[Senate Hearing 107-76]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 107-76

  BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2001

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                                   ON

        S. 350, A BILL TO AMEND THE COMPREHENSIVE ENVIRONMENTAL 
   RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 TO PROMOTE THE 
 CLEANUP AND REUSE OF BROWNFIELDS, TO PROVIDE FINANCIAL ASSISTANCE FOR 
BROWNFIELDS REVITALIZATION, TO ENHANCE STATE RESPONSE PROGRAMS, AND FOR 
                             OTHER PURPOSES


                               __________

                           FEBRUARY 27, 2001


                               __________


  Printed for the use of the Committee on Environment and Public Works


                   U.S. GOVERNMENT PRINTING OFFICE
73-029                     WASHINGTON : 2001


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

              one hundred seventh congress, first session

                   BOB SMITH, New Hampshire, Chairman
             HARRY REID, Nevada, Ranking Democratic Member
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            BARBARA BOXER, California
MICHAEL D. CRAPO, Idaho              RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island         THOMAS R. CARPER, Delaware
ARLEN SPECTER, Pennsylvania          HILLARY RODHAM CLINTON, New York
BEN NIGHTHORSE CAMPBELL, Colorado    JON S. CORZINE, New Jersey
                Dave Conover, Republican Staff Director
                Eric Washburn, Democratic Staff Director
                                 ------                                
     Subcommittee on Superfund, Waste Control, and Risk Assessment
LINCOLN CHAFEE, Rhode Island,        BARBARA BOXER, California
    Chairman                         RON WYDEN, Oregon
JOHN W. WARNER, Virginia             THOMAS R. CARPER, Delaware
JAMES M. INHOFE, Oklahoma            HILLARY RODHAM CLINTON, New York
MICHAEL D. CRAPO, Idaho              JON S. CORZINE, New Jersey
ARLEN SPECTER, Pennsylvania

                                  (ii)

  
                            C O N T E N T S

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                                                                   Page

                           FEBRUARY 27, 2001
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     7
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..    14
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island     1
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................    16
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey..    11
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....    10
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    12
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........     6
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....     3

                               WITNESSES

Arlington, John, assistant vice president, American Insurance 
  Association....................................................    45
    Prepared statement...........................................    75
Bollwage, Hon. J. Christian, Mayor of Elizabeth, New Jersey......    32
    Prepared statement...........................................    56
    Responses to additional questions from Senator Chafee........    58
Cope, Grant, environmental advocate, United States Public 
  Interest Research Group........................................    47
    Prepared statement...........................................    76
Ferris, Deeohn, president, Global Environmental Resources Inc....    50
    Prepared statement...........................................    90
    Responses to additional questions from Senator Inhofe........    93
Ford, Mike, Mike Ford Agency, on behalf of the National 
  Association of Realtors........................................    42
    Prepared statement...........................................    70
    Responses to additional questions from:
        Senator Chafee...........................................    71
        Senator Inhofe...........................................    71
Fox, Robert, partner, Manko, Gold and Katcher, LLP...............    48
    Prepared statement...........................................    85
Front, Alan, senior vice president, The Trust for Public Land....    44
    Prepared statement...........................................    72
O'Brien, Philip J., Director, Division of Waste Management, New 
  Hampshire Department of Environmental Services.................    36
    Prepared statement...........................................    66
Walker, Hon. Myrtle, Mayor of East Palo Alto, California.........    34
    Prepared statement...........................................    59
Whitman, Hon. Christine Todd, Administrator, Environmental 
  Protection Agency..............................................    18
    Prepared statement...........................................    52
    Responses to additional questions from:
        Senator Chafee...........................................    54
        Senator Inhofe...........................................    54
        Senator Smith............................................    54

                          ADDITIONAL MATERIAL

Statements:
    American Institute of Architects.............................   101
    American Institute of Chemical Engineers.....................    94
    Environmental Business Action Coalition......................   100

 
  BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2001

                              ----------                              




                                     U.S. Senate,  
             Committee on Environment and Public Works,    
                Subcommittee on Superfund, Waste Control,  
                                       and Risk Assessment,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:17 a.m. in 
room 406, Senate Dirksen Building, Hon. Lincoln Chafee 
(chairman of the subcommittee) presiding.
    Present: Senators Chafee, Inhofe, Crapo, Boxer, Carper, 
Clinton, and Corzine. Also present: Senators Smith and Reid [ex 
officio].
    Senator Chafee. The hearing will come to order.
    I would like to recognize Chairman Smith for the purposes 
of introducing some honored guests. Mr. Chairman?
    Senator Smith. Mr. Chairman, it is a pleasure for me to 
introduce some of our counterparts from the Netherlands who are 
visiting with us this morning. We are hosting members of the 
delegation of the Select Committee on Housing, Spatial 
Planning, and the Environment from the Netherlands, who are all 
sitting over here on the right side of the room, a seven member 
delegation led by Mr. Reitsma. I would appreciate if they would 
just stand and be recognized. I welcome you all here to observe 
our own legislative process at work.
    [Applause.]
    Senator Smith. The Netherlands is a leader in Europe in 
environmental policy and in taking care of many of their 
environmental problems. I have made a commitment today to try 
to go over and visit in Holland. Hopefully, some of the 
committee members will come with me, and maybe we can learn 
something.
    I also would like to take this moment, Mr. Chairman, to 
recognize Tom Gibson, who worked for many years here on our 
side of the aisle, in a bipartisan manner, I might add, for the 
committee. He is now over at EPA. So, Tom, I guess it is good 
to see you over there.
    [Laughter.]
    Administrator Whitman. I think so.
    Senator Smith. Thank you, Mr. Chairman.

           OPENING STATEMENT OF HON. LINCOLN CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Thank you. We will have brief opening 
statements and get to the testimony.
    Today, this subcommittee will receive testimony on S. 350, 
the Brownfields Revitalization and Environmental Restoration 
Act of 2001. Together with Senators Smith, Reid, and Boxer, and 
other members of the committee, I introduced this legislation 
on February 15. This is the same bipartisan legislation that 
was introduced in the 106th Congress and amassed 67 cosponsors. 
This landmark bipartisan bill, which is pro environment and pro 
economic development, has attracted broad support from senators 
and stakeholder groups.
    The Nation's laws governing abandoned hazardous waste sites 
date back to the late 1970's and the discovery of thousands of 
barrels of toxic waste buried in a New York community outside 
of Buffalo. Congress responded to Love Canal and other sites by 
enacting Superfund. This law was intended to clean up the 
Nation's worst sites and ensure that the parties responsible 
for the pollution cleaned it up. Litigation ensued throughout 
the 1980's which slowed down the pace of clean-ups. But by the 
1990's Superfund clean-ups had increased. But the fear of 
prolonged entanglements and Superfund liability became an 
impediment to the clean-up of lightly contaminated sites known 
as ``brownfields.''
    While all parties agree that we should remove the barriers 
to redeveloping brownfields, those reforms were always 
considered part of a broader comprehensive Superfund reform. 
Based on a multitude of letters and phone calls from various 
stakeholders, the sponsors of this legislation decided to move 
brownfields legislation separately and in a bipartisan manner.
    This is not to say that there is not merit to broader 
Superfund proposals. Issues such as natural resources damages 
need to be examined, and we will look at those issues later. 
But it is important that we finally move this legislation with 
its broad bipartisan support.
    S. 350 represents a delicately balanced compromise of 
interest. While no compromise legislation makes everyone 100 
percent happy, this bill does enjoy strong support from real 
estate, community, local government officials, State officials, 
business groups, and environmental groups. I do look forward to 
its quick consideration in this session of Congress.
    [The prepared statement of Senator Chafee follows:]

  STATEMENT OF HON. LINCOLN D. CHAFEE, U.S. SENATOR FROM THE STATE OF 
                              RHODE ISLAND

    Good morning. Today, the subcommittee will receive testimony on S. 
350, the Brownfields Revitalization and Environmental Restoration Act 
of 2001. Together with Senators Smith, Reid, and Boxer, and other 
members of the committee, I introduced this legislation on February 15. 
This bill is the same bipartisan legislation that was introduced in the 
106th Congress and amassed 67 cosponsors. This landmark, bipartisan 
bill which is pro-environment and pro-economic development has 
attracted broad support from Senators and stakeholder groups.
    The nation's laws governing abandoned hazardous waste sites date 
back to the late 1970's and the discovery of thousand of barrels of 
toxic waste buried illegally in a New York community outside of 
Buffalo. Congress responded to Love Canal and other sites by enacting 
Superfund. This law was intended to clean up the nation's worst sites 
and ensure that the parties responsible for the pollution cleaned it 
up. Litigation ensued throughout the 1980's, which slowed down the pace 
of clean-ups. By the 1990's, Superfund clean-ups increased. But the 
fear of prolonged entanglements in Superfund liability became an 
impediment to the clean-up of lightly contaminated sites, today known 
as brownfields.
    While all parties agreed that we should remove the barriers to 
redeveloping brownfields, those reforms were always considered as part 
of broader comprehensive Superfund reform. Based on a multitude of 
letters and phone calls from various stakeholders, the sponsors of this 
legislation decided to move brownfields legislation separately and in a 
bipartisan manner. This is not to say that there is not merit to 
broader Superfund proposals. Issues such as natural resource damages 
need to be examined and we will look at those issues later. But it is 
important that we move this legislation, with broad bipartisan support, 
first.
    As the chairman of the Senate Superfund Subcommittee, I have made 
of brownfields reform my top environmental priority. As one of six 
former mayors in the Senate, I understand the environmental, economic, 
and social benefits that can be realized in our communities from 
revitalizing brownfields. Estimates show there to be between 450,000 
and 600,000 brownfield sites in the United States. Why do we have so 
many of these abandoned sites? The shift away from an industrialized 
economy, the migration of land use from urban areas to suburban and 
rural areas, and our nation's strict liability contamination statutes 
have all contributed. By enacting this legislation, we can recycle our 
nation's contaminated land, reinvigorate our urban cores, stimulate 
economic development, revitalize blighted communities, abate 
environmental health risks, and reduce the pressure to develop pristine 
land.
    People may legitimately question the necessity of enacting Federal 
brownfields legislation. Given the frequent touting of brownfield 
success stories, is Federal legislation necessary? The short answer is 
``yes''. While many States have implemented innovative and effective 
brownfield programs, they cannot remove the Federal barriers to 
brownfield redevelopment. By providing Federal funding, eliminating 
Federal liability for developers, and reducing the role of the Federal 
Government at brownfield sites, we will allow State and local 
governments to improve upon what they are already doing well.
    I would like to briefly describe the highlights of our legislation. 
The bill authorizes $150 million per year to State and local 
governments to perform assessments and clean up at brownfield sites. In 
addition, that money will allow EPA to issue grants for clean-up of 
sites to be converted into parks or open space. It also authorizes $50 
million per year to establish and enhance State brownfield programs. 
The bill clarifies that prospective purchasers, innocent landowners, 
and contiguous property owners, that act appropriately, are not 
responsible for paying clean-up costs. Finally, this legislation offers 
finality by precluding EPA from taking an action at a site being 
addressed under a State clean-up program unless there is an ``imminent 
and substantial endangerment'' to public health or the environment, and 
additional work needs to be done.
    Enactment of this legislation and the accompanying redevelopment 
will provide a building block for the revitalization of our 
communities. Communities whose fortunes sank along with the decline of 
mills and factories will once again attract new residents and well-
paying jobs. We will bring vibrant industry back to the brownfield 
sites that currently host crime, mischief and contamination. There will 
be parks at sites that now contain more rubble than grass. City tax 
rolls will burgeon; schools will be invigorated; new homes will be 
built, and community character will be restored. This vision for our 
communities can be realized with enactment of this legislation.
    As with all legislation, we must reach across the aisle and work 
with bipartisan cooperation to be successful. While no compromise 
legislation makes everyone one hundred percent happy, this bill enjoys 
strong support from the real estate community, local government 
officials, State officials, business groups, and environmental groups. 
I look forward to its quick consideration in the Senate.
    Senator Chafee. Senator Smith?

