields legislation were the major topics of 
discussion with Congressional leadership in the House and Senate.
    In past years, as you may remember, we have urged the Congress to 
pass brownfields legislation only if it also contained a provision to 
codify the Environmental Protection Agency's Municipal Settlement 
Policy under Superfund. Although that legislative strategy has not 
succeeded, we still believe legislation to address municipal liability 
under Superfund is needed. However, we now believe the time has come to 
enact stand-alone brownfields legislation in a timely manner, while 
Congress continues to grapple with Superfund reforms.
    In that light, I wish to thank the members of this committee for 
placing such a high priority on brownfields legislation. NACo believes 
that federal brownfields legislation is needed to:

 Shore up and refine the successful U.S. EPA brownfields 
        characterization, assessment and remediation grants program;
 Extend eligibility to sites contaminated by petroleum or 
        petroleum byproducts; and
 Further devolve the authority to oversee brownfields cleanups 
        to the state and local level.
    With regard to the three bills before us today--the Senate-passed 
bill (S. 350), the Gillmor discussion draft of June 13, and the 
Democratic discussion draft of June 20--first let me say that each of 
them has tremendous merit and, from the perspective of a county 
official, the bills certainly have more in common than they have 
differences.
    In particular, NACo supports the five-year, $200 million annual 
authorization for brownfields characterization, assessment and 
remediation grants to counties and other local governments contained in 
all three bills, as well as the provisions to extend eligibility for 25 
percent of those funds to sites contaminated by petroleum or petroleum 
products. This type of assistance has proven to jump-start the cleanup 
and revitalization of brownfields sites counties in across the country. 
Adequate funding for these grant programs is of paramount importance to 
NACo.
    NACo also supports the liability clarifications for contiguous 
properties, prospective purchasers and innocent landowners contained in 
each bill. These provisions help remove the chilling effect that 
currently serves as a disincentive to revitalize brownfields sites.
    With regard to S. 350:
    NACo offered its support for S. 350 as it was being considered by 
the Senate earlier this year. Though we are encouraging the House to 
works its own will on brownfields legislation and to consider 
adjustments to S. 350, we believe the bill contains the major elements 
needed in brownfields legislation. And we continue to recognize the 
careful, bipartisan balance struck in the Senate's passage of the bill. 
Therefore, we are pleased that both the Gillmor discussion draft and 
Democratic discussion draft have used S. 350 as the foundation for a 
House brownfields bill.
    With regard to the Gillmor discussion draft, NACo identified three 
areas that we believe represent improvements to S. 350:

 The first is the draft bill's approach to brownfields 
        eligibility exclusions. NACo supports a flexible program that 
        extends brownfields eligibility to portions of sites at which 
        Superfund, RCRA or other environmental response action is 
        required, so long as the portion of the site eligible for 
        brownfields assistance is not the subject of such requirements. 
        We believe that lesser contaminated portions of these sites 
        should not unilaterally be excluded from eligibility, and that 
        decisions to provide brownfields assistance at these sites 
        should be made on a case-by-case basis.
 Second, NACo endorses the notion of further devolving the 
        authority and responsibility to oversee the cleanup and 
        revitalization of brownfield sites to states and local 
        governments--a concept contained in each of the three bills. We 
        support the state finality provisions contained in this draft 
        bill, which outline the narrow circumstances where the federal 
        safety net may be necessary and EPA should intervene; that is, 
        when circumstances at the site ``present an imminent and 
        substantial endangerment to public health, welfare or the 
        environment'' and ``the State will not take the necessary 
        response actions in a timely manner.'' Under such 
        circumstances, NACo supports providing the EPA Administrator 
        with the authority to take immediate action, as outlined in the 
        bill.
 Finally, NACo supports procedural streamlining of the 
        permitting process for the cleanup of brownfields sites. 
        Simplifying the permitting process would provide for more 
        timely and cost-effective cleanups, while not affecting 
        compliance with the substantive requirements contained in 
        current law. We support the approach of requiring the EPA 
        Administrator to promulgate such a regulation, and would look 
        forward to working with the Administrator during the rulemaking 
        process.
    With regard to the Democratic discussion draft, we support the 
following revisions to S. 350:

 First, we support the addition of a brownfields worker 
        training and safety program authorized at $20 million annually. 
        As proposed, the program would be used to support important 
        programs to train and educate workers directly engaged in 
        brownfields cleanup and redevelopment, including those 
        conducting hazardous waste cleanups, as well as local 
        government officials and the public.
 Second, we support the inclusion of general minimum criteria 
        that a state response program must meet before federal 
        enforcement authority is restricted under the bill's finality 
        provisions, such as are used in negotiating current Memoranda 
        of Agreement between EPA and the states. Such assurances would 
        help balance the authority devolved to the states under this 
        legislation, and we have supported these provisions in previous 
        brownfields bills. (We also support conditioning grants to the 
        states on minimum criteria, as included in S. 350.)
    In summary, we commend the authors of all three bills being 
examined at today's hearing. Each of them is built from the same strong 
foundation, and each has merit.
    Again, we are extremely encouraged by the Senate's bipartisan 
effort in support of S. 350. NACo supports similar bipartisan efforts 
in seeking agreements from both sides of the aisle in attaining House 
passage, a smooth conference with the Senate and a final bill that can 
be signed by the President. We want to work with Republicans and 
Democrats in this effort.
    Mr. Chairman, Mr. Pallone, on behalf of the National Association of 
Counties, I thank you for your leadership on this issue, and for 
inviting testimony from the county government perspective. I would be 
pleased to answer any questions you may have.

    Mr. Gillmor. Thank you, Commissioner.
    I will now recognize Mr. Pallone of New Jersey to introduce 
the Mayor from New Jersey.
    Mr. Pallone. Thank you, Mr. Chairman. And let me say that 
Mayor Chris Bollwage is the Mayor of Elizabeth, New Jersey, and 
Elizabeth may be one of the best examples of a major city in 
our State that has made great strides in terms of 
redevelopment, not only its residential but its commercial 
districts.
    And Mayor Bollwage has, in particular, played a major role, 
had to deal with a lot of brownfield sites which I think has 
been--his success in that has been a major part of the 
redevelopment effort in Elizabeth, and he really is looked at 
around the State as sort of a model for a larger city mayor in 
New Jersey who can accomplish a great deal with redevelopment, 
at the same time taking concerns of the environment at heart.
    So thank you for being here, Chris.

             STATEMENT OF HON. J. CHRISTIAN BOLLWAGE

    Mr. Bollwage. Thank you, Congressman. Don't tell the two 
mayors that are running for Governor that statement.
    Mr. Pallone. I know. I was thinking of that today.
    Mr. Bollwage. Good morning, Mr. Chairman and members of the 
subcommittee. I am Chris Bollwage, the Mayor of Elizabeth, and 
I am pleased to testify today on behalf of The United States 
Conference of Mayors, the national mayors organization 
representing more than 1,000 cities with a population of 30,000 
or more. I currently serve as an Advisory Board member as well 
as the co-chair of the Brownfields Task Force.
    Mr. Chairman, ranking member Pallone, I would like to begin 
my comments by commending you and members of this subcommittee 
for moving forward with brownfields legislation. The enactment 
of bipartisan brownfields legislation has been among our 
conference's top priorities for 7 years. And I would like to 
deliver one message on behalf of the Nation's mayors--that we 
need prompt, bipartisan action on brownfields legislation.
    While we can engage in discussion about how to craft 
specific provisions of the legislation, debate both substantive 
and technical changes, the overriding issue is, how do we come 
to a broad bipartisan agreement on this legislation?
    The Nation's mayors urge all of you to craft a bipartisan 
agreement on brownfields. This has been, and continues to be, 
the central tenet of the conference's policy on brownfields 
legislation. And just for the record, at no time, Mr. Chairman, 
has the Conference of Mayors endorsed or supported a partisan 
legislative proposal on these matters.
    I was pleased this past weekend to cosponsor a policy 
statement with Charlotte Mayor Patrick McCrory, the Chair of 
the Conference's Energy and Environment Committee, and Green 
Bay Mayor Paul Jadin, in a bipartisan group of mayors calling 
for bipartisan congressional action.
    The message of this policy statement is bipartisanship. The 
mayors call upon the House leadership of both parties to come 
together to craft a bipartisan agreement and to do so promptly. 
The mayors have called upon President Bush in Detroit to 
request the House leaders to seek some bipartisan action, and 
we urge the House of Representatives to adopt Senate-passed 
legislation S. 350 if ongoing House efforts fail to develop a 
timely and broad bipartisan agreement on brownfields 
legislation.
    Our position provides you with the opportunity to work 
cooperatively in crafting a bipartisan agreement. Failing to 
generate such an agreement in a timely manner, the mayors would 
then urge you simply move forward and pass Senate legislation 
S. 350.
    Close behind the funding is the need for liability relief 
for innocent parties. Again, each of the pending bills before 
you have provisions that protect innocent parties, focusing on 
developers and other parties who are seeking to clean up and 
redevelop these sites.
    In addition, there are other parties like contiguous 
landowners that are given protection under the legislation 
before you. We must ensure that people who get protection under 
these provisions are innocent parties.
    In this Congress, the decision has been made, and rightly 
so, to move a brownfields only bill--a position strongly 
advanced by President Bush and our former Governor, Christine 
Todd Whitman, in their support of S. 350. It appears now that 
there are some efforts to use brownfield legislation as an 
umbrella to extend brownfield-related provisions to sites which 
are not truly brownfields.
    And, Mr. Chairman, as Congressman Pallone said, we have 
developed brownfields in the city of Elizabeth, a former 
landfill that is now a 166-acre site that has a 1.2 million 
square foot mall, three hotels, a movie theater opening in the 
summer, plus 750,000 square feet of office space. I welcome 
anyone on the committee to get more information on that. I can 
provide it to Congressman Pallone.
    Mr. Chairman, on each of these issues, my statement 
addresses funding, liability, finality, and definitional issues 
with the full text for the record. It is clear that the Senate 
has found ways to reach broad agreements on these issues. In 
fact, on the issue of finality as one example, they rightly 
concluded that their agreement, while short of what some might 
advocate, will positively affect an overwhelming percentage of 
the many brownfield sites throughout the Nation.
    As such, the finality provisions in the Senate were broadly 
supported. EPA Administrator Whitman, a former Governor, agrees 
with the Senate approach. I was there when she testified. We 
also agree with the Senate's stance on these issues.
    We urge this panel to work in the same spirit as the 
Senate, work to reach similar, broad, bipartisan agreements to 
allow this legislation to move forward. The technical nuances 
of one provision over another will matter little at the end of 
the day if you cannot reach a bipartisan agreement.
    Earlier this week our conference leaders met with President 
Bush to talk about our priority issues before he spoke to the 
full conference membership on face-based initiatives in 
Detroit. We underscored the need for a bipartisan agreement in 
the House, praising him for the support of the Senate bill. He 
indicated that enactment of brownfields legislation is among 
his priorities and noted his support of the Senate's bipartisan 
legislation.
    We need this body to move forward on a bipartisan basis, so 
that we can accelerate our efforts to address this critical 
national problem.
    Mr. Chairman, and members of the subcommittee, ranking 
member Pallone, you can count on the Nation's mayors for strong 
support. Thank you very much for this opportunity, Mr. 
Chairman, and it is good to see you, Congressman Pallone.
    [The prepared statement of Hon. J. Christian Bollwage 
follows:]
Prepared Statement of Hon. J. Christian Bollwage, Mayor, Elizabeth, NJ 
          on Behalf of The United States Conference of Mayors
    Good morning, Mr. Chairman and Members of the Subcommittee, I am J. 
Christian Bollwage, Mayor of Elizabeth, New Jersey.
    I am pleased to testify today on behalf of The United States 
Conference of Mayors, the national mayors' organization representing 
more than 1,000 cities with a population of 30,000 or more.
    Today I will speak to the position of the Conference of Mayors 
regarding the pending brownfield proposals--Chairman's Discussion 
Draft, Democratic Discussion Draft and S. 350, the Senate-passed bill--
now before this Subcommittee.
    Within the Conference, I am a Member of the Advisory Board and I 
also serve as a Co-chair of the organization's Brownfields Task Force, 
a position I have held since that panel was first established in 1996. 
Given these positions, I have been extensively involved in these issues 
for some time.
    Mr. Chairman and Ranking Minority Member Pallone, I would like to 
begin my comments by commending you and Members of this Subcommittee 
for moving forward with brownfields legislation. The enactment of 
bipartisan brownfields legislation has been among the Conference's top 
priorities for several years. In fact, this is now our third Congress 
where we have been urging bipartisan Congressional action on this 
legislation.
    Mr. Chairman, I want to deliver one message on behalf of the 
nation's mayors and this is: we need prompt bipartisan action on 
brownfields legislation. While we can engage in discussion about how to 
craft specific provisions of the legislation, and debate both 
substantive and technical changes, the overriding issue is how we come 
to a broad bipartisan agreement on this legislation.
Need for Bipartisan Action on Brownfields
    Mr. Chairman, the nation's mayors urge you to craft a bipartisan 
agreement on brownfields. This has been and continues to be the central 
tenet of the Conference's policy on brownfield legislation. At no time, 
Mr. Chairman, has the Conference of Mayors endorsed or supported a 
partisan legislative proposal on these matters.
    Earlier this week, the Membership of the Conference of Mayors 
renewed its call for a broad bipartisan agreement on brownfields 
legislation. Mr. Chairman and Members of this Subcommittee, I call you 
attention to the policy statement, Bipartisan Action on Brownfields 
Legislation, which was adopted Monday, June 25 by our Membership during 
our 69th Annual Meeting in Detroit.
    I was pleased to sponsor this policy statement with Charlotte Mayor 
Patrick McCrory, the Chair of the Conference's Energy and Environment 
Committee, and Green Bay Mayor Paul Jadin. It is a bipartisan group of 
mayors, calling for bipartisan Congressional action.
    The message of this policy statement is bipartisanship. In this 
statement, the mayors call upon the House Leadership of both parties to 
come together to ``craft a bipartisan agreement and to do so 
promptly.'' The mayors also call upon President Bush ``to request House 
Leaders to seek prompt bipartisan action.'' Finally, the mayors urge 
the House of Representatives to ``adopt the Senate-passed legislation 
(S. 350), if ongoing House efforts fail to develop a timely and broad 
bipartisan agreement on brownfields legislation.''
    Our position provides you with the opportunity to work 
cooperatively in crafting a bipartisan agreement. Failing to generate 
such an agreement in a timely manner, the mayors would urge you to 
simply move forward with the Senate-passed legislation, S. 350.
Elements of an Agreement
    Mr. Chairman, the proposals before you today share some common 
elements that the mayors have consistently supported. We have called 
for resources at the local level to support city and county programs to 
assess and cleanup these sites. The pending bills before you have 
funding elements in them that are generally consistent.
    In our survey work at the Conference, where we conduct annual 
surveys of our membership, federal funding for these local efforts was 
the top need that was identified in each of three surveys of cities. 
This information simply underscores the importance of a strong funding 
element in this legislation.
    Close behind funding is the need for liability relief for innocent 
parties. Again, each of the pending bills before you have provisions 
that protect innocent parties, focusing on developers and other parties 
who are seeking to cleanup and redevelop these sites. In addition, 
there are other parties like contiguous landowners that are given 
protection under the legislation before you. We must ensure that people 
who get protection under these provisions are ``innocent parties.''
    We have also called for more clarity on the relationship between 
the federal government and the states on brownfield cleanups and other 
matters. As you know, this element is generally defined by the debate 
over what is called ``finality.''
    These issues--funding, liability relief and the federal/state 
relationship--constitute the core elements of a brownfield package.
    These three elements need to be supported by a clear and 
appropriate definition of what constitutes a brownfield. This is an 
area that needs particular attention in the final House version of the 
legislation to ensure that the sites that are the focus of the 
legislation, be it liability protection, funding or priority under 
state cleanup programs, are truly brownfield sites.
    In this Congress, the decision has been made, and rightly so, to 
move a brownfields only bill, a position strongly advanced by President 
Bush and Governor Christine Todd Whitman in their support of S. 350.
    It appears now there are some efforts to use brownfield legislation 
as an umbrella to extend brownfield-related provisions to sites, which 
are not truly brownfields. Here I am talking about more seriously 
contaminated sites, usually characterized as NPL or NPL-caliber sites. 
We would urge you to abandon provisions that characterize sites as 
brownfields, particularly where there are current owners/operators who 
are responsible for contamination at these sites, so they can realize 
relief or other protections/considerations for contamination that they 
caused. This is a direction we would oppose.
    Mr. Chairman, on each of the issues that I have outlined--funding, 
liability, finality and definitional issues--it is clear that the 
Senate found ways to reach broad agreements on these issues. In fact, 
on the issue of ``finality'', as one example, they rightly concluded 
that their agreement, while short of what some might advocate, will 
positively affect an overwhelming percentage of the many brownfield 
sites throughout the nation. As such, the finality provisions in the 
Senate were broadly supported. EPA Administrator Christine Todd 
Whitman, a former Governor, agrees with the Senate approach. We also 
agree with the Senate's stance on these issue.
    We urge this panel to work in the same spirit as the Senate and 
work to reach similar broad bipartisan agreements to allow this 
legislation to move forward. The technical nuances of one provision 
over another will matter little, at the end of the day, if you can't 
reach a bipartisan agreement.
Concluding Remarks
    Mr. Chairman, I want to underscore the call of the nation's mayors 
for bipartisan action on brownfields legislation. Bipartisan action is 
a formula that works.
    Earlier this week, our Conference leaders met with President Bush 
to talk about our priority issues before he spoke to the full 
Conference Membership on faith-based initiatives. We underscored the 
need for a bipartisan agreement in the House, praising him for his 
support of the Senate bill. He indicated that enactment of brownfields 
legislation is among his priorities and noted his support of the 
Senate's bipartisan legislation.
    Let me recap. President Bush has made enactment of brownfields 
legislation a priority. The United States Senate has voted 99-0 on its 
proposal, S. 350. We need this body to move forward on a bipartisan 
basis so that we can accelerate our efforts to address this critical 
national problem.
    To this end, Mr. Chairman and Members of this Subcommittee, you can 
count on the strong support of the nation's mayors.

    Mr. Gillmor. Thank you, Mayor.
    Delegate Billings?

               STATEMENT OF HON. LEON G. BILLINGS

    Mr. Billings. Thank you, Mr. Chairman, Representative 
Pallone. I am Maryland's State Delegate, Leon Billings. I 
appear before you today on behalf of the National Conference of 
State Legislatures, where I currently serve as Vice Chairman of 
the Environment Committee.
    Enactment of brownfields legislation in the 107th Congress 
is a top priority for NCSL. NCSL has in its last formal meeting 
adopted a separate resolution on brownfields. It is a 
resolution which, as you know, Mr. Chairman, it is difficult to 
get a resolution through NCSL. This resolution was adopted 
unanimously. And interestingly enough, it parallels very 
closely the position taken by the administration witness this 
morning.
    The following objectives are outlined in that resolution. I 
will briefly review them. One, define brownfields so as to 
separate them from those Superfund site or sites with 
sufficient contamination to be concerned about potential future 
offsite impacts or potential future use.
    Two, allow States to determine whether or not a site is a 
brownfield against a Federal statutory definition. And if a 
State determines that a brownfield site is free of 
contamination or can be cleaned up enough for the designated 
deed-restricted use, a State should be authorized to immunize a 
developer from liability or future cleanup responsibility.
    The prepared State action should immunize parties from any 
liability for contamination that they did not contribute to or 
cause. Retain States' primary responsibility for brownfields 
redevelopment program, grandfather existing State voluntary 
cleanup programs and memorandums of agreement, and increase 
Federal funding for assessment and cleanup of brownfield sites.
    Let me emphasize, Mr. Chairman, brownfields legislation 
should be free-standing and relate only to the narrow purpose 
of allowing States to redevelop abandoned, underutilized, 
industrial and commercial property for which there is minimum 
likelihood of offsite contamination or endangerment to health 
and welfare of subsequent users. And it should not be used as a 
means to achieve other Superfund-related agendas.
    I will stop at that point. I have a complete statement. I 
would like to make one observation. There has been much 
discussion about funding. Speaking only as a delegate from the 
State of Maryland, Mr. Chairman, the issue of finality is the 
issue with which we are dealing in our State. If we cannot 
immunize our developers from Federal liability action, we are 
not going to have a brownfields program.
    Funding is secondary. While we would like to have the 
money, thank you, give us finality and we will worry about the 
money ourselves--speaking, again, only for Maryland.
    [The prepared statement of Hon. Leon G. Billings follows:]
Prepared Statement of Hon. Leon G. Billings, Delegate, Maryland General 
Assembly, Vice Chair, NCSL Environment Committee on Behalf of National 
                    Conference of State Legislatures
    Mr. Chairman, members of the committee, I am Maryland State 
Delegate Leon Billings. I appear before you today on behalf of the 
National Conference of State Legislatures (NCSL). I currently serve as 
a Vice Chair of NCSL's Environment Committee of the Assembly on Federal 
Issues.
    NCSL is a bipartisan organization representing all state 
legislators from all 50 states and our nation's commonwealths, 
territories, possessions and the District of Columbia. The focus of 
NCSL's policies and advocacy activity is the development and 
maintenance of workable state-federal partnerships, preservation of 
state authority, protection against costly unfunded mandates and the 
promotion of fiscal integrity. I appreciate the invitation to speak to 
you today about the brownfields proposals before the 107th Congress.
    Let me start by voicing NCSL's support for the enactment of 
brownfields legislation in the 107th Congress. It is a top priority for 
NCSL. Several states have over 20 years of experience on this issue, 
and it is essential that federal brownfields legislation further their 
development and successes. NCSL has a brownfields policy, which is 
submitted with the testimony.
    We commend Representatives Gillmor and Pallone, as well as Senators 
Smith, Reid, Boxer and Chafee for their efforts to draft brownfields 
legislation and we look forward to working with you on this issue as it 
moves through the legislative process. My comments will outline what 
NCSL considers to be essential elements in a federal brownfields bill. 
While I will talk further on each issue, NCSL supports brownfields 
legislation that accomplishes the following objectives:

 Defines brownfields so as to separate them from those 
        Superfund sites or sites with sufficient contamination to be 
        concerned about potential future off-site impacts or potential 
        future use.
 Allows states to determine whether or not a site is a 
        brownfield against a federal statutory definition and, if a 
        state determines that a brownfield site is free of 
        contamination or can be cleaned enough for a designated, deed 
        restricted use, a state should be authorized to immunize a 
        developer from liability or a future cleanup responsibility. 
        That state action should immunize that party or parties from 
        any liability for contamination they did not cause.
 Retains states' primary responsibility for brownfields 
        redevelopment programs. States should be allowed flexibility to 
        determine all aspects of the state brownfields programs in 
        order to tailor programs to meet their unique needs.
 Grandfathers existing State Voluntary Cleanup Programs and 
        honors existing Memorandums of Agreement (MOAs) between states 
        and the U.S. Environmental Protection Agency.
 Increases federal funding for the assessment and cleanup of 
        state brownfields.
 Brownfields legislation should be free standing and relate 
        only to the narrow purpose of allowing states to redevelop 
        abandoned, underutilized industrial and commercial property for 
        which there is minimum likelihood of off-site contamination or 
        endangerment of health and welfare of subsequent users and not 
        used as a means to achieve other Superfund related agendas.
    State brownfields programs are an integral part of our nation's 
ongoing efforts to revitalize former industrial and commercial sites 
that may be contaminated, may be unused and may have been abandoned. 
These programs provide a significant benefit to both the environment 
and the economy of impacted local communities. With increased concerns 
over urban sprawl and the growing infrastructure gap, investing more 
resources in the cleanup of the estimated 450,000 to 600,000 
brownfields nationwide makes sense and is good public policy.
                                funding
    NCSL is encouraged by the commitment all of the proposals make to 
providing federal assistance to states to establish and expand 
voluntary cleanup programs. This builds on fiscal commitments many 
states have made and, futhermore, the addition of public funds would 
assist in closing the gap where the private sector funds are 
unavailable, providing states the necessary resources to initiate 
cleanup.
    To the extent federal financial assistance is provided, NCSL 
encourages Congress to ensure that states are provided flexibility 
regarding expenditure of these funds. This is extremely important for 
the forty-seven states that currently have voluntary cleanup programs 
in place. State programs offer a wide variety of incentives--tax breaks 
for cleanups and the creation of new jobs, low interest rate loans and 
grant--subsidized technical assistance--to facilitate brownfields 
redevelopment. States need to be ensured the flexibility to develop 
programs to address their unique barriers to reach the common goal of 
cleanup and reuse.
    NCSL supports worker training and safety grants. The safety of 
employees engaged in hazardous waste and redevelopment activities and 
emergency response activities is an important part of the brownfields 
cleanup process. Funds for these grants should be in addition to, not 
taken from existing environmental programs.
    Over 16,000 sites have gone through State Voluntary Cleanup 
Programs, according to the Northeast-Midwest Institute. Here are just a 
few success stories from my home state of Maryland:
Former Industrial Site: Now a Mixed Use
    The first Voluntary Cleanup Program in the southeast neighborhood 
of Canton, Maryland, took a 4.5 acre site with five abandoned 
warehouses and factory buildings (the oldest use, a cannery dating back 
to 1895) and turned it into mixed office and retail project. The 
project can be credited with the creation of at least 140 jobs in the 
area. The $20 million dollar project required an investment of between 
$50,000 and $150,000 for underground encapsulation of lead-contaminated 
soil. According to the Maryland Department of Environment, the property 
tax has increased from $50,000 to $300,000 since redevelopment.
Former Industrial Site: A New Industrial Site
    A second site, Port Liberty, is 30 acres located in Baltimore City. 
The former industrial site will now be the home to two new industries, 
the American Post Services, an automobile importer, and Caldwell Cable 
that produces fiber optics. The project can be credited with the 
creation of at least 360 jobs in the area. The $11 million dollar 
project required a cleanup investment of $500,000.
    In Maryland, a combination of two programs created in 1996 work 
together to encourage the redevelopment of brownfield sites, sites like 
those I have just described that are contaminated or are perceived to 
be contaminated and would therefore go unused. First, the Voluntary 
Cleanup Program, administered by the Department of Environment, 
encourages the redevelopment of contaminated properties through a 
streamlined regulatory process. The program enables eligible purchasers 
of property to substantially limit liability for past contamination 
prior to purchase of the property. Second, the Brownfields 
Revitalization Incentive Program, administered by the Maryland 
Department of Business and Economic Development provides financial 
incentives in the form of tax credits, grants, and loans for 
redevelopment of brownfields properties. These financial incentives 
were modified in 2000 to include qualified loans or grants for an 
environmental assessment of the property in order to determine whether 
and to what extent contamination of the property may exist. The 
environmental assessment of the property has been an important 
component of the success of the Maryland's brownfields program because, 
as you know, even the perception of contamination is a strong deterrent 
to a potential redeveloper of the property.
Residential Use:
    Residential use of brownfields properties is also becoming an 
increasingly viable option. Although Maryland has yet to approve a 
residential project, according to 1999 survey conducted by the 
Northeast-Midwest Institute, California points to 5,200 new housing 
units developed on brownfields sites. Colorado attributed 2,855 new 
units to projects gaining approval through its Voluntary Cleanup 
Program. Michigan has document 1,400 new units at 11 different sties 
across the state.