             OPENING STATEMENT OF HON. BOB SMITH, 
          U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

    Senator Smith. Thank you very much, Mr. Chairman. Let me 
commend you for your leadership on the issue, as well as you, 
Senator Boxer, and others who have worked hard to try to come 
to a bipartisan conclusion on this legislation. It is a 
difficult issue. There are some things that I would have liked 
to have changed. But in order to get at a bipartisan bill, I 
feel we need to move forward because of the significance.
    I certainly welcome you, Governor--I can't get away from 
calling you Governor--Administrator. We are glad to have you 
here. It is I think your first hearing since your confirmation. 
I am also pleased to have with us Dr. Phil O'Brien, from the 
New Hampshire Department of Environmental Services, who will be 
testifying a little later today. As many of you know, New 
Hampshire, as does other States, has its fair share, more than 
fair share of brownfields from all across the State.
    This legislation removes the uncertainty and encourages 
brownfields clean-up. Basically, it codifies and streamlines 
the current EPA program. It nearly doubles the funding to clean 
up these brownfields, and it provides common sense and balanced 
liability protections to those who clean up the environment. It 
will promote conservation through redevelopment. That's the 
bottom line. You do not have to take new green areas when you 
can redevelop old brown ones. So, this will help to revitalize 
our city centers and create new inner-city jobs. This is a win 
for the environment, it is a win for the economy, and, frankly, 
it is a win for each and every State in the Nation. I am proud 
to be a cosponsor.
    Unfortunately, we have not been able to do the same thing 
with Superfund, in spite of all the attempts we have made. But 
maybe this is a good omen that we can get started on that as 
well.
    I am glad that Senator Reid has joined us. I appreciate the 
bipartisan spirit in which he has worked with me on a lot of 
things for a long time, not just here in the committee but in 
other committees that we have been involved in, most 
specifically ethics, which is never a fun time, and also in 
working on the committee rules. Where some committees are still 
struggling, we have already gotten a resolution to the 
committee rules because we do work in a bipartisan manner.
    I will be very brief here, Mr. Chairman. Two years ago, 
when we held hearings on comprehensive Superfund we had 
brownfields in it. We could not get anywhere. We could not get 
the comprehensive reform, as much as we all would have liked to 
have had it. At that time, I felt that we ought to get 
comprehensive reform; if we do not get it, we should get 
nothing. But I have changed my mind because I believe it is 
important that we begin the process of cleaning up these waste 
sites around the country, whether they be brownfields or 
Superfund. To argue about them and continue to argue about 
them, fight over them, go to court over them, I have had enough 
of it.
    I think we need to move forward. That is why I am pleased, 
even though there are some areas that I would have liked to 
have seen stronger in the bill, I am pleased and am prepared to 
move forward. If we delay, the losers are the people to live 
near the sites, green space, urban centers will remain 
blighted, and local communities will miss out on revitalization 
opportunities. That is not acceptable to me.
    So I would just ask our witnesses to keep in mind this when 
speaking to the elements of our bill and the contents: How is 
S. 350 better than current law? That is the bottom line. I 
think it is better, and if it is better, then we ought to move 
forward.
    I will reserve the rest of my time, Mr. Chairman, for my 
questions. Thank you.
    [The prepared statement of Senator Smith follows:]

    STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF NEW 
                               HAMPSHIRE

    Mr. Chairman, thank you for calling this important hearing on S. 
350, the Brownfields Revitalization and Environmental Restoration Act 
of 2001. I would like to thank Senator Chafee for his leadership on 
this issue as well as our Democratic counterparts, Senators Reid and 
Boxer, for their cooperation and partnership. Also, I would like to 
welcome today's witnesses and thank them for their participation in 
this hearing. We are honored to have Administrator Whitman here and I 
am very pleased to welcome Dr. Phil O'Brien from the New Hampshire DES.
    I know all too well the problems faced in New Hampshire when those 
willing to clean up and redevelop brownfield sites are too often 
discouraged from doing so because of the uncertainties they face. There 
are literally hundreds of these sites in New Hampshire--Milford, 
Nashua, Durham, Concord, and on and on. Our brownfields legislation, S. 
350, removes the obstacles of uncertainty and will encourage cleaning 
up brownfields sites by codifying and streamlining the current EPA 
program, nearly doubling funding, and providing commonsense and 
balanced liability protections to those who clean up the environment. 
This bill will promote conservation through redevelopment as opposed to 
new greenfield development; and will help to revitalize our city 
centers and create new jobs in the inner-cities. This legislation is a 
win for the environment, a win for the economy, and a win for New 
Hampshire and the nation.
    There are numerous interests who support S. 350, many of them 
represented on panels today. I'd like to mention the U.S. Conference of 
Mayors, National Association of Realtors, the Trust for Public Land, 
American Insurance Association, Smart Growth America, Environmental 
Business Action Coalition, and many, many more. With that said, I am 
proud that S. 350 has such broad, bipartisan support--something that, 
unfortunately, is not typical for issues that pertain to CERCLA. I hope 
the bipartisan success of this bill will translate into other areas of 
Superfund reform that are desperately needed. We all want a clean 
environment, Republicans and Democrats, and by working together, this 
bill will help to set the stage for future, common sense, legislative 
reforms.
    Just 2 years ago, when Senator John Chafee, my predecessor as 
chairman, sat at the helm of this committee, we held a hearing on a 
comprehensive Superfund reform bill, which had a brownfields title. 
That bill had no bipartisan support. There was a comparable bill put 
forth by my Democratic colleagues and it, too, lacked bipartisan 
support. Today, we have done what just 2 years ago seemed impossible. 
We reached a compromise both parties can and should support. Is this 
everyone's ideal bill? Absolutely not. But continuing to delay 
enactment of this bill--in search of the perfect bill that will never 
pass--is not the way to address the issues faced at an estimated 
450,000 brownfield sites nationwide. We have this chance now to move 
forward on a piece of legislation that, while not 100 percent of what 
everyone wants, gets as close as all our divergent interests are going 
to get. If we delay, the losers are people living near the sites that 
eventually become full fledged Superfund sites, the greenspace that is 
lost to new development, the urban centers that remain blighted, and 
the local communities that will miss out on revitalization 
opportunities. I ask our witnesses to keep this in mind when speaking 
to the contents of our bill.
    How is S. 350 better than current law? Simply stated, our bill 
provides an element of finality that does not exist today, while 
allowing for Federal involvement under a specific universe of 
conditions. Current law allows EPA to act whenever there is a release 
or threatened release; this bill ups the ante by requiring:
    1) EPA to find that ``the release or threatened release may present 
an imminent and substantial endangerment to public health, welfare or 
the environment'' and after taking into consideration response 
activities already taken, ``additional response actions are likely to 
be necessary to address, prevent, limit or mitigate the release or 
threatened release'';
    2) the action to come at the request of the State;
    3) contamination to have migrated across State lines; or,
    4) new information to emerge after the clean-up that results in the 
site presenting a threat.
    That's not all our bill does to improve the current situation. S. 
350 authorizes $150 million in critically needed funds to assess and 
clean up brownfield sites, as well as $50 million to assist State 
clean-up programs. This is more than double the current level of 
funding expended toward the EPA Brownfield program.
    This is a balanced bill--and we are determined to move quickly 
through the legislative process. Senator Reid and I have committed to 
marking up this bill in early March, and we hope to have floor time 
soon afterwards.
    I look forward to hearing from today's witnesses.
    Senator Chafee. Thank you.
    Senator Reid, would you like to make an opening statement?

             OPENING STATEMENT OF HON. HARRY REID, 
             U.S. SENATOR FROM THE STATE OF NEVADA

    Senator Reid. Chairman Chafee, thank you very much. I first 
want to express my appreciation publicly for Senator Smith's 
kind remarks about me. But I want to reciprocate. I think that 
this committee has set a tone for what I hope this Congress 
will be. We have worked out our differences, as Senator Smith 
has indicated, on the committee structure. It was not easy, but 
it was fair and firm and we were able to get something that I 
think other committees could use as a pattern, a guideline. So 
I publicly express my appreciation to Senator Smith, chairman 
of this committee.
    I also want to express my appreciation to Senator Boxer. 
She comes from a unique background and perspective, not the 
least of which is she represents 34 million people as a Senator 
from the State of California. I am grateful to her for her 
taking responsibility for this subcommittee. This subcommittee 
deals with some of the most important issues facing our 
country, and she has the background and experience to do the 
good job that I know she will do, and I appreciate her taking 
this responsibility.
    I say to you, Governor Whitman, that you are an example of 
how the Superfund can be used to a State's advantage, what you 
did in New Jersey. And I talked to Governor Guinn yesterday, 
Governor of the State of Nevada, telling him that we were going 
to spend more time with him. People run from Superfund sites 
but Superfund sites can do good things. I have invited you to 
Nevada and we are going to work out a convenient time for you 
to come to the State of Nevada and see in Nevada what a 
Superfund site can do.
    We had a very ugly gravel pit that was a hundred times 
bigger than this room, maybe a thousand times bigger, a huge, 
huge gravel pit and it was contaminating many things. It had 
upwards of five to six million gallons of fuel that had leaked 
out of various facilities that was going into our river. 
Anyway, to make a long story short, it was declared an 
emergency Superfund site and now it is one of the most 
beautiful areas in all of northern Nevada. It is called the 
Sparks Marina. Sailboats. It is beautiful. So we do not need to 
run from Superfund sites.
    Brownfields are a step below that as far as contamination, 
a long ways below that. I am glad that we are going to start 
someplace. We probably are not going to be able to change a lot 
with Superfund in the next short period of time, but we can 
change this. In Nevada, and Las Vegas is an example, we have 30 
brownfield sites that have already been identified. If we can 
clean up those, it will create hundreds and hundreds of jobs 
and it will give new tax revenues to State and local 
governments. That is important.
    But some people think that these brownfield sites are only 
urban problems. They are not. We can go 350 miles from Las 
Vegas to a place in Nevada called Hawthorn, and we have there 
very limited lands that the city cannot handle because 87 
percent of the State is owned by the Federal Government, but we 
have some brownfield sites there. One site, 250 acres of 
valuable space, has been used as a landfill for many years. We 
can clean that up. It will cost just a little bit of money and 
will give that area of Hawthorn, Nevada the opportunity to 
grow.
    This bill will turn around these sites by providing money 
to assess and clean up the areas, it will encourage clean-up 
and redevelopment of these properties by giving legal 
protections for innocent parties, and will provide funding 
enhancement of State clean-up programs, and a balance of 
certainty for developers and others while still ensuring the 
protection of public health. And finally, it will create a 
public record of brownfield sites to help identify 
redevelopment opportunities, and to enhance community 
involvement in site clean-up and reuse.
    This bill is the result of compromise. It represents a 
careful balance of competing interests. It is a bill which has 
gotten broad bipartisan support, both Democrat and Republican 
Administrations support this. I strongly support this bill. We 
have a rare opportunity to enact bipartisan environmental 
legislation this Congress, in fact, I hope within the next few 
months. We should do all we can to get this balanced bill 
enacted into law, do all we can to avoid having this effort 
fail by persons seeking a partisan path. I will personally do 
all I can with my colleagues to maintain this bipartisan 
balance.
    I say to you, Chairman Chafee, thank you for allowing me to 
go out of order. And I say to Governor Whitman, she will get 
used to this, we have a lot of other things going on. I am also 
the ranking member on the Energy and Water Subcommittee on 
Appropriations and we are having a very important hearing there 
at this time on the Corps of Engineers, so I am going to have 
to be excused here shortly. But, Mr. Chairman, I leave it in 
your good hands and Senator Boxer's good hands.
    Senator Chafee. Thank you, Senator Reid.
    The ranking member of the subcommittee, Senator Boxer.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman. It is nice 
to see you again, Administrator Whitman. And to my chair, 
Senator Smith, and ranking member Harry Reid, it is always a 
pleasure to work with you. And thank you, Harry, for those kind 
remarks.
    People say how is it possible to represent 34 million 
people. The answer is it is not really that possible. It is 
very hard. You just do it the best you can. And on any given 
issue, a third of the people love you, a third despise you, and 
a third say ``Barbara Boxer? Now who is she?'' That is kind of 
the way it is when you represent such a large State.
    I am indeed pleased to be here in my new role as ranking 
member of this subcommittee and working closely with Chairman 
Chafee. I loved your father and I am very impressed with you, 
and I look forward to our coming up with some bipartisan 
legislation here.
    I am also excited to see Mayor Myrtle Walker of East Palo 
Alto here today, and Alan Front from The Trust for Public Land, 
which is based in San Francisco. We are happy that you are here 
to add to this dialog. I know that these witnesses will 
highlight how important and relevant brownfields clean-up is to 
my particular State. I am very interested to hear from the 
Mayor about the role the Federal Government has played in 
assisting with the clean-up efforts in Palo Alto.
    The question of the appropriate Federal role is likely to 
provoke vigorous debate in this committee. As a matter of fact, 
I think it is the one bone of contention within this committee. 
But I do believe we have compromised that issue very well, as 
best as we can. Not everyone is getting everything that they 
want from this legislation.
    If you look at California, I am sad to say that some of 
California's industries have not been responsible and have left 
the State with a frightening legacy of contamination. In my 
State, there are estimated to be hundreds of these sites. And 
while the State has struggled to address these, a Federal role 
is clearly needed. And again, I think we have weighed that 
carefully in this legislation and that is why I support S. 350. 
I think we are doing the best we can.
    The interesting thing about these sites, I am sure the 
Governor knows this, now Administrator Whitman knows this, is 
that many of these sites are located in low income, minority 
communities, in places like Las Angeles, Oakland, San Diego, 
and Sacramento. So what you have is a toxic legacy that is felt 
more by our most vulnerable and disempowered citizens. We want 
to give some power to citizens who deserve to have it. Clearly, 
they are not the only communities at risk, but they are 
certainly some of them. And that is why the U.S. Conference of 
Mayors is so involved in this legislation.
    So the bill we are discussing today fills an important need 
in the efforts to address our past mistakes. I am not going to 
read every word of this statement; I will now summarize it very 
briefly. But we know that this issue is one that involves 
pockets of light, if I could put it that way, throughout this 
country and we are missing an opportunity to recycle this land 
and use it. And the failure to reclaim these brownfields means 
that clean, undeveloped areas are used instead when we could 
reuse these lands.
    I think, to its credit, EPA has tried to fill this gap by 
taking on this brownfields initiative. I hope that 
Administrator Whitman will carry on with that banner. Let me 
say that we have two of EPA's leading brownfields initiatives 
in our State. East Palo Alto will tell us how they have been 
named a Showcase Community on this effort.
    I think that if we pass this bill, and I really do think 
Senator Smith is right on this point, is this bill better than 
what we are dealing with now? And I would ask a second 
question, will it lead to cleaning up these sites and reusing 
the sites and making the sites part of the community once 
again? I have answered that question yes. That is why I am a 
supporter of this bill. It does not mean that we can't make it 
better. Of course, we can make it better. But the issue is to 
keep the coalition together, as Chairman Chafee has stated. 
Certainly, that will be my goal throughout this process.
    Thank you very much. I ask unanimous consent that my entire 
statement be placed in the record.
    Senator Chafee. Without objection.
    [The prepared statement of Senator Boxer follows:]

    STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF 
                               CALIFORNIA

    I am pleased to be here today in my new role as Ranking Member of 
the Subcommittee on Superfund, Waste Control, and Risk Assessment. The 
issues that will come before this subcommittee are very important and I 
look forward to working closely with the chairman on these matters.
    I am also pleased to welcome two witnesses from California: Mayor 
Myrtle Walker of East Palo Alto, and Alan Front from the Trust for 
Public Land, which is based in San Francisco.
    I expect that both of these witnesses will highlight how important 
and relevant brownfields clean-up is to my State. I am particularly 
interested to hear from the Mayor about the role that the Federal 
Government has played in assisting with the clean-up efforts in Palo 
Alto. The question of the appropriate Federal role is likely to provoke 
vigorous debate in this committee.
    I am sorry to say that some of California's industries have left 
the State with a frightening legacy of contamination. In my State, 
there are estimated to be hundreds of sites. While the State has 
struggled to address these, a Federal role is clearly needed and that 
is one reason I am a strong supporter of S. 350, the Brownfields 
Revitalization and Environmental Restoration Act.
    In California, many of these sites are located in low-income, 
minority communities in places like Los Angeles, Oakland, San Diego, 
and Sacramento. The result is that this toxic legacy disproportionately 
impacts our most vulnerable and disempowered citizens.
    But these are not the only communities at risk. A recent report by 
the U.S. Conference of Mayors highlighted the fact that brownfields 
sites are found throughout the Nation and are a concern for nearly 
every community.
    The bill that we are discussing today fills an important need in 
the efforts to address our past mistakes.
    Currently, Superfund directs the Environmental Protection Agency to 
give priority to our Nation's most toxic sites. While EPA is struggling 
to keep up with the over 1,400 so-called ``Superfund'' sites that it 
has on its National Priorities List, tens of thousands of other less 
polluted sites are left unattended.
    These so called ``brownfields'' sites are left unused, or only 
partially used. The result is that these sites become pockets of 
blight. The worst case scenario is that these brownfields pose a 
serious hazard to human health and the environment.
    At best, these sites represent a missed opportunity to ``recycle'' 
the land for better uses. Failure to reclaim brownfields often means 
that clean undeveloped areas are used instead, contributing further to 
the sprawl that afflicts many parts of the country. Neglect of 
brownfields also means that the land is not put to productive use, 
either for economic redevelopment or as parkland and green space.
    To its credit, EPA has tried to fill this gap through the 
development of its Brownfields Initiative.
    California has been the site of two of EPA's leading brownfields 
initiatives. The mayor will tell us about East Palo Alto's experiences 
as a brownfields ``Showcase Community.'' These communities are at the 
cutting edge of the brownfields effort; their experiences will help us 
learn how to bring together Federal, State, local, and non-governmental 
interests to address the brownfields problem. They will serve as a 
model for the rest of the Nation.
    I know that Californians believe that the program has been fairly 
successful; however, it has been operating with one hand tied behind 
its back. It lacks adequate funding and would benefit from clear 
statutory authority that enables it to confidently move forward and 
expand.
    This bill will help EPA take the next step with this important 
program.
    By authorizing increased funding for this program, clarifying some 
of the liability questions, and directing the program to the areas of 
greatest need, this legislation will help expand the scope of this 
program and elevate its visibility in the eyes of the American public.
    As Senator Chafee stated, the bill is a carefully crafted 
compromise--one that has succeeded in bringing together diverse 
interests who come from divergent political viewpoints. That matters. 
Because it means that we might finally be successful in improving our 
management of the brownfields problem that now plagues our communities.
    Nevertheless, I expect that some of our witnesses today will 
provide detailed criticism of this bill. I look forward to hearing 
their concerns and hope they can offer us constructive solutions.
    At the same time, we must not lose site of the end game. The status 
quo is not acceptable and thoughtful legislation is needed.
    I believe that we owe it to our children to leave them an 
environment that is cleaner and healthier than the one we have 
inherited. And, I believe that the promotion of redevelopment will 
bring with it a multitude of benefits that are both environmental and 
economic in nature. This bill will help take us in that direction.
    Senator Chafee. Senator Crapo.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. Thank you very much, Mr. Chairman. I, too, 
appreciate your holding this hearing. I think it is the third 
hearing we have had in about a year on the brownfields issue. 
And as probably most of those engaged on the issue know, I was 
one of the strongest opponents of moving brownfields 
legislation alone last year without, as Senator Smith has 
indicated, including needed reforms of other parts of the 
Superfund law, like natural resource damages and a number of 
the other issues in liability and remedy.
    Last year, however, I committed that if we were not 
successful in doing so, I would not hold brownfields back in 
this Congress. Regardless of the outcome of the election, I 
said that I would work to try to help us get something to move 
forward. I will keep that commitment. That commitment was made 
in the context of an agreement by all of the other Senators 
involved at that time that we would not, if we had to move 
brownfields forward this year, we would not let other needed 
areas of reform simply fall by the wayside. And I expect that 
we in this committee will continue to work on those other 
important areas of reform.
    That having been said, I also understand that there has 
been a commitment to work to try to make this bill the best 
bill possible. As the chairman said, this is the exact same 
bill that was introduced last year. There are problems in this 
legislation. We can do a much better brownfields bill. In fact, 
in my opinion, there is an opportunity now to reform one of the 
most important parts of Superfund, brownfields, in a way that 
will let us make tremendous strides forward.
    I recognize that we have to maintain the coalitions to pass 
this legislation. But I believe some of the needed changes out 
there are broadly supported. In fact, I suspect that most 
stakeholders, whether it be at the State and local government 
level, or at the industry level, or otherwise, would support 
some of the needed changes. And so I would encourage this 
committee to recognize that this is a work in process and that 
as we move forward, as we do with all legislation, there will 
be opportunities to identify needed areas of improvement.
    One of those areas that I think needs to be identified 
right now is the question of whether we are going to continue 
to have the Federal Government basically manage these issues, 
or whether we are going to recognize that we can trust the 
States. I am glad to see a former Governor as the Administrator 
of the EPA. Her boss, the President of the United States, 
recently said exactly those words, that in managing these kinds 
of issues we need to trust the States. I do not think that this 
bill goes far enough in giving that kind of trust. There are 
too many loopholes, as I see it, with regard to State finality 
on decisionmaking that allow the EPA to step in and use that 
heavy hand of the Federal Government yet once again to control 
the management of these issues. It is time that we do what we 
say, and that is, trust the States.
    There are a few changes in this legislation, a very few, 
frankly, that are needed, but critical changes that would 
dramatically improve our ability to let this transition of 
power away from the Federal Government and back to the States 
truly become a reality instead of giving it lip service. I am 
hopeful, Mr. Chairman, that we will have the opportunity to 
address these issues as we move forward. Thank you.
    Senator Chafee. Thank you, Senator.
    Senator Corzine.

           OPENING STATEMENT OF HON. JON S. CORZINE, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Corzine. Thank you, Mr. Chairman. Let me say that I 
will submit a formal statement, if I could have unanimous 
consent for that. But I want to congratulate you personally and 
Senator Boxer for the early introduction of something that I 
think is truly a positive win-win situation for everyone, both 
environmentally and economically. I am proud to be a cosponsor 
of legislation that Senator Lautenberg previously had led. I 
want to work very closely with all of you to make sure this 
comes about.
    I am also very proud that our former Governor and now 
Administrator Whitman is here to speak to these efforts because 
she was a very proactive leader in arranging for brownfields 
legislation and efforts in New Jersey and did an outstanding 
job. I do not see Mayor Bollwage, but he was on the receiving 
end of a lot of those efforts in turning around a community, 
Elizabeth, New Jersey, in a terrific way, both economically and 
environmentally. And it is very, very tangible and palpable how 
successful these efforts have been.
    I think this legislation plays very strongly into that. I 
do believe that perfect should not be the enemy of the good. So 
we need to make sure that we do have legislation that moves 
that addresses most of the concerns. I am quite, quite pleased 
to be a cosponsor of this, and look forward to working with you 
and all of those on the committee. Thank you.
    [The prepared statement of Senator Corzine follows:]

 STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE STATE OF NEW 
                                 JERSEY