                                FINALITY

    While programs like the ones I have mentioned above have met with 
considerable success, the potential exposure of future owners to 
Federal cleanup has a chilling effect on investing in property which 
may be contaminated. At best this is an excuse to develop a greenfield 
site: at worst it means that attractive previously used sites with 
available infrastructure are bypassed.
    As a result many brownfield sites remain idle. In the absence of a 
change in federal law, states cannot immunize a person from cleanup 
liability caused by a prior user. As a result, clean up and 
redevelopment opportunities particularly in our older industrial 
centers are lost as well as new jobs, new tax revenues, and the 
opportunity to manage growth.
    Federal law, more particularly CERCLA, lacks flexibility and 
impedes the progress of brownfields development. As the 107th Congress 
considers brownfields legislation, NCSL urges you to adopt legislation 
that:

 Retains states primary responsibility for brownfields 
        redevelopment programs.
 Allows a state to immunize redevelopment parties from 
        liability or a future cleanup responsibility not caused by 
        their actions.
    NCSL recognizes that finality is a contentious issue. Our position 
is based on current practice. States in general have reported that EPA 
is not involved or only minimally active in monitoring voluntary 
brownfileds cleanup programs. EPA officials themselves have indicated 
that EPA has never ``reopened'' a site deemed clean by a state. While 
EPA posture places an extra burden on states to ensure environmental 
protection, NCSL believes states are up to the task.

 In Maryland, we have not revisited any sites, but perform 
        quarterly inspections of each site that has a sign off
 Illinois did revisit one site that had been cleaned to an 
        industrial standard. But that was appropriate due to the fact 
        that there was a proposed change in residential use.
 New York has had a site where additional contamination was 
        discovered, and officials there addressed this by issuing a 
        second voluntary agreement.
    NCSL urges the committee to recognize the pivotal role of states in 
brownfields cleanup. The federal-state partnership in environmental 
protection is a delicate balance that requires vigorous 
intergovernmental cooperation. That relationship has been tested and 
proved effective and any legislation that comes out of this Congress 
needs to recognize that fact. Over 71 percent of major, Federal 
environmental programs have been delegated to the states. Over 80 
percent of all federal and state enforcement actions are taken by State 
environmental officials. States need the authority to provide the 
redevelopers of these otherwise wasted sites meaningful immunity from 
liability from contamination they did not contribute to or cause.
    In addition, non-responsible landowners, including state and local 
governments, renters, or lessees, and institutions or persons financing 
cleanup activities at a brownfields site should be provided similar 
liability protection.

                        EXISTING STATE PROGRAMS

    States have a proven track record when it comes to cleaning up 
brownfields. In order to ensure and advance the continued success of 
these programs under any Federal brownfields legislation, State 
Voluntary Cleanup Programs must be grandfathered and existing 
Memorandums of Agreement (MOAs) between states and the U.S. 
Environmental Protection Agency must be honored.

                             PERMIT PROCESS

    NCSL supports any efforts to streamline, minimize or eliminate the 
federal procedural permitting requirements for actions carried out in 
compliance with a state program. This administrative relief would allow 
states to redirect valuable resources to appropriate needs. A 20% match 
(as proposed in all three documents we are discussing today) might 
discourage states with tight budgets from participating in the program. 
However, if states were ensured of this proposed administrative relief, 
NCSL would find this increase in the match rate somewhat less 
objectionable.

                          ADVISORY COMMISSION

    Given the states' experience in brownfields cleanup, it is 
imperative that states be an integral part of any advisory commissions 
or task forces established to study the issue. If you consider the 
creation of the Advisory Commission on the Concentration and Impact of 
Brownfield Sites on Minority and Economically Disadvantaged 
Neighborhoods, as proposed in the Democratic draft, NCSL urges you to 
expand the membership to include state and local elected officials. If 
you are going to be evaluating Voluntary Cleanup Programs that the 
states fund, it just makes sense to have those of us who make the funds 
available at the table.

                               SUPERFUND

    As previously stated, NCSL supports brownfields legislation that is 
free standing and relates only to the narrow purpose of allowing states 
to redevelop abandoned, underutilized industrial and commercial 
property for which there is minimum likelihood of off-site 
contamination or endangerment of health and welfare of subsequent users 
and not used as a means to achieve other Superfund related agendas.
    If, however, Congress is to include amendments to the Superfund 
program in a brownfields bill, NCSL urges you to:

 Codify EPA's current administrative policy regarding state 
        approval of any new site listings on the National Priority 
        List.
    Thank you for this opportunity to appear before you today on behalf 
of the National Conference of State Legislatures. We look forward to 
working with you on this issue as it moves through the legislative 
process. I welcome your questions on the testimony I have provided.

    Mr. Gillmor. Thank you very much.
    Mr. Johnson?

                 STATEMENT OF GORDON J. JOHNSON

    Mr. Johnson. Good afternoon. My name is Gordon Johnson. I 
am a Deputy Bureau Chief of the Environmental Protection Bureau 
in the Office of New York Attorney General Eliot Spitzer.
    I am appearing today on behalf of Attorney General Spitzer 
and on behalf of the National Association of Attorneys General. 
We very much appreciate the opportunity to appear before the 
committee today to comment on S. 350, which passed the Senate 
by a vote of 99 to nothing, in the two draft bills that the 
subcommittee has before it, each incorporating almost all 
portions of S. 350.
    I am particularly pleased to have been asked back by the 
House members to comment on this legislation, and I am also 
pleased to share the panel today with New York's new 
Commissioner of Environmental Conservation, so that you can 
hear all of the views of New York State and its leaders.
    The passage of S. 350 provides the House with a historic 
opportunity. I have been handling Superfund cases since 1983--3 
years after CERCLA was enacted--and know firsthand the 
successes and problems with that statute. The Attorney 
General's office represents State governments and State 
agencies in Superfund cases, so we are all well aware of the 
ways the statute encourages and discourages cleanups, 
negotiations, and settlement.
    While CERCLA has become strikingly successful in helping 
States obtain cleanups at most sites, there still remain that 
category of sites known as brownfields--abandoned, idled, or 
underused industrial and commercial facilities where expansion 
or redevelopment is complicated by real or perceived 
environmental contamination. Often there is no viable party 
liable for the contamination who can be compelled to clean it 
up.
    S. 350 is a bipartisan bill which is consistent with 
resolutions adopted by the National Association of Attorneys 
General. It is supported by New York's Attorney General 
Spitzer. I have to concede that not every provision standing 
alone pleases everybody, which is perhaps why it is a 
bipartisan bill. But its compromises are carefully crafted. It 
is an intricate balance of give and take among its many 
sponsors who have many views of what our laws should accomplish 
and how they can accomplish that.
    And S. 350 is a bill that should be enacted into law. It 
will bring cities, counties, and States the additional 
resources they need to build effective programs--programs that 
will put idle land back into use and bring jobs into blighted 
communities. S. 350, if enacted, will also ensure that cleanups 
will be finished, that they will protect the public, and those 
involved will be treated fairly in return for their agreement 
to clean up.
    We in Attorney General Spitzer's office have to emphasize 
that attempts to alter the EPA's safety net contained in the 
bill by reducing S. 350 safeguarding of EPA's ability to 
protect the public is unwise. And we are fearful that such 
alterations might doom efforts to obtain brownfields 
legislation. We can't allow that to happen.
    While S. 350 is a historic compromise, the New York 
Attorney General's office believes there is still room for one 
improvement which we think neither side of the debate over S. 
350 would oppose. In order to prevent new landowners from 
reaping a windfall due to an increase in a property's value 
resulting from the Federal Government's cleanup efforts, S. 
350, as well as the two drafts, would create a windfall lien in 
favor of the Federal Government.
    Despite the fact that it is State governments who clean up 
the overwhelming number of sites throughout the country, the 
windfall lien is limited to the Federal Government.
    Attached to my written statement is proposed language 
drafted by my office that would extend the windfall liens to 
States, and thus eliminate the unfair treatment of state's 
expenditures on brownfield sites. In sum, we urge this 
subcommittee and the House to act expeditiously to enact 
legislation that enhances state's brownfields programs in a 
bill that the Senate can also adopt without further extensive 
debate.
    We praise your efforts, and we stand ready to work with you 
to accomplish that goal.
    Thank you.
    [The prepared statement of Gordon J. Johnson follows:]

 Prepared Statement of Gordon J. Johnson, Assistant Attorney General, 
                           State of New York

                              INTRODUCTION

    My name is Gordon J. Johnson, and I am a Deputy Bureau Chief of the 
Environmental Protection Bureau in the office of New York Attorney 
General Eliot Spitzer. I am appearing today on behalf of Attorney 
General Spitzer and on behalf of the National Association of Attorneys 
General (NAAG). We very much appreciate the opportunity to appear 
before the Subcommittee to comment on Senate bill S.350, which passed 
the Senate on April 26, 2001, by a vote of 99 to 0 and was referred to 
the House, and the two draft bills the Subcommittee has before it each 
incorporating most portions of S.350.
    The state Attorneys General have a major interest in brownfields 
legislation. As chief legal officers of our respective states, we 
enforce state and federal laws in our states and help protect the 
health and welfare of our citizens, our environment and natural 
resources. We often are also responsible for negotiating cleanup and 
natural resource damages settlements, and when a settlement cannot be 
reached, it is our responsibility to commence and litigate an 
enforcement action. We are well aware of the blight brownfield sites 
pose in both our rural and urban areas, and how important it is to 
cleanup such sites and revitalize the communities and neighborhoods in 
which such sites are located.
    NAAG also has been deeply involved in the Superfund reauthorization 
process for many years. At its Summer meeting on June 22-26, 1997, the 
sole resolution adopted by the state Attorneys General addressed 
Superfund Reauthorization. While NAAG has not taken a position on 
either the Gillmor or Democratic discussion drafts, the Resolution 
called upon Congress to enact legislation that ``strengthens state 
voluntary cleanup and brownfields redevelopment programs by providing 
technical and financial assistance to those programs, and by giving 
appropriate legal finality to cleanup decisions of qualified state 
voluntary cleanup programs and brownfield redevelopment programs,'' and 
that ``allows EPA to continue to list new sites on the National 
Priorities List based upon threats to health and the environment, with 
the concurrence of the state in which the site is located.'' The NAAG 
Resolution arose from the state Attorneys General's recognition of the 
critical importance of the Superfund program in assuring protection of 
public health and the environment from releases of hazardous substances 
at thousands of sites across the country. We want to make the tasks of 
cleanup and protecting the public less complicated and more efficient, 
and to reduce the amount of litigation and the attendant costs that 
result.

         NEW YORK'S BROWNFIELDS AND VOLUNTARY CLEANUP PROGRAMS

    New York has actively participated with NAAG on Superfund 
Reauthorization issues. It also has been a leader among states in 
addressing brownfields. In 1996, New Yorkers approved a $200 million 
Environmental Restoration or Brownfields Fund as part of the $1.75 
billion Clean Water/Clean Air Bond Act of 1996. Under the Brownfields 
Program, the State provides grants to municipalities to reimburse up to 
75 percent of eligible costs for site investigation and remediation 
activities at brownfield sites they own. Once remediated, the property 
may then be reused for commercial, industrial, residential or public 
use.
    The municipality and all successors in title, lessees, and lenders 
are released from remedial liability for hazardous substances that were 
on the property prior to the grant, provided that the municipality is 
not responsible for the contamination at the site. The State 
indemnifies these same persons in the amount of any settlements/
judgements obtained regarding an action relating to hazardous 
substances that were on the property prior to the grant, and they are 
entitled to representation by the State Attorney General.
    New York's Voluntary Cleanup Program is a cooperative approach 
among the New York State Department of Environmental Conservation 
(DEC), lenders, developers and prospective purchasers to investigate 
and/or remediate contaminated sites and return these sites to 
productive use. Under the Voluntary Cleanup Program, a volunteer can 
enter into an agreement to investigate a site, remediate a site, or 
investigate and remediate a site. The volunteer agrees to remediate the 
site to a level which is protective of public health and the 
environment for the present or intended use of the property. 
Investigation and remediation is carried out under the oversight of DEC 
and the New York State Department of Health (DOH) and, in most 
instances, the volunteer pays the State's oversight costs. When the 
volunteer completes work, the DEC provides a release from liability for 
the work done and the contaminants addressed, with standard 
reservations.
    The Voluntary Cleanup Program covers any contaminated property in 
the State for which the federal government does not have lead 
responsibility. The present owner of a site, having purchased the 
property in an already contaminated condition and not otherwise a 
Potentially Responsible Party (PRP), is not considered a PRP in the 
Voluntary Cleanup Program. Eligible participants are anyone other than 
a PRP for a property that is on the New York State Registry of Inactive 
Hazardous Waste Disposal Sites classified as posing a significant risk; 
a Treatment, Storage or Disposal Facility (TSDF) subject to Resource 
Conservation and Recovery Act (RCRA) corrective action; a TSDF 
operating under interim RCRA status; or subject to other enforcement 
action requiring the PRP to remove or remediate a hazardous substance.
    Once the protective cleanup level is met, the DEC issues a letter 
declaring that the DEC agrees that the volunteer has cleaned the site 
to the previously agreed-upon cleanup level and that, barring an event 
triggering a reopener, the DEC does not contemplate further action will 
need to be taken at the site. It also releases the volunteer from 
further remediation liability for past contamination, subject to 
reopeners. Non-PRP volunteers also receive a release that covers 
natural resource damages. All of the volunteer's successors and assigns 
(except the site's PRPs) benefit from the release given to the 
volunteer. The DEC release binds only DEC, and does not bind private 
parties harmed by the discharges, does not bind the State's Attorney 
General, and does not bind the USEPA. The extent of the investigation 
and remediation determines the breadth, and hence the value, of the 
release. The more comprehensive the remedial response, the more 
comprehensive the release.
    Reopeners affect only the volunteer, successor, or assign which 
owns or operates the property at the time of the reopening, and 
thereafter. Reopeners are triggered when the response action is not 
sufficiently protective to allow the contemplated use; when the 
volunteer, or its successor, changes the site's use to a use requiring 
a lower level of residual contamination; when the volunteer 
fraudulently obtains the release; and when environmental conditions 
present at the site at the time the Voluntary Cleanup Agreement was 
executed were unknown to the DEC.
    As of March 31, 2001, 107 Brownfield Program projects in 53 
communities across New York State had been approved for the 
investigation and/or remediation of brownfield sites. Ninety-five of 
the 107 projects are investigation projects with a total estimated 
value of $9.9 million, and 12 are remediation projects with a total 
estimated value of $11.5 million. As of the same date, 196 executed 
agreements resulted in 255 projects Voluntary Cleanup projects.
    Most states also have similar programs. At least 44 states have 
voluntary cleanup programs, and more than half have brownfields 
programs as of 1998. What most states lack is sufficient funding. 
Passage of federal legislation that will help states both establish and 
administer brownfields programs is essential to the continued success 
of these state initiatives.

                    FEDERAL BROWNFIELDS LEGISLATION

    Congress has been addressing the contentious issues raised by 
Superfund Reauthorization for years. As Colorado Attorney General Ken 
Salazar, NAAG's Chair of its Environmental Committee, wrote to Senate 
leaders this past March, the bipartisan bill S.350 is the embodiment of 
the Senate's recognition of ``the blight brownfields continue to cast 
on our communities,'' finally translated into a ``compromise bill that 
will hasten the redevelopment of numerous sites.'' S.350 would provide 
stricken communities grants and technical assistance to address 
brownfields that affect their neighborhoods. Attorney General Salazar 
also wrote that S.350 would give ``appropriate legal finality to 
cleanup decisions of qualified state voluntary cleanup and 
redevelopment programs, as NAAG has urged.''
    When analyzing new legislation that amends the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA), we 
must remember the tortured legal history of that statute. For many 
years following its passage in 1980, the meaning of numerous terms, the 
reach of the liability provisions, and the application of the remedy 
selection provisions were the subjects of contentious litigation. These 
lawsuits caused delays in cleanups, imposed substantial burdens on 
federal and state programs, and increased everyone's transaction and 
cleanup costs. Those days are now over: potentially responsible parties 
(PRPs) now know what the statute means and where they stand, and thus 
most are ready to settle their liability with government. EPA's 
practices also have evolved, and EPA has developed practices that lead 
to earlier settlements and the quicker implementation of remedial 
decisions. Finally, the states' own Superfund programs have matured. 
Many of them are modeled on the federal statute. State officials too 
understand what CERCLA means and how to use it, and can obtain 
appropriate cleanups at minimal taxpayer expense. The message is clear: 
we must avoid changes to CERCLA that will reignite the courtroom 
battles over the meaning, scope, and implications of the law. At the 
same time, we must not lose sight of our primary goal--cleanup of sites 
and protection of the public and future generations. We have no desire 
to replay the 1980's, even though the States were generally successful 
in the courtrooms.
    Consequently, as the States' primary lawyers, we are concerned 
whenever new terms are included in proposed amendments to CERCLA. Those 
who eye brownfield sites as prime real estate ripe for development 
value the certainty that well-established legal concepts provide them. 
Consequently, we must be careful whenever a new ``standard'' is 
proposed for inclusion in CERCLA, especially when long-used concepts 
are available that will provide the protection our citizens demand from 
their governments. The exemptions to the enforcement bar in S.350 are 
reasonable compromises reached after extensive efforts in the Senate 
and are well-understood legally. In particular, for decades Congress 
has used the concept of imminent and substantial endangerment to define 
when enforcement action is needed; we see no reason to depart from this 
well-established concept in a House bill.
    While S.350 is a historic compromise, the New York Attorney 
General's office believes that there still is room for one improvement. 
In order to prevent new landowners from reaping a windfall due to the 
increase in a property's value resulting from the federal government's 
cleanup efforts, S.350--as well as the two drafts--would create a 
``windfall lien'' in favor of the federal government. The amount of the 
lien is equal to the lower of EPA's unrecovered cleanup costs and the 
increase in the fair market value of the property due to the 
government's cleanup efforts. When the new landowners sell the 
property, EPA can recover on its lien.
    Despite the fact that it is State governments who clean up the 
overwhelming number of sites throughout the country, the windfall lien 
is limited to the federal government. Attached is proposed language 
drafted by the New York Attorney General's office that would extend the 
windfall liens to states and thus eliminate the unfair treatment of 
states' expenditures on brownfield sites.
    Finally, the New York Attorney General's office is very concerned 
about certain aspects of the Gillmor draft, among others, that could 
leave the public unprotected from toxic chemical discharges. The draft 
deletes subparagraphs in S.350 that require certain landowners and 
operators who are exempted from liability under the bills to take 
reasonable steps to stop ongoing releases, prevent threatened future 
releases and limit exposure in order to qualify for the liability 
exemption. These requirements in S.350 are necessary to protect the 
public, and have long been the duty of landowners under common law. As 
part of the carefully honed compromises in S.350, the New York Attorney 
General's office believes they are a necessary part of any brownfields 
legislation.
    The New York Attorney General's office also is concerned by the 
Gillmor draft's reduction in the federal cleanup safety net, broadening 
of liability exemptions, diminishment of public participation 
requirements, and disruption of the careful balances contained in 
S.350. We oppose these aspects of that draft both because they 
represent bad policy and because they render the bill less 
representative of the compromise necessary for passage.
    In sum, we urge this Subcommittee and the House to act 
expeditiously to enact legislation that enhances states' brownfields 
programs in a bill that the Senate can also adopt without further 
extensive debate.The New York Attorney General's office proposes the 
following amendment to Section 202(b) of S.350, which adds the 
following section to CERCLA Sec. 107 (added text in bold):
    ``(p) Prospective Purchaser and Windfall Lien--
    ``(1) Limitation on liability--Notwithstanding subsection (a)(1), a 
bona fide prospective purchaser whose potential liability for a release 
or threatened release is based solely on the purchaser's being 
considered to be an owner or operator of a facility shall not be liable 
as long as the bona fide prospective purchaser does not impede the 
performance of a response action or natural resource restoration.
    ``(2) Lien--If there are unrecovered response costs incurred by the 
United States or by a State at a facility for which an owner of the 
facility is not liable by reason of paragraph (1), and if each of the 
conditions described in paragraph (3) is met, the United States shall 
have a lien on the facility, or may by agreement with the owner, obtain 
from the owner a lien on any other property or other assurance of 
payment satisfactory to the Administrator, for the unrecovered response 
costs the United States has incurred, and a State shall have a lien on 
the facility, or may by agreement with the owner, obtain from the owner 
a lien on any other property or other assurance of payment satisfactory 
to the State, for the unrecovered response costs the State has 
incurred.
    ``(3) Conditions--The conditions referred to in paragraph (2) are 
the following:
    ``(A) Response action--A response action for which there are 
unrecovered costs of the United States or of a State is carried out at 
the facility.
    ``(B) Fair market value--The response action increases the fair 
market value of the facility above the fair market value of the 
facility that existed before the response action was initiated.
    ``(4) Amount; duration--A lien under paragraph (2)--
    ``(A) shall be in an amount not to exceed the increase in fair 
market value of the property attributable to the response action at the 
time of a sale or other disposition of the property;
    ``(B) shall arise at the time at which costs are first incurred by 
the United States or by a State with respect to a response action at 
the facility;
    ``(C) shall be subject to the requirements of subsection (l)(3); 
and
    ``(D) shall continue until the earlier of--
    ``(i) satisfaction of the lien by sale or other means; or
    ``(ii) notwithstanding any statute of limitations under section 
113, recovery of all response costs incurred at the facility.''.