    Thank you, Mr. Chairman.
    Let me congratulate you, Mr. Chairman, along with Senators Smith, 
Reid and Boxer, for introducing this bill and scheduling it for a 
hearing so early in the congressional session. I am very hopeful that 
with your leadership, and the broad bipartisan support this legislation 
enjoys, we will be able to quickly enact this legislation in the 107th 
Congress.
    While welcoming all those testifying today, I also would like to 
especially recognize and welcome Environmental Protection Agency 
Administrator Whitman and Mayor Christian Bollwage, the Mayor of 
Elizabeth, New Jersey, who will appear on behalf of the United States 
Conference of Mayors. Governor--now Administrator--Whitman, it's great 
to see you here in your new capacity. I am sure you were pleased that 
your appointment won such broad support. And Mayor Bollwage, I'm 
grateful for your willingness to join us today. You've been a terrific 
leader on this issue. And I know that you and Administrator Whitman 
will be able to help the committee and public understand the importance 
of this legislation, and the success of New Jersey's own Brownfield's 
program.
    Mr. Chairman, I am proud to be a cosponsor of your bill, and 
continue the efforts of my predecessor, Senator Frank Lautenberg, who 
sponsored a similar bill in the previous Congress. Like Senator 
Lautenberg, I recognize the tremendous value of cleaning up 
contaminated industrial sites that lay under-utilized or even 
abandoned, largely because of the difficulty, risks, and expense of 
cleaning them up.
    When developers now look at these sites, Mr. Chairman, they see a 
hornet's nest of problems. But when most of us look at them, we see 
opportunities. Many of these brownfield sites are located in 
economically depressed urban areas. Cleaning them up can spur economic 
development, create jobs and bring in additional tax revenue.
    Elizabeth, New Jersey has a prime example of this. There, thanks to 
a similar initiative, a municipal landfill was transformed into a 
thriving retail shopping center that now employs over 5000 people.
    Of course, cleaning up brownfields does more than help the economy. 
Often, it helps the environment and removes highly dangerous 
contaminants. In addition, by cleaning up sites in our urban areas, it 
redirects development away from our remaining open space, and reduces 
the many problems associated with sprawl.
    As you know, Mr. Chairman, despite the broad benefits of cleaning 
up brownfields, the private sector often finds it unattractive or 
unrealistic to take on the task. Nor is it easy for States and local 
governments. That's why this legislation is so important. By providing 
needed funding, and placing reasonable limits on developers' liability, 
it should encourage the development of many brownfields and the 
revitalization of depressed areas around our nation. It's a win-win 
initiative.
    So, Mr. Chairman, I again congratulate you for your leadership, and 
I look forward to working with you to secure the enactment of this 
legislation as soon as possible.
    Senator Chafee. Thank you, Senator.
    Senator Inhofe.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman.
    Madam Administrator, it is nice to have you here today.
    I could pretty much take Senator Crapo's opening remarks as 
my own. I have expressed a lot of concern in the past over 
major reform, a comprehensive reform of Superfund, including 
retroactive liability, joint and several liability, natural 
resources damages. I hesitate falling into something where we 
are cherry picking at one area and not getting the 
comprehensive reform that Senator Crapo and I both want 
ultimately to achieve.
    There are three different areas that I think could be 
improved, and I hope that we will have the opportunity to do 
it. One is, as Senator Crapo said, work on the clean-up 
finality provision. It appears to me that no matter how it is 
done at the States, the Federal Government can come in, the 
Federal EPA can come in under the way that this bill is drafted 
right now and do it their way. Second, if the States were to 
comply completely with the guidelines, the EPA, if they desire 
to do so, can merely sidestep it and let RCRA or one of the 
other programs come in and take care of these problems. Third, 
it might be worthwhile for us to look at some type of a cap to 
put on, a spending cap so that there is some limit that the 
Federal EPA would have in dealing with some of the States' 
problems.
    I just feel that the thrust of this Administration is going 
to be to let the States have the power; that the States, who 
are closer to the problem, recognize what that problem is and 
should be assisted in resolving that problem without having the 
heavy-handed bureaucracy over them. I know that you, having 
been a Governor of a State, have been on the receiving end of 
some of this heavy-handedness and I am sure that you understand 
from experience what I am talking about.
    So I look forward to comprehensive reform and to seeing 
what we can do to make this a better bill. Thank you.
    [The prepared statement of Senator Inhofe follows:]

   STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF 
                                OKLAHOMA

    Thank you, Mr. Chairman. First, I want to commend you, Chairman 
Smith, and other members of the committee for your work on the 
brownfields issue.
    Over the last several years, this committee worked very hard on 
Superfund reform. We have decided, for now, to address only brownfields 
a single portion of the old comprehensive Superfund reform bills. 
However, I want to reiterate my eagerness to work with members of this 
committee and the Administration in the future on small business and 
used oil recyclers liability relief as well as natural resource damages 
reforms--at a minimum.
    So if we are only going to do a small portion of the Superfund 
reform for now, let's get it right. S. 350 contains items, which I like 
and dislike. However, let me outline issues that--if addressed--would 
make a real difference in our nation's ability to address brownfields 
and could be addressed in a bipartisan manner. The issues are (1) the 
legislation's site clean-up finality provisions; (2) the scope of the 
legislation's clean-up finality provisions; and (3) an administrative 
cap on the bill.
    (1) First, the clean-up finality provision is of concern. Advocates 
of S. 350 declare that the bill's purpose is to provide assurances to 
parties, who clean up brownfields under State plans, that the Federal 
EPA will not come back and force further Federal clean-ups. S. 350 only 
provides developers with very moderate assurances for Superfund-forced 
clean-ups. I have heard some argue that the bill does nothing to this 
end.
    Many people would, ideally, like for the Federal EPA to have no 
authority under any statute to override a State-approved clean-up of a 
brownfield. However, S. 350 takes the other extreme. As it is currently 
written, S. 350 will allow the Federal EPA to overturn a State clean-up 
essentially whenever it wants. Myself and others would like to work to 
find a more delicate balance between the two extremes.
    (2) Second, the scope of the clean-up finality provision is of 
concern. As we will hear from an expert today, if the power of EPA to 
force clean-ups under Superfund is taken away, then the Federal EPA can 
simply side step the bill by using the Resource Conservation and 
Recovery Act (RCRA) or the Toxic Substances and Control Act (TSCA) to 
force parties to clean up sites even after a clean-up has been 
performed under a State program.
    I know the Federal EPA has never overfiled on a brownfields clean-
up. However, it is the perceived threat of a Federal EPA overfiling 
that has hampered brownfields redevelopment. Furthermore, while I have 
full faith that Administrator Whitman's EPA will do everything possible 
to encourage brownfields redevelopment, I have serious concerns about 
legislating for a particular administration. There are no assurances 
that every future Administrator will have the same mind set. Therefore, 
I would like to work with the committee on these two portions of the 
finality provision to provide the peace of mind so many parties seek 
before they will enter brownfields redevelopment projects.
    (3) Finally, I would like to work with the members of the committee 
and the Administration to place a cap on administrative costs of the 
Federal EPA. A cost cap would ensure the States and parties, seeking to 
redevelop brownfields, are getting the significant majority of the 
funds for their brownfields programs and clean-ups.
    Again, there are other areas of concern. But I have outlined three 
issues, which would make a real difference in our nation's ability to 
address brownfields and could be addressed in a bipartisan manner.
    I look forward to hearing from Administrator Whitman, Robert Fox a 
true expert on brownfields redevelopment, and the other witnesses on 
this very important issue. I also look forward to working with 
committee members on both sides of the aisle to craft meaningful 
brownfields and other Superfund-related legislation.
    Senator Chafee. Thank you, Senator Inhofe.
    Senator Carper.

          OPENING STATEMENT OF HON. THOMAS R. CARPER, 
            U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. Thank you very much, Mr. Chairman. To my 
colleagues, good morning.
    Governor, good morning. A year ago, we were in Washington 
together just wrapping up a National Governors' Association 
meeting. You have been in your new job for almost a month. How 
are you doing?
    Administrator Whitman. I am surviving. Still here.
    Senator Carper. Good. I caught a train to come down this 
morning, as I often do, and as the train pulled out of the 
Wilmington train station heading South, I looked out my left 
window, as I often do, at an area where during World War II 
10,000 people worked to build the ships that helped win World 
War II. They built destroyer escorts, troop landing ships, all 
kinds of ships, hundreds of them. The day the war ended we had 
10,000 people working there and a few years later we had almost 
nobody working there. That area went to seed and for almost 45, 
50 years decayed. Little was done with it. It looked awful. It 
ran right along the Christina River, a potentially lovely area. 
But nothing much happened to it.
    Several years ago our State legislature passed and I signed 
brownfields legislation which we used to go in there and to 
turn just a waste dump into a place that is lovely. We have 
parks there, we have museums there, restaurants there, the 
winningest minor league baseball team in America plays baseball 
there, we have a shipyard, shops, home of tax free shopping in 
Delaware, and it has turned into quite a lovely river front 
redevelopment. We stole some ideas from Rhode Island, the folks 
over in Providence, Mr. Chairman, and some others that are 
represented here that I think will actually be testifying 
later.
    But the long and short of it is we do not have much land in 
Delaware. We have a lot more than Rhode Island.
    [Laughter.]
    Senator Chafee. Not a lot more.
    [Laughter.]
    Senator Carper. A little more. But what we do have we have 
to use pretty carefully and judiciously. So by going back and 
taking some areas like the area along the Christina River and 
turning it into something useful and beautiful, we reclaim that 
land. And, frankly, it is farmland and other land where we are 
now growing soybeans and corn and other natural life that can 
carry on just as it is and continue to be lovely and beautiful 
and unspoiled.
    I want to thank both Senator Chafee and Senator Boxer and 
others who have been working on this for a while. I was not 
around here last year to be involved in this. But I am happy to 
be able to play a little part now and to be a cosponsor of this 
legislation.
    Our friend George Voinovich, who chaired the NGA when I was 
vice chairman, Senator Voinovich has offered legislation I 
think in the last session, I do not know if he has done it this 
time, that has some pretty good ideas in it. My hope is that, 
as we come down toward the home stretch in a couple of months, 
we can find some elements of his bill to incorporate into 
elements of this bill which many of us have cosponsored. I 
particularly want to point to the provisions in the Voinovich 
bill in the last session which addressed finality. That is, the 
notion that when somebody comes in and takes over a piece of 
land that is not being used, in fact, it has been misused, that 
if they were willing to do that, in the end they would be given 
some flexibility to clean it up, States and local governments 
are given some flexibility to help that clean up. But in the 
end, there actually is a conclusion and that the finality of 
the State's certification of brownfield clean-up actually means 
something, and its prohibition of a site being included on the 
National Priority List without the concurrence of the Governor 
of the State where the site is located means something as well.
    That having been said, Mr. Chairman, I want to ask that my 
entire statement be entered into the record as is. I thank you 
all for this opportunity. And again, Governor, welcome. It is 
great to see you. Thank you, Mr. Chairman.
    [The prepared statement of Senator Carper follows:]

  STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM THE STATE OF 
                                DELAWARE

    I thank the chair for the opportunity, and I would like to welcome 
Governor Whitman this morning, and the other distinguished witnesses. I 
look forward to hearing your thoughts about the brownfields legislation 
before us.
    This morning, as I do every morning, I rode on Amtrak from my home 
in Wilmington Delaware to Washington DC. I know, Governor Whitman, that 
you have passed through Wilmington on the train a few times, and that 
probably many of you here have done the same. Each time I ride the 
train, I look out the window as it pulls away and take a few minutes to 
marvel at the Wilmington Riverfront. Ten years ago, the view was 
significantly different.
    As Delaware's Governor, I signed legislation aimed at revitalizing 
industrial brownfields. My administration worked closely with the 
Riverfront Development Corporation in Wilmington. They received $55 
million to acquire, investigate, and redevelop sites, and partially as 
a result of their effort, 92 contaminated sites have been cleaned up 
and determined to no longer pose environmental threats to Delaware. We 
have drawn new investment to the city's waterfront, and we recently 
opened a new riverwalk connecting the train station to our baseball 
stadium. Shops, and restaurants are opening in a region some thought of 
as the worst in the city. Once a prime example of post-industrial urban 
blight, Wilmington's new waterfront has become a catalyst for 21st 
century urban renewal.
    The benefits to Delaware from cleaning up and revitalizing 
brownfield sites are numerous, more than 500 jobs and 50 business 
created, increased tax revenues, 266 apartments for University of 
Delaware students, 3 new school sites, and several parks and 
recreational areas.
    I am excited to be a co-sponsor of the bill introduced by Senators 
Chafee and Boxer, and I think it is a good start. As I rookie on this 
committee, I enter this debate a little late and I was not around last 
year while much of the work to develop this language went on, but I 
commend those who were at the table for their efforts. I would like to 
make a couple of points.
    First, I support efforts to clean up and re-use brownfields and the 
discussion this bill generates will help us along. Second, I fully 
support the provisions that release prospective purchasers from 
liability for clean-up, and authorize funds for State and local 
brownfield clean-up programs. Let me also say that I am encouraged to 
see that the bill provides authority to States and local governments to 
conduct voluntary clean-up programs and authorizes funds needed to do 
so. This should not be an unfunded mandate. As a former Governor, I 
want to make certain that as we move to strengthen the brownfields 
program, States and local governments are given the authority and 
flexibility to conduct effective brownfield programs. States and local 
governments must be able to assure property owners and prospective 
purchasers that they will not be held liable for mistakes that were not 
their fault, and encourage them to reuse these sites which are often in 
very desirable locations close to critical existing infrastructure. 
Each brownfield acre we can use downtown can prevent an acre of 
farmland from being developed.
    Mr Chairman, there are two guiding philosophies, born of my 8 years 
as a Governor, that will guide me in my service to this committee and 
to the Senate. First, I believe the Federal Government should recognize 
the ability of State and local governments to make good, sound 
decisions and hold them accountable. We should not forget in 
Washington, DC, that the citizens and officials of States like 
Delaware, or California, or Rhode Island, live with the consequences of 
their decisions. We should help them to make good decisions for 
themselves before we make decisions for them.
    Second rather than just dictating strict Federal standards, the 
Federal Government should whenever possible strive to provide States 
the flexibility and support to meet those standards. In Delaware, I saw 
time and time again that when people were shown why a change or program 
was needed and given the flexibility to develop the mechanism to 
achieve that change, they developed effective programs--often using 
less time and less expense than if they had been forced to follow a 
government recipe. There are times flexibility is not appropriate, but 
in many cases, it may be the right thing to do.
    When I was vice-chairman of the National Governors' Association, 
our chair was my friend from Ohio, Governor Voinovich, who sits on this 
committee. Last year he introduced S. 2590, a bill that is similar in 
many ways to S. 350 and yet also incorporates elements that vest more 
responsibility and flexibility with State and local governments. As we 
move forward on this bill, I am interested in working with my friend 
from Ohio and with the chair and ranking member to see if we can 
incorporate some of the provisions of S. 2590 without upsetting the 
careful balance of support that S. 350 enjoys.
    I know that the NGA has expressed support for some elements of 
Senator Chafee's bill, while also commending some of the provisions in 
Senator Voinovich's bill as well. In particular, they support its 
stronger language on the finality of a State's certification of a 
brownfield clean-up, and its prohibition of a site being included on 
the National Priority list without the concurrence of the Governor of 
the State where the site is located. As I said, I think that S. 350 is 
a good start, and I support it's introduction. However, I think that 
just might be a few things we can do to make it even stronger, perhaps 
including a few of the provisions of the gentleman from Ohio. I haven't 
made up my mind however, and I look forward to today's discussion and 
will take it into consideration.
    Thank you Mr. Chairman.
    Administrator Whitman. Thank you. Good to see you, as 
always.
    Senator Chafee. Thank you, Senator Carper.
    Senator Clinton.

       OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, 
            U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Clinton. Thank you very much, Mr. Chairman.
    Welcome, indeed, I guess it is Madam Administrator still. 
Hopefully, Secretary some day.
    Administrator Whitman. Whatever. Once a Governor, always a 
Governor.
    Senator Clinton. Yes, once a Governor, always a Governor. I 
join in welcoming you here today.
    I, too, am pleased to be an original cosponsor of S. 350, 
the Brownfield Revitalization and Environmental Restoration Act 
of 2001. This legislation enjoyed broad bipartisan support of a 
majority of the Senate in the last Congress as well as the 
support of a diversity of State and local government 
organizations, business interests, and environmental advocacy 
groups. I think that the support is in large measure due both 
to the bipartisan efforts of this committee's leadership, which 
I very much appreciate, and to the carefully crafted 
legislation which was produced. I also would like to pay 
tribute to Senator Corzine's former colleague, Senator 
Lautenberg, who was extremely dedicated to the issue of 
brownfields revitalization.
    Senator Carper and Senator Corzine and Governor Whitman and 
I all come from a position of seeing a lot of brownfields in 
the States that we represent. It is an issue that is of grave 
concern to many of my constituents because we have the effects 
of all the industrialization that Senator Carper referred to 
that really helped build America, that made us the great 
industrial economy and now turning into the information economy 
that we are. We cannot just walk away from that past and expect 
that we will be able to reap future economic benefits and 
protect our environment. That is why brownfields revitalization 
makes such good sense, both good economic sense and good 
environmental sense.
    This bill strikes a delicate balance. I understand that 
compromises and tradeoffs are important in any piece of 
legislation but probably no more than when we are trying to 
balance our economic and our environmental needs. But, clearly, 
if we get about the business of cleaning up these brownfields, 
then businesses and developers will be able to use existing 
infrastructure, thereby reducing sprawl and preserving green 
space. I remember being in Utica about a year ago, which is a 
community in upstate New York which has a great industrial 
history but has experienced, as many of these similar 
communities have over time, the loss of a lot of jobs and 
population. But what struck me is that in downtown Utica there 
were all these old mill buildings and factory buildings that 
were already tied in with existing utilities that could be, 
with appropriate development and remediation, immediately 
available for developers. I spoke with a local developer who 
said that it is so expensive, they need the help to try to 
clean these brownfields up and make them available for 
development, and as an alternative they just keep moving 
further and further out into the country and buying up more and 
more open space, more and more farmers being bought out. And so 
there is an important way that we can redevelop a lot of our 
existing cities while we also clean up the brownfields.
    We have seen the benefits of this throughout New York, from 
Buffalo to Glen Cove and many places in between. To date, over 
20 communities across the State have received assistance 
through the EPA's existing brownfields program. It is my hope 
that there will be many, many more when we finish this 
legislation. I think that former Administrator Carol Browner 
had the foresight to establish the existing Federal brownfields 
program, and we have seen the results which have literally 
leveraged billions of dollars in economic benefits.
    So I hope that, as we consider this legislation, we 
understand that there is no perfect piece of legislation, but 
we cannot let the perfect be the enemy of the good. We have to 
work hard to create an opportunity for us to pass this, to get 
it implemented under your leadership, and get about the 
business of not only cleaning up the brownfields, but 
revitalizing the land so that it can be used for further 
economic benefits.
    Senator Chafee. It is now my pleasure to introduce our 
first witness. Governor Whitman, welcome.
    Administrator Whitman. Thank you, Mr. Chairman.
    Senator Chafee. Your first hearing on the Hill since your 
confirmation.
    Administrator Whitman. It is. It is very appropriate that I 
should be here for my first hearing, first testimony as 
Administrator of the United States Environmental Protection 
Agency.

 STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Administrator Whitman. I am delighted to be here with you, 
Mr. Chairman, the members of the subcommittee, all the faces 
that I have seen before and with whom I look forward to working 
as we move forward, and especially be here to testify on 
something that is of such importance to you, to this 
Administration, to the Environmental Protection Agency, and, 
frankly, I believe to the country, which is brownfields 
redevelopment.
    I commend the subcommittee chair, I commend Senator Boxer, 
and of course Chairman Smith and Senator Reid for their 
leadership in introducing S. 350 the Brownfields Revitalization 
and Environmental Restoration Act of 2001. I am pleased to 
report that the Administration supports S. 350. As we continue 
a more thorough review of the legislation as you go through the 
process, we would appreciate the opportunity, obviously, to 
offer refinements that would be consistent with the President's 
principles and budget. And I look forward to working with all 
the members of this committee to see an early introduction of 
this legislation and see it move to the Senate floor as quickly 
as possible.
    Brownfields clean-up is, as has been alluded to by so many 
of the Senators here, an important redevelopment tool. It 
provides an alternative to the development of greenfields and 
open space farmland that is so easy to develop because it tends 
to be flat and well-drained. The Administration believes that 
brownfield legislation is important enough to be considered 
independently from other statutory reform efforts, such as 
Superfund. I know that there are members in this committee who 
are very dedicated and interested in seeing Superfund reform 
and I am committed to working with them, but I would urge that 
Superfund reform issues not hold up the passage of S. 350.
    As you may know, President Bush is committed to 
strengthening State and local brownfields programs based on the 
following principles, which I will reiterate, that he spoke of 
during the course of last fall's campaign:
    Brownfields legislation should remove a significant hurdle 
to brownfields clean-up by providing redevelopers with 
protection from Federal Superfund liability;
    Brownfields legislation should ensure that States have the 
authority and the resources to run their own brownfields 
programs while ensuring that the clean-ups are protective of 
human health and the environment;
    Brownfields legislation should direct EPA to work with 
States to ensure that they employ high, yet flexible clean-up 
standards, and allow EPA to step in to enforce those standards 
where that is 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 
those funds according to their particular needs;
    The Federal Government should focus additional research and 
development efforts on new clean-up technologies and techniques 
to clean up brownfields; and
    While not under the jurisdiction of this committee, I 
recognize, the brownfields tax incentive should be made 
permanent. And this Administration will support legislation to 
achieve that goal.
    The States and the United States Environmental Protection 
Agency have been at the forefront of encouraging the clean-up 
and economic redevelopment of brownfields. EPA has awarded more 
than 360 assessment pilots of up to $200,000 each to States, 
Tribes, and local governments to assist them with brownfields 
redevelopment. Grantees report that EPA assistance has helped 
leverage more than $2.8 billion in economic development and 
generated more than 10,000 jobs. In addition, EPA has awarded 
$32 million for Targeted Brownfields Assessments at more than 
550 properties and has promoted local job training by awarding 
37 Job Training and Development Grants.
    However, much needs to be done to really maximize the 
potential that we have and to facilitate the rapid, high 
quality assessment, clean-up, and sustainable economic 
development in communities across this Nation. With your help, 
the Administration is committed to providing the tools that 
communities need to address the problems posed by brownfields. 
It is the commitment to encourage redevelopment while fully 
protecting human health and the environment.
    S. 350 is a major step forward in encouraging the clean-up 
and development of a full range of contaminated brownfield 
properties. S. 350 authorizes grant and loan programs to 
identify, and assess, and clean up brownfields properties, and 
provides more flexibility in implementing those grants and 
programs.
    In addition, S. 350 clarifies Superfund liability for 
contiguous property owners, prospective purchasers, and 
innocent landowners. These provisions have achieved broad 
bipartisan support in the Congress, and they represent an 
excellent way of encouraging brownfields redevelopment. S. 350 
also preserves the Federal safety net that ensures that the 
clean-ups will fully protect the environment and public health.
    This legislation also relieves the current program of 
unnecessary regulatory procedures for the Brownfields Cleanup 
Revolving Loan Fund, and clears the path for expedited funding 
of clean-up of contaminated properties by providing grants to 
State and local governments. In addition, this legislation 
provides needed grant funding to the States, local communities, 
Tribes, to support assessment, clean-up, and oversight of 
brownfield properties. The legislation provides flexible 
authority to fund State programs in ways that will enhance the 
already impressive efforts that have been undertaken by fully 
47 States across this Nation. States with emerging programs 
like Nevada and Wyoming will gain valuable support in their use 
of creative approaches in encouraging protective assessment, 
clean-up, and redevelopment of property. States with 
established brownfields redevelopment programs, such as 
Pennsylvania, Rhode Island, Ohio, and New Jersey, will benefit 
from provisions that will enhance successful brownfields 
redevelopment work.
    S. 350 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 and safe clean-ups while 
reducing cost can speed up the redevelopment of brownfields 
across the Nation.
    Whether States and localities receive Environmental 
Protection Agency grants for assessment and clean-up, Housing 
and Urban Development grants for redevelopment, Economic 
Development Administration grants, Department of Energy 
research support, or whether redevelopment is encouraged by the 
Federal brownfields tax incentive, this Administration is 
committed to providing the tools necessary to address the 
problems of derelict brownfield properties.
    Thank you for this opportunity to appear before you this 
morning and to describe the President's support for brownfields 
legislation. I look forward to working with all of you as you 
try to achieve swift passage of this legislation.
    Mr. Chairman, I would be happy to answer any questions if 
there are any. The eternal hope, of course, is that there will 
be none.
    [Laughter.]
    Senator Chafee. A few softballs I'm sure.
    Thank you very much for your testimony and for your support 
of the legislation and also for the so-called safety net to 
ensure that the clean-ups do fully protect the environment and 
public health. I think that is one of the tensions that we will 
encounter as we discuss finality. I do not have any questions, 
but thank you for your testimony.
    Chairman Smith, questions?
    Senator Smith. Thank you, Mr. Chairman. Just briefly, to 
respond to both of my friends from Oklahoma and Idaho, I agree 
with what both of you have said regarding the Federal 
Government look-back provisions, but it is my hope that we will 
get to a situation where the opportunity for the Federal 
Government look-back provisions will be irrelevant, that we are 
going to do the job in such a way that we can look at the 
technology we have, the interest now in getting onto these 
brown sites--it is important to remember that current law says 
that ``whenever there is a release or threatened release''--
``whenever''--and this is what we are changing. We are now 
changing it to say that new information has to emerge after 
that clean-up results in the site presenting a threat; second, 
that contamination has to have mitigated, moved across a State 
line; third, the action must come at the request of the State, 
the State is asking for help; and finally, to quote the 
legislation, ``the release or threatened release may present an 
imminent and substantial endangerment to public health, 
welfare, or the environment, and after taking into 
consideration response activities already taken, additional 
response actions are likely to be necessary to address, 
prevent, limit, or mitigate the release or threatened 
release.''
    So I am hopeful that we are going to get, the phrase has 
been used before, I will use it again, a new paradigm, if you 
will, a situation where command and control can be a stick 
perhaps held back that we never have to use. I know for a fact 
that President Bush and I think you as well, Administrator 
Whitman, would be supportive of stronger language. But I really 
say to you I appreciate very much your willingness to at least 
move forward to this and endorse this because I believe we will 
get there anyway. I think that this bill will move us to 
exactly where we want to be. I commend you for your leadership 
on that. If we had the votes to move to where we could take 
away the look-back, I would be supportive because I do not 
think we will ever need it. But if we do not, then I think to 
not move holds up legislation, does not allow the technology 
that we have and the interest that we have to get on these 
sites to clean them up.
    I know that coming in you could have very easily taken a 
different approach. You could have said, look, we are going to 
argue to have stronger language, we will put our own stamp on 
it. You did not do that. I think that is great leadership on 
your part and I want you to know that I appreciate both you and 
the President.
    One basic question. In terms of the funding, I think the 
bill provides for about $200 million as I recall, $150 million 
and $50 million, can we reasonably expect that those kinds of 
dollars are going to go into the program as prescribed in the 
legislation?
    Administrator Whitman. With the appropriate appropriations, 
as we work through the legislation. That would be certainly the 
goal. And as someone who looks at it from both the perspective 
of my responsibilities as Administrator of the Environmental 
Protection Agency and a former Governor, I can tell you that 
the bump up from $15 to $50 million for the States is 
significant for those that have made a commitment and those 
that are just trying to develop their programs.
    And if I may on the points you were making before, again to 
set aside my hat as Administrator and to speak as a former 
Governor, we always like to get out from under the Federal 
Government and like to have an understanding of finality. But I 
can also tell you as a Governor of a State that has done a 
great deal with brownfields--in fact, my second inaugural 
swearing-in was held in a wonderful facility in Newark called 
the Newark Performing Arts Center that was built on a 
brownfields site and is doing an enormous amount to reclaim and 
help revitalize that city--that it is with the assurances that 
are in this bill, the clarification of what it takes to clean 
up and to get an approved plan, that the standards are high 
enough that I would feel comfortable even being here as a 
Governor to say I would like to see the legislation move 
forward so that I can do more than what we are already doing, 
because we are very active in the State of New Jersey on this 
issue, and that I would be comfortable.
    Your language, as you quoted it, a threat that really 
requires further remediation, it would require site-by-site 
analysis, it would come from the State saying we need 
additional help, that this is a time when you want that stick 
to be waived a little bit in order to get people to do the 
right thing on these brownfield sites, that that is good 
protection. That is not to say that we would not work on other 
language with you. Obviously, we will do whatever we need to do 
to see this done. But I will tell you that, from a perspective 
of a former Governor, this is an extraordinarily important tool 
that we could have to make an enormous difference. And as was 
pointed out, this is not just a problem of urbanized industrial 
areas, although we tend to have an inordinate amount of these 
sites, but brownfield sites occur across the Nation in a host 
of different communities. This kind of ability to move forward 
in addressing them can really be of enormous benefit.
    Senator Chafee. Thank you. Senator Boxer.
    Senator Boxer. Thank you, Mr. Chairman.
    Let me just cut to the chase here. We all know the sticking 
point, Administrator, you have stated it well I think. We do 
not have any secrets here about the sticking point of the bill. 
I just want to make a couple of points here. I think it is 
crucial to have a Federal safety net, if you will, for those 
cases where perhaps the clean-up was not done correctly. For 
whatever reason we do not know, a State could run into 
problems, they could have people, just as we may have people 
sometimes, who do not really know exactly the right way to 
proceed. It seems to me as a check and balance over the money 
we are expending, we ought to make sure that this is done 
right. Wouldn't it be terrible for us to say to our taxpayers 
we gave this grant to State X and they did not know what they 
were doing, the site was not cleaned up, it cannot be reused, 
and we wasted all that money.
    I also would point out that never in the history of this 
program, as I understand it, Administrator, please correct me 
if you think I am misstating this, I have never heard of a case 
where a brownfield site was fixed, if you will, by the EPA; in 
other words, they came in without the State asking them to come 
in. I have never heard of a site in which the big hand of the 
Federal Government, as Senator Crapo has said, has come upon a 
site where the Governor or the State has not asked. Do you have 
any information to the contrary?
    Administrator Whitman. No.
    Senator Boxer. And I think that is important too. Why do we 
have to legislate against a strawman just because somebody 
likes to make the point about the big hand of the Federal 
Government? We have not had, we have not seen the big hand. 
What we have seen is a helping hand in this program. Now I am 
not saying that in other cases you could point to a big hand 
that is not the best hand. But in this particular program, why 
set up this issue when we have never really had the problem? I 
just want to state the point again what a delicate balance we 
do have here. If we start moving away from the safety net a lot 
of people are going to jump off this bill. I hope that is not 
our intent to kill this bill because this is something we can 
do.
    I want to say to Senator Crapo, because it is important 
that he has lifted a hold and he is trying to work with us, I 
do appreciate it. But I really do feel in this case it is kind 
of a made up problem that just has not been in evidence.
    I do not have any questions for you, Administrator. I 
really appreciate your strong support.
    Senator Chafee. Thank you, Senator Boxer.
    Senator Crapo.
    Senator Crapo. Thank you very much. I would first like to 
make a brief statement in response to Senator Boxer, because I 
think from what I have heard here today that either one of us 
is misreading the bill, or we have an agreement. None of us on 
this side of the issue believe we should take away the safety 
net. And if the language said that the Governor had to request 
the support of the EPA, I would be willing to sign off on that 
right now.
    Senator Boxer. No, it does not. You are right.
    Senator Crapo. The point is that, as I read the bill, it 
does provide that one of the occasions on which we could move 
forward is if the State requests it. That is not the only 
occasion. It also provides in the legislation that there are a 
number of other opportunities which the EPA has to simply 
override what the State has done and step in.
    The question is not whether there should be no safety net. 
We are very willing to have a safety net in place. If we want 
something where a State can request help, if we want something 
where the EPA can say the State has not done the job and the 
EPA provides that the State is either unwilling or unable to do 
the job, or, as the chairman has said, new evidence has come 
forward or new facts have shown that something else needs to be 
done, all of those circumstances are fine. It is simply the new 
look back with the Federal Government being able to step in and 
say we do not like what the State has done and so we are going 
to do it again. That is the issue here.
    I actually found a lot of hope in the fact that Senator 
Carper suggested that maybe the language out of Senator 
Voinovich's bill would be acceptable. Senator Voinovich in his 
legislation has proposed a section on State finality which is 
very acceptable. It basically provides, as I have said, that if 
the State asks for help, the EPA can come in; if new evidence 
comes forward, the EPA can come in; if the EPA can establish, 
it does not even have to establish, it has to simply make a 
finding that the State is unwilling or unable to do the job, 
the EPA can come in. So perhaps what we need to do is simply 
agree among ourselves that there does need to be a safety net, 
but it needs to truly be a safety net instead of a second bite 
at the apple by a Federal regulator.
    Administrator, I would just ask your opinion as to whether 
that type of a safety net would be acceptable and supportable 
by you?
    Administrator Whitman. Senator, as you point out, the 
request by the Governor is just one of the ways in which the 
safety net would be activated. If the new information shows 
that the clean-up is no longer protecting human health or the 
environment--that is why everyone here agrees with the need for 
there to be a safety net--it is my understanding and 
interpretation of the bill that the ability of the EPA, 
certainly the desire of the EPA any time that I am here and 
this President, will be that it come only if there is clear and 
compelling evidence that the clean-up is no longer meeting 
human health standards and protecting human health and the 
environment. The object here is to work in as collegial a way 
as possible to allow for there to be some finality so that 
there is assurance for clean-up to go forward. I think there 
are provisions in the bill that are excellent that do that, 
that really do move us forward--the prospective purchaser, the 
innocent party provisions, others in the bill that really move 
the process forward.
    I would just say again that while of course we stand 
willing to work with the committee on any changes that they may 
deem necessary in this instance, my overriding desire is to see 
some form of brownfields legislation passed. I did ask staff, 
believe me, as a former Governor, when I saw the language in 
the bill about whether it meant we could come in at any time 
just on a whim. In fact, I am assured that it would require 
clear and compelling evidence of something that warrants 
further remediation; that the clean-up is not doing the job 
that it was supposed to do. It would be a site-by-site review, 
which is something that you do not enter into lightly. It would 
not be just a broad-based ``we do not think State X or Y is 
going to be able to do this job or is not doing this job 
well.'' It would have to be on a site-by-site basis; and that 
those provisions, in fact, do provide some protection to the 
States and assurances to the redevelopers.
    Having said that, I stand ready to work with the committee, 
as I indicated, on any fine tuning or changes you want to make, 
but I do urge that we not allow anything to stop the progress 
that is being made here on what is a very delicate and 
sensitive issue. This is something that goes to the heart of my 
philosophy about the relationship between the States and the 
Federal Government. Certainly, I share the emphasis on 
federalism of this Administration. Having said that, I know 
that this is an area where States are really looking for help 
and would like to have the tools.
    Senator Crapo. Thank you. I want to assure you that the 
concerns that some of us have do not relate specifically to our 
concern about how you may run the EPA or how this 
Administration may run the EPA.
    Administrator Whitman. I recognize that.
    Senator Crapo. We have had experiences in the past that 
have caused us to recognize that the EPA can take very 
aggressive actions that the States do not agree with. In fact, 
I suspect that most Governors, if they were here, would 
willingly acknowledge that. This legislation is going to extend 
far beyond this Administration.
    I guess one of the questions I have is--you are right, the 
core here is a dispute over basic philosophy of how our 
environmental laws should operate in the country. And it seems 
to me that the debate is somehow being characterized as to 
whether we should have a safety net at all, or whether we 
should simply let the States do whatever they choose without 
any Federal oversight. In my opinion, that is not the debate. 
As I have just said here, I am very willing to work to put a 
true safety net in place, a safety net that says that the 
States can call for help, the EPA can come in if the State is 
unwilling or unable to do the job, the EPA can come in if new 
evidence comes forward which the States cannot deal with or 
findings to that effect are made.
    Hopefully, we will be able to find some common ground here. 
I would not want anybody on the other side to think that we are 
saying that the States should simply have the ability to thumb 
their nose at the EPA. The question here is whether the EPA has 
its ability to thumb its nose at the States. Hopefully, we will 
be able to find some common ground. Again I say I was very 
heartened to hear Senator Carper indicate that maybe he has 
found that common ground in Senator Voinovich's bill. Something 
like that which really does put a true safety net in place but 
requires the EPA, if it cannot make some of those findings, to 
acknowledge the role of the States in this process is what we 
are hoping to find. Thank you.
    Senator Chafee. Thank you, Senator Crapo. The language in 
this bill is ``imminent and substantial endangerment and needs 
further action.'' So we have tried to be as careful as we could 
with the language and that safety net.
    Senator Crapo. Our experience with that language has not 
been good so far.
    Senator Chafee. Senator Corzine.
    Senator Corzine. First of all, let me commend the Governor 
for the Administration's and your support for this legislation. 
I think it is terrific. I think you know from your own 
experiences in New Jersey that the partnership between the 
States and the Federal Government in moving forward in these 
areas is a terrific, positive element for our communities. I 