    Mr. Gillmor. Thank you very much, and my thanks to all of 
the panel.
    Let me start out with the questioning. Before we get into 
some of the specifics, Mayor, I just have a question for you. I 
know you want a bipartisan bill, because I counted and you said 
it 18 times.
    So I presume that was a message. But I guess, what do you 
mean by ``bipartisan''? Suppose we have a--do you mean all of 
the Republicans and all of the Democrats--support we have a 
majority in one party and a significant minority in the other 
party? I mean, what is bipartisan?
    Mr. Bollwage. 99-0.
    Mr. Gillmor. Do you mean we shouldn't pass a bill that is 
not 99-0? Is that what you are saying?
    Mr. Bollwage. No. I just--you know, as someone who reads a 
lot of newspapers, when I see Jesse Helms and Ted Kennedy vote 
alike on a bill I would consider that bipartisan. Do you think, 
you know, that S. 350 could work in our community? I would say 
absolutely. I mean, that is a bipartisan bill that passed when 
different members of the ideological spectrum throughout this 
country came together and cast their vote yes.
    I think that if you wanted to take the S. 350 and the 
provisions of that, I listened to the debate this morning, and 
I think we are talking more about Superfund issues than we were 
ever talking about brownfield issues. And I believe that if you 
took what is in the provision of S. 350, moved it out of this 
committee to the full House, that would be a bipartisan bill.
    Look at what we have done in the city of Elizabeth without 
any Federal legislation. We have built a mall on a former 
landfill, 166-acre site, three new hotels, a movie theater, 
750,000 square feet of office space. We have taken four other 
sites, converted them into soccer fields, little league fields. 
Just imagine what the cities of this Nation could do with 
support from the Congress. It is likely that S. 350, under most 
circumstances----
    Mr. Gillmor. Well, I don't want to----
    Mr. Bollwage. Okay.
    Mr. Gillmor. Mayor, I don't want to go back over all of 
that. I just wanted to ascertain what you meant. I hope we get 
a bipartisan bill within the definition of what most people 
would consider bipartisan. Even though it might be 420 to one, 
we will still----
    Mr. Bollwage. That would work, Mr. Chairman.
    Mr. Gillmor. That would work?
    Mr. Bollwage. That would work.
    Mr. Gillmor. Okay. Let me just ask each one of the panel 
quickly--under what has been dubbed the Democratic discussion 
draft, there is a section that is not in either the Senate bill 
or in the majority discussion draft--creates a five-person 
advisory commission for international justice would be 
established in Washington.
    That commission would have the power, if only 3 out of the 
5 of the non-elected members found any one neighborhood in a 
State didn't have a meaningful opportunity to participate in a 
brownfields program, they would then have the authority to 
disqualify every brownfield site in the State from the 
liability protections and the finality provisions of the bill.
    I guess my question to each of you is: does that kind of 
policymake sense to you? Commissioner?
    Ms. Crotty. Mr. Chairman, in New York State, like the EPA, 
we also have a task force on environmental justice. The task 
force was convened a couple of years ago and is presently 
coming up with a draft report for my consideration on how to 
factor in environmental justice concerns in our permitting 
process. And I think that that is an appropriate forum for 
these discussions to take place.
    We also are taking into consideration cumulative effects in 
our State Environmental Quality Review Act, and we believe that 
environmental justice concerns are real, and we need to create 
procedures and processes to address those concerns. And we 
think that we have the appropriate procedures and policies in 
place or under development to do that. We don't necessarily 
need it in this piece of Federal legislation.
    Mr. Gillmor. Thank you.
    Commissioner?
    Mr. Gonzales. Mr. Chairman, just briefly, the National 
Association of Counties has not taken a position on 
environmental justice. From a personal standpoint, I would just 
applaud whatever efforts are done in that area. However, let me 
State that fundamental to our support for this type of bill, we 
just want to make sure that we accomplish what we hope the bill 
is intended to accomplish, and that is to create incentives, 
not disincentives.
    Being a minority, and certainly serving at the local level, 
let me assure you that there are a lot of local officials 
across this country that are trying to revitalize poor areas of 
our community and having tools like this will help meet that 
objective. Absolutely.
    Mr. Gillmor. Well, the brownfields bill.
    Mr. Gonzales. Brownfields legislation.
    Mr. Gillmor. Mayor?
    Mr. Bollwage. Mr. Chairman, the U.S. Conference of Mayors 
has not taken a position on that issue either. But just 
quickly, we achieved 20 permits with the EPA with support of 
the Regional Plan Association to reconvert this landfill in 1 
year's time.
    Mr. Gillmor. Thank you.
    Delegate?
    Mr. Billings. The NCSL hasn't taken a position, though, as 
you know, their general posture is that if these kinds of 
commissions are created State legislatures ought to be 
represented on them. We will be reviewing this issue at our 
annual meeting in August. And if this legislation hasn't passed 
unanimously through the House by then, we will get back to you 
with a position.
    Mr. Gillmor. Thank you very much.
    Mr. Johnson?
    Mr. Johnson. Yes. The National Association of Attorneys 
General also has not taken a position on this. Personally, 
though, I think that what is important here is to look at the 
purpose of these provisions. We know from our experience in New 
York, and I think throughout the country, that redevelopment of 
brownfield sites does not work if people in the local community 
are not part of the process, and this commission is an effort 
to try to make sure that people are fully involved in the 
process.
    And so to the extent that any of the drafts diminish public 
participation, that is not a good idea, because you can't 
develop a brownfield site without the locals being part of that 
process. And that is the key and the key element that I think 
the committee has to consider.
    Mr. Gillmor. Well, my question was a little more specific. 
I mean, the specific provision we are talking about--I come 
from a State of over 11 million people. You know, we have tens 
of thousands of brownfield sites. And I guess my question is, 
in a State of 11 million people with tens of thousands of 
brownfield sites, should 3 of 5 members of a non-elected 
advisory committee, because they are unhappy about what 
happened at one of those sites, be able to terminate the 
brownfields program in the whole state? That is a specific 
provision.
    Mr. Johnson. Well, I do believe the position raises some 
interesting questions about grant of authority and whether that 
would be appropriate under our laws. We haven't look at that 
matter in detail. But, again, the key here is, how do you make 
sure and how do you ensure that locals in communities are part 
of the process? Because brownfield development does not work 
without them being fully part of the decisionmaking on 
redevelopment of brownfield sites.
    Mr. Gillmor. I will now go to Mr. Pallone, but I think we 
will probably have time for a couple rounds of questions here.
    Mr. Pallone?
    Mr. Pallone. Thank you, Mr. Chairman.
    I wanted to start with Mr. Billings, ask him a couple of 
questions. Is it a correct reading of your testimony that you 
believe a State, or in this case the Federal legislation, 
should immunize a developer or a prospective purchaser who did 
not cause or contribute to the contamination? In other words, a 
party not liable for the pollution, but no such immunization, 
liability protection, or restriction on EPA enforcement 
authority should go to a party who caused the pollution or has 
the future cleanup responsibility.
    I know you stressed this, but I wanted to make sure I 
understood.
    Mr. Billings. Yes. The position of the NCSL policy is that 
liability/immunity should extend to the redeveloper but not to 
the potentially responsible party as defined in Superfund, the 
party that caused or contributed to the contamination in the 
first instance.
    Mr. Pallone. So there wouldn't be----
    Mr. Billings. In Maryland law, Mr. Pallone, we don't--the 
person who caused or contributed to the pollution in the first 
instance is not eligible to be a party to a brownfields 
redevelopment.
    Mr. Pallone. And so you are saying that not only there 
would be no protection to one who caused the problem, but also 
no protection to a party who exacerbated it in some way, is 
that right?
    Mr. Billings. That is right. Again, in Maryland law, if the 
party that is redeveloping the site exacerbates the pollution 
problem, then they are a responsible party liable for cleanup, 
irrespective of the immunization of that party from liability 
that might have occurred before that party came on the scene.
    Mr. Pallone. All right. Let me----
    Mr. Billings. And let me just say, Mr. Chairman, that that 
is why we make this sharp distinction between Superfund and 
brownfields. We are not--we are talking about sites where you 
may have only the perception of contamination or very modest 
contamination. In most of those cases, the issues that you 
raise aren't going to arise. If this is a site--an assessment 
of which suggests that it is going to be a serious problem--it 
shouldn't be in the brownfields program, and nobody should be 
immune from liability.
    Mr. Pallone. Okay. Well, you know, that kind of goes to my 
second question, but let me ask it anyway, Mr. Billings. Do you 
support the provision in the Senate bill--it is on page 42 or 
43--that allows the President to exclude NPL--national priority 
list--caliber sites or sites that pose any significant risk 
from the definition of an eligible brownfield site?
    Mr. Billings. While the NCSL resolution doesn't speak 
directly to that point, I think it would be implied that any 
NPL site would not be eligible for brownfield treatment, and 
any significantly contaminated site short of an NPL site would 
not be eligible for brownfield treatment.
    Mr. Pallone. So, basically, you believe that the Federal 
legislation should focus only onsites with marginal or no 
contamination?
    Mr. Billings. That is right, Mr. Chairman. If we can get 
finality on those sites--we have got a lot of them--we get 
finality there, let us clean those up, and then we will come 
back and talk to you about if we need more protection in the 
future.
    Mr. Pallone. Okay. Thanks. Thank you. That really answers 
it.
    Let me ask Mr. Johnson, as a representative of the chief 
law enforcement officers of the State, do you believe that the 
Senate bill S. 350 provides the appropriate amount of finality 
for State programs? And do you support the four reopeners that 
are in S. 350?
    Mr. Johnson. Yes. We believe that S. 350 marks an 
appropriate balancing of the need for finality with the need 
for protective cleanups. As the Chair of the National 
Association of Attorneys General Environmental Committee wrote 
the Senate in March, he said that S. 350 would ``give 
appropriate legal finality to cleanup decisions of qualified 
State voluntary cleanup and redevelopment programs as NAC has 
urged.'' So we think that it is applying compromise. It may not 
be what everybody wants, but it is a rather exquisite balancing 
of the need for appropriate programs and appropriate sign-offs 
from EPA versus the need for finality. And we think that the 
four reopeners involved also are appropriate under the 
circumstances.
    We think with this additional element in place our 
brownfields programs in New York, while they have been very 
successful to date, will be able to continue and be more 
successful.
    Mr. Pallone. Thank you.
    Mayor Bollwage--I don't know--is there some time left 
there, Mr. Chairman?
    Mr. Gillmor. Twenty-two seconds.
    Mr. Pallone. I just wanted to--I know that you have been 
very successful in your brownfields redevelopment in 
Elizabeth--we talked about that--as you said, without any new 
Federal legislation.
    But in terms of the Senate bill, the broad--you know, the 
compromise that passed the Senate, do the mayors around the 
country believe it meets their fundamental needs for 
brownfields legislation?
    Mr. Bollwage. Do we believe that there is fundamental need 
for brown--yes.
    Mr. Pallone. Do you think that the Senate bill basically 
would satisfy, you know, the mayor's needs in terms of what, 
you know, you are trying to accomplish?
    Mr. Bollwage. We think the Senate bill--finality, funding, 
etcetera--addresses all of the key issues of the Nation's 
mayors and our concerns. We also strongly believe that it is 
politically valuable, and that it is likely to address most 
circumstances in many of our cities. And we believe that this 
bill addresses well over 90 percent of the existing brownfields 
throughout the Nation.
    Mr. Pallone. Did they pass the resolution about----
    Mr. Bollwage. It is attached to my--I believe it is 
attached to my formal statement. We passed a resolution in 
Detroit over the weekend that was cosponsored by myself, Mayor 
McCrory, who is Chair of the Republican Mayors of Charlotte, 
and Paul Jadin, the Mayor of Green Bay, Wisconsin. We were the 
co-authors.
    Mr. Pallone. And that was supporting the Senate bill?
    Mr. Bollwage. Correct.
    Mr. Pallone. And it was, as you say, both Republican and 
Democrats?
    Mr. Bollwage. Correct.
    Mr. Pallone. All right. Thanks a lot.
    Mr. Bollwage. Thank you, Congressman.
    Mr. Gillmor. Ms. Crotty, some groups have argued that there 
is--I beg your pardon, Vito. The gentleman from New York.
    Mr. Fossella. It is the story of my life. Thank you, Mr. 
Chairman.
    And welcome all of the witnesses. In particular, let me 
welcome Commissioner Crotty, and thank you for coming down. I 
know the Commissioner has been involved in this matter for more 
than a decade, and she knows it inside and out and she has done 
a wonderful job in her new post, albeit a short one. But prior 
to coming she has been terrific.
    In fact, she came to Staten Island when we brought together 
community leaders, property owners, everyone imaginable--
environmental groups--to try to put a local perspective on it. 
And she has been great since then, so thank you.
    Just a couple of questions. I will throw them out there and 
then, you know, whoever--if you can answer them. To Ms. Crotty 
and Mr. Johnson, we have different written statements from each 
of you regarding the New York brownfields program and the 
various legislative proposals before the committee today. I am 
just curious, why are these views so different? And who 
essentially runs the State voluntary cleanup program in New 
york?
    Before you answer that, may I just also ask Ms. Crotty and 
Mr. Billings to answer as well, the testimony submitted by the 
Sierra Club for today's hearing argues that with broad-based, 
state-based liability protections in place, and limited Federal 
intrusions into State cleanups, that there is simply no need 
for greater finality for State brownfields cleanup.
    They go on--in fact, they actually call for increased, not 
decreased, Federal involvement in State cleanup programs by 
requiring EPA review and approval of criteria for State 
programs before Federal funding could be used. And I am 
curious, Ms. Crotty and Mr. Billings, what is your view of that 
approach?
    Ms. Crotty. Thanks, Congressman, and thanks for your kind 
words. I really appreciate that.
    First, with respect to the differing comments by certainly 
myself and Gordon representing Attorney General Spitzer, we 
believe, as my statement says--we believe that the Senate bill 
is a good starting point, but we also believe that there are a 
number of changes that can be made, modifications that could be 
made to the Senate bill, that make it even better.
    And my testimony certainly identifies the areas that we 
think are an improvement over the Senate, and we encourage the 
House to come to an agreement on those initiatives. In terms of 
who runs the voluntary cleanup program in New York State, the 
State Department of Environmental Conservation runs the 
voluntary cleanup program in New York State. And we are 
ultimately the ones who decide what the cleanup is going to be 
and issue the no further action letters or the liability 
limitation letters.
    With respect to the Sierra Club's comments, I haven't read 
them yet. However, from my perspective and the Department's 
perspective, this issue of finality is extremely important to 
municipalities, to not-for-profits that are redeveloping 
property, as well as to private developers, and finality to 
everybody involved.
    So we want to be able to make it easier for parties to 
clean up contaminated sites, not harder for parties to clean up 
contaminated sites. Or putting it another way, let us get rid 
of the artificial barriers. And if you have a State program 
that EPA--meets EPA's criteria for a brownfield program, then 
cleaning up a site to the satisfaction of that regulatory 
agency should be the final say.
    And I think that that will--except for those limited 
circumstances that the House majority draft identified, and I 
think that that will act as an incredible incentive to bring 
more private dollars in to clean up brownfields, which is 
ultimately what we are looking for.
    Mr. Fossella. Mr. Johnson? Mr. Billings?
    Mr. Johnson. The EC does an excellent job in running the 
voluntary cleanup program, and they have been able to reach 
numerous settlements and obtain cleanups throughout the year--
throughout the last years, despite the absence of any kind of 
finality.
    We get the cases where the EC has been unsuccessful, 
because the task falls to the Attorney General's office to 
recover the moneys that the State has been compelled to spend 
to clean up those sites where a State wasn't able to get a 
voluntary cleanup agreement.
    So we really have an idea and a good feeling for the pulse 
of the reasons why those sites aren't being addressed, 
particularly the sites where the State goes out and, because 
they need to be cleaned up, they are cleaned up using State 
moneys.
    Our feeling on the finality provisions are really twofold. 
No. 1, we think that the finality provision in S. 350 is good 
and appropriate, and it balances the need to make sure that a 
cleanup is good and protective with the need for finality. If 
we look at S. 350, we have to remember that there is no 
provision, for instance, in S. 350 for certification, for 
instance, of a State program.
    [The prepared State program has an incentive to meet EPA 
criteria because then it receives grant money, but there is no 
requirement that the program itself be a certified program 
before the enforcement bar comes into effect. You have to 
balance that compromise with the other compromise, which is 
that EPA could come in, when necessary, just as EPA is 
available to come in in numerous Federal programs under the 
Clean Water Act, RCRA, and so on and so forth, when those are 
State delegated programs. We think that S. 350 gives an 
appropriate balance.
    The other reason to like S. 350 is that it passed. It was 
enacted 99 to nothing. We think that S. 350 can pass the House 
at close to the same level. And that combination of ingredients 
tells us that let us keep it the way it is, let us pass that 
legislation, and let us get the other aspects--the funding and 
that basic finality that we need to go ahead to help make our 
brownfields programs better.
    As with respect to the Sierra Club provision, I haven't, 
you know, looked at that in particular. I do have a feeling, 
though, that at least in New York we don't need EPA oversight 
to tell us that our cleanups are good. And so for our State we 
can administer a program and do it well. We have done it well 
for 20 years, and EPA has full confidence in us. And I am not 
sure we want EPA involved in every decision that gets made down 
the road about every site.
    Mr. Gillmor. We have a very limited amount of time left 
before we have to go over and vote. And what I would like to 
do, with the concurrence of the members, is maybe each of us 
can do one more quick question, not take our full time, and 
that ought to enable us to get over and vote.
    Mr. Fossella. Mr. Chairman, if I may, Mr. Billings was 
about to respond, and then----
    Mr. Gillmor. Yes. Go ahead.
    Mr. Fossella. [continuing] it is your committee, do what 
you want.
    Mr. Gillmor. Well, we want to do it as expeditiously as 
possible.
    Mr. Billings. And I will try to be very quick. I also have 
not read the Sierra Club testimony. I must tell you, 
Congressman, that when we tried to write brownfields 
legislation in Maryland the single biggest obstacle we had was 
convincing the parties that were interested in the legislation 
that we are talking about brownfields and not Superfund.
    I believe that it is very likely that the Sierra Club's 
concerns are related to the fact that both of these bills--all 
of these bills address Superfund in some way, some more than 
others. If you narrow this to brownfields, to legitimate, real 
brownfields, keep it narrow, I think those kinds of concerns 
will disappear.
    That is the fight I had to fight in Maryland. I lost a 
little of greenness in the process. But we carried the day.
    Mr. Gillmor. Let me real quickly--Commissioner Crotty, I 
want to ask you a question on MOA. There have been some groups 
who have argued there is no need for greater finality for State 
brownfields because the current memorandum of agreement process 
between State voluntary cleanup programs and the EPA is a form 
of finality.
    But, in fact, only 16 States have MOAs, and New York does 
not. So I guess my question was: do you think the MOA process 
defeats the need for stronger finality? Or what has been your 
experience in New York with the MOA process? And maybe you 
could tell us some of the reasons why New York does not have an 
MOA.
    Ms. Crotty. Sure. Absolutely. Actually, before I became 
Commissioner, I was a deputy commissioner for water quality and 
remediation, and I was the first deputy commissioner to try to 
negotiate an MOA with EPA Region 2, and very soon broke off 
negotiations because the language that they wanted in the MOA 
was so open-ended that it really became a second guess on all 
of our cleanups.
    They wanted language that I will note is included in Senate 
350 and in the Democratic discussion draft of these kind of NPL 
caliber sites. You know, EPA has the authority to go in and 
remediate if they determine that the site is an NPL caliber 
site. And that, from our perspective in New York State, gave us 
a lot of worry because it is a very open-ended issue. Does that 
mean you have to get scored and put on the hazard ranking 
system? Does that mean that you can--EPA would second-guess 
every single cleanup that we entered into?
    And so we felt at that time that we could assure the 
developers, the municipalities, the not-for-profits, that it is 
a very rare instance--and Deputy Administrator Fisher said this 
this morning. You know, it is a very rare instance when EPA is 
going to go in and second-guess a State when a party has 
cleaned up to the satisfaction of the State. Yet it is a risk, 
and it is a risk that some parties are willing to bear, but I 
have heard from other parties that they are not willing to bear 
it.
    And so I think that the language that is in the House 
majority draft that talks about the kind of criteria or having 
a brownfield program with certain criteria is the right way to 
go. And, certainly, the Deputy Administrator comments about how 
she doesn't want to have to sign off on every single State 
cleanup program is an appropriate way to go as well.
    Mr. Gillmor. Thank you very much.
    Mr. Pallone, we are almost out of time. Do you want to take 
real--before you start, let me ask----
    Mr. Pallone. Let me just ask----
    Mr. Gillmor. Yes, go ahead.
    Mr. Pallone. [continuing] if I could just ask Ms. Crotty, 
what are the criteria that you were referring to, you were just 
mentioning?
    Ms. Crotty. Well, the House majority draft--actually, I 
think it is on page 41--gets to this issue of finality. Or 51--
wrong one. And we think that what the--without flipping through 
the pages, conceptually what the Deputy Administrator was 
saying this morning is something that is very advantageous from 
a State perspective, which is in order to get access to these 
brownfield funds you need to have a program that meets certain 
criteria that EPA has identified in a guidance document.
    And I think that that is an appropriate way to go. It is 
flexible. Not every State has the same brownfield program. We 
are very different. In New York I have four brownfield 
programs. In New Jersey, I don't think you have as many. And so 
each State is tailoring its brownfield cleanup programs to the 
risks that are presented in front of them.
    Mr. Pallone. You are saying that the States should meet the 
minimum criteria, though.
    Ms. Crotty. I believe that States need to--if you want to 
have finality to your program in terms of finality to limit the 
liability of the Federal Government to go after the party who 
has cleaned up to the state's satisfaction, you have to meet 
minimum requirements.
    And as the Deputy Administrator said this morning, she is 
going to spell those out in guidance documents. And so I think 
that that is a fair bar to reach.
    Mr. Pallone. All right. Thank you. I know we are running 
out of time, but thank you all.
    Ms. Crotty. Thank you.
    Mr. Pallone. We only have 4 minutes.
    Mr. Gillmor. Yes. Are you referring to the language on page 
41?
    Ms. Crotty. I believe I am. Let me just quickly look. Yes.
    Mr. Gillmor. I just wanted to make sure. It is?
    Ms. Crotty. Yes.
    Mr. Gillmor. Okay.
    Ms. Crotty. Yes.
    Mr. Gillmor. They are the majority bills.
    Ms. Crotty. Yes, it is on--starts on line 16.
    Mr. Gillmor. Okay.
    Ms. Crotty. No. Starts on----
    Mr. Gillmor. Starts on line 1, page 41.
    Ms. Crotty. Yes.
    Mr. Gillmor. Yes. Okay. We are out of time. I want to thank 
you.
    Let me ask you--if members had questions in writing to 
submit to you, we would appreciate it if you could answer us. 
We will go vote, come back with panel three immediately. Thank 
you very much.
    [Brief recess.]
    Mr. Gillmor. We will reconvene for the last panel, and I 
want to commend this panel for a number of things. We are 
grateful for your patience.
    Before we start, let me call on my colleague from Ohio, Mr. 
Brown, to comment on one of the panelists.
    Mr. Brown. I thank the chairman, and thank you for allowing 
me to introduce my friend, John Lynch. I apologize for only 
coming in a few minutes ago. My Health Subcommittee was 
meeting--has been meeting all day, and I have got to run to 
something else, too.
    But I wanted to take the chance, first of all, to thank the 
chairman for his good work on brownfields. The chairman and I 
share a county, Lorraine County. My district goes east from 
there; his goes west. But he has been--had a commitment to 
brownfields legislation.
    The legislation sponsored by Senator Chafee and the 
discussion drafts that you and Mr. Pallone have circulated in 
the House are particularly important, and I applaud you for 
that, and we need to be respectful I think of the broad 
majority that S. 350 has commanded in the Senate and the 
delicate compromise it represents.
    John Lynch is a former member of Cleveland City Council and 
was on the City Council for 12 years, serving with two of our 
colleagues, one of our colleagues now and one previous 
colleague. He served on Council with Congressman Kucinich, 
served on Council with former Congresswoman Mary Rose Oakar, 
and served on the Council as Senator Voinovich as mayor.
    So he has known this business a long time, and he and I 
have worked on energy issues together, on other kinds of 
development issues together, and it is my pleasure that John 
Lynch has joined us today.
    And I thank the chairman for allowing me to submit a few 
remarks. Thank you, Mr. Chairman.
    Mr. Gillmor. We will proceed with our panel. Mr. 
Garczynski?

    STATEMENTS OF F. GARY GARCZYNSKI, FIRST VICE PRESIDENT, 
   NATIONAL ASSOCIATION OF HOME BUILDERS; DANIEL R. DeMARCO, 
 MANAGING DIRECTOR OF REAL ESTATE, CAMPANELLI COMPANIES; JOHN 
   LYNCH, BROKER/OWNER, LYNCH & COMPANY; LARRY ROTH, DEPUTY 
EXECUTIVE DIRECTOR, AMERICAN SOCIETY OF CIVIL ENGINEERS; AND ED 
     HOPKINS, DIRECTOR OF ENVIRONMENT QUALITY, SIERRA CLUB

    Mr. Garczynski. Mr. Chairman, thank you very much. 
Congressman Pallone, and other members of the subcommittee, I 
am Gary Garczynski, a builder/developer from Northern Virginia 
who works in Northern Virginia and Metropolitan Washington, DC, 
and I am also the first vice president of the National 
Association of Home Builders appearing here on behalf of our 
203,000 member firms.
    For the past 4 years I have also been the oversight officer 
for NAHB's smart growth initiative, and we work together to try 
to bring a lot of stakeholders to the table, and interest 
groups, on the common goal of how we grow as a country, meeting 
the growth challenge, and creating affordable decent housing 
for all Americans.
    We partnered with the U.S. Conference of Mayors and HUD to 
build a million homes in America's cities over the next 10 
years, and part of that revitalization effort certainly has to 
be centered on brownfields. Currently, we feel that Federal law 
and EPA policy are insufficient to provide certainty to 
developers who remediate a brownfield site under a State 
brownfields program.
    Federal legislation is necessary to provide incentives and 
greater protection to spur meaningful redevelopment and urban 
revitalization. The GAO estimates that are approximately 
450,000 brownfield sites nationwide, and of these sites up to 
as many as 200,000 contain abandoned underground storage tanks 
that are impacted by petroleum leaks.
    Mr. Chairman, your draft--discussion draft encourages us as 
developers to redevelop this broader universe of sites by 
providing incentives for the cleanup of petroleum sites in two 
significant areas. First, in addition to the CERCLA 
protections, prospective purchasers who successfully complete a 
statewide cleanup brownfields program or purchase a remediated 
site are afforded additional protection from RCRA liability and 
enforcement authority.
    Second, in the finality section, in addition to including 
protections for Superfund contaminants, your draft extends 
Federal enforcement protections for petroleum contaminated 
sites as well.
    Unfortunately, S. 350 and the Democratic discussion draft 
treat petroleum as kind of a second-class citizen without a 
policy rationale. Both bills provide prospective purchasers 
with liability protection under CERCLA only. In the finality 
section, each bill includes Federal enforcement protections for 
Superfund contaminants alone.
    The absence of any enforcement protections for petroleum 
contaminated sites represents I think a significant limitation 
to S. 350 and the Democratic discussion draft. On finality, we 
believe that EPA has an important role in protecting health and 
the environment, but States are in a better position to be the 
primary authority to investigate site contamination, establish 
cleanup standards, and determine when those cleanup standards 
have been achieved.
    As stated earlier, your draft provides an appropriate level 
of certainty by foreclosing EPA enforcement under both CERCLA 
and RCRA. However, S. 350 and the Democratic discussion draft 
lack the certainty and finality necessary to overcome the 
perception that EPA could intervene--that currently inhibits 
brownfield development.
    The reopener provision on the insufficient standard States 
that the Federal brownfields legislation must provide not only 
certainty and finality for site developers and owners but also 
an appropriate Federal safety net, authorizing EPA to exercise 
its enforcement authority in clearly defined circumstances 
commonly called ``reopeners.'' I think the Gillmor draft 
replaces information with contamination and conditions, and, 
therefore, eliminates the potential for the mere existence of 
the new information which may be subject to a reopener as in S. 
350 and the Democratic discussion draft.
    I know we are running out of time right now, and I am sure 
we are going to have questions later. But I would, in 
conclusion, State that I believe as a practitioner we are here 
to try to encourage and incentivize the development of 
brownfields. We don't think S. 350 goes far enough to provide 
that finality or is broad enough to cover minor contaminants 
such as petroleum.
    We are grateful for the opportunity to discuss this issue, 
and I would also encourage you during your debates on this 
issue to ask some lenders to step forward, because unless you 
have people like myself as a builder or developer, who can be 
financed by a lender, you can pass a lot of laws on brownfields 
but the private sector has to be involved if we are really 
going to make this a successful program. That is what we see as 
necessary at NAHB.
    Thank you.
    [The prepared statement of F. Gary Garczynski follows:]

   Prepared Statement of F. Gary Garczynski, First Vice President on 
          Behalf of the National Association of Home Builders

    Chairman Gillmor, Mr. Pallone and members of the Subcommittee, I am 
pleased to appear before you today on behalf of the 203,000 members of 
the National Association of Home Builders to testify on federal 
brownfields legislation. My name is Gary Garczynski and I am the First 
Vice President of the National Association of Home Builders. I am a 
home builder and a land developer from Northern Virginia.
    For the past four years, I have been involved in developing NAHB's 
Smart Growth strategy and personally working to bring together all 
stakeholders and interest groups for the common goal of solving our 
growth concerns. As we have worked together, brownfields redevelopment 
has emerged as one of the cornerstones of our efforts.

               IMPORTANCE OF BROWNFIELDS AND SMART GROWTH

    Brownfields are agricultural, commercial or industrial properties 
that are impacted by contaminants, including hazardous substances as 
defined under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA) and petroleum products. Historically, 
developers have avoided these properties because of concerns relating 
to the uncertain environmental liabilities at those properties under 
state and federal environmental laws. Because of these liability 
concerns, brownfield properties are typically passed over in favor of 
undeveloped ``greenfields'' sites where potential contamination and the 
related liability does not present obstacles to development.
    As you know, brownfields redevelopment, if done correctly, presents 
a unique opportunity to marry economic development with the principles 
of Smart Growth and environmental protection. Brownfields redevelopment 
has the potential to slow the development of open space and farmland by 
presenting property owners and developers with access to brownfields 
sites located in desirable locations, with existing infrastructure and 
affordable pricing. Additionally, brownfields redevelopment is 
consistent with the notion of reestablishing our communities. Many 
brownfields sites are located in urban areas or close-in suburbs within 
walking distance or in close proximity to existing amenities such as 
transportation systems, restaurants and shops. This proximity both 
fosters the sense of community and satisfies the increasing needs of 
our population.

           STATE EFFORTS TO ADDRESS BROWNFIELDS REDEVELOPMENT

    During the past several years, state legislatures, State 
environmental protection agencies and the United States Environmental 
Protection Agency (EPA) have all proactively promoted brownfields 
redevelopment through legislative and regulatory initiatives. Currently 
at least 43 states have some form of brownfields legislation or 
voluntary cleanup programs that actively encourage the remediation, 
reuse or redevelopment of environmentally impaired property. 
Brownfields and Housing: How Are State VCPs Encouraging Residential 
Development?, Bartsch and Dorfman, Northeast-Midwest Institute, April, 
2000. These State programs encourage brownfields redevelopment through 
a combination of techniques including: (1) credible financial 
incentives for investigating, remediating and reusing contaminated 
properties; (2) flexible, yet certain remediation standards which allow 
cleanups to reflect the actual risk posed by the contamination at a 
site; and (3) transferable liability protection to all future property 
owners and tenants once these remediation standards have been attained.
    As one would expect, state brownfields programs provide liability 
protection under state law only. The question, then, becomes what 
protections exist under federal environmental statutes for owners and 
tenants of brownfields sites after cleaning up the property in 
compliance with state remediation standards? It is with respect to this 
last question that federal brownfields legislation becomes essential.

              THE NEED FOR FEDERAL BROWNFIELDS LEGISLATION

    Recognizing the need to create incentives to develop brownfields 
properties, EPA has adopted a series of brownfields policies and 
guidelines. These programs provide, among other things, funding for 
brownfields assessment and remediation, job training, tax incentives, 
and guidance on those circumstances where EPA may exercise its 
discretion not to impose liability on a developer of a brownfields site 
under federal environmental statutes.
    Current federal law and EPA's policies, in particular, do not 
provide liability protection for developers or owners of contaminated 
property who remediate property to state standards. Therefore, EPA may 
impose additional remediation requirements at brownfields sites. 
Indeed, even where a developer has remediated contamination at a 
brownfields site to the satisfaction of a State environmental agency 
under a well established, well funded, stringent State brownfields 
program, EPA retains its authority to independently require further 
remediation under federal environmental statutes.
    Federal environmental statutes which require remediation of 
contaminated property [e.g., CERCLA; the Resource Conservation and 
Recovery Act, 42 U.S.C. Sec. 9609 et seq. (``RCRA'') and the Toxic 
Substances Control Act, 15 U.S.C. Sec. 2601 et seq. (``TSCA'')] 
typically impose strict liability on those parties owning contaminated 
property, even where those parties did not cause the contamination. As 
a matter of practice, EPA rarely requires additional remediation of 
brownfields properties under these federal authorities once a property 
has been remediated to State cleanup standards. However, nothing 
prohibits EPA from doing so. Therefore, the perceived threat of EPA 
intervention, rather than EPA's actual enforcement activities to date, 
significantly inhibits developers from attempting a brownfields site 
remediation. Simply, the perception is the reality. Under current law, 
a developer has little incentive to acquire a brownfields site and 
remediate it to the satisfaction of a State environmental agency while 
EPA enforcement remains a distinct possibility.

 EVALUATION OF THE GILLMOR JUNE 13TH DRAFT, THE DEMOCRATIC DISCUSSION 
                            DRAFT AND S.350

Petroleum Contaminated Sites Must Be Accorded the Same Protection as 
        Other Sites
    To encourage builders and developers to redevelop petroleum-
contaminated sites, it is imperative that prospective purchasers, who 
successfully complete a state clean-up/brownfields program, are 
protected from RCRA liability and enforcement authority. The Gillmor 
Discussion Draft has recognized and acknowledged that petroleum 
contamination is a concern for developers. Under Section 129 of the 
Gillmor Discussion Draft, in addition to CERCLA enforcement protection, 
the draft provides additional liability protection under RCRA Section 
7002(a)(1)(B) and 7003, 42 U.S.C. Sec. 6972(A)(1(B) and 6973.
    Neither S.350 nor the Democratic Discussion Draft provides this 
protection. Section 129(b)(1)(A) of S.350 and the Democratic Discussion 
Draft provides that the president may not use the authorities under 
sections 106(a) or 107(a) of CERCLA against any person conducting or 
completing a response action regarding a specific release in compliance 
with a State brownfields program. This section represents the 
cornerstone of S.350's and the Democratic Discussion Draft's attempt to 
restrict EPA's enforcement authority where a brownfields property is 
remediated under a State brownfields program.
    However, Section 129(b)(1)(A) restricts EPA's enforcement authority 
under CERCLA alone. CERCLA expressly applies to remediation of a 
release or threatened release of hazardous substances. 42 U.S.C. 
Sec. Sec. 9604, 9606(a), 9607(a). Hazardous substances, as defined 
under CERCLA, expressly exempts petroleum products, including crude oil 
or any fraction thereof, natural gas and natural gas liquids. 42 U.S.C. 
Sec. 9601(14). Therefore, S.350 and the Democratic Discussion Draft do 
not provide any enforcement protections regarding petroleum-
contaminated sites.
    The absence of any enforcement protections for petroleum 
contaminated sites represents an extremely significant limitation to 
S.350 and the Democratic Discussion Draft. The General Accounting 
Office estimates that there are approximately 450,000 brownfields sites 
nationwide. Out of these sites, EPA estimates that 100,000 to 200,000 
sites contain abandoned underground storage tanks or are impacted by 
petroleum leaks. EPA USTfields Initiative, www.epa.gov/swerosps/bf/
index.html. EPA has recognized the importance of petroleum contaminated 
brownfield sites along with the current barriers that prevent EPA from 
effectively addressing these petroleum contaminated sites. S.350 and 
the Democratic Discussion Draft attempt to solve this problem by 
devoting a portion of federal grants funding to assist in the clean-up 
of these sites, however only the Gillmor Discussion Draft matches the 
grant funding with needed enforcement and liability protections for 
developers and other prospective purchasers who attempt remediate 
petroleum contaminated sites. Petroleum contaminated sites are obvious 
targets for redevelopment because of their prime locations and the 
well-known and cost-effective remediation technologies available for 
petroleum contamination.
    As a matter of policy and logic, there is no apparent basis for 
treating hazardous substance contamination under CERCLA more favorably 
than petroleum contamination. On the contrary, since there are numerous 
petroleum contaminated sites and these sites present attractive 
development opportunities, federal brownfields legislation should 
provide at least the same liability protections for petroleum 
contaminated sites as for sites contaminated with CERCLA hazardous 
substances.

Additional Liability Protection for Prospective Purchasers who Purchase 
        Petroleum Sites
    The Gillmor June 13th Discussion Draft provides additional 
liability protection to ``prospective purchasers'' under RCRA Section 
7002(a)(1)(B) and 7003, 42 U.S.C. Sec. 6972(A)(1(B) and 6973, and 
RCRA's provisions relating to a release of petroleum from underground 
storage tanks, 42 U.S.C. Sec. 6991b(h). Whereas S.350 and the 
Democratic Discussion Draft provide prospective purchasers with 
liability protection under CERCLA alone, the Gillmor Discussion Draft 
has the foresight to provide an additional level of protection for the 
purchasers of petroleum-contaminated sites. Simply, the Gillmor Draft 
provides a greater incentive for developers to tackle petroleum sites.

   EXTENSION OF ENFORCEMENT LIMITATIONS TO FUTURE OWNERS AND TENANTS

    As I mentioned previously, any brownfields legislation must provide 
for the transfer of enforcement protections and liability protections 
from current owners to future owners, leaseholders, or tenants of these 
properties. Existing state programs, EPA enforcement policy, and 
previous federal brownfields legislative proposals all have tied the 
enforcement and liability protections directly to the property, or the 
contamination itself, rather than the current owner or remediator. In 
fact, several EPA CERCLA enforcement policies promulgated over the past 
decade consistently hold that owners of contaminated properties who did 
not cause or contribute to a release of a hazardous substance, or who 
purchased contaminated property after the contamination was released, 
are not subject to EPA enforcement action under sections 106 or 107 of 
CERCLA. I am pleased the Gillmor Discussion Draft continues this 
common-sense practice.
    Under the Gillmor Discussion Draft, the EPA is limited from 
bringing an enforcement action at a brownfields site where a release is 
being remediated under a state clean up program. Tying the enforcement 
limitations directly to the release at a brownfields site affords 
future owners, leaseholders and tenants the much needed peace-of-mind 
when contemplating the acquisition or rental of a former brownfields 
site.
    To the contrary, the enforcement limitations provided by Section 
129(b)(1)(A) of S.350 and the Democratic Discussion Draft apply only to 
a person who ``is conducting or has completed a response action 
regarding the specific release'' under a State brownfields program. 
Read literally, this language potentially excludes from S.350's and the 
Democratic Discussion Draft's enforcement protections both current 
developers of a brownfields site as well as future owners and/or 
tenants of that site. Two examples illustrate this problem.
    First, assume a property owner seeks to sell contaminated property 
and agrees with the proposed buyer/developer that the property owner 
will complete the required remediation under State law prior to 
closing. In this circumstance, the developer will not be a person 
``conducting'' or ``completing'' the required response action and would 
fall outside the protections of Section 129(b)(1)(A).
    Second, assume that the proposed developer, not the property owner, 
conducts and completes the response action. Subsequently, the developer 
sells the property to another developer who leases the property to a 
tenant. Again, neither the second developer nor the tenant fall within 
the language of Section 129(b)(1)(A) because they did not ``conduct'' 
or ``complete'' the response action. For these reasons the provisions 
of S.350 and the Democratic Discussion Draft should be amended to 
expressly apply to all parties who participate in the response action 
and all future owners or tenants of that property.
    The federal enforcement protections under Section 129 of S.350 and 
the Democratic Discussion Draft seriously undermine existing EPA policy 
by identifying only those parties who participated in the clean up as 
being eligible for enforcement protections.

         FEDERAL BROWNFIELDS LEGISLATION MUST PROVIDE FINALITY

    NAHB fully recognizes the importance of EPA's enforcement role in 
ensuring protection of public health and the environment. NAHB also 
recognizes and supports the fundamental presumption of state primacy 
under all three of the bills presented here today. Existing state 
brownfields programs must be the primary authority to investigate site 
contamination, establish clean-up standards sufficient to protect 
public health and the environment, and determine when those clean-up 
standards have been achieved. For any federal legislative proposal to 
be successful, it must strike a balance between two important 
objectives: maintaining EPA's enforcement role and ensuring finality to 
prospective purchasers that have successfully completed a state 
brownfields program.
    Fundamentally, federal brownfields legislation must ensure that for 
those sites where (a) EPA is not currently requiring remediation under 
federal environmental statutes, and (b) remediation has been completed 
to the satisfaction of a State environmental agency, EPA will, as a 
matter of law, not seek further remediation under federal statutes 
except under defined circumstances. This framework provides the essence 
of needed federal brownfields legislation: creating the requisite 
certainty to developers of brownfields property, removing the 
perception of EPA overfiling, and providing finality in the form of 
statutory liability and federal enforcement protections. At the same 
time, this framework necessarily must retain appropriate enforcement 
authority for EPA, a so-called federal ``safety net,'' under clearly 
defined circumstances.
    The Gillmor Discussion Draft provides an appropriate level of 
certainty by prohibiting enforcement under CERCLA Section 106, 107, or 
113, 42 U.S.C. 9606, 9607, or 9613, and RCRA Sections 7002(a)(1)(B) and 
7003, 42 U.S.C. 6972(a)(1)(B) or 6973. Importantly, the Gillmor 
Discussion Draft, in addition to including protections for Superfund 
contaminants, once again has recognized the critical necessity of 
providing enforcement protection for petroleum-contaminated sites. In 
sum, the Gillmor Discussion Draft couples the limitations on federal 
enforcement with the limited reopeners in Section 129(b)(1)(B) to 
provide an effective balance between finality and the federal ``safety 
net.''
    To the contrary, S.350 and the Democratic Discussion Draft lack the 
certainty and finality necessary to overcome the perception of EPA 
intervention that currently inhibits brownfields development. Clearly, 
intent of Section 129(b)(1)(A) of S.350 and the Democratic Discussion 
Draft is to provide a certain measure of finality for persons 
remediating hazardous substance contamination in compliance with State 
brownfields programs. However, by limiting EPA's enforcement 
authorities under CERCLA, without similar limitations on EPA 
enforcement authorities under RCRA, S.350 and the Democratic Discussion 
Draft only partially accomplish this goal.
    Simply stated, by limiting Section 129(b)(1)(A) to CERCLA, a person 
remediating hazardous substance contamination under a State brownfields 
program will be subject to potential federal intervention under RCRA 
for the exact same hazardous substances. As an example, assume that a 
site is contaminated with benzene in soil and groundwater and that a 
developer remediates that contamination to the satisfaction of a State 
environmental agency. Section 129(b)(1)(A) provides a developer with 
certain protections from CERCLA enforcement. The developer does not, 
however, receive any protections against a third party law suit under 
RCRA Section 7002(a)(1)(B) or an EPA enforcement action under RCRA 
Section 7003.
    For this reason, providing a limitation on EPA's CERCLA enforcement 
authority alone does not resolve the concerns regarding EPA 
intervention that gave rise to Section 129(b)(1)(A) of S.350 and the 
Democratic Discussion Draft.

 FEDERAL BROWNFIELDS LEGISLATION MUST NOT INCLUDE REOPENER PROVISIONS 
                      WITH INSUFFICIENT STANDARDS

    As set forth above, federal brownfields legislation must provide 
not only certainty and finality for site developers and owners, but 
also an appropriate federal ``safety net'' authorizing EPA to exercise 
its enforcement authorities under federal environmental statutes in 
clearly defined circumstances. These provisions, sometimes referred to 
as reopeners, are contained in Section 129(b)(1)(B) of S.350 and the 
Democratic Discussion Draft. The specific reopener provided for in 
Section 129(b)(1)(B)(iv) of S.350 and the Democratic Discussion Draft 
is overly broad and as a result threatens to significantly undermine 
the finality and certainty that S.350 and the Democratic Discussion 
Draft correctly seek to achieve.
    Specifically, Section 129(b)(1)(B)(iv) of S.350 and the Democratic 
Discussion Draft provides that EPA may bring an enforcement action if:
        The Administrator, after consultation with the State, 
        determines that information, that on the earlier of the date on 
        which cleanup was approved or completed, was not known by the 
        State, as recorded in documents prepared or relied on in 
        selecting or conducting the cleanup, has been discovered 
        regarding the contamination or conditions at a facility such 
        that the contamination or conditions at the facility present a 
        threat requiring further remediation to protect public health, 
        welfare or the environment. Consultation with the State shall 
        not limit the ability of the Administrator to make this 
        determination.
    There are two fundamental problems with this provision. First, 
information known to the State ``on the earlier of the date on which 
cleanup was approved or completed'' forms the baseline for determining 
whether ``new'' information has been discovered subsequently. In many 
instances, a State environmental agency approves a cleanup plan and the 
remediator thereafter continues to generate data during the course of 
designing and implementing the approved cleanup. Pursuant to Section 
129(b)(1)(B)(iv), any and all data generated during remedial design and 
remedial action will be newly discovered and potentially subject the 
remediator to EPA enforcement.
    Second, and more significantly, the mere existence of any new 
``information'' such that the contamination or conditions present any 
threat is a standard without boundaries. Several examples illustrate 
this point. First, assume a report issued by an organization, whether 
or not peer reviewed, alleges that a particular contaminant at a site 
poses a marginally greater risk than previously thought. In that 
circumstance, the ``information'' reopener contained in Section 
129(b)(1)(B)(iv) potentially applies notwithstanding the validity of 
the report or whether the risk remains with the range documented as 
part of the State approved cleanup. Second, any migration of 
contaminants within a site, which is a normal occurrence, would 
potentially be subject to this same reopener. Finally, any fluctuation 
in sampling results, within the same order of magnitude (even expected 
seasonal fluctuations) could potentially subject a particular site to a 
reopener.
    In sum, there is no standard contained within Section 
129(b)(1)(B)(iv) that constrains the quality, reliability, authority or 
environmental significance of the new information. As such, this 
reopener is potentially so broad as to eliminate the very protections 
S. 350 and the Democratic Discussion Draft seek to create.
    As an alternative, Section 129(b)(1)(B)(iv) of the Gillmor Draft 
reads:
        (iv) the Administrator, after consultation with the State, 
        determines that contamination or conditions, that on the later 
        of the date on which cleanup was approved or completed, were 
        present at the site but were not known by the State, as 
        recorded in documents prepared or relied on in selecting or 
        conducting the cleanup, have been discovered that present a 
        threat requiring further remediation to protect public health 
        or welfare or the environment and the State will not take the 
        necessary response action.
    By replacing ``information'' with ``contamination and conditions,'' 
the Gillmor draft eliminates the potential for the mere existence of 
any new ``information'' to subject a particular site to a reopener. 
``Contamination and conditions'' is a concrete standard by which EPA 
and the developer can quantify the level of threat at a site and 
whether that threat warrants the exercise of EPA's enforcement power.
Additional Weakening Provisions in the Democratic Discussion Draft
    The Democratic Discussion Draft contains several additional 
provisions that render the federal enforcement protections contained in 
Section 129 virtually meaningless.
    First, the Democratic Discussion Draft includes, as an additional 
reopener under Section 129(b)(1)(B) that allows EPA to reopen a site 
that has completed a state approved clean up if:
        the cleanup of the site under the response action plan of the 
        State program no longer protects human health or the 
        environment, as determined by the Administrator or the State, 
        because of a change or a proposed change in the use of the 
        site.
    This reopener is overly broad and unnecessarily undermines the 
finality of state-approved response actions. For example, the reopener 
applies to any ``change or proposed change in the use of the Site.'' 
Pursuant to this sweeping language, even a change (or for that matter a 
proposed change) from one industrial use to another would authorize EPA 
to reconsider the state-approved response action. Moreover, this 
reopener is unnecessary because S. 350 and the Democratic Discussion 
Draft already contain a reopener where changed conditions exist.
    To the extent, however, that a specific reopener for change 
conditions in land use is deemed necessary, the reopener should be 
drafted to ensure that it applies only to significant changes in land 
use, such as a change from non-residential to residential uses. 
Significant changes in land use are those which fundamentally alter the 
exposure assumptions upon which the State approved the response action.
    The Gilmore Discussion Draft addresses site use changes in 
precisely this manner. Specifically, in section 202(c)(3), a 
prospective purchaser loses its defense to liability only while the 
change in site use is ``inconsistent'' with the terms of the state-
approved response action.
    Second, the Democratic Discussion Draft creates a litany of 
standards that a state program must satisfy in order to become a 
``qualified'' state program for the purposes receiving federal 
enforcement protection under Section 129 of the legislation. The 
conditions that this legislation would impose on states are nothing 
more than a thinly veiled attempt to grant EPA review of existing state 
programs. Furthermore, these conditions undermine the presumption of 
state primacy that the Democratic Discussion Draft pretends to support.
    Finally, Title IV of the Democratic Discussion Draft creates an 
Advisory Commission on the Concentration and Impact of Brownfield Sites 
on Minority and Economically Disadvantaged Neighborhoods. While the 
impetus for the creation of this commission is honorable, the provision 
contained in Section 401(c) is a direct assault on state authority and 
on EPA's authority. This subsection allows for the revocation of the 
federal enforcement protections granted under 129(b)(1)(A) if the 
commission finds that minorities and economically disadvantaged 
neighborhoods are not allowed ``meaningful'' public participation in 
the state clean up program. This provision gives appointees, who may 
not have the requisite expertise and knowledge, unprecedented control 
and review of state programs and short-circuits the ability of EPA to 
exercise its authority under 129(b)(1)(B) of the legislation. 
Furthermore, the level of technical expertise required for appointment 
to this commission in the fields of; health science, risk assessment, 
and engineering is undefined. Our concern is the creation of this 
federal commission would result in this commission passing judgement on 
state voluntary clean-up programs with no direct knowledge of these 
programs.

                               CONCLUSION

    For four years, I have personally sought to marry the principles of 
Smart Growth with a wide variety of interest groups, governments, 
developers, site owners, community groups and environmentalists to 
reach common ground. A cornerstone of that effort is brownfields 
redevelopment. However, as attractive as brownfields development 
appears, any effort that strangles private sector participation will 
prove to be an exercise in futility. Federal brownfields legislation 
must ensure that builders and developers receive liability protections 
as a means to provide incentives for the development of these sites. 
Furthermore, builders and developers must be assured that EPA will not 
take an enforcement action unless a clear and limited set of 
circumstances warrants federal action. Without these incentives and 
protections, builders and developers will remain skeptical of acquiring 
and remediating brownfield sites.
    It is my firm belief that the Gillmor June 13th Discussion Draft 
provides builders and developers with the necessary incentives to 
tackle these sites while ensuring the federal ``safety net.'' While 
S.350 and the Democratic Discussion Draft provide certain important 
elements toward that end, these bills will not encourage the 
development community to redevelop brownfield sites. The exclusion of 
meaningful liability protection for prospective purchasers under RCRA, 
the exclusion of federal enforcement protections for petroleum 
contaminated sites remediated under a state program, the failure to 
provide protection to future owners and tenants, and the standardless 
reopeners do not strike an appropriate balance between providing 
certainty, finality and liability protection to brownfields developers. 
I encourage the members of this subcommittee to join with Chairman 
Gillmor and move forward on enacting his meaningful, workable, 
brownfields proposal.
    Again, I am grateful for this opportunity to appear before you on 
this important issue. I look forward to working with all members of the 
subcommittee. Thank you.

    Mr. Gillmor. Thank you very much.
    Mr. DeMarco?

                 STATEMENT OF DANIEL R. DeMARCO

    Mr. DeMarco. Thank you. Thank you for the opportunity to 
present the National Association of Industrial and Office 
Properties' views on Senate 350, the Gillmor discussion draft, 
and the Democratic discussion draft. I wish to thank Chairman 
Gillmor, ranking member Mr. Pallone, and members of the 
subcommittee for their leadership on this important issue. I am 
honored to be here.
    My name is Dan DeMarco, and I am a member of the National 
Association of Industrial and Office Properties, NAIOP, and 
currently serve as NAIOP's national vice chairman of government 
affairs. In 2002, I will become NAIOP's national chair-elect. I 
am currently a partner with Campanelli Companies in Boston, 
Massachusetts. We are a family owned, commercial real estate 
company that was established in 1947.
    Our company has developed over 12.5 million square feet of 
commercial property, including a number of sites involving 
environmental challenges. NAIOP is the Nation's leading 
organization of developers, investors, and owners of commercial 
real estate. We provide support and guidance to over 10,000 
members helping to create, protect, and enhance the value of 
commercial and industrial real estate and promote grass-roots 
public policy.
    We also work with various public sector entities in helping 
to bring idle properties back into use. As the owners, 
purchasers, and developers of brownfields, our members have a 
vested interest in this legislative reform.
    Brownfields hold an enormous amount of latent value for 
both the public and private sectors. Developing these sites can 
relieve growth pressure on local communities while at the same 
time having a profound effect on our urban core, yet this 
potential will remain unrealized unless Congress performs the 
Superfund liability system.
    Liability for cleanup of brownfield sites arises under the 
Federal Superfund statutes and similar State laws. Liability 
under the Superfund is joint and several. That is, each 
potential responsible party bears the entire responsibility for 
all cleanup expenses. The Superfund liability scheme has 
clearly exacerbated the difficulty of bringing brownfields back 
to productive use and may itself be responsible for the 
creation of many of these sites.
    NAIOP has testified before Congress in the past on the 
issue of brownfields reform, and we continue to maintain there 
are five key practical elements for revitalization. No. 1, 
reform the Superfund liability system. Two, defer to State 
remediation programs. Three, cleanup standards that are 
specific, risk-based, and take into account future use. Four is 
liability risks that can be quantified. And five is recognition 
of market forces.
    Our analysis of these three bills leads NAIOP to conclude 
that each makes individual attempts to address our concerns. We 
hope that these issues can be collectively addressed in a 
broad, bipartisan manner. Brownfields redevelopment result from 
a complex economic process dominated by real estate issues.
    As Tip O'Neill used to say, all politics is local, and is 
likewise true for real estate. A Federal cookie cutter approach 
for brownfield development is insufficient to achieve the goals 
of improving the environment, rebuilding our urban cores, 
reducing sprawl, and increasing employment, and returning 
unproductive properties to State and local tax bases.
    The U.S. Conference of Mayors estimates there are more than 
500,000 brownfield sites nationwide. It is reasonable to 
speculate that as many as half of these are petroleum sites.
    We applaud the Gillmor draft for including this type of 
lesser contamination in the general definition of brownfield. 
We are also encouraged by Senate 350 and the Democratic draft 
which both allow the use of brownfield grant and revitalization 
loan funds to be used for environmental assessments and cleanup 
activities of petroleum contaminated sites.
    All three bills provide some form of protection from the 
liability to innocent landowners, contiguous property owners, 
and prospective purchasers. To qualify for this protection, Mr. 
Gillmor's draft, an innocent owner or a bona fide purchaser 
would deliver to make--would have to make due diligence 
inquiries under the American Society of Testing Material 
Standards.
    On the other hand, Senate 350 and the Democratic draft 
would complicate this process for acquiring an EPA rulemaking. 
We believe the Gillmore draft provides a simple, workable 
approach. All three bills allow EPA to impose a lien on the 
increase of the property value, and we are not sure if this is 
a useful approach.
    I see time is winding down here, so I would like to make 
one general comment with regard to our company's enactment with 
State legislation, particularly in Massachusetts, the mass 
contingency plan.
    We have been involved in up to six sites that have had some 
level of investigation and remediation, and we have had very 
positive results. We have removed tank farms. We redeveloped at 
the Devons Air Force Base--military base in Western Mass--the 
first private installation. It was a building leased to 
Gillette.
    And without the cooperation of both the Federal Government 
and the State government, Gillette would not have come in 5 
years ago to lease this building, and that military base would 
not have been redeveloped the way it has been.
    There was a Federal indemnity achieved in that case, as 
well as a State covenant not to sue. And the State mass 
contingency plan has worked very well in self-policing and 
really leveraged tens of millions of dollars in private 
investment to remediate sites. Our company--millions of 
dollars.
    Thank you.
    [The prepared statement of Daniel R. DeMarco follows:]

Prepared Statement of Daniel R. DeMarco, Partner, Campanelli Companies, 
    on Behalf of the National Association of Industrial and Office 
                               Properties

    Mr. Chairman, Ranking Member Pallone and Members of the 
Subcommittee: I greatly appreciate the opportunity to present NAIOP's 
views on S. 350, the ``Gillmor Discussion Draft'' and the ``Democratic 
Discussion Draft'' to the Subcommittee. First, I want to thank 
Subcommittee Chairman Gillmor, Congressman Pallone and members of the 
subcommittee for their hard work and their recognition of the 
importance of this issue. It is an honor to be a part of this 
discussion.
    My name is Daniel R. DeMarco. I am a member of the National 
Association of Industrial and Office Properties (NAIOP) and currently 
serve a NAIOP's National Vice-Chairman of Government Affairs. In 2002, 
I will become the National Chairman-elect of NAIOP.
    I am a partner in Campanelli Companies in Braintree, Massachusetts. 
Campanelli is a family owned commercial real estate company in business 
since 1947 and employing approximately 50 people. Our company has 
developed over 12.5 million square feet of commercial property 
primarily in Massachusetts and manages a 5.4 million square foot 
commercial real estate portfolio. A number of sites we have developed 
in the greater Boston area have involved a variety of environmental 
issues. Today, Campanelli is an active development, construction, 
acquisition and property management real estate company. Prior to 
joining the Campanelli Companies in 1989, I was an Associate with the 
Boston, Massachusetts law firm of Burns and Levinson, where I 
specialized in corporate law, and from 1982 to 1984, I served as a 
legislative assistant to former U.S. Representative Brian Donnelly (D-
MA).
    NAIOP is the nation's leading organization of developers, 
investors, and owners of commercial real estate. NAIOP provides support 
and guidance to its over 10,000 members nationally to help create, 
protect, and enhance the value of commercial and industrial real 
estate, as well as promotes grassroots public policy related to real 
estate development. Among its numerous activities, NAIOP works with 
various public sector entities--particularly local government and 
regional economic and industrial development agencies, authorities, and 
corporations--in helping to bring unused or underutilized properties 
back as productive sources of jobs and tax revenues back to 
communities. As the owners, purchasers, and developers of brownfields, 
our members have a keen interest in legislative efforts aimed at 
renewal of these properties.
    Further, as the owners and developers of commercial and industrial 
properties subject to regulation under a variety of federal and state 
environmental laws, NAIOP members have much at stake in efforts to 
reform the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, commonly known as ``Superfund'' or ``CERCLA.''
     the superfund liability scheme and the creation of brownfields
    A brownfield is any real property that, because of actual or 
suspected environmental contamination, may lie idle, unoccupied, 
underutilized, or unused. The contamination of these properties may 
stem from activities that took place or conditions that arose before 
current ownership and operation of the property, and as a result of 
lawful non-negligent conduct. In most, if not all, instances, a 
brownfield will not be the subject of an active investigation, remedial 
or enforcement action by the U.S. Environmental Protection Agency 
(EPA), or a state environmental agency.
    Liability for cleanup of these sites arises under the federal 
Superfund and similar state statutes, and extends to all past and 
current owners and operators of the property and to any party 
responsible for generating or transporting any hazardous substances 
requiring cleanup at the property. Liability under this scheme is 
``joint and several,'' i.e., each potentially responsible party (PRP) 
bears the entire responsibility for all remedial expenses to a person 
who cleans up a site, notwithstanding the amount or nature of 
contamination for which the PRP may be individually responsible. 
Allocation among PRPs usually takes place in lawsuits or in other 
adversary contexts in which the PRPs seek equitable contribution among 
themselves.
    The Superfund liability scheme has clearly exacerbated the 
difficulty of bringing brownfields back to productive use. Moreover, 
that liability scheme itself is responsible for the creation of many 
brownfields. This system makes the owners of contaminated properties 
liable for millions of dollars in cleanup costs even if they had 
nothing to do with contaminating the site or they purchased the 
property decades after the contamination occurred. It exposes 
landowners not only to Superfund actions by EPA, but also to lawsuits 
decades in the future by as-yet unanticipated parties who incur cost to 
clean up the property. Concerned about this ``trailing'' liability, 
owners of possibly contaminated properties often hold this land back 
from the market. When properties that carry the stigma of contamination 
become available for sale, most developers avoid them out of concern 
that they will be exposed to endless uncertainty and undue financial 
liability.