have a little trouble listening to some of the language that I 
heard Chairman Smith read and not understand how that does not 
provide some fairness and balance of the Federal and State 
relations and so on. At least from one person's point of view, 
I am comfortable with that. I do hope that that does not stand 
in the way.
    I am mostly worried about another question the chairman 
talked about, and that is will this receive the budget 
priorities that allow this to move forward. I think the need is 
extraordinary across the country, not just in our urban 
communities but, as we have heard here today, in various other 
areas. I hope that you will call upon us to work as hard as we 
can to make sure that that priority is in place, and I would 
encourage you and hope you will also fight within the priority 
process that goes on in the budget elements to have this at the 
top of the list.
    Senator Chafee. Senator Clinton.
    Senator Clinton. I think the colloquy among some of the 
committee members about the Federal and State roles is very 
important. But one thing that is pointed out in the bill is 
that it does not require up front approval of State programs. 
What that means to me is that there is a great deal of 
flexibility to the States to design their programs, to utilize 
the technology that they choose, to license the clean-up crews 
as they choose, but that it would be I think irresponsible for 
the Federal Government not to preserve a strong Federal safety 
net, one that is fair but effective when needed, because I have 
seen a great deal of disparity among States in their capacity 
to analyze and clean up brownfields and other kinds of 
environmental issues. Very often they turn to the Federal 
Government in great need but after they have perhaps done some 
things that cost money and were not the most efficient process. 
So I think that we are trying to strike a balance here that 
does certainly give flexibility to the States but with a strong 
Federal fallback.
    Now one of the things I am concerned about, one of the many 
things I am concerned about are riders. I was pleased to hear 
in your testimony, Governor, that you want to see this 
legislation moved to the floor as soon as possible and that the 
Superfund reform issue should not hold up passage of S. 350. I 
wholeheartedly agree with that. But I also hope that we can 
avoid the efforts to attach extraneous and controversial 
provisions known as riders to the bill when it comes to the 
floor. I would appreciate your assistance and that of the 
Administration's in supporting our efforts to move this forward 
once there is an agreement and this committee has done its 
work. I would hope that we could have that help.
    Clearly, one of the great problems that we have faced on 
environmental legislation over the last several years are not 
only riders, but midnight riders. We are going to have to be 
watching very carefully to make sure that there are no noonday, 
midday, midnight, or early morning riders. I know that it is 
sort of a game of ``gotcha'' in some respects, but there are 
many of us who will be extremely vigilant and concerned about 
environmental riders because the work of a committee in 
conjunction with an Administration that is supportive should 
not be undone or perverted by these riders. And I would look 
for your assistance in trying to ensure that does not happen.
    I am also concerned about the brownfields tax incentive 
being made permanent. Although that is not part of this 
committee's jurisdiction, many of us are concerned about it. I 
assume that will be in the President's budget?
    Administrator Whitman. I cannot tell you all of the 
particulars of the President's budget. We will all hear that 
tonight. We will know in April when it is formally presented.
    Senator Clinton. We will hope that if there is going to be 
a commitment to it that it will be backed up by actual 
budgetary action.
    I am also concerned about the continuing health problems 
that are associated with some of our toxic sites or potential 
or assumed toxic sites. For example, there is a school in 
Elmira, New York, a high school where the student body is 
experiencing a high incidence of cancer. The school was built 
on a former industrial site. It is uncertain that the site was 
ever adequately assessed prior to the school's construction. 
But recent environmental studies have shown that the soil and 
the groundwater are contaminated with a variety of pollutants. 
We have just had a similar situation occur here in the District 
of Columbia with the discovery of arsenic contamination at a 
child day care center that goes back I think all the way to 
weapons manufacturing in World War I. These health concerns are 
one of the reasons why we have to have a close Federal-State 
cooperative relationship, because, again, many of the resources 
and the expertise about health issues are much more likely to 
be found in the Federal Government with the resources that are 
available.
    So I would again appreciate your assistance in making sure 
that health issues are dealt with in an appropriate manner. I 
would like to invite you to have a staff person accompany me to 
that school in Elmira and to try to find out what we could 
about what is going on in that community because it is a very 
serious problem.
    Finally, I would like to highlight the fact that in this 
legislation there is something drawn directly from your New 
Jersey experience; and that is a program for private citizens 
to conduct voluntary cleans. S. 350 provides the flexibility 
for awarding grants to nonprofits to conduct such clean-ups. 
Could you comment on this aspect of the legislation, tell us a 
little bit about how it worked in New Jersey and what we might 
look for with respect to not-for-profit environmental cleans 
and how that fits into the State system.
    Administrator Whitman. What we did and the attitude that we 
took was that all the help we can get in cleaning up brownfield 
sites would be much appreciated, that the State had neither the 
resources nor the ability to do it all. It provided that those 
clean-up plans met the State's criteria. In this legislation, 
it requires also that step back, recognizing a great deal of 
flexibility for the States. How the States choose to approach 
the issue of brownfields clean-up is, again, allowed here, the 
flexibility is allowed here for them. If they choose with a 
level of comfort to contract with nonprofits or others to 
provide the clean-up, that that can happen.
    What is so attractive and appealing about this bill is the 
amount of flexibility that is contained here for the States, 
recognizing that the problems vary within States themselves, 
not just amongst States. The types of communities impacted vary 
within States themselves, not just amongst States. This maximum 
flexibility that we find in the legislation is such that, from 
a State's perspective, it provides the real opportunity to get 
things done, and from the Federal Government's perspective and 
EPA's responsibility to ensure health and safety, it also 
allows us that opportunity to contract with States, to work 
with States at the front end to ensure that the standards are 
what we all agree upon and then allow them the flexibility to 
actually make a difference in their respective communities. 
That is what is so important.
    And if I may, Senator, I was informed that I am allowed to 
say that in the President's tax proposal you will hear his 
commitment to a continuation of that tax incentive.
    Senator Clinton. Thank you.
    Senator Chafee. Thank you, Governor.
    Senator Carper.
    Senator Carper. Thanks very much. When I was out of the 
room for a moment I understand Senator Crapo alluded to some 
comments that I made. I think our chairman and ranking member 
of the subcommittee have worked real hard to try to come up 
with a careful balance here and I sure hope we can keep it. I 
am interested, as I said earlier, in working with you and 
Senator Voinovich and others to focus particularly on the 
finality issue. But I realize that this is a tricky one and we 
have got to just keep that in mind as we come to it.
    Let me come back, Governor Whitman, to the issue of 
finality. I am going to ask you if you can help me with some 
specifics. If you can, I would appreciate it. What specifically 
would EPA need to receive in order to reopen a brownfield site 
with respect to litigation, the sites that had previously been 
certified by both the State and by EPA?
    Administrator Whitman. Well, it would be a clear indication 
that the clean-up at the site is no longer protective of human 
health and the environment, that it warranted further 
remediation. The chairman can give me the specific language 
again, I do not have it in front of me, but it is fairly 
specific, shall we say, as to what would be required to have 
EPA come in. It is an issue that, as I indicated to Senator 
Crapo, concerned me when I first saw it because, from the 
Governor's perspective, it appeared to be wide open. But on 
further examination of the language, it seems to me that there 
is a pretty high threshold here that would have to be met in 
order to have the Environmental Protection Agency come in 
unrequested by the States. It would be something that would 
truly pose an imminent threat to health and provide an imminent 
threat to human health or the environment.
    Senator Carper. Thank you. That is helpful. The bill that 
we are discussing today, that we are holding this hearing on, 
does not require, as I recall, a Governor to concur with the 
EPA Administrator before a site could be listed on the Federal 
Superfund list. Let me just ask you as a former Governor and 
now as EPA Administrator, how do you feel about that provision?
    Administrator Whitman. When we are talking Superfund sites, 
that is a whole different set of legislative criteria and 
programmatic criteria. That is not something that I would like 
to see hold up this legislation, as I indicated. We in New 
Jersey have more Superfund sites than any other State in the 
Nation; unfortunately, we have that distinction. We were at 
times trying to get sites off of Superfund into brownfield 
because we could clean them up and because Superfund was taking 
too long and was too difficult and too expensive and we did not 
see the kind of remediation that we felt was necessary.
    But it is clear that there are times when the Federal 
Government has a role to play here and Superfund sites are at a 
very different level from the brownfield sites. That is an 
important thing to remember as you look at this legislation and 
look at the nexus between Superfund and brownfields. We are 
talking about a very different level of contamination and that 
is in and of itself very significant.
    Senator Carper. The last question I have, you said just a 
moment ago that New Jersey leads the Nation in Superfund sites.
    Administrator Whitman. Unfortunately.
    Senator Carper. I have heard that any number of times. Does 
New Jersey also lead the Nation in Superfund sites that have 
been cleaned up, remediated?
    Administrator Whitman. I think we are probably at the top. 
We have done a pretty good job. We have been working with our 
Federal partners. We may not be a No. 1, I cannot absolutely 
tell you that, but if not, we are right up there, we are No. 2.
    Senator Carper. All right. Thanks very much.
    Senator Chafee. Thank you. Any further questions?
    Senator Clinton. Mr. Chairman, could I ask one followup 
question to something Senator Carper said with respect to the 
imminent threat to health?
    Senator Chafee. Certainly.
    Senator Clinton. Just on a practical basis, if I go back to 
my Elmira school situation, and, again, we are not dealing in 
the realm of fact yet, we are just dealing in the realm of 
concern, would it be an imminent threat to health if it were 
thought that there were long term health damage that could 
occur under certain circumstances, or are we talking about 
something that is so imminent that it is literally causally 
provable and within a relative short period of time likely to 
happen?
    Administrator Whitman. Again, that is something that we 
will probably be working out as the legislation is implemented. 
But my feeling is that it is in fact the latter, that we have 
to see imminent threat to human health or the environment. It 
has to be something documented, not something that might 
potentially occur sometime in the future given a certain set of 
circumstances.
    I think it is important to remember that the provision here 
in the legislation calls for very substantive recordkeeping. 
There is a requirement for full disclosure, thorough site 
assessment is part of the process that is required, and a 
conscientious remedial selection and approach. So it makes it 
highly likely that this reopener would not have to be used 
except in cases where there is really documented current 
threat.
    Senator Clinton. And if I may, just one last issue. What is 
it that would trigger the State's requirement under the 
flexibility that this legislation provides to deal with a 
brownfield? Because I am also conscious, as I think we all are, 
of the issue of environmental justice and the fact that very 
often those places in our communities that are most in need of 
remediation are often places where people do not have the kind 
of political power or voice in many State governments that 
would draw their attention. So is there any continuing role for 
the Federal Government to nudge, to persuade, to require the 
State to address any brownfield, or is it only on the State's 
initiative and then the Federal Government comes in on a safety 
net issue if the job is not well enough done?
    Administrator Whitman. The legislation at the moment, and 
correct me, Mr. Chairman, if I am wrong, does not provide for 
the Federal Government to come in and do a site assessment of 
brownfields in an individual State in order to prioritize that 
State's addressing those sites. There is nothing in my 
understanding of the legislation that does that.
    Having said that, the increase in dollars provided in this 
legislation, in bumping up, for instance, from $15 to $50 
million the moneys available to the States for the work that 
they are doing in brownfields, is a powerful incentive. If a 
State is not addressing issues, if the State is not interested 
in trying to remediate brownfield sites, there is always that 
potential they will not receive dollars. And believe me, with 
budgets being what they are, States are always looking for 
additional dollars to help as they move forward on programs. So 
there is always that.
    Senator Boxer. Would the Senator yield to me on her point?
    Senator Clinton. Yes.
    Senator Boxer. There is I think something that might give 
you comfort here in terms of your particular problem. It says 
that the Administrator can come in ``if the Administrator 
determines that information that on the earlier date on which 
clean-up was approved or completed was not known by the 
States.'' So, in other words, at some point in the future, if 
it is turning up that you can document these cancer cases, that 
would be enough for the Administrator, if it was clearly 
documented, to come in because the information was not known at 
the time the clean-up was being planned. So I think that should 
give you some comfort.
    Administrator Whitman. Yes, after a site had been addressed 
by the State.
    Senator Boxer. Yes.
    Senator Clinton. Thank you.
    Senator Chafee. Senator Crapo?
    Senator Crapo. I would like to followup because I 
appreciated Senator Clinton's question and I think she is 
probably trying to get at the same objective that I would like 
to get at. A lot of it comes down to how do we interpret this 
imminent and substantial endangerment language.
    As you may know, there is a Supreme Court case that just 
recently came out interpreting some similar language. It talked 
about an imminent and substantial, I can't get it exactly, 
threat as opposed to endangerment. In that case, the Court 
indicated that imminent meant it threatens to occur 
immediately. Would you agree that that would be part of it?
    Administrator Whitman. That is my understanding, yes.
    Senator Crapo. And that we would not be talking about 
simply the presence of toxic waste, because if that is the case 
every brownfield site would qualify as an imminent threat. But 
the presence of that toxic waste would have to create an 
endangerment to human health or the environment immediately.
    Administrator Whitman. Yes. That is my understanding of the 
legislation. That is the way I read that legislation.
    Senator Crapo. And in this case, they are using the word 
``threat.'' The word ``threat'' is not in this legislation, 
which I think may be helpful, because the Court went on to say 
that the threat must be present now but the impact of the 
threat may not occur until later. The statute that we are 
talking about says that there has to be an immediate danger, so 
that the EPA does not have time to let the State try to work it 
out. Would you agree with that interpretation?
    Administrator Whitman. Yes. As a reopener, that is the 
intent of the legislation.
    Senator Crapo. I personally think that maybe we could 
clarify this, because it sounds to me like we are trying to 
achieve the same objective. I am not convinced that the 
statute, although we now have some congressional record on 
this, but I am not sure that the statute actually says that 
solidly enough. Perhaps we can simply say it a little 
differently or a little better to achieve what we are talking 
about, if the other members of the committee would agree that 
what we are trying to get at is a circumstance in which there 
is an immediate, meaning right away, and substantial 
endangerment that the EPA does not have time to let the State 
get involved and try to let the State fix it. Thank you.
    Senator Chafee. Senator Corzine?
    Senator Corzine. If I might make a comment. I think we are 
talking about the same subject. I am not sure that everyone 
would want to interpret ``imminent and substantial'' in the 
same way, and that is probably your concern. But it is my 
concern as well that you have to have confirmed cases of cancer 
happening before the EPA could intervene. That does not sound 
like a very high standard at all to me and I would be concerned 
about that.
    Senator Crapo. My only concern is, Senator, to me, the 
presence of toxic waste at a brownfield site, which is what you 
have if you have a brownfield site, means that there is a 
threat or an endangerment to human health and the environment. 
And so, if there is something more than the existence of a 
brownfield site that we are trying to say gives the EPA the 
ability to come in, what is that? And it is this immediate and 
imminent endangerment that I think is the concept.
    So I am trying to figure out, so that I can get a comfort 
level with what we are saying here, what is that beyond the 
existence of the threat that is there by definition that then 
is the trigger which gives the EPA the ability to step in. And 
what we have seen in the past is that in any case the EPA can 
say there is toxic waste at this site, that is a threat to the 
human health and the environment, and therefore we can step in. 
So I am trying to figure out how we can make that trigger more 
definable.
    Senator Clinton. Mr. Chairman, this is I think----
    Senator Chafee. We have several more panels.
    Senator Clinton. We do have several more panels. This is a 
very interesting issue because I think no one wants to put the 
health and well-being of any person at risk. The question is, 
as Senator Boxer pointed out, that the language is pretty clear 
if we have some underlying agreement about what it means. So I 
think that the committee will work through that.
    But I would hope that we do not leave this discussion 
thinking that unless it is burning and running into the water 
supply and people are taking a glass of water out of the faucet 
in the kitchen and dropping dead on the kitchen floor that it 
is not an imminent and substantial endangerment. Obviously, 
there is some issue there. Also, I would hope that we would not 
say endangerment means that chronic asthma is not so bad 
because you are not dropping dead on the kitchen floor. I think 
there are some issues that we can discuss among ourselves and 
kind of work through so that we have a better idea of what the 
legislation would mean in practice both in the States and from 
the vantage point of the EPA.
    Senator Chafee. Yes. And ultimately it is going to depend 
on the activism of the Environmental Protection Agency. I am 
sure Senator Crapo is concerned about, as the Administration 
changes and the Agency Director changes, the level of that 
activism and how we craft this legislation. But ultimately it 
comes back to a good moderate course by the Agency.
    Senator Clinton. Mr. Chairman, my alert staff just handed 
me an article which said the Supreme Court did uphold the way 
the Federal Government sets clean air standards. We do not want 
to set a different standard for the issue when it comes to 
brownfields. I think that when the Court upheld the Federal 
Clean Air Act and said that the Government does not have to 
consider the financial costs of reducing harmful emissions when 
it sets air quality standards, we need to make sure that we are 
not setting a different standard when it comes to brownfields. 
And I would say that has to go into the thinking as well.
    Senator Crapo. You are right, if you want to set up the 
extreme examples of endangerment, none of us want that to 
happen. It just seems to me that if we are trying to create a 
system in which the States are the ones who do the clean-up 
unless there is a problem, we have to define that circumstance. 
That is all I am trying to achieve here.
    Senator Chafee. Thank you, Senator.
    Thank you, Governor. Enjoy the rest of your day.
    Administrator Whitman. Thank you very much. Let me just say 
that I do commend you on something that I know is very 
difficult. There are deeply felt and deeply held beliefs here, 
but this is an issue of extreme importance, and I look forward 
to working with you in any way that we can.
    Senator Chafee. Likewise. Thank you.
    Senator Chafee. At this time I would like to invite the 
second panel to the table. The second panel is here. Welcome. 
We have Mayor J. Christian Bollwage of Elizabeth, New Jersey, 
the great State of New Jersey, and he will testify on behalf of 
the United States Conference of Mayors; and we have Mayor 
Myrtle Walker of the great community of East Palo Alto, 
California, and she will present testimony on behalf of the 
National Association of Local Government Environmental 
Professionals; we have Dr. Phil O'Brien, Director of the great 
State of New Hampshire's Department of Environmental Services, 
Division of Waste Management, and he will offer the State 
perspective.
    Because of the number of remaining witnesses, I would ask 
the witnesses to limit their remarks to 5 minutes and we will 
have one round of questions.
    Mayor Bollwage, welcome back. It has been a year since you 
were here.