                     LEGISLATIVE REFORMS ARE NEEDED

    Brownfields hold enormous potential value for both the private and 
public sectors. This potential will remain unrealized, however, unless 
Congress reforms the Superfund liability system.
    In April 1997, and again in May 1999, NAIOP had the privilege to 
testify before Congress on legislation aimed at Superfund reform and 
Brownfields revitalization. In that testimony, we pointed to five 
elements that NAIOP views as necessary to achieve meaningful Superfund 
reform that will result in practical brownfields revitalization: (1) 
Reform of the Superfund liability system; (2) Deference to state 
voluntary remediation programs; (3) Cleanup standards that are site 
specific, risk based, and which take into account future use; (4) 
Liability risks that can be quantified with solutions that are final; 
and (5) Recognition of market forces.
    Our analysis of these bills leads NAIOP to conclude that the 
``Gillmor Discussion Draft,'' S. 350, and the ``Democratic Discussion 
Draft'' make individual attempts to address our members concerns on 
these important issues. We hope that these issues outlined above can be 
addressed in a broad bi-partisan manner.

  BROWNFIELD CLEANUP AND REDEVELOPMENT IS PART OF AN ECONOMIC PROCESS

    Redevelopment of any brownfield property results from a complex 
economic process dominated by real estate issues. A developer will not 
be attracted to the most environmentally pristine of properties--
whether urban, suburban, exurban, rural, or agricultural--if the 
property does not have economic potential. A developer will consider 
the inhibition to investment posed by a property's environmental 
contamination as it would similar inhibitions, such as the availability 
of infrastructure, work force, tax issues, and other factors.
    We have heard the phrase ``all politics is local.'' It is likewise 
true that all real estate is local. To quote a 2001 guidebook on 
brownfields development forwarded by former Clinton Administration EPA 
Assistant Administrator Tim Fields, ``State-level creativity and 
innovation in meeting a wide range of brownfield site assessment, 
cleanup, and financing needs has been the hallmark of [brownfields 
reuse].''
    Therefore, a federal ``cookie cutter'' approach for brownfield 
development is insufficient to achieve the lofty goals of improving the 
environment, rebuilding our urban cores, reducing sprawl, increasing 
employment, and returning unproductive properties to state and local 
tax bases. Both S. 350 and the ``Gillmor Discussion Draft'' recognize 
that voluntary cleanup programs of the various states provide the best 
mechanisms to achieve these goals. By identifying the benefit of these 
programs, these bills address the five elements referred to above.
(1) Title I--Brownfields Revitalization Funding
    The U.S. Conference of Mayors estimates that there are more than 
500,000 brownfield sites in the United States. It is reasonable to 
speculate that as many as half or more of these sites could be old gas 
stations. We applaud the ``Gillmor Discussion Draft's'' effort to 
expand the definition of brownfield sites to include the less 
contaminated petroleum sites regulated by the Resource Conservation and 
Recovery Act. Further, we are encouraged by S. 350 and the ``Democratic 
Discussion Draft's'' efforts to permit the use of grant and loan 
proceeds to implement environmental assessments and undertake cleanup 
of petroleum contaminated sites.
(2) Title II--Liability Clarifications
    All three bills provide some form of protection from liability to 
innocent landowners, contiguous property owners, and bona fide 
purchasers of contaminated properties, all of which would mitigate some 
of Superfund's most draconian provisions. In order to qualify for this 
protection under Mr. Gillmor's draft, an innocent owner and a bona fide 
purchaser would have had to make inquiries for diligence investigations 
under the standards of the American Society of Testing of Materials 
(ASTM), the industry standard of both the commercial real estate and 
banking industries. For properties acquired before the promulgation of 
the ASTM standards, the party would have had to demonstrate compliance 
with contemporary industrial standards. The procedure in S. 350 and the 
``Democratic Discussion Draft'' would require a complex EPA rulemaking 
and add uncertainty to a process that the free market and the most 
rigorous watchdog--the banking industry--have found effective. We 
support the provision in S. 350 and the ``Democratic Discussion 
Draft,'' but believe that the ``Gillmor Discussion Draft'' provides a 
more simple approach.
    The ``windfall lien'' provision of both S. 350 and the ``Democratic 
Discussion Draft'' allow EPA to impose a lien on the increase in value 
of the property to the extent of EPA's unrecovered cleanup costs. It 
does not, however, impose an obligation on EPA to attempt to recover 
these costs from PRPs. In contrast, the ``Gillmor Discussion Draft'' 
recognizes the need to require EPA to follow its own ``Polluter Pays'' 
policy before it imposes a lien on an innocent party. It requires that 
before EPA seeks to recover its costs from a bona fide purchaser it 
must first make reasonable attempts to recover those costs from one or 
more responsible parties.
    Regrettably, however, none of the bills recognize the inherent 
unfairness of imposing an open-ended lien that has no time limitations, 
either for filing or duration. Under none of the bills would a bona-
fide purchaser have notice of an EPA lien. Further, the EPA has the 
option to impose its lien at any time. Any lien imposed by the EPA 
should be recorded at the time the Agency performs its work at the 
affected property. This would be consistent with CERCLA Section 107(l), 
which already establishes a federal lien to secure the Agency's 
remedial costs on property ``affected by a removal or remedial 
action.'' A notice provision would inform a prospective purchaser that 
EPA might seek to recover proceeds from the property after its 
acquisition. Such a notice provision is essential to fairness. The 
unintended effect, however, of any lien provision applying to a bona 
fide purchaser would be to discourage the development of properties on 
which EPA has filed its lien. Thus, NAIOP strongly believes that any 
lien EPA has filed should be released upon purchase of the property by 
a bona fide purchaser. Again, we do not know if this was the true 
intention of the bill's authors.
(3) Title III--State Response Programs
    Of critical importance to the cleanup and redevelopment of 
brownfields properties is the effective deferral of Federal enforcement 
in situations where properties have been cleaned up in compliance with 
State programs.
    Since the early 1990s, 47 states have enacted legislation or 
otherwise established programs that provide releases from liability 
under state environmental laws for parties who successfully complete 
voluntary and mandatory remediation actions. The ``Gillmor Discussion 
Draft'' requires EPA to defer to such state programs, and it would 
provide statutory protection against both cost recovery and 
contribution actions by the federal government or private parties for 
persons who meet the requirement s of those programs.
    On the other hand, state governments would still be allowed to 
pursue Superfund claims under CERCLA section 107. This deferral to the 
state programs in the ``Gillmor Discussion Draft'' also provides an 
element of finality to site closure that is now missing from the 
Superfund site cleanup equation.
    The example of states like Massachusetts, New Jersey, Pennsylvania, 
Michigan, Indiana, and others with voluntary cleanup programs, bolster 
the view of state program success. Many of these states have developed 
cleanup standards keyed to site use and risk and require enforceable 
deed restrictions and notices that convey with the property if it is 
not cleaned up to residential standards. If the use changes, the 
protection from liability lapses.
    In Pennsylvania, for example, NAIOP actively participated in the 
legislative process that resulted in Act 2, the Land Recycling and 
Environmental Remediation Standards Act. Under that statute, parties 
may choose to clean up contaminated properties to one or more of three 
different levels, after which they receive a release from liability 
under state environmental laws. The remediation standards of Act 2 
apply both to voluntary cleanups and mandatory remedial actions under 
the state's version of Superfund. The Pennsylvania statute has resulted 
in the cleanup of more than 650 sites since 1995, and has been adopted 
as model legislation by the American Legislative Exchange Council, an 
organization representing by legislators from all 50 states.
    It is important to recognize that states have been at the forefront 
of brownfields redevelopment and cleanup, while EPA has been slower to 
catch up. NAIOP urges Congress to not attempt to federalize the state 
programs, or make states meet a standard issued by EPA to qualify for 
deferral of EPA Superfund enforcement. It would be more logical and 
productive to require EPA to study and emulate the most successful 
state programs in order to redesign its own Superfund enforcement 
strategies. For example, the ``Gillmor Discussion Draft'' somewhat 
achieves this by emulating a provision in Pennsylvania's Act 2 Section 
902 (35 P.S. Sec. 6026.902) which eases requirements for permits or 
permit revisions for cleanup actions taken in compliance with the 
statute. Section 303 in Title III of the ``Gillmor Discussion Draft'' 
requires EPA to promulgate regulations within 18 months that would 
streamline, minimize, or eliminate procedural permitting requirements. 
This suggestion recognizes the extraordinary need to bring our 
brownfield sites back to life and to overcome impediments that would 
counter the attractiveness of the program.
    The extent to which the EPA may reopen for liability the 
remediation of a property cleaned up under a state program has been 
controversial. It is essential to understand that there are two groups 
affected by this: (1) Owners of thousands of contaminated properties 
that have not been released for sale, and (2) Parties who would clean 
up and redevelop these and thousands of other contaminated properties. 
These groups have not done so because of concern that they will face a 
future of lurking federal liability.
    As the ``Gillmor Discussion Draft'' recognizes, this applies not 
only to EPA enforcement actions, but also to third party suits for 
contribution under Section 113 of Superfund. Indeed, while we are not 
aware of EPA having yet sought to take an enforcement action at a site 
that has undergone a state approved cleanup, there are legions of third 
party suits for cleanup. The threat of liability for contamination 
found many years after cleanup by detection techniques that have not 
yet been developed lurks under Superfund. Both site owners and 
developers need the assurance of finality on both EPA and third party 
enforcement actions.
    The ``Gillmor Discussion Draft'' also recognizes that while EPA 
should be able to take action to protect human health and the 
environment where state programs have failed to do so, the Agency 
should first give the states the opportunity to cure any defect for 
which EPA can give them notice. Moreover, the draft actually enhances 
the likelihood of cleaning up more brownfields by requiring EPA to 
reopen state decisions only where true emergencies exist. Using the 
boilerplate ``imminent and substantial endangerment standard'' for 
reopening provides very little protection from second-guessing. Under 
the statutes, which have imminent and substantial endangerment 
provisions, courts have given a very broad interpretation to the term 
and have allowed actions to go forward where the problems were much 
less than crises or emergencies.
    In B.F. Goodrich v. Murtha, (1988) 697 F. Supp. 89, for example, 
the court held that the ``imminent and substantial endangerment'' 
provision of CERCLA Section 106, which authorizes EPA abatement 
actions, is not limited to emergency situations, and that EPA may act 
even where the actual harm may not be realized for years. EPA's own 
guidelines as to what constitutes an imminent and substantial 
endangerment are skimpy, and EPA has interpreted its authority broadly.
    In United States v. Tarkowski, 248 F.3d 596, a case decided by the 
U. S. Court of Appeals for the Seventh Circuit earlier this year, Judge 
Posner criticized EPA's claim that an imminent and substantial 
endangerment existed to justify its authority to take a response action 
under CERCLA Section 104. Judge Posner said (at 599):
          ``The EPA takes the extreme position that, provided it has 
        probable cause to believe that there is even a thimbleful of a 
        hazardous substance spilled in a person's yard, or we suppose 
        even a drop, it has an absolute right to an access order . . 
        .''
    Judge Posner was particularly critical that EPA would seek ``to 
undertake remedial efforts before determining whether there is a hazard 
that justifies the efforts.'' 248 F.3d at 601. Authorizing EPA to take 
action at sites cleaned up under state programs only in true 
emergencies where the state has sufficient notice to cure any noted 
problem should avoid this unnecessary over-reaching by EPA.
    The sensible restrictions on EPA second-guessing in the ``Gillmor 
Discussion Draft'' gives due credit to the states that have been on the 
firing line of brownfields redevelopment and encouragement to the 
developers who want to use those programs. At the same time these 
provision do not sacrifice protection of human health and the 
environment. We need to recognize that most developers, their 
employees, families, and other loved ones live in the communities where 
they work. It is cynical at best to project that states will try to cut 
environmental protection in order to attract development. In the 
unlikely event that such a circumstance would occur, the ``Gillmor 
Discussion Draft'' provides adequate ability for EPA to act swiftly and 
effectively to counteract such misconduct.
(4) Title IV of ``Democratic Discussion Draft''--Advisory Commission
    We applaud the inclusion in the ``Democratic Discussion Draft'' of 
a provision that would authorize a study of the effect of brownfields 
development on Environmental Justice issues. We concur that all 
communities should share in the benefits of such activity and that the 
Commission appointed under Title IV should both monitor compliance with 
this goal and issue recommendations to implement the goal. The 
Commission should not, however, have the unprecedented authority to 
disenfranchise state cleanup programs, as the Draft would empower it to 
do. This provision is probably unconstitutional as a violation of due 
process of law and the restriction of the 10th Amendment to the 
Constitution.

                                SUMMARY

    Cleaning up real or perceived contamination will not assure the 
success of a brownfields remediation. Additionally, the ordinary 
factors that make real estate development work must be in place for a 
brownfield development to succeed. Hence, brownfields revitalization 
incentives must be market-driven. Location, accessibility, 
infrastructure, work force, demand, and other factors must be taken 
into account when allocating grants and other financial resources to 
brownfield revitalization efforts. Even public and non-commercial 
projects must make economic sense. The ``Gillmor Discussion Draft'' 
builds upon the substantial foundation provided in S. 350, which NAIOP 
supported. We believe that the ``Democratic Discussion Draft'' attempts 
to address some of the same problems, but just does not go far enough.
    NAIOP members maintain that brownfields can and should be 
redeveloped consistent with protection of the environment and human 
health. Failure to enact brownfields reform legislation will result in 
the creation of more brownfields, as well as continue to foster the 
current inhibitions to brownfield redevelopment. Such outcomes are 
unilaterally inconsistent with protecting the environment and human 
health. The committee has an unparalleled, historic opportunity this 
year to take advantage of Congressional momentum, as well as fulfill 
the private sector's desire to enact this important legislation.
    Congress should act before this window of opportunity closes. 
Enacting broad bi-partisan brownfields reform legislation would result 
in both greater environmental remediation and the creation of wider 
economic opportunity in redeveloped brownfield sites.
    Mr. Chairman, Congressman Pallone, and members of the Subcommittee, 
I again thank you for the opportunity to present NAIOP's views on 
brownfields reform legislation, specifically S. 350, the ``Gillmor 
Discussion Draft'' and the ``Democratic Discussion Draft.'' NAIOP 
understands that there will be a long discussion over certain policy 
components of this legislation; after all, legislation is the art of 
compromise. We feel that S. 350 and both drafts discussed here today 
will involve all interested parties in continuing the important dialog 
that began many years ago. We appreciate your collective efforts as you 
work to obtain a broad bipartisan consensus on how to move forward in 
passing brownfields reform. Ultimately your efforts will be successful. 
NAIOP looks forward to working with the committee to that end.
    Thank you.

    Mr. Gillmor. Thank you.
    Mr. Lynch?

                     STATEMENT OF JOHN LYNCH

    Mr. Lynch. Thank you for the opportunity to present the 
views of the National Association of Realtors on brownfields, 
and I wish to thank Chairman Gillmor and ranking member Pallone 
for your leadership in addressing this very important issue. I 
would like to thank my friend, Sherrod Brown, for the nice 
introduction before.
    My name is John Lynch. I own a full-service real estate 
company, commercial real estate company in Cleveland, Ohio. We 
offer brokerage, site location, consulting, management, and 
appraisal services. I also have a small building company. We 
build energy efficient homes.
    I have been licensed in real estate since 1972. And, as 
Sherrod said, I was a member of Cleveland City Council. I have 
done my stint in public service. It is often said, and I agree, 
that realtors don't sell homes or buildings; we sell 
communities. The more than 760,000 members of the National 
Association of Realtors, real estate professionals involved in 
all aspects of the real estate industry, are concerned and 
active members of all of our communities.
    Like everyone else, we want clean air, clean water, and 
clean soil. We want to see contaminated properties cleaned up 
and returned to the marketplace. We care about a healthy 
quality of life, as well as a vibrant economy, and we are 
willing to do our part to maintain that important balance.
    NAR holds the brownfield legislation as our No. 1, as our 
top environmental issue, as our top priority. NAR supports 
brownfield legislation which will effectively promote the 
cleanup and redevelopment of hundreds of thousands of our 
Nation's brownfield sites. And if the chairman indicates there 
is 10,000 in Ohio, there is about 2,500 in my marketplace then.
    Throughout the country the real estate industry is becoming 
increasing comfortable with the idea of redeveloping brownfield 
sites. Old factories and warehouses are being replaced with 
cultural facilities, parks, apartment communities, shopping 
centers, what we heard earlier. At the same time that they 
provide a cleaner and safer environment, these revitalized 
sites increase the tax base, they create jobs, and they provide 
for new housing.
    Support for brownfield development also fits with NAR's 
smart growth initiative--our new program to advocate public 
policies which seek to maintain community quality of life while 
allowing the market forces to generate growth. Brownfields 
redevelopment is occurring because Federal, State, and local 
governments have banded together to creatively attack the 
brownfields problem by providing a variety of incentives and 
assistance. It just makes sense to redevelop these sites.
    In a report published last year, the State of Ohio reports 
that 85 sites have entered our voluntary action program 
resulting in the creation of over 7,000 jobs. Ohio recently 
passed a $400 million bond issue with half of the money being 
devoted for the cleanup of brownfield sites, for innocent 
property owners and prospective purchasers.
    New Jersey--a Rutgers University report estimates that 
within 10 years brownfields redevelopment can create 66,000 
permanent jobs, housing for some 71,000 people, and some $62 
million in new tax revenues. However, significant hurdles still 
remain.
    From the real estate industry perspective, liability 
concerns continue to impede brownfield development. First and 
foremost, brownfield legislation must provide Superfund 
liability protection for innocent landowners and prospective 
purchasers who have not caused or contributed to the hazardous 
waste contamination on the properties.
    It is important to get these innocent property owners out 
of the liability net, so that resources can be targeted toward 
the cleanup rather than toward litigation.
    Second, brownfields legislation must recognize successful 
cleanups conducted under State brownfield programs. Through 
their programs, most of the States provide real estate owners 
and developers with incentives to make brownfields 
redevelopment more attractive. Typically, the State will 
provide some sort of--some form of liability relief once it has 
approved a cleanup.
    In Ohio, the relief comes in the form of a no further 
action letter from the State EPA. Unfortunately, there is no 
guarantee, despite what was mentioned earlier by Ms. Fisher, 
that the Federal EPA will not assert its authority at some 
future date and require some additional cleanup.
    Without some degree of certainty that they are protected 
from the Federal as well as from State liability, owners and 
developers are reluctant to undertake development of 
contaminated sites. For this reason, the Ohio program is 
underutilized. In conjunction with the creative leadership of 
Administrator Whitman, I am confident that Congress can craft 
and pass legislation providing the real estate community with 
the certainty that they can go forward.
    Practical and effective brownfield legislation presents a 
win-win opportunity for everyone by cleaning up hazardous waste 
sites, thereby allowing them to be put to new productive uses 
which can enhance the community growth and the quality of life.
    In light of the strong support for brownfield legislation 
in the administration and in the Senate, the House has now a 
unique opportunity to take up the gauntlet and to reinforce a 
nationwide effort to turn brownfields into greenfields. NAR 
looks forward to working with this committee and the entire 
House to pass a brownfields bill in the 107th Congress.
    Thank you very much for allowing me to participate with you 
and to share with you the views of the National Association of 
Realtors.
    [The prepared statement of John Lynch follows:]

 Prepared Statement of the National Association of Realtors'

    Thank you for the opportunity to present the views of the National 
Association of Realtors' (NAR) on brownfields. I wish to 
thank Chairman Gillmor and Ranking Member Pallone for your leadership 
in addressing this very important issue.
    My name is John Lynch. I own a full service commercial real estate 
company in Cleveland, Ohio, offering brokerage, site location, 
consulting, management and appraisal services. I have been licensed in 
real estate since 1972. 1 also served on the Cleveland City Council for 
12 years.
    It is often said--and I agree--that Realtors' don't sell 
homes, we sell communities. The more than 760,00 members of the 
National Association of Realtors', real estate professionals 
involved in all aspects of the real estate industry, are concerned and 
active members of our communities. We want clean air, clean water and 
clean soil. We want to see contaminated properties cleaned up and 
returned to the marketplace. We care about a healthy quality of life as 
well as a vibrant economy, and we are willing to do our part to 
maintain that important balance.
    NAR supports brownfields legislation which will effectively promote 
the cleanup and redevelopment of the hundreds of thousands of our 
nation's brownfields sites. Throughout the country, the real estate 
industry is becoming increasingly comfortable with the idea of 
redeveloping brownfields sites. Old factories and warehouses are being 
replaced with cultural facilities, parks and apartment communities. At 
the same time that they provide a cleaner and safer environment, these 
revitalized sites increase the tax base, create jobs and provide new 
housing.
    Support for brownfields redevelopment also fits within NAR's Smart 
Growth Initiative, our new program to advocate public policies which 
seek to maintain community quality of life while allowing market forces 
to generate growth.
    Brownfields redevelopment is occurring because federal, state and 
local governments have banded together to creatively attack the 
brownfields problem by providing a variety of incentives and 
assistance.
    In a report published last year, the State of Ohio reports that 85 
sites have entered our Voluntary Action Program, resulting in the--
creation of over 7,000 jobs. Ohio recently issued a $400 million bond, 
with half of the money devoted to brownfields cleanup. In New Jersey, a 
recent Rutgers University report estimates that--within 10 years--
brownfields redevelopment can create 66,000 permanent jobs, new housing 
for 71,000 people, and $62 million in new tax revenues.
    However, significant hurdles remain. From the real estate industry 
perspective, liability concerns continue to impede brownfields 
redevelopment.
    First and foremost, brownfields legislation must provide Superfund 
liability protection for innocent landowners and prospective purchasers 
who have not caused or contributed to hazardous waste contamination. 
It's important to get these innocent property owners out of the 
liability net so that resources can be targeted toward cleanup rather 
than litigation.
    Secondly, brownfields legislation must recognize successful 
cleanups conducted under state brownfields programs. Through their 
programs, most of these states provide real estate owners and 
developers with incentives to make brownfields redevelopment more 
attractive.
    Typically, the state will provide some form of liability relief 
once it has approved a cleanup. In Ohio, relief comes in the form of 
a``No Further Action'' letter from the state EPA. Unfortunately, there 
is no guarantee that the federal EPA will not assert authority at a 
future date and require additional cleanup.
    Without some degree of certainty that they are protected from 
federal as well as from state liability, owners and developers are 
reluctant to undertake development of contaminated sites. For this 
reason, Ohio's program is underutilized. In conjunction with the 
creative leadership of Administrator Whitman, I'm confident that 
Congress can craft and pass legislation providing the real estate 
community with the certainty they need to go forward.
    Practical and effective brownfields legislation presents a ``win-
win'' opportunity for everyone by cleaning up hazardous waste sites, 
thereby allowing them to be put to new and productive uses which 
enhance community growth and quality of life.
    In light of the strong support for brownfields legislation in the 
Administration and the Senate,, the House has a unique opportunity to 
take up the gauntlet and reinforce our nationwide effort to turn 
``brownfields'' into ``greenfields.'' NAR looks forward to working with 
this Committee and the entire House to pass a brownfields bill in the 
107th Congress.
    Thank you again for the opportunity to present the views of the 
National Association of Realtors'. I'm happy to answer any 
questions.

    Mr. Gillmor. Thank you, Mr. Lynch.
    Mr. Roth?

                     STATEMENT OF LARRY ROTH

    Mr. Roth. Good afternoon, Mr. Chairman, Congressman 
Pallone, and members of the subcommittee. My name is Larry 
Roth. I am a registered professional engineer in six States, 
and a registered geotechnical engineer in California with 30 
years of experience in consulting civil, environmental, and 
geotechnical engineering.
    Currently, I am the Assistant Executive Director and Chief 
Operating Officer of the American Society of Civil Engineers. 
The cleanup of brownfields is important to the environmental 
and industrial health of this Nation through revitalization of 
many of our urban areas. We commend the subcommittee for its 
effort to produce bipartisan brownfields legislation.
    ASCE strongly encourages Congress to pass legislation that 
would assist in the redevelopment of brownfields. These sites, 
left untended, impose significant costs on the entire society. 
Properly restored, they aid in the revival of blighted areas, 
promote sustainable development, and invest in the Nation's 
industrial and economic strength.
    As blighted urban land is restored to productive use, the 
pressure to develop greenfields is lessened. This mitigates 
undesirable effects of sprawl such as traffic congestion and 
preserves culturally and ecologically valuable land.
    I should state at the outset that ASCE supports the 
carefully negotiated bipartisan brownfields approach taken in 
S. 350, including its funding, liability, and finality 
provisions. Significant to the effort to renew brownfields, in 
our view, is the provision that S. 350 that would limit any 
Federal response at State brownfield sites to current or future 
releases with certain important exceptions.
    These exceptions would allow Federal enforcement only, one, 
at the state's request; two, in the event of a release across a 
State line or onto Federal property; three, if the EPA 
determines that an imminent and substantial endangerment to 
public health or the environment exists; or, four, if the 
agency determines that the site conditions warrants attention 
and that further remediation to protect public health or the 
environment.
    We believe that this narrowly crafted, bipartisan approach 
to the reopener question in S. 350 is the best way to address 
the dynamics of the Federal-state partnership in brownfield 
cleanups. The Senate compromise adequately balances the 
interest of property owners and developers, the States, and the 
Federal Government in the cleanup process, while also assuring 
that human health and the environment are protected to the 
maximum extent practicable.
    We should point out that the Bush Administration endorsed 
this compromise in Federal-state power-sharing before the 
subcommittee in March. We think that the finality provisions in 
the June 13 draft bill go well beyond the compromise crafted by 
the Senate. It would limit Federal authority to act at 
brownfield sites under CERCLA and under other Federal laws as 
well.
    Congress should not limit EPA's authority to respond under 
CERCLA or other authorities to actual or threatened releases of 
hazardous substances at brownfields that have been cleaned up 
by a State. This is important because there can often be little 
meaningful State review during the cleanup process itself. Some 
States require developers to enter into enforceable consent 
agreements. Others involve the State extensively in approving 
work plans and supervising the cleanup process.
    Most States, however, allow the developer to operate more 
or less independently with little or no oversight beyond a 
review of documentation submitted at the end of remediation 
activities. The brownfields program needs a Federal umbrella to 
ensure human health and the environment are not left threatened 
by inadequate State cleanup efforts.
    In fact, to make sure there is a uniform and protective 
cleanup effort nationally, we believe that the final 
brownfields legislation should establish minimum Federal 
criteria for assessing the adequacy of State brownfields 
programs.
    In conclusion, CERCLA currently lacks certain liability 
exemptions for brownfields redevelopment. We believe liability 
relief provisions in the Senate bill offer innocent landowners, 
contiguous landowners, and prospective purchasers a good deal 
of certainty while continuing to afford appropriate protection 
and safeguards to human health and the environment.
    Mr. Chairman, that concludes my testimony. Thank you for 
inviting me here today. I would be happy to answer any 
questions that you may have.
    [The prepared statement of Larry Roth follows:]

Prepared Statement of Larry Rpth, Executive Director, American Society 
                           of Civil Engineers

    Mr. Chairman, Congressman Pallone and Members of the Subcommittee--
Good morning. My name is Larry Roth. I am a professional engineer and 
the assistant executive director and chief operating officer of the 
American Society of Civil Engineers (ASCE). I appreciate the 
opportunity to appear before this subcommittee on behalf of ASCE to 
present our views on legislation aimed at restoring the economic and 
social potential of brownfields sites.
    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 501(c)(3) non-profit educational and 
professional society.
                         a. the need for action
    The cleanup of brownfields is important to the environmental and 
industrial health of this nation through the revitalization of many of 
our urban areas. We commend the Subcommittee for its efforts to produce 
bipartisan brownfields legislation.
    ASCE strongly encourages Congress to pass legislation that would 
assist in the redevelopment of brownfields. These lands have 
effectively have been removed from productive capacity due to serious 
contamination. These sites, left untended, impose significant costs on 
the entire society. Properly restored, they aid in the revival of 
blighted areas, promote sustainable development, and invest in the 
nation's industrial strength.
    In 1995, the General Accounting Office estimated that there were 
more than 450,000 brownfield properties across America. Last year, the 
U.S. Conference of Mayors calculated that redeveloped brownfields could 
generate 550,000 additional jobs and up to $2.4 billion in new tax 
revenue for cities nationwide.
    ASCE believes that brownfields restoration, properly carried out, 
limits urban sprawl, thereby achieving a balance between economic 
development, the rights of individual property owners, the public 
interest, social wants and a healthy environment. Revitalized 
brownfields reduce the demand for undeveloped land. As blighted urban 
land is restored to productive use, the pressure to develop distant 
open spaces is lessened, thereby mitigating the undesirable effects of 
sprawl, such as traffic congestion, and preserving culturally and 
ecologically valuable land.
    The current brownfields program was established by the 
Environmental Protection Agency (EPA) in 1993 under its general 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) authority. That program, which has expanded to include more 
than 300 brownfields assessment grants (most for $200,000 over two 
years) totaling more than $70 million, needs to be placed on a sound 
statutory footing in order to ensure its continued progress.

            B. BROWNFIELDS LEGISLATION IN THE 107TH CONGRESS

    ASCE has reviewed S. 350, the Brownfields Revitalization and 
Environmental Restoration Act of 2001. This bill passed the Senate by a 
vote of 99-0 in April. ASCE supported S. 350 during its consideration 
in the Senate.
    We also have reviewed two recent legislative proposals for 
brownfields that were produced by this Subcommittee. They are the 
Discussion Draft of June 13, 2001 (the Gillmor plan), and the 
Democratic Discussion Draft of June 20, 2001 (the Pallone plan).
    Let me state that ASCE continues to support the carefully 
negotiated, bipartisan brownfields approach taken in S. 350, including 
its funding and liability provisions. Our detailed comments on specific 
issues follow.

                       C. THE ROLE OF THE STATES

    States have long sought greater local control over the Superfund 
program generally. We know, of course, that states have differing 
authorities and ideas about brownfields cleanups. They have a wide 
range of approaches and policy tools. Some address brownfields through 
voluntary cleanup programs, others supplement their voluntary program 
activities, and still others have separate brownfields cleanup and 
redevelopment programs.1
---------------------------------------------------------------------------
    \1\ For a pointed comment on state voluntary cleanup programs, see 
Joel B. Eisen, Brownfields Policies for Sustainable Cities (9 Duke 
Envtl. L. & Pol'y F. 187, 207-208 (1999) (``Often, there is also little 
meaningful [state] review during the remediation process itself. Some 
states require developers to enter into enforceable consent agreements; 
others involve the state extensively in approving work plans and 
supervising the cleanup process . . . Most allow the developer to 
operate more or less independently with little or no state oversight 
beyond a review of documentation submitted at the end of remediation 
activities.'')
---------------------------------------------------------------------------
    Forty-four states have initiated voluntary cleanup (or response) 
programs for brownfields. The site owner works cooperatively with the 
state. The private parties that voluntarily agree to clean up a 
contaminated site receive some protection from future state enforcement 
action at the site, often in the form of a ``no further action'' letter 
or ``certificate of completion'' from the state. These voluntary 
programs for brownfields are important because of the certainty that 
the EPA will not be able to complete the cleanup of even the nation's 
worst hazardous waste sites alone.2 But these state 
commitments do not, and should not, affect the EPA's authority to 
respond to actual or threatened releases of hazardous substances under 
CERCLA.
---------------------------------------------------------------------------
    \2\ In 1998, the General Accounting Office reported that, of 
approximately 3,000 sites identified as possible National Priorities 
List (NPL) sites, only 232 were named by either EPA, a state, or both, 
as likely to be placed on the NPL.
---------------------------------------------------------------------------
    In 1996, the EPA attempted to give the states a larger role in the 
brownfields process through an administrative mechanism that allows the 
Agency and the states to enter into ``partnerships'' to encourage the 
cleanup of sites that are not contaminated enough to warrant cleanup 
under Superfund itself.3 The policy set out six ``baseline 
criteria'' for the Agency to allow states to carry out voluntary 
cleanups at brownfield sites under a memorandum of agreement. Voluntary 
state cleanup programs must provide opportunities for meaningful 
community involvement; ensure that voluntary response actions are 
protective of human health and the environment; have adequate staff and 
financial resources to ensure that voluntary response actions are 
conducted in an appropriate and timely manner, and that both technical 
assistance and streamlined procedures, where appropriate, are available 
from the state agency responsible for the voluntary cleanup program; 
provide mechanisms for the written approval of response action plans 
and a certification or similar documentation indicating that the 
response actions are complete; provide adequate oversight to ensure 
that voluntary response actions are conducted in such a manner to 
assure protection of human health and the environment; and show the 
capability, through enforcement or other authorities, of ensuring 
completion of response actions if the volunteering party carrying out 
the response action fails to complete the necessary response actions, 
including operation and maintenance or long-term monitoring 
activities.4
---------------------------------------------------------------------------
    \3\ Memorandum from Elliott P. Laws, Assistant Administrator, 
Office of Solid Waste and Emergency Response, and Steven Herman, 
Assistant Administrator, Office of Enforcement and Compliance 
Assurance, to EPA Superfund National Policy Managers (Nov. 14, 1996).
    \4\ Id., Attachment 1.
---------------------------------------------------------------------------
    As of May 9, 2001, sixteen states had entered into a memorandum of 
agreement with the EPA under the 1996 voluntary cleanup program 
guidelines for brownfields, according to the Agency.5 In 
effect, these states have agreed to strict federal oversight of their 
brownfield cleanup programs in return for assurances from the EPA that 
the federal government will voluntarily curtail its powers under 
section 106(a) of CERCLA, which allows the Agency to override local 
cleanup decisions at a hazardous waste site after the cleanup is 
completed in cases of ``imminent and substantial endangerment.'' 
6
---------------------------------------------------------------------------
    \5\ The states are Arkansas (December 2000); Colorado (April 1996); 
Delaware (August 1997); Florida (December 1999); Illinois (April 1995); 
Indiana (December 1995); Kansas (March 2001); Maryland (February 1997); 
Michigan (July 1996); Minnesota (May 1995); Missouri (September 1996); 
New Mexico (December 1999); Oklahoma (April 1999); Rhode Island 
(February 1997); Texas (May 1996); and Wisconsin (October 1995).
    \6\ 42 U.S.C.A. Sec. 9606(a) (West 2001). Known as the ``reopener'' 
clause, the ``imminent and substantial endangerment'' locution 
restricts federal action to current or future releases. It does not 
contemplate an EPA response for releases that occurred at some time in 
the past. See Meghrig v. KFC Western Inc., 116 S.Ct. 1251, 1255 (1996).
---------------------------------------------------------------------------
    The EPA will not intervene in a state voluntary cleanup program 
absent a catastrophic failure of the initial cleanup. ``[G]enerally EPA 
does not anticipate taking removal or remedial action at sites involved 
in this Voluntary Cleanup Program unless EPA determines that there may 
be an imminent and substantial endangerment to public, health, welfare, 
or the environment.'' 7
---------------------------------------------------------------------------
    \7\ Laws-Herman Memorandum, supra note 3, at 2 (emphasis added).
---------------------------------------------------------------------------
    Section 301 of S. 350 adds a new section to CERCLA that effectively 
would codify the EPA policy and the Supreme Court holding in Meghrig by 
limiting any federal response at brownfield sites to current or future 
releases. It would preclude federal enforcement through section 106(a) 
or a cost-recovery action under section 107(a) following a state 
cleanup at a brownfield site, with four important exceptions. These 
exceptions would allow federal enforcement (1) at the state's request; 
(2) in connection with migration across a state line or onto federal 
property; (3) if the EPA determines that an imminent and substantial 
endangerment to public health or welfare or the environment exists, 
after considering the response actions already taken at the site, and 
determines that additional response actions are likely to be necessary; 
or (4) if the Agency determines new information on the site's condition 
warrants attention and the site presents a threat requiring further 
remediation to protect public health, welfare, or the environment. The 
Bush Administration endorsed this compromise in federal-state power-
sharing before this Subcommittee in March.8
---------------------------------------------------------------------------
    \8\ A Smarter Partnership: Removing Barriers to Brownfields 
Cleanups: Hearing Before the Subcomm. on Environment and Hazardous 
Materials of the House Comm. on Energy and Commerce, 107th Cong. (Mar. 
7, 2001) (Statement of Christine Todd Whitman, Administrator, U.S. 
Environental Protection Agency) (``Brownfields legislation should 
direct EPA to work with the states to ensure that they employ high, yet 
flexible cleanup standards, and allow EPA to step in to enforce those 
standards when necessary.'') .
---------------------------------------------------------------------------
    The Democratic Draft of June 20 generally follows the language in 
S. 350. It would preclude federal enforcement or cost recovery 
following a state brownfield cleanup, with the four exceptions affirmed 
in S. 350. The Gillmor Draft would adopt a somewhat more restrictive 
approach to reopeners, prohibiting the EPA or any other party from 
seeking a post-cleanup enforcement order under section 106, a cost 
recovery under section 107 or a civil action under section 113 of 
CERCLA. It would allow for federal or private enforcement under the 
same four exceptions included in S. 350 and the Democratic Draft, 
however.
    The narrowly crafted bipartisan approach to the reopener question 
in section 301 of S. 350 is the correct way to address the natural 
tension between the federal and state roles in brownfields cleanups. 
This provision would give the states ample opportunity to carry out a 
brownfield cleanup under minimum federal oversight while protecting 
human health and the environment in case of a cleanup failure through 
the use of federal enforcement tools in the existing Superfund statute. 
This Subcommittee should conform its brownfields bill as nearly as 
possible to the Senate provision on reopeners.

                       D. STATE PROGRAM CRITERIA

    In practice, state voluntary programs do not focus on redevelopment 
nor do they target urban sites specifically. State voluntary programs 
are more often aimed at getting simple, less contaminated sites cleaned 
up regardless of whether they are reused, and, as we have noted, they 
have differing authorities and ideas about brownfields cleanups. 
Brownfields programs, on the other hand, are more likely to focus on 
redevelopment and be part of a broader state strategy or set of social 
policies aimed at improving distressed urban areas.
    The Democratic Discussion Draft would create a new provision that 
would require states to certify to the EPA that they have the legal and 
financial resources available to carry out a brownfields cleanup. The 
Gillmor Discussion Draft contains similar requirements. Each bill would 
codify the EPA practice of signing memoranda of agreement with states 
to carry out voluntary cleanup programs under Agency guidance. ASCE 
endorses this solution.
    To ensure a uniform and protective cleanup effort nationally, we 
believe that the final brownfields legislation ought to establish 
minimum federal criteria for assessing adequate state brownfields 
programs. The states should be required to demonstrate that their 
programs satisfy minimum environmental and public health criteria.
    There also must be some way to ensure appropriate public 
participation in state cleanups or provide assurance through state 
review or approval that site cleanups are adequate. Public 
participation and accountability are important to making good cleanup 
decisions.

                          E. LIABILITY ISSUES

    CERCLA currently lacks certain liability exemptions for brownfields 
redevelopment. Nevertheless, the EPA has undertaken several liability-
related administrative steps to encourage brownfields development. 
Significantly, the Agency has allowed expanded use of ``prospective 
purchaser agreements.'' These make up a ``no-action assurance'' by the 
EPA that it will not enforce against someone who wants to buy 
contaminated property for cleanup or redevelopment. There must be a 
clear benefit to EPA (often, obtaining cleanup funding not otherwise 
available) or to the community in entering into the agreement. Another 
initiative is the EPA ``comfort letter,'' a notification to the 
prospective buyer of a brownfield (such as a closed military base) as 
to EPA's enforcement intentions there, based on information then known 
to EPA. Comfort letters are informational and not binding assurances, 
however, as the prospective purchaser agreements are.
    These EPA policies, however, restrict only the Agency. They provide 
no assurance that states or private parties may not sue under the Act. 
Moreover, although some states, as part of their own brownfields 
programs, have provided protection from liability under state law as an 
incentive for investment in these sites, states are without power to 
waive liability under the federal CERCLA.
    Thus, the fear of liability under CERCLA frequently impedes the 
cleanup and redevelopment of brownfields. We support liability 
provisions in CERCLA that release prospective purchasers of 
contaminated brownfields property; innocent landowners, and contiguous 
property owners from responsibility for the cleanup of a site. We 
believe liability relief provisions for innocent landowners, contiguous 
landowners and prospective purchasers will provide a great deal of 
certainty to homeowners, buyers, and developers involved in the 
purchase, sale, cleanup and redevelopment of brownfields properties. S. 
350 and the two Subcommittee bills easily satisfy these requirements.

                      F. SCOPE OF THE LEGISLATION

    We believe a federal brownfields restoration program should be 
narrowly tailored to conserve federal funds by addressing only those 
sites where no other federal or state cleanup actions are possible or 
under way.
    To this end, the legislation should exclude from the brownfields 
restoration program any site that is undergoing a remedial or removal 
action funded under CERCLA or that is listed or proposed for listing on 
the NPL.
    Other exclusions should apply to sites that are the subject of an 
administrative or court-ordered cleanup or a cleanup approved through a 
consent decree under CERCLA, the Resource Conservation and Recovery Act 
(RCRA), the Federal Water Pollution Control Act (FWPCA), the Toxic 
Substances Control Act (TSCA) or the Safe Drinking Water Act (SDWA).
    Brownfields funding should not go to sites subject to corrective 
action under 3004(u) or 3008(h) of RCRA and to which a corrective 
action permit or order has been issued or modified to require the 
implementation of corrective measures.
    Finally, no federal assistance should go for a hazardous waste 
disposal unit for which a closure notification has been submitted and 
that has closure requirements specified in a closure plan or permit 
under RCRA; a site that is federally owned or operated; any portion of 
a facility where there has been a release of polychlorinated biphenyls 
and that is subject to remediation under TSCA; or that is being 
addressed by the Leaking Underground Storage Tank (LUST) Trust Fund.
    All three bills meet this important goal.
                             g. conclusion
    Mr. Chairman, that concludes our testimony. I would be happy to 
answer any questions you may have.

    Mr. Gillmor. Thank you very much, Mr. Roth.
    Mr. Hopkins?

                     STATEMENT OF ED HOPKINS

    Mr. Hopkins. Thank you, Chairman Gillmor, and members of 
the committee for this opportunity to speak today on 
brownfields issues.
    In addition to my statement, I would like to have 
introduced into the record a letter from seven public health 
and environmental groups concerning the discussion draft if we 
could.
    Mr. Gillmor. Give us a copy, and we will deal with that at 
the end of the hearing.
    Mr. Hopkins. Okay. Thank you, sir.
    My name is Ed Hopkins. I am the Director of the Sierra 
Club's Environmental Quality Program. We are a national 
nonprofit environmental advocacy organization with more than 
700,000 members. The Sierra Club strongly supports cleaning up 
brownfields in ways that protect public health and the 
environment and, to the greatest extent possible, hold 
polluters accountable for cleanup costs.
    In our view, the majority draft bill takes the debate over 
how best to clean up and redevelop brownfields in the wrong 
direction. It represents a radical departure from the 
bipartisan bill that unanimously passed the Senate, Senate bill 
350, with the support of EPA Administrator Whitman.
    The draft bill promotes redevelopment above consideration 
of public health and the environment, fairness to taxpayers, 
and the right of citizens to know about and participate in 
decisions affecting their communities. The Sierra Club will 
vigorously oppose this bill as an unacceptable weakening of the 
Nation's public health protection laws.
    We are afraid if the committee chooses this approach, which 
diverges so greatly from the bill passed in the Senate and the 
policies that the administration has espoused, we believe it 
will doom the prospect of enactment of brownfield legislation.
    There are several principal areas of concern about this 
bill. First, the draft bill includes heavily contaminated sites 
within the definition of brownfields and eligible response 
sites. In our view, brownfields legislation should address 
sites with low levels of contamination.
    One of the most important provisions of Senate bill 350 is 
that it includes only sites with relatively low levels of 
contamination, recognizing that higher risk sites should be 
addressed under the provisions of State and Federal laws 
specifically written to address the risks they pose to ensure 
protection of the public's health and safety.
    In defining brownfield sites that would be eligible for 
Federal funding, the draft bill in several ways greatly expands 
the scope of brownfields and includes more contaminated sites. 
It allows portions of heavily contaminated sites subject to 
cleanup under a number of Federal laws to be considered as 
brownfields.
    The definition of eligible response sites under the Senate 
bill explicitly excludes Superfund caliber sites. Those are 
included in the draft bill. The draft bill would also allow 
States to designate highly contaminated sites, including 
hazardous waste disposal sites in areas contaminated with PCBs 
as brownfields.
    Allowing more higher-risk sites to take advantage of 
funding and enforcement limits under a State brownfield program 
greatly concerns us because of the inadequacy of some of the 
State programs. The Sierra Club strongly opposes the concept 
of, one, making high-risk sites eligible for funding in 
restricted Federal enforcement; two, reducing the enforcement 
authority of the Federal Government, thus leaving oversight 
largely to the States; and, three, failing to set minimum 
common-sense requirements for State cleanup programs. And this 
is precisely what this bill would do.
    Our second major concern is that the draft bill fails to 
include criteria for State voluntary cleanup programs, and we 
see this program criteria as vital for ensuring protection of 
public health and environmental quality.
    State cleanup programs vary tremendously. A dozen States, 
including Ohio, lack assurances for public participation in 
their cleanup program. In Ohio, for example, States are--the 
public is not notified of cleanup until after it occurs. These 
documented weaknesses of State programs suggest that limiting 
Federal enforcement authority while increasing Federal funding 
for State voluntary cleanup programs may result in increased 
health risks.
    Our third major concern is that the draft bill weakens 
EPA's authority to protect public health and the environment 
from toxic waste. The Federal safety net in CERCLA and other 
statutes must be preserved to safeguard the public.
    We see there is no real need to limit the Federal 
Government's authority in this area. As EPA Administrator 
Whitman has testified in the Senate, EPA has never superseded a 
State brownfields decision. Yet this draft goes a long way 
toward changing the provisions of S. 350, changing, for 
example, the standard of imminent and substantial endangerment 
by adding the concept of emergency.
    So we have many concerns about this bill, Mr. Chairman, and 
we appreciate the opportunity to speak here today.
    [The prepared statement of Ed Hopkins follows:]

             Prepared Statement of Ed Hopkins, Sierra Club

    Chairman Gillmor and members of the House Energy and Commerce 
Subcommittee on Environment and Hazardous Materials, thank you for the 
opportunity to speak today about Representative Gillmor's June 13 draft 
brownfields legislation.
    My name is Ed Hopkins, and I am the director of the Sierra Club's 
Environmental Quality program. The Sierra Club is a national, nonprofit 
environmental advocacy organization with more than 700,000 members.
    To summarize the Sierra Club's principal concerns, there are four 
main areas where Representative Gillmor's draft bill takes the debate 
over brownfields legislation in the wrong direction.

 First, the draft bill includes heavily contaminated sites 
        within its definition of ``brownfields'' and ``eligible 
        response sites.'' Brownfields legislation should only address 
        sites with low levels of contamination.
 Second, it fails to include minimum, commonsense criteria for 
        state voluntary cleanup programs. Requiring minimum state 
        program criteria is vital for ensuring protections of public 
        health and environmental quality.
 Third, the draft bill weakens the EPA's authority to protect 
        public health and the environment from toxic waste. The federal 
        safety net in CERCLA and other statutes must be preserved to 
        safeguard the public
 Fourth, the draft bill eliminates a host of protections for 
        local communities. These provisions include, but by no means 
        are limited to, unnecessary restrictions on listing Superfund 
        sites; efforts to allow the elimination of requirements for 
        public notice, information, and participation in environmental 
        permitting decisions; and removal of protections for public 
        health embodied in CERCLA, RCRA and other laws.