 STATEMENT OF HON. J. CHRISTIAN BOLLWAGE, MAYOR OF ELIZABETH, 
                           NEW JERSEY

    Mayor Bollwage. Thank you very much. It is good to be back 
here and it is good to see you again, Senator Chafee. As you 
know, this is probably my fourth or fifth trip. Thank you for 
the opportunity to say a few words on behalf of the U.S. 
Conference of Mayors. It is also good to be with Senator 
Corzine, my Senator from New Jersey. Senator Smith, I have been 
before your committee as well. It is good to see you.
    The U.S. Conference of Mayors is a national organization 
that represents more than 1,050 cities with a population of 
30,000 or more. Mr. Chairman, just 2 weeks ago I was in your 
great State and was a keynote speaker at the Grow Smart 
Conference of Rhode Island. I was able to tour Providence and 
Cumberland and other cities to learn about the mill buildings 
and the debate that you are having in Rhode Island on how to 
rehabilitate those areas. It is an interesting question on 
balancing the historical context with the public health as well 
as creating economic development, jobs, and rateables for the 
State of Rhode Island. Two years ago I spoke in Cedar Rapids, 
Iowa, and toured areas there about brownfields and the ability 
to redevelop our Nation's land and recycle.
    As you have heard from our former Governor Whitman, the 
support for S. 350 and to act on this legislation quickly is 
very important for the Conference of Mayors and for our 
Nation's mayors. Our President, Brent Coles from Boise, Idaho, 
has written to Chairman Smith and Senators Reid and Boxer to 
convey the Conference's strong support for this legislation.
    This weekend, the Conference's top leaders met to review 
the top legislative priorities for the Congress, further 
emphasizing S. 350 as one of the top priorities for the 
Nation's mayors.
    Mr. Chairman, I am not going to go into the survey that we 
have done for the U.S. Conference of Mayors. I have stated 
those findings here in the past and they are a part of the 
record. So in the interest of time, I would just reference 
those findings and previous letters and testimony here.
    S. 350 takes the next step by putting in place Federal 
policy in line with local and State efforts to get these sights 
cleaned up and returned to productive use. I want to just 
emphasize a few key points. First, we have gone as far as we 
can as mayors with the ongoing administrative efforts by the 
U.S. Environmental Protection Agency. We are at the point where 
specific statutory changes are now needed to deal with the many 
liability concerns and constraints affecting the use of 
existing Federal resources.
    Members of this committee and others have worked to secure 
resources for local brownfield efforts in advance of final 
legislative action by this committee and the Congress. I would 
like to thank and acknowledge the efforts of the previous 
Administration for their work on policy reforms and initiatives 
in support of our brownfield efforts, as well as this committee 
in moving forward here today.
    I am pleased to note that many of the issues that we have 
previously raised in testimony before this committee are 
reflected in the provisions of S. 350. The pending proposal 
provides the opportunity for cities and other local governments 
to receive funding for their programs directly. It provides 
these resources for both assessments and clean-ups. S. 350 
deals with many of the liability reforms that should stimulate 
increased private participation in cleaning up and redeveloping 
these sites. It also provides resources directly to States to 
strengthen existing State clean-up program efforts, making 
available resources to the States for these most important 
programs.
    Mr. Chairman and members of the committee, the Nation's 
mayors believe that the time has come for bipartisan action on 
brownfields. We have waited a long time for final congressional 
action on brownfields legislation. We are extremely excited 
that S. 350 is scheduled for immediate action, supported by the 
Administrator in earlier testimony before this committee. This 
is a carefully crafted legislative package that provides a very 
strong foundation for an expanded commitment to recycling 
America's land. In moving forward with S. 350, Mr. Chairman, 
you can count on the strong and continuing support of the 
Nation's mayors.
    On behalf of the U.S. Conference of Mayors, I would like to 
thank you for this opportunity to share the views of the 
Nation's mayors on this very important issue. And Mr. Chairman, 
unlike the past meeting when I had to run out for a political 
endorsement, if you remember that last year, I will be here for 
questions. I thank you for your indulgence.
    Senator Chafee. We knew you left, we just did not know why.
    [Laughter.]
    Mayor Bollwage. It was a PBA endorsement, Senator. I could 
not miss that endorsement.
    Senator Chafee. Mayor Walker.

   STATEMENT OF HON. MYRTLE WALKER, MAYOR OF EAST PALO ALTO, 
                           CALIFORNIA

    Mayor Walker. Thank you. Mr. Chairman and distinguished 
members of the subcommittee, my name is Myrtle Walker and I am 
the Mayor of the City of East Palo Alto, California. I am 
pleased to be here today to testify on behalf of the National 
Association of Local Government Environmental Professionals, or 
NALGEP. I want to especially thank Senator Barbara Boxer for 
inviting me to be here today and for all of her support for our 
community. I also want to congratulate Senator Boxer on her new 
position of leadership on this subcommittee.
    NALGEP represents more than 140 communities across America, 
including East Palo Alto and many other localities represented 
by the members of this committee. NALGEP has been actively 
working with local governments on brownfields issues for many 
years.
    My written testimony provides details on a range of Federal 
incentives needed to promote brownfield revitalization in local 
communities across America. In my verbal testimony, I wish to 
send a straight forward message that local governments need 
Federal brownfields legislation, and S. 350 provides a 
valuable, positive approach that meets local needs.
    The City of East Palo Alto, for example, is a small 
community of 25,000 people. We have not enjoyed the economic 
prosperity of our neighboring communities in Silicon Valley. We 
have the highest levels of unemployment and poverty and the 
lowest median income in San Mateo County. We have no bank, we 
have no grocery store. The City has struggled significantly to 
reduce its high crime rate. In addition, East Palo Alto has 
suffered the effects of toxic contamination, abandoned chemical 
factories, and other pollution that has turned much of our 
community into idle brownfields.
    Nevertheless, the City is successfully moving forward to 
revitalize our community and its brownfields. Our focus is on 
the Ravenswood Industrial Area. Ravenswood includes about 130 
acres in an area that historically has had mixed uses including 
agricultural, commercial, and industrial. The property is 
affected by a multitude of toxic substances, including arsenic, 
chromium, pesticides, herbicides, chlorinated solvents and 
petroleum contamination. For many years the private sector 
avoided this area because everyone suspected that the clean-up 
would top approximately $30 million. However, through a site 
assessment performed by Environment Protection Agency funding, 
the City has determined that the site can be cleaned for a cost 
of $2 to $5 million. That is a substantial reduction, but it is 
still a major challenge for a city like mine.
    The City seeks to redevelop the Ravenswood area into a 
mixed-use development and employment center, with over 2 
million square feet of commercial and high-technology offices 
and light manufacturing. New, medium-density housing is also 
planned nearby. The City expects that redevelopment of the 
Ravenswood Industrial Area would create 4,000 new jobs and 
generate more than $1 million per year in new tax revenues, 
which are sorely needed for a community like mine.
    East Palo Alto is also proud to be one of the first 
brownfields Showcase Communities in the Nation, along with 
Providence, Rhode Island, and six other communities represented 
by members of this subcommittee. The Showcase program is an 
example of Government at its best. A Federal, State, and local 
partnership that has brought together twenty-plus Federal 
agencies to revitalize the community from the ground up.
    Under U.S. Environmental Protection Agency