                                OVERVIEW

    Various estimates place the number of brownfields between 450,000 
to 600,000. Under the EPA's broad definition--``abandoned, idled, or 
under-used industrial and commercial facilities where expansion or 
redevelopment is complicated by real or perceived environmental 
contamination''--anything from a trash-strewn inner-city lot posing 
minimal health threats to sites that are just barely less hazardous 
than those listed on the National Priority List could be considered a 
brownfield.
    The Sierra Club strongly supports cleaning up brownfields in ways 
that protect health and the environment and that, to the greatest 
possible extent, hold polluters accountable for cleanup costs. 
Responsible brownfields cleanup should reduce or eliminate public 
exposure to contaminants, protect the environment, revitalize 
communities, facilitate development that takes advantage of existing 
infrastructure, and discourage consumption of undeveloped land. 
Irresponsible brownfields redevelopment can pose risks to public health 
and the environment, disillusion and anger communities that have been 
denied opportunities to participate in redevelopment decisions, and 
decrease redevelopment efforts. Eagerness to redevelop contaminated 
property should not have a greater priority than protecting health.
    In our view, Representative Gillmor's draft bill takes the debate 
over how best to clean up and redevelop brownfields in the wrong 
direction. It represents a radical departure from the bipartisan bill 
that unanimously passed the Senate (S. 350), with the support of EPA 
Administrator Whitman.
    This draft bill promotes redevelopment above consideration of 
public health and the environment, fairness to taxpayers, and the right 
of citizens to know about and participate in decisions affecting their 
communities. The Sierra Club will vigorously oppose this bill as an 
unacceptable weakening of the nation's public health protection laws. 
If the Committee chooses this approach, which diverges so greatly from 
the provisions in the Senate bill and the policies the Administration 
has espoused, we believe it will doom the prospect for enactment of 
brownfields legislation, thereby slowing efforts to clean up and 
redevelop the nation's brownfields.
    In the Sierra Club's view, draft bill contains a number of 
provisions that weaken public health protections and inappropriately 
shift liability for cleanup to the public. The draft bill:
Includes heavily-contaminated or high-risk sites in the definition of 
        ``brownfields'' and ``eligible response sites.''
    One of the most important provisions of S. 350 is that it includes 
only sites with relatively low levels of contamination. It recognizes 
that higher risk sites should be addressed under the provisions of 
state and federal laws specifically written to address the risks they 
pose to ensure protection of the public's health and safety.
    In defining brownfield sites that would be eligible for federal 
funding, the draft bill in several ways greatly expands the scope of 
brownfields and includes more contaminated sites. It removes S.350's 
limitation that only ``relatively low risk'' petroleum sites be 
included as brownfield sites (S.350 Section 101(a)(39)(D)(ii)(bb)(AA)). 
It also allows portions of heavily contaminated sites subject to 
cleanup under a number of federal laws to be considered for brownfields 
funding. (Section 101(a)(39)(B)(iii) and (iv)) We are wary of drawing 
the lines too closely on highly contaminated sites because it suggests 
more precise knowledge of the site than may be accurate. In the Hickory 
Woods development of Buffalo, New York, for example, toxic chemicals 
have been found in an area just outside an NPL site. After chemicals 
were found in some basements, the state health department has advised 
residents to avoid disturbing the soil in their yards and to take other 
precautions. Excluding all of seriously contaminated sites--not just 
portions of them ( errs appropriately on the side of public safety. 
1The definition of ``eligible response sites,'' under the Senate bill, 
explicitly excludes ``Superfund-caliber'' sites, those which have 
undergone a preliminary assessment and site investigation and have 
received a pre-score under EPA's site evaluation process that would 
indicate that the site could qualify for inclusion on the National 
Priorities List. The draft bill, by dropping this limitation, would 
greatly restrict the EPA's authority to protect public health from 
inadequate cleanups at these higher-risk sites.
    The draft bill would also allow states to designate ``independent 
of any federal oversight'' highly contaminated sites, including 
hazardous waste disposal sites and areas contaminated with 
polychlorinated biphenyls as ``brownfields.'' It would then allow 
states that may not be authorized for corrective actions under RCRA to 
use federal taxpayer dollars to subsidize the cleanup of sites that 
would otherwise be regulated under RCRA. This would take place without 
any federal oversight.
    Allowing more, higher-risk sites to take advantage of funding and 
enforcement limits under a state brownfield program greatly concerns us 
because of the inadequacies of some of the state programs. (Our 
concerns about state programs are discussed below.) The Sierra Club 
strongly opposes the concept of 1) making high-risk sites eligible for 
funding and restricted federal enforcement, 2) reducing the enforcement 
authority of the federal government, thus leaving oversight largely to 
the states, and 3) failing to set minimum, commonsense requirements for 
state cleanup programs. This is precisely what the draft bill proposes.
Limits unnecessarily the ability of the federal government to protect 
        public health and the environment.
    The draft bill makes a number of changes in existing law and in 
S.350 that, taken together, significantly weaken the federal safety net 
for protecting public health and the environment from contaminated 
waste sites. By severely undermining the federal safety net, this draft 
bill erodes the public's ability to rely on EPA as a safeguard for the 
health of their families and neighborhoods.
    There is no need to limit the ability of the federal government to 
protect public health. As EPA Administrator Whitman testified in the 
Senate and is reported to have told the U.S. Chamber of Commerce 
(National Journal's Congress DailyAM, June 19, 2001), the EPA has never 
superceded a state brownfields decision.
    In seeking to address a nonexistent problem, the draft bill goes 
unacceptably beyond S. 350 in weakening the federal safety net, which 
authorizes EPA to order polluters to clean up contamination that may 
present an imminent and substantial endangerment to public health and 
the environment. Not only does this provision bar the EPA from ordering 
cleanups, but it goes even further, amending Section 113 of CERCLA, to 
prevent the Agency from undertaking or assessing polluters costs for 
long-term cleanup activities. (Section 129(b)(1)(A) of the draft)
    While S.350 preserves the meaning of the ``imminent and substantial 
endangerment'' standard to avoid unnecessary litigation, the draft bill 
drops this term, whose meaning has been established through years of 
litigation. Instead of enabling the EPA to prevent threats to public 
health, the draft bill shifts the focus to controlling damage during 
emergencies or instances where the state has delayed taking action. 
(See Section 129(b)(I)(B)(iii) and (iv) of the draft bill.) Instead of 
serving to prevent threats to health, the draft bill would limit 
federal authority to responding to an emergency, presumably situations 
where health or environmental threats have occurred. The term 
``emergency'' is not defined, however, and introducing this new concept 
seems likely to trigger considerable litigation. We view this change as 
yet another weakening of the federal safety net.
    In S.350, the limits on EPA's enforcement authority apply only to 
sites that states plan on cleaning in the coming year or that states 
finished cleaning in during the previous year, and which the state 
includes on publicly available database. The state must also provide 
basic information pertaining to whether the sites will be suitable for 
unrestricted use and what, if any institutional controls are relied 
upon. States must update this record at least annually. Making 
information on response actions available to the public is important to 
provide citizens with greater information about the cleanups occurring 
in their communities. Creating broader awareness of institutional 
controls that are in place can be extremely important in protecting the 
public. The public record provision is a commonsense requirement that 
should be a prerequisite for any federal brownfields funding; without 
it, there can be no accountability for states' use of federal funds. 
The draft bill has completely dropped this critical requirement, thus 
eliminating an important resource that citizens can use to examine the 
state cleanup program, hold the state agency accountable, and ensure 
improved enforcement of institutional controls.
    Reducing EPA's ability to intervene will not only put the public at 
risk from inadequate cleanups under state supervision, but it could 
remove the incentive for responsible parties to perform adequate 
cleanups in the first place. Preserving the federal safety net 
strengthens the hands of state officials who are negotiating with 
intransigent parties. State officials can invoke the prospect of 
federal intervention if parties fail to meet state requirements. 
Without this stick, state officials will lose negotiating leverage with 
private parties.
    Because of the inconsistent and inadequate protection provided by 
state cleanup programs, the federal government should retain its 
current authorities to protect public health. The federal government 
has more resources, technical expertise, and greater guarantees for 
public involvement than many states. The federal government can use 
these tools to prevent or mitigate threats to public health from 
inadequate cleanups. If Congress weakens the federal safety net, it 
risks jeopardizing these important protections.
    These unnecessary limitations on federal enforcement authority 
under CERCLA and the Resource Conservation and Recovery Act are 
especially troubling because the draft bill expands the definition of 
brownfields to include higher-risk sites and fails to set minimum 
standards for state cleanup programs.
    As described below, the draft bill also significantly modifies 
language in Title II of S. 350 that limits liability for developers, 
innocent landowners, and owners of land that is contaminated by 
adjacent property. This language has been relatively consistent in 
previous bills offered by Members of both parties. In combination with 
the other provisions related to the federal safety net, these changes 
would weaken protections for public health and incentives to ensure 
that only responsible developers can avail themselves of liability 
limitations.
    There is no real, documented need to weaken federal protections. 
With state liability exemptions, future federal liability relief such 
as those provided under Title II of S.350, and commonplace insurance 
policies, responsible developers have no reason to be concerned about 
the need for future clean up costs as long as they adequately clean up 
waste sites. The only parties that need increased finality are 
irresponsible companies, those who fail to clean up toxic waste sites 
adequately, redevelop these sites, and then sell them to unsuspecting 
people. This is precisely the rationale for federal protection.
Fails to ensure that state brownfields programs meet minimum standards.
    The draft bill sets no minimum standards for state brownfield 
redevelopment programs. Instead, it makes available money to all states 
and limits federal enforcement authority in all states, regardless of 
the adequacy of a state's cleanup program.
    The draft bill identifies some of the most important elements of a 
credible state program: timely survey and inventory of brownfields 
sites; oversight and enforcement authorities; resources to ensure that 
adequate response actions will protect human health and the environment 
and comply with applicable federal and sate law; resources to ensure 
that if the person conducting the response fails, there is a mechanism 
for the necessary response activities to be completed; mechanisms for 
the public to participate in a meaningful way; and mechanisms for 
approval of a cleanup plan and a requirement for verification and 
certification. But these program elements are purely discretionary, and 
states may receive federal funds regardless of the quality of their 
brownfield redevelopment program. (Section 129)
    State cleanup programs vary tremendously. A dozen states, including 
Ohio, lack assurances for public participation in their cleanup 
programs, according to a 1998 report by the Environmental Law 
Institute. Some state cleanup programs rely extensively on weak cleanup 
standards, containment and institutional controls rather than cleanups 
that would protect public health and the environment, according to 1998 
reports by the General Accounting Office (Hazardous Waste Sites, State 
Cleanup Practices) and the EPA's Office of Inspector General 
(Supervened, State Deferrals: Some Progress, But Concerns for long-term 
Protectiveness Remain). A recent audit of New York's cleanup program 
found similar weaknesses (Dept. of Environmental Conservation, Selected 
Operating Practices to the Remediation of Inactive Hazardous Waste 
Disposal Sites, February 2001). The state's Comptroller found that 
after sites had gone through the state cleanup program, 30 of 221 sites 
did not meet state cleanup standards, and at 141 other sites, state 
records did not demonstrate whether cleanup standards had been met.
    Certain states have particularly inadequate cleanup programs. In 
Ohio, for example, the public is not notified of cleanups until after 
they occur, and the state has provided financial incentives to 
redevelop sites that are never cleaned up. By failing to set minimum 
national standards, brownfields legislation risks rubber-stamping 
inadequate programs like Ohio's and providing the resources for the 
state to increase the number of shoddy actions it takes under its 
program. Consider the following scenario that could occur under Ohio's 
Voluntary Action Program, according to Cincinnati environmental 
attorney David Altman:
          If an on-site sewer system or an underground coke oven gas 
        line of an old, urban steel plant leaked benzene on the plant's 
        own property near the fence line of its urban neighbors and as 
        a result of that leak nearby homes filled with fumes, the rules 
        require very little to be done. This steel company could black-
        top over its contaminated property, put a ``Don't drink the 
        water'' restriction in its deed, and calculate a secret risk 
        assessment to ``determine'' for itself the threat to off-site 
        people. If the steel company is satisfied with its risk 
        assessment calculated or derived from the data and assumptions 
        that it chooses to use, that there will not be too many 
        ``excess'' cancer deaths, no cleanup will be done. In addition, 
        neither neighboring families nor the Ohio EPA will get all the 
        data concerning the spill and will never need to be told about 
        the risk assessment. The only data that would need to be 
        disclosed is the data which supports the steel company's 
        position and conclusion. Finally, if the steel company has a 
        document retention program which requires disposal of ``unused 
        data'' after six months, the law actually allows the 
        destruction of that data! (from testimony of D. David Altman, 
        On Proposed Rules for Ohio's Voluntary Action Program, 
        September 5, 1996, before the Ohio Environmental Protection 
        Agency)
    These documented weaknesses of state programs suggest that limiting 
federal enforcement authority at toxic waste sites, while increasing 
federal funding for states' voluntary clean up programs, may result in 
increased public health and environmental risks.
Fails to provide the public with information and opportunities to 
        participate in cleanup and redevelopment decisions.
    Under the guise of ``permit streamlining,'' the draft bill requires 
the EPA to issue regulations that could minimize or even eliminate 
protections under all federal statutes for public participation and 
dissemination of information for cleanup actions under state programs. 
(Section 303) Although the bill does not authorize any exemption from 
substantive standards required by law, the line distinguishing 
procedural and substantive can be a thin one.
    Drastically restricting or eliminating a public comment period, for 
example, could mean that the public would not have a fair opportunity 
to offer meaningful comment on the substantive requirements. It could 
also make it much easier for businesses to get permits--against the 
wishes of local citizens--for hazardous waste incinerators, permanent 
waste landfills, and discharges of toxic waste into water. It could 
also incite years of litigation as polluting industries press for more 
contaminating activities, and citizens fight to preserve the sanctity 
of their neighborhoods. Ultimately, this provision could reverse 
decades of advances that now provide the public with access and the 
right to participate meaningfully in decisions affecting public health 
and environmental quality in their neighborhoods.
Eliminates the EPA's authority to ensure that state cleanups comply 
        with local, state or federal public health safeguards.
    S. 350 explicitly maintains the EPA's authority to ensure that 
state cleanups protect public health by complying with state, local or 
federal safeguards. (Section 128 (e)(1)(A)(ii)) These ``relevant and 
appropriate requirements'' are protections which, though not legally 
mandated cleanup standards, nonetheless provide clear protective 
guidelines for cleanups. Examples include state drinking water and 
groundwater standards, solid waste cleanup and management requirements, 
and federal and state air quality standards. Without this requirement, 
states desiring to provide higher levels of protection to their 
residents would find the job much more difficult. Unfortunately, the 
draft bill deletes this requirement, which would likely further 
undermine the adequacy of state cleanups. In their rush to redevelop 
contaminated sites, states may choose to err on the side of faster and 
cheaper redevelopment, rather than better, or more protective 
redevelopment. If federal taxpayers are going to subsidize state 
voluntary clean up programs, then Congress should ensure that the 
cleanups are complying with standards and protecting public health, 
rather than creating potential bombs in communities across the country.
Delays or blocks listing heavily-contaminated sties on Superfund's 
        National Priorities List.
    Although EPA has the authority to list a site on the National 
Priorities List without the concurrence of a Governor, in practice the 
EPA closely coordinates listings with state officials and, as a rule, 
does not list sites without a Governor's concurrence. The draft bill 
could delay or stop the EPA from listing a site by requiring the EPA to 
obtain the Governor's concurrence before listing. If the Governor 
assures the EPA that the state is addressing or will address the site 
under state authority, the EPA may not list the site without a finding 
that the state is a ``major'' potentially responsible party at the 
site. (Section 302) These provisions tie the EPA's hands and may 
prevent the Agency from addressing threats to public health at the 
site, even when the state is doing nothing to protect the public.
    It would also restrict the ability of citizens and city, county or 
regional officials to get heavily contaminated sites listed. Congress 
should not render meaningless citizens' current ability under Superfund 
(Section 105) to petition EPA to list a site. This provision can 
provide an important tool for local citizens who are concerned about 
years of state inaction at heavily contaminated sites. Further, the 
bill indiscriminately places the wishes of a state governor above the 
needs of local officials, who may have on-the-ground knowledge about a 
site, how it affects their local community, and the need to get it 
expeditiously cleaned up.
Encourages risk-based cleanups that could endanger public health by 
        leaving toxic contaminants on site.
    Section 129(a)(1)(A)(ii)(IV) of the draft bill allows states to use 
federal grants to ``establish or enhance a program or framework for 
conducting risk-based cleanups,'' a provision not included in S.350. 
The Sierra Club strongly opposes the encouragement of risk-based 
cleanups, which result in leaving contamination on site rather than 
removing it.
    ``Risk assessments'' are at best inadequate and imprecise estimates 
of actual risk. They attempt to assess only a few of the many risks 
associated with contaminant exposures. They almost always ignore the 
complex interactions among the many chemicals to which potential 
victims are always exposed, and the outcomes are always heavily 
influenced by the biases of the risk assessors. It is easy to bias an 
outcome by many orders of magnitude through inappropriate use of overly 
favorable assumptions. Further, risk assessments may fail to protect 
the health of sensitive subpopulations, including pregnant women, 
children and people with HIV or AIDs or those who are undergoing cancer 
treatment.
    Site-specific risk assessments can underestimate real-world risks 
in that they allow the risk assessor to exclude from the calculation 
risks that can be ``cut off'' by a cap or a fence or a land use that 
assumes that no one ever will go there.
    Risk assessment procedures based on an identical set of realistic 
assumptions AND using laboratory data of equal quality (objectives 
rarely achieved in real-world situations) can sometimes be of limited 
value in comparing a variety of clean-up alternatives, but only for 
those limited impacts actually assessed. They are scientifically 
incapable of ``proving'' that one particular option is ``safe'' or 
``safe enough''.
    Appropriate use of risk assessment techniques will be very 
expensive, especially for small sites. Instead of basing decisions on 
risk assessments, the emphasis should be on eliminating or minimizing 
exposure. It is easier to qualitatively describe the potential 
consequences of known exposures than risk, and easier for the public to 
understand. Combining this with information about health effects can be 
a good argument for treatment or removal of the source of the risk.
Eliminates environmental justice considerations from grant application 
        criteria.
    Section 128(e)(3)(J) of S. 350 included as a grant criterion the 
extent to which a grant would address or facilitate the identification 
and reduction of threats to the health and welfare of minority 
communities. We think that it's important that a brownfields bill 
recognize that minority communities may be more affected by brownfields 
sites and may be less able to address these problems on their own. The 
draft bill deletes environmental justice from the criteria the 
Administrator must include when establishing a system for ranking grant 
applications.
Provides liability exemption for entities that fail to protect people 
        from toxic waste.
    S.350 exempts from liability contiguous property owners and 
innocent landowners who take reasonable steps to stop continuing 
releases, prevent any threatened future releases, and prevent or limit 
exposure to any hazardous substances releases on or from the property. 
(Section 201(o)(1)(A)(iii) for contiguous property owners and Section 
302(2)((II) for innocent land owners) The draft bill deletes the 
``reasonable steps'' requirement for obtaining liability exemption, 
increasing the risk of public or environmental exposures and saddling 
the taxpayer with the costs.
Provides liability exemption for entities that buy contaminated 
        property without making appropriate inquiry.
    S.350 reasonably requires prospective purchasers to make 
appropriate inquiry and inspect land prior to purchase if they are to 
be exempt from liability. Contiguous property owners are required to 
conduct all appropriate inquiry and to have no knowledge that the 
property was being contaminated by adjacent property in order to be 
exempt. (Section 201(o)(1)(A)(viii)) Similarly, it requires innocent 
landowners to conduct all appropriate inquiry. (Section 201(2)(I)) The 
elimination of these requirements in the draft bill shifts the burden 
from landowners to the general public.
Eliminates brownfields training programs
    The draft bill also eliminates S.350's provision that gave the 
EPA's authority to provide funds for training, research and technical 
assistance to community members and organizations that can facilitate 
inventorying, assessment, remediation, site preparation and community 
involvement in brownfield sites. The elimination of this provision 
deals a severe blow to ensuring that local people can help solve local 
problems in their community. Federal brownfields legislation should 
facilitate exactly this type of involvement.
    In conclusion, for the reasons stated above, this draft bill 
weakens protections under existing laws and will likely increase public 
health and environmental risk. The Sierra Club strongly opposes this 
draft bill, and I believe that many of our colleague organizations 
share that view.
    Thank you for the opportunity to testify today. I will be happy to 
answer any questions you may have.

    Mr. Gillmor. Thank you, Mr. Hopkins, and let us proceed to 
questions.
    First, for Mr. Garczynski, both the Senate bill and what is 
being referred to as the Democrat discussion draft limit CERCLA 
protections to only people who conduct the cleanup. That narrow 
language prevents a transfer of enforcement protection from 
current owners to future owners, and potentially excludes them 
from protection--a range of other parties that otherwise would 
have been covered.
    The so-called Gillmor discussion draft rectifies those 
problems by including Sections 7002 and 7003 of RCRA as part of 
the Federal enforcement protection for brownfield sites cleaned 
up under a State program. And the draft further applies these 
protections specifically to the contamination that is the 
subject of the State cleanup only in just one class of party.
    Could you explain why you think this might be a more 
preferable approach?
    Mr. Garczynski. Well, we were very concerned that in S. 350 
and the House Democratic draft that the Federal enforcement 
protections only applied to the person who did the cleanup or 
the firm doing the cleanup as opposed to eventually a future 
owner, someone who was renting the property or leasing the 
property.
    So we think the extension of that protection should be 
confirmed on those individuals or future owners and tenants as 
well, and they should be given the same Federal enforcement 
protections. So we applaud that in this particular draft.
    Mr. Gillmor. Let me direct another question to you, but 
also the same question here to Mr. DeMarco, and that question 
would be that, do both the Senate version and the Democratic 
discussion draft provide a definition of brownfield site that 
does not adequately cover sites contaminated with petroleum?
    S. 350 and the Democrat discussion draft exclude petroleum 
contaminated sites from liability protection and Federal 
enforcement protections, even though the cleanup was pursuant 
to an approved State cleanup program. The Gillmor discussion 
draft takes a more expansive approach by including a broader 
range of petroleum contaminated sites within the definition of 
brownfields.
    What is your view of expanding the definition of 
brownfields to more broadly cover petroleum contamination?
    Mr. Garczynski. Let us go back to the numbers that I cited. 
If we say--and you can probably vary in the total amount--but 
it is 450,000 to 500,000 sites in this country, and up to 
200,000 are petroleum contaminated. Why take those out of play?
    When I leave here today, I am going to take this suit off 
and go over to a job, an in-field job we are developing in 
Baileys Crossroads right in Arlington. I am going to pass 
probably 12 abandoned gas stations in great locations for 
either commercial or residential development.
    Why should they be taken out? What kind of vitality can you 
have in a reclamation area or in a revitalization area if those 
type of sites can't be addressed? That is why I think the 
expansion to petroleum-based sites is imperative.
    Mr. DeMarco. I would echo those remarks, and I guess add 
that virtually every site contaminated that we have dealt with 
as a company, a major contaminant, has been underground tank--
heating oil or gasoline. And attitudes have changed quite a 
bit, and the science has changed quite a bit, where people are 
not up in arms over how to deal with these problems.
    Lenders are comfortable dealing with these problems. We do 
non-recourse financing with customers that allow permanent 
loans with, say, insurance companies. There are carve-outs 
always for hazardous materials, environmental issues. So, you 
know, as a developer, we want to be comfortable that we 
encounter situations and if there is a definite way of dealing 
with them, and we can bring them to finality.
    We found that in taking out petroleum tanks if they come 
out, you know, you can estimate how much it costs to take them 
out, you can see whether it is leaking, you can take out soil 
that has been contaminated, and I would say in our experience 
that is 80 to 90 percent of what we run into. So I think it is 
extremely important. It is the lower risk here of contaminated 
issues that we are talking about in regards to Superfund.
    Mr. Gillmor. Let me direct a question to Mr. Lynch. I 
noticed from your testimony that you had some good things to 
say about Ohio's voluntary action program. And as a realtor and 
a member--a former member of the Cleveland City Council, have 
you found that voluntary cleanup programs run by the State are 
effective?
    Mr. Lynch. They are effective, but there is still the 
problem with, really, the double jeopardy from the standpoint 
that the sites are cleaned up but there still is that hammer 
over the property's head basically dealing with the potential 
impact of EPA coming back in and saying that there may be 
additional cleanup that is required.
    Mr. Gillmor. Thank you.
    The gentleman, Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman.
    I wanted to ask Mr. Roth a question first. I believe you 
gave us good advice when your testimony states that the 
subcommittee should conform its brownfields bill as nearly as 
possible to the Senate provision on reopeners.
    As I understand it, your organization of civil engineers, 
many of whom I am sure are directly involved in these 
redevelopment activities, believes that the bipartisan approach 
to the Senate bill on the reopeners question gives States ample 
opportunity to carry out a brownfields cleanup under minimum 
Federal oversight while protecting human health in case of a 
cleanup failure by preserving critical Federal enforcement 
authorities.
    Is that correct, and would you, you know, just comment on 
that briefly?
    Mr. Roth. Yes. First, thank you. As engineers and members 
of the American Society of Civil Engineers and civil engineers 
in our profession, our fundamental canon of ethics requires us 
to hold the safety, health, and welfare of the public 
paramount. In addition to that, however, we also as civil 
engineers are seeking ways to promote sustainable development 
as well as a wide range of environmentally sound public 
policies.
    We support the bipartisan compromise in S. 350 because we 
think that other approaches could potentially weaken the 
important provisions for protection of human health and the 
environment.
    Mr. Pallone. Now, you believe that States should be 
required to demonstrate that their programs satisfy minimum 
Federal criteria for qualified programs. That is correct also?
    Mr. Roth. Yes. Again, we are coming from the perspective of 
protecting human health and the environment, and if there is an 
assurance that the State programs meet certain--or meet the 
Federal guidelines, that is certainly acceptable.
    Mr. Pallone. Thank you.
    I wanted to ask Mr. Hopkins, you know, you sort of got to 
the heart of what I was saying in my opening statement earlier 
today when you said that you are concerned that, you know, the 
Senate bill obviously passed the Senate, could pass the House, 
but that the chairman's draft, you know, might unravel so to 
speak, you know, the compromise I guess that was achieved in 
the Senate and ultimately, you know, we would not be able to 
pass the bill, either in the House or in the Senate, you know.
    And I think that was premised on the notion that, you know, 
the Senate was a very--the Senate bill was a very carefully 
crafted compromise and that we don't really want to get away 
from it too much.
    I mean, I think that the Democratic draft is not--you know, 
is really making some clarifications or adding a few things 
here or there, but it doesn't really substantially change the 
Senate bill, whereas my concern, as I said in my opening 
statement, is that the chairman's draft really is a significant 
change, and that if we were to adopt that here in the 
subcommittee we would have a hard time getting it, you know, 
through the House or through the Senate.
    Would you just comment on that a little bit? Because, I 
mean, obviously our goal--I think everyone's goal, including 
the chairman's, is to get a bill on the President's desk. But I 
think that there is a real problem if we get too far away from 
the Senate compromise. We haven't really had any discussion of 
how significant this compromise was and how difficult it was to 
achieve in this Senate.
    Mr. Hopkins. Well, Representative Pallone, as you know, 
brownfields legislation has been debated for I don't know how 
many years now, but the last several Congresses. And there 
really hasn't been a lot of progress toward achieving 
legislation.
    And this year, over the past year, for the first time there 
is really a consensus come about over the Senate bill and a lot 
of the issues that we are talking about here today about the 
appropriate level of contaminated sites to bring into a 
brownfields bill, or the reopeners for Federal enforcement were 
thoroughly debated over in the Senate, and a very finely honed 
compromise was struck.
    And I think if a much more different bill comes out of the 
House than was passed in the Senate it will be difficult to 
reconcile those. And I also want to say that we weren't 
entirely happy with the Senate bill that passed, because, as 
you know, it doesn't include required program criteria for 
State programs.
    And, again, we don't necessarily believe that there is a 
need for additional finality language. So while we weren't 
entirely happy with it, we believe it is a lot better than the 
majority bill that is being discussed here.
    Mr. Pallone. Thank you.
    Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman from Illinois.
    Mr. Shimkus. Thank you, Mr. Chairman.
    I would just, before I go on with my questions, just note 
that in the Democratic draft, page 55, you have about a page--
two pages of qualifications which are added, which would be new 
hoops to draw through, jump through.
    And so just to casually say it doesn't change course or 
it--I think we need to make sure we look at the draft and 
identify that there are some new provisions in here. So we 
ought to be talking about maybe some of the things in the 
Democratic draft that probably aren't as acceptable as 
sometimes we hear here.
    I have got a couple of questions, but can anyone tell me 
what ``may'' means? May. Every time we talk about this imminent 
substantial endangerment, we always forget ``may.'' I don't 
understand why we do that. Mr. Hopkins, you forgot ``may'' when 
you mentioned it. What does ``may'' mean?
    Why don't we just say it presents imminent substantial 
endangerment, and just quantify it and say, ``This is a 
dangerous situation. We are going to go in.'' Instead of 
saying, ``Well, maybe it will, or maybe it will not.'' I am not 
going to follow up on that, but I just find it very ironic that 
whenever we talk about imminent substantial endangerment no one 
mentions ``may.''
    Again, I am not a lawyer, so--Mr. Garczynski, on the 
Gillmor discussion draft, aptly named--the gentleman from Ohio, 
which the State of Ohio has also been named in a couple arenas 
here today--it provides the protections for bona fide 
prospective purchasers who are not polluters and who purchase 
property after the pollution has occurred.
    Senate 350 and the Democratic discussion draft provide 
prospective purchasers liability protections under CERCLA, but 
fail to provide protection under RCRA. The Gillmor draft 
extends prospective purchaser protection to RCRA, Sections 
7002, 7003, and 9003(h), which is a storage tank issue, as we 
know.
    You highlighted this in your written testimony. Can you 
elaborate why this makes such a difference for your members in 
providing greater certainty to prospective purchasers for 
redevelopment of petroleum contaminated brownfield sites that 
are cleaned up under a State program?
    Mr. Garczynski. Yes, Congressman. I believe it goes back to 
a couple of points. No. 1, again, the sheer number of sites 
that would be available if we could address petroleum 
contaminates. No. 2, the issue of the certainty is important 
because unlike the Sierra Club or my friends--the civil 
engineers who we hire--I have to sign my name on a loan 
document that is putting everything I own at risk most of the 
time.
    I want to have as much finality when I sign my name as 
possible. And I think my lenders do as well. So that is why 
when we get to these issues of certainty and finality they are 
important to me as a builder/developer, maybe more so than 
other stakeholders.
    And the number of sites that are addressed in terms of the 
petroleum--if 95 percent of us are redeveloping those sites, 
okay, we are not the original polluters, so we want to make 
sure that if the site is cleaned up and the liability and the 
enforcement of the State have been provided, hopefully that 
would be good enough for the Federal Government as well.
    Mr. Shimkus. And I am glad you continue to talk about the 
finality issue. That is what I opened up with, and that is--
really, that is one of the importance--of the chance and at 
least in the Gillmor discussion draft as to--to address that.
    Do you know if the EPA supports the need for greater 
finality for State brownfield cleanups? Do you have any idea?
    Mr. Garczynski. We had a conversation with Administrator 
Whitman about 2 weeks ago, and addressed this finality issue. 
And, of course, I think as her deputy said this morning, EPA 
still has to be there for that may endanger the health, safety, 
and welfare. But she was open to the discussion of the finality 
issue provided, again--and we hear that word that the chairman 
asked about--if it were approached in a bipartisan compromise.
    So I don't have a true answer on her position, but she said 
she was open to the discussion. That is correct, Mr. Chairman, 
as I remember it.
    Mr. Shimkus. And if I can just go to Mr. DeMarco at the 
end. I mentioned the Clark Company who is redeveloping a 
brownfield site, and they used a procedure of--of course, the 
company is professional in developing those types of sites, but 
also the aspect of getting insurance and coverage in case 
something happened.
    Can you just talk us through that? I didn't have a good 
handle on it even after they explained it to me. You sort of 
mentioned it in your opening comments. And then just tie it 
into what we are trying to do here today, and this insurance 
aspect of trying to cover people. Which provision would be more 
helpful or harmful?
    Mr. DeMarco. Well, as I understand the proposed bills, 
funds available would be able to be used toward insurance. But 
I think what has happened over the last 10 years, really, is 
that environmental insurance has become a more and more 
valuable tool in facilitating handling brownfields or 
contaminated sites.
    Actually, we are currently working on two transactions. 
When you negotiate the purchase of a site or a lease, whoever 
is coming in and is now part of that property wants to fully 
investigate the property. I mean, our development team--a key 
member--is our environmental consultants.
    The landowner wants to keep control of the exploratory 
process, and yet is not going to make a deal with a buyer or 
somebody who is going to lease unless they feel comfortable 
there has been full exploration and that there is something 
backing up potential problems.
    Environmental insurance we found has filled this role. We 
have written several environmental insurance policies for 
premiums that are getting most cost effective because more of 
them are being written, and it is a very useful and 
comprehensive protection in the private sector for a purchaser 
or a long-term lessee of a property. So we find it pretty 
effective and see it happening more often.
    Mr. Shimkus. Mr. Chairman, if I can just finish up----
    Mr. Gillmor. Proceed. Proceed.
    Mr. Shimkus. Mr. Garczynski, I wanted to follow up with the 
last question on this finality debate. Do you feel that it is 
important to extend the finality provisions to Section 7002 and 
Section 7003?
    Mr. Garczynski. I have my counsel available to reeducate me 
on those sections. He reignited my interest in those as did 
your question.
    From the citizens' standpoint, the citizens' committee, we 
do not think that that is necessary for this reason. When we go 
through a zoning or an application to a county, city, or town, 
on a piece of property, or just an approval, there are lengthy 
hearings for ample citizen input.
    I think it starts even before you attempt to get on the 
schedule, so we think that that certainly I think gives 
citizens the opportunity to comment on any brownfield site that 
may be being considered for redevelopment.
    Second, as far as the EPA is concerned, if it is not a 
Superfund site or there is not EPA involvement to begin with, 
then--and they are not involved in investigation, then we think 
that that should be considered under the broad definition of a 
brownfield site.
    Mr. Shimkus. Okay. Thank you.
    Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you. Let me--just one question that came 
to mind on your comment, Mr. DeMarco, on the environmental 
insurance. Could you or some of the other panel just give me 
kind of a range on what that premium would be vis-a-vis the 
property value? And I presume it is like title insurance, it is 
a one-time premium?
    Mr. DeMarco. Yes. For instance, we have recently 
underwritten a policy--had one for us done that was a 10-year 
policy, $75,000 deductible, and about a $75,000 premium for 
about a $5 million limit. So that is the nature of that policy.
    Mr. Gillmor. Let me now ask unanimous consent of the 
committee to insert a number of items in the record. We have a 
letter of support from the National Governors Association. Do 
you want to do those separately?
    Mr. Pallone. Well, I just would also ask unanimous consent 
that a number of letters from various organizations with regard 
to the Senate bill be inserted in the record. I have--I guess 
this is from the U.S. Conference of Mayors and there are a few 
others.
    Mr. Gillmor. And also, we have a number of letters of 
support for the Gillmor draft. And since it is only you and I, 
Frank, I think we will have no objection to--also, I would ask 
unanimous consent that we keep the record open for 30 days, so 
that members may submit further documents, particularly opening 
statements, and that we got that one in. Without objection, it 
is so ordered.
    I very much appreciate all of you coming. It is very 
helpful. Thank you.
    [Whereupon, at 2:55 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

                                  State of New York
                   Department of Environmental Conservation
                                                      July 26, 2001
Honorable Paul E. Gillmor
Chairman, Subcommittee on Environment & Hazardous Materials
United States House of Representatives
2125 Rayburn House Office Building
Washington, DC 20515-6115
    Dear Chairman Gillmor: I want to thank you for providing me with 
the opportunity to testify on June 28, 2001 before the Subcommittee on 
Environment & Hazardous Materials on brownfields legislation. This 
issue is of great importance to the State of New York, and we firmly 
believe that our wealth of experience in redeveloping these sites can 
be of material assistance to the Subcommittee as it debates and refines 
the legislation.
    Based on New York's more than 20 years of experience, we believe 
that there is a pressing need for federal legislation to facilitate and 
assist the financing of brownfields and voluntary cleanups. The New 
York State Department of Environmental Conservation (Department) firmly 
believes that the House Majority Draft would provide the greatest 
benefit to states, municipalities and non-responsible parties. This 
draft legislation meets the three criteria of greatest importance to 
the State of New York, in providing a mechanism for finality requiring 
gubernatorial concurrence for listing a site on the National Priority 
List, and by authorizing much needed funding for the investigation and 
cleanup of brownfields.
    In further support of my testimony, I would like to take this 
opportunity to stress the importance of providing adequate assurances 
that parties participating in a cleanup pursuant to a state response 
program will not be thereafter subjected to enforcement by the federal 
government. In particular, the Department submits that the finality 
language and the clearly limited, reasonable exceptions to it contained 
in the House Majority Draft are not only appropriate but critical to 
ensuring the effectiveness of brownfields remedial programs. Without 
this language, states would be unable to provide sufficient assurances 
of finality. The finality provisions of your discussion draft are a 
fair compromise between the various points of view and sufficiently 
outline the narrow circumstances where intervention from the United 
States Environmental Protection Agency is justifiable. Without such 
finality, persons interested in redeveloping a site, or in providing 
the financing necessary to construct a new facility at a site, would 
avoid such transactions at contaminated sites.
    I want to thank you again for providing me with an opportunity to 
share with you the views of the Department on an issue of such great 
importance to the State. Please do not hesitate to call on me if I can 
be of further assistance.
            Sincerely,
                                             Erin M. Crotty
                                                       Commissioner
cc: The Honorable Vito J. Fossella
   The Honorable Edolphus Towns
                                 ______
                                 
        Prepared Statement of The National Governors Association
    Thank you for the opportunity to submit testimony for the record of 
this Subcommittee hearing on the subject of Brownfields legislation. 
The Governors believe that remediation of brownfields sites is critical 
to the successful redevelopment of many communities. We commend the 
Congress for crafting a legislative proposals that have the potential 
to significantly enhance and expand the cleanup of moderately 
contaminated brownfields sites across the country. The National 
Governors Association (NGA) supports swift passage of a bipartisan bill 
that can be signed by the President. Passage of brownfields legislation 
should be a priority for this Congress, but it must be legislation that 
encourages actual cleanup of the sites.
    Brownfields represent an enormous potential economic development 
resource, one that can lead to new jobs, healthier neighborhoods, 
increased local tax revenues, and less suburban sprawl. Successful 
state brownfields programs improve the quality of life for a community, 
which in turn, increases that community's economic competitiveness and 
helps it attract new business and workers. State brownfields programs 
have been operating now for about a decade, and states are very proud 
of their record of success. In that short period, state programs have 
productively facilitated reuse of more than 40,000 sites. In prior 
testimony before this Subcommittee in March, we outlined the investment 
that states have made and continue to make in bringing brownfields 
sites back to life.
    State flexibility should be recognized, and not impeded, under 
federal law to stimulate brownfields redevelopment, and the federal 
government can help remove some of the existing impediments. State 
brownfields programs allow redevelopment to take place relatively 
quickly, with appropriate cleanup standards, and with minimal 
government involvement. However, some developers are afraid that their 
involvement in these state-managed sites may result in federal 
environmental cleanup liability under, the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) of 1980, commonly 
referred to as ``Superfund.'' As a result, valuable industrial land 
remains contaminated, unused, or abandoned, denying communities 
economic activity and the direct benefits of jobs and taxes. There is 
no question that brownfields redevelopment is currently hindered by the 
pervasive fear of federal liability under the Superfund statute. 
Governors believe that brownfields legislation should help address this 
problem, as the June 13 Discussion Draft, S. 350, and the June 18 
Discussion Draft do, by providing needed liability protections for 
innocent owners, prospective purchasers, and owners of property 
contiguous to contaminated sites.
    Just as importantly to Governors, legislation should preclude 
enforcement by anyone (other than by a state) at sites where cleanup 
has already occurred or is being conducted under state programs, except 
in exceptional circumstances. This ``finality'' should mean what it 
says--satisfactory completion of a cleanup under state law should be 
final. To not give this assurance to developers who are spending 
thousands, or hundreds of thousands, of dollars of their own money to 
rehabilitate a property reduces the chances that the rehabilitation 
will happen.
    We do not disagree with those that want exceptions to this 
finality, but the exceptions should be limited and should give states 
an adequate opportunity to take appropriate action themselves before 
EPA is permitted to reopen the cleanup and take an enforcement action 
against the owner or the developer.
    NGA supports the finality provisions in the June 13 Discussion 
Draft that would improve the effectiveness and pace of brownfields 
cleanups by allowing state cleanup programs to provide assurance to 
landowners who wish to develop their property without fear of being 
engulfed in the federal liability scheme.
    For several years NGA has consistently sought language in both 
Superfund and brownfields bills regarding finality. We have supported 
bills in prior years that barred the Environmental Protection Agency 
(EPA) from imposing Superfund liability after a state-approved 
brownfields cleanup unless a release or threatened release required a 
response action was immediately required to prevent or mitigate a 
public health emergency and the state was not responding in a timely 
manner.
    We have also supported bills that limited federal or judicial 
enforcement actions only if the state requests such action, 
contamination has migrated across state lines, the Agency for Toxic 
Substances and Disease Registry issues a public health advisory for the 
site, or if the President determines that response action or 
immediately required to prevent, limit, or mitigate an emergency when 
there is an immediate risk to public health or welfare or the 
environment and the state will not take the necessary response actions 
in a timely manner. Conversely, we have not supported bills that failed 
to preclude federal actions at sites where a cleanup had occurred or 
was occurring at non-NPL sites in the absence of a real emergency, 
believing that such provisions would make it to easy for EPA to simply 
second guess state decisions at sites under the state's jurisdiction.
    The finality provisions of the June 13 Discussion Draft, S. 350 and 
the June 18 Discussion Draft do not go as far as NGA's prior positions 
have sought. The June 13 Discussion Draft, however, is the fairest 
compromise between the various points of view and narrowly outlines the 
circumstances where intervention from EPA is justifiable. In addition 
to the state-request, and state-line or federal property migration 
exceptions, the June 13 Discussion Draft bars Superfund liability 
unless EPA determines not only that a release or threatened release 
presents an ``imminent and substantial endangerment'' to public health 
or welfare, but also that an emergency situation exists, and that the 
state will not quickly respond. The June 13 Discussion Draft also 
provides a more practical 72-hour period of time for a state to reply 
to EPA of the action it intends to take, while maintaining an option 
for EPA to take immediate action if necessary. These are reasonable 
conditions and we are willing to support them for the sake of working 
with the Congress for speedy passage of a bill.
    Like the finality provision, the Governors have for many years 
sought to include in any Superfund or brownfields bill a provision 
according each Governor the statutory right of concurrence on EPA's 
decision to place new sites on the NPL in his or her state. The right 
of concurrence on new NPL listings ensures that states have the right 
of first action at hazardous sites, and where a state is proceeding 
with cleanup, or has plans to do so, the federal government will defer. 
As states are closer to the sites and to the affected community, such 
deference is entirely appropriate. We would note that this right of 
concurrence applies only to long-term cleanup and does not in any way 
limit EPA's authority to respond to immediate problems. Nor does it in 
any way impede EPA's ability to take action at the hundreds of sites 
that are already listed on the NPL.
    Placement of new sites on the NPL without the concurrence of the 
Governor when a state is prepared to apply its own authority is not 
only wasteful of federal resources, it would be counterproductive, 
resulting in increased delays and greater costs. Over the years EPA has 
recognized that states are currently overseeing most cleanups, and has, 
as a discretionary matter, sought gubernatorial concurrence before 
listing a site. We ask merely to have this informal policy codified in 
law to assure that it continues throughout future administrations. We 
greatly appreciate the inclusion of a provision in the June 13 
Discussion Draft requiring gubernatorial concurrence before a site is 
listed on the National Priorities List, except in limited situations.
    The funding provisions in the bill that provide grants to states 
and local governments for both response actions as well as site 
assessments are very positive steps in assuring that financial 
assistance is available so that sites can actually move toward final 
cleanups. But we hope that the funding is not so restrictive that 
states will have no incentive to apply for the money.
    We appreciate the Subcommittee's consideration of our views, and we 
look forward to working with you on the development of brownfields 
legislation during this session.
                                 ______
                                 
      United States Environmental Protection Agency
                                     Washington, D.C. 20460
                                                      June 27, 2001
The Honorable Paul Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington D.C. 20515
    Dear Mr. Chairman: Thank you for scheduling a hearing on June 28, 
2001, to discuss moving forward with brownfields legislation. Passage 
of brownfields legislation is a priority for President Bush and the 
Administration and provides an opportunity to remove existing barriers 
to brownfields cleanup and development. I would like to offer my 
continued support for your efforts to achieve a bipartisan bill that 
will encourage developers to work with state and local governments to 
clean up the hundreds of thousands of underused, idled, and abandoned 
brownfield properties across the country.
    As we approach your hearing, I want to take the opportunity to 
clarify statements that were reported in the trade press in connection 
with remarks I delivered at the U.S. Chamber of Commerce event on June 
18, 2001. At the time I responded to the question at the event I had 
not had the opportunity to see the Gillmor brownfields discussion 
draft. It is clear that my comments were misreported. My comments 
referred to the issue of finality in general and my desire not to have 
that issue hold up the progress that has been made on moving important 
brownfields legislation forward.
    Let me repeat for the record my testimony before your subcommittee 
on March 7, 2001, brownfields legislation should include ``finality'' 
language to address uncertainty over Federal liability and enforcement 
issues. In addressing these concerns, there could be limited 
circumstances where EPA would need authority to take further action if 
a State approves a protective cleanup, where there is compelling 
evidence that a cleanup is no longer protecting human health and the 
environment. However, to my knowledge, EPA has never had to 
``overfile'' in order to take over responsibility at a brownfields 
cleanup proceeding under State authority.
    I am eager to continue to work toward a solution on this issue, and 
EPA stands ready to provide additional assistance to you and other 
Members of Congress throughout the legislative process.
            Sincerely yours,
                                     Christine Todd Whitman
                                                      Administrator
                                 ______
                                 
                                              State of Ohio
                                                      June 27, 2001
The Honorable Paul Gillmor
Chairman
Environment and Hazardous Materials Subcommittee
Washington, D.C. 20515
    Dear Chairman Gillmor: I am grateful for your work on the 
Brownfields Revitalization and Environmental Restoration Act of 2001. 
The redevelopment of our Nation's brownfields into productive, job-
producing properties offers the opportunity to stimulate the economy 
and benefit the environment. States such as Ohio, with a substantial 
manufacturing history, are particularly in need of a good federal 
brownfields program to support the brownfields work our State already 
has underway. Of particular importance are the issues of the State's 
concurrence in National Priority List (NPL) additions and the finality 
of the State's sign-off on cleanup projects.
    With regard to concurrence in NPL listings, your bill provides 
Governors with important input and concurrence rights. There are many 
reasons that a Governor may choose not to concur in a proposed NPL 
listing. Communities attempting to attract new residents and businesses 
are very concerned about the stigma that they perceive to be attached 
to having a ``Superfund'' site in the community. If state and local 
governments are willing to address contaminated properties, a Superfund 
listing is an unnecessary impediment to quick and effective 
revitalization. I am very pleased to see that your bill recognizes the 
importance of Governors' concurrence in NPL listings.
    Your bill also supports state brownfield programs by offering a 
reasonable degree of assurance that projects approved by the State as 
protective of the environment will not be subject to further 
enforcement action by the federal government. The lack of this 
assurance has been a deterrent to some redevelopment projects, and it 
is important that this deterrent be removed. Again, I am pleased to see 
finality addressed in your bill.
    Thank you for your work on the important issue of brownfield 
redevelopment. I am confident that Ohio will see a strong trend toward 
revitalization as a result of your efforts.
            Sincerely,
                                                   Bob Taft
                                                           Governor
                                 ______
                                 
                    Mortgage Bankers Association of America
                                                      July 19, 2001
The Honorable Paul E. Gillmor
Chairman
Subcommittee on Environmental and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
    Dear Mr. Chairman: The Mortgage Bankers Association of America 
(MBA) is pleased to submit this statement for the record on the 
hearings by your Subcommittee, on June 28, 2001, on brownfields 
legislation.
    MBA strongly supports Federal legislation that will promote the 
cleanup of brownfields, provide financial assistance for brownfields 
revitalization, enhance state response programs, and most importantly, 
clarify Superfund liability with respect to brownfields transactions.
    It is estimated that there are approximately 400,000 to 600,000 
brownfields sites in the country. The Environmental Protection Agency 
(EPA) defines brownfields as abandoned, idled, or underutilized 
industrial or commercial facilities where expansion or redevelopment is 
complicated by real or perceived environmental contamination. According 
to a recent survey conducted by the U. S. Conference of Mayors, 187 of 
231 cities responded that cleaning up existing brownfield sites could 
generate as many as 540,000 new jobs if the land were returned to 
production. At least 175 cities estimated brownfield redevelopment 
could generate up to $2.4 billion in local tax revenues.
    While brownfields can present excellent redevelopment 
opportunities, they are an underutilized asset that could help 
communities address a number of issues, including revitalizing urban 
areas, increasing tax revenues, and promoting sustainable growth. In 
order to participate in brownfields redevelopment, lenders and 
developers must determine an acceptable balance of risk and potential 
return on investment. This determination requires analysis of a complex 
array of state and federal environmental laws and regulations.
    Environmental risks for lenders come from a number of sources, most 
of which relate to environmental contamination that has impacted real 
or personal property used as collateral to secure a loan. Of major 
concern to the real estate finance industry is the need to clarify 
lender liability with respect to the liability protection for innocent 
landowners and purchasers who have not caused or contributed to 
hazardous waste contamination. There are three types of risks that 
lenders face with respect to loans that involve hazardous waste 
contamination, especially when the property to be mortgaged is affected 
by the contamination:

 The borrower's ability to repay the loan may be affected if 
        the cash flow funding that would otherwise be available is 
        needed to address contamination issues.
 The lender becomes directly responsible for cleanup costs 
        associated with a particular properly.
 The value of the real estate that has been contaminated is 
        diminished.
    These risks depend upon the application of state and federal 
environmental laws, as well as EPA and state environmental regulations.
    EPA has undertaken administrative reforms to encourage 
redevelopment of brownfields. However, the current Superfund liability 
scheme may deter prospective purchasers from buying and remediating 
brownfields sites. M13A supports laws and regulations that provide 
safe-harbors so that developers will not be faced with potentially 
open-ended liability. MBA would encourage Congress to consider the 
necessity of providing finality to any brownfields remediation program 
in order to protect prospective purchasers from liability.
    MBA is pleased that Congress is addressing the important aspects 
involved in the brownfields cleanup issue. Passage by the Senate of S. 
350, the ``Brownfields Revitalization and Environmental Restoration Act 
of 2001,'' and your Subcommittee's hearings on the two draft proposals 
on the subject are evidence of Congress's concern about the need to 
address the problem.
    MBA respectfully urges that your subcommittee report meaningful 
brownfields legislation in order that Congress can promptly address 
this important issue. We look forward to working with the House and the 
Senate in this endeavor.
            Sincerely,
                            Clifford B. Hardy, Chairman    
                        MBA Legislative Committee, COMBOG Board    
                                President, First Housing, Tampa, FL
                                 ______
                                 
                               Sierra Club;                
             Natural Resources Defense Council;            
              Physicians For Social Responsibility;        
U.S. Public Interest Research Group; Clean Water Action;    

   Friends of the Earth; American Public Health Association
                                                      June 27, 2001
The Honorable W.J. Tauzin
United States House of Representatives
Washington, DC 20515

The Honorable Paul Gillmor
United States House of Representatives
Washington, DC 20515

The Honorable John Dingell
United States House of Representatives
Washington, DC 20515

The Honorable Frank Pallone
United States House of Representatives
Washington, DC 20515

    Dear Representative: Our organizations strenuously oppose Rep. 
Gillmor's draft brownfields legislation, dated June 13, 2001. After 
more than a decade of trying to pass brownfields legislation, the 
Senate passed compromise legislation (S.350) earlier this year. Rep. 
Gillmor's draft brownfields legislation is a step backwards, because it 
goes far beyond S.350 in rolling back fundamental protections for 
public health and environmental quality, and will polarize the debate 
on brownfields, and hinder efforts to pass an acceptable brownfields 
bill this year. Rep. Gillmor's draft legislation broadly defines 
brownfields to include highly contaminated sites, fails to provide any 
minimum criteria for state voluntary clean up programs, and eviscerates 
the ability of citizens to rely on EPA or citizen suit authority to 
protect public health or environmental quality from toxic waste. 
Because of these problems, and many other deficiencies, we urge the 
Committee to reject this draft legislation.
Includes Heavily Contaminated Sites
    Section 301 of Rep. Gillmor's draft legislation contains an overly 
broad definition of ``Eligible Response Sites,'' which could severely 
weaken the federal safety net at heavily contaminated toxic waste 
sites. Many of our organizations worked closely with the Senate 
sponsors of S.350 to ensure that bill was narrowly crafted to include 
only brownfield sites with low levels of contamination. Rep. Gillmor's 
draft legislation eliminated that language, and then modified other 
provisions to significantly expand the types of sites, to include high-
risk sites, included as eligible response sites.
Fails To Establish Minimum Criteria For Voluntary Clean Up Programs
    Rep. Gillmor's draft legislation also fails to include an up front 
review of state programs to ensure that they contain common sense 
criteria to protect public health and environment quality. In fact, 
this draft does not even include the very basic criteria contained in 
current EPA policy for entering into Memorandums of Agreements with 
state brownfield programs. Reports from independent state agencies, the 
General Accounting Office, state-based organizations and organizations 
of state hazardous waste managers have noted serious defects in state 
voluntary clean up programs that highlight the need for minimum 
criteria.
    For example, a recent report on Ohio's voluntary clean up program 
detailed projects where the public was effectively shut out of the 
clean up process, and where little or no active clean up occurred other 
than imposing deed restrictions on the se of contaminated property. 
Yet, Rep. Gillmor's draft bill would severely restrict federal 
enforcement authority and citizen suit provisions that could ensure 
polluters clean up these sites.
    The lack of an up front review, combined with increased federal 
funding, could allow inadequate state voluntary clean up programs to 
ramp up their redevelopment activities, leading to an increased number 
of unprotective clean ups. Minimum criteria will help to ensure state 
programs provide the public with relevant and timely information, and 
with the opportunity to meaningfully participate in the clean up 
process. Without such criteria, citizens will have little opportunity 
to ensure that polluters and appropriately clean up toxic waste sites.
Weakens Citizens' Ability To Ensure That EPA Protects Public Health
    Further, section 129(b) of Rep. Gillmor's draft legislation 
effectively wipes out the federal safety net. This section would 
eviscerate EPA's authority under sections 106, 107 and 113 of 
Superfund, and section 7003 of the Resources Conservation and Recovery 
Act (RCRA), to order polluters to clean up heavily contaminated toxic 
waste sites that continue to pose serious threats after a voluntary 
clean up. The bill would likewise undercut the ability of citizens to 
protect themselves from contamination by prohibiting citizen suits 
under section 7002 of RCRA. Under Rep. Gillmor's draft, the 
Administrator of the EPA would not be able to act to protect 
neighborhoods unless she determines that a toxic release presents an 
imminent and substantial endangerment to human health and also that 
there is already an ``emergency'' and the State has refused to take 
necessary actions in a ``timely manner.'' This undermines the current, 
well-known standard under current law by eliminating its 
``preventative'' focus, and will result in years of increased 
litigation.
    There is no need to weaken the federal safety net; in fact, doing 
so only undercuts the efficacy of state clean up programs. Consensus 
language contained in S.350 already protects developers, innocent 
landowners, and owners of land contaminated by adjacent property. The 
language contained in Rep. Gillmor's draft bill goes beyond these sound 
provisions, and would weaken the principle that protects public health 
by ensuring that polluter pays to clean up their contamination.
    Rep. Gillmor's bill also significantly modifies the consensus 
language on liability exemptions contained within S.350. For example, 
section 201 of Rep. Gillmor's draft bill (concerning contiguous 
property owners) could exempt from liability corporations and people 
who knowingly purchased contaminated property, and who failed to take 
any step to protect the public from that contamination. Section 202 of 
Rep. Gillmor's draft bill (concerning prospective purchasers) would go 
beyond Superfund to inappropriately prohibit citizens from using 
section 7002, and EPA from using sections 7003 and 9003 of RCRA to 
ensure that developers adequately clean up hazardous waste and 
petroleum contamination. Further, section 203 of Rep. Gillmor's draft 
bill (concerning innocent landowners) significantly reduces the level 
of inquiry that owners would have to show in order to qualify for an 
exemption from liability. It also provides EPA, or other unspecified 
parties, with overly broad discretion to promulgating regulations that 
establish standards of inquiry that corporations and people must meet 
prior to qualifying for an exemption from liability.
    Overall, Rep. Gillmor's draft legislation would deny citizens the 
ability to prevent inadequate clean up decisions at highly contaminated 
sites; while at the same time, severely undercutting the power of these 
same citizens and the EPA to order polluters to appropriately clean up 
contamination. Ultimately, with the infusion of federal funds into 
state programs, and the inadequacies of various state programs noted 
above, Rep. Gillmor's draft bill could make communities across the 
nation almost powerless to protect themselves, or to seek protection 
from the EPA. Our organizations vehemently oppose these limitations, as 
they are an anathema to sound policies respecting protection of public 
health and environmental quality.
Eliminates Protections For Local Communities
    Rep. Gillmor's draft legislation goes far beyond S.350 in a number 
of other ways that are also detrimental to protections for public 
health and environmental quality. For example, section 303 of Rep. 
Gillmor's draft legislation provides regulatory authority to amend all 
federal environmental laws to eliminate procedural permitting 
requirements. This could make it much easier to permit hazardous waste 
incinerators, permanent waste landfills, and discharges of toxic waste 
into water; create years of litigation; and ultimately, reverse decades 
of progress in ensuring public access to information and meaningful 
public participation in decisions affecting public health and 
environmental quality in neighborhoods across the nation.
    Section 303 of Rep. Gillmor's draft legislation widely diverges 
from EPA's current policy for governor's concurrence on listing sites 
on Superfund's National Priority List (NPL). The veto authority it 
gives to a governor is far more absolute than EPA's current policy for 
governor's concurrence on listing sites under the NPL. It could cause 
unnecessary delays or blocks on EPA's authority to list highly 
contaminated sites, especially in instances where politically and 
economically powerful state interests may influence state decisions. It 
would also eliminate citizens' ability under section 105 of Superfund 
to petition EPA to list sites on the NPL. In addition, it also fails to 
provide local or county governments, who can be acutely affected by 
contaminated sites, with an avenue to get sites listed on the NPL.
    Rep. Gillmor's draft legislation contains a host of other 
objectionable provisions. For example, section 128(e)(3) eliminates 
provisions that S.350's sponsors included to address environmental 
justice problems near toxic waste sites. Section 101 of Rep. Gillmor's 
bill would allow states to independently designate highly contaminated 
sites, including hazardous waste disposal sites and areas contaminated 
with polychlorinated biphenyls as ``brownfields,'' while using federal 
taxpayer dollars to redevelop such site with little, if any, federal 
oversight.
Conclusion
    Our organizations are united in our belief that state and federal 
government must ensure that contaminated sites are thoroughly and 
expeditiously cleaned. Cleaning up and then redeveloping sites with low 
levels of contamination provides a tremendous opportunity to revitalize 
urban areas throughout the nation and reduce sprawl. These 
considerations are critical for addressing threats to public health, 
problems in achieving environmental justice, and the need to preserve 
greenways. For these reasons, and many others, state voluntary clean up 
programs must satisfy minimum, common sense criteria that protect 
public health and involve the public in a meaningful way during the 
cleanup process. Further, any acceptable brownfields legislation must 
maintain a strong and effective federal safety net to protect families 
across the nation. The environmental and public health community wants 
a bill that meets these challenges head on, and ensures that the nation 
moves forward in rebuilding blighted communities and preserving 
precious open spaces. The Gillmor draft bill fails on all accounts and 
should be opposed.
    If you have any questions, please do not hesitate to call Grant 
Cope (202/546-9707), Ed Hopkins (202/675-7908), or Faith Weiss (202/
289-6868).
            Sincerely,
                                                Grant Cope,
                                          Staff Attorney, U.S. PIRG
                                                Ed Hopkins,
                Director Environmental Quality Program, Sierra Club
                                               Faith Weiss,
      Legislative Staff Attorney, Natural Resources Defense Council
                                               Don Hoppert,
    Director of Federal Affairs, American Public Health Association
                                             Gawain Kripke,
                   Director Economic Campaign, Friends of the Earth
                                                Lynn Thorp,
                  National Campaign Coordinator, Clean Water Action
                                                Susan West,
   Director of Environmental Health Program, Physicians For Social 
                                                     Responsibility

cc: Rep. Jim Greenwood, Rep. Steve Largent, Rep. Greg Ganske, Rep. John 
        Shimkus, Rep. Heather Wilson, Rep. Vito Fossella, Rep. Robert 
        Ehrlich, Rep. Steve Buyer, Rep. George Radanovich; Rep. Joseph 
        Pitts; Rep. Mary Bono; Rep. Greg Walden; Rep. Lee Terry; Rep. 
        Edolphus Towns; Rep. Henry Waxman; Rep. Sherrod Brown; Rep. 
        Edward Markey; Rep. Gene Green; Rep. Karen McCarthy; Rep. 
        Thomas Barrett; Rep. Bill Luther; Rep. Lois Capps; Rep. Mike 
        Doyle; Rep. Jane Harman; and Administrator Christie Whitman

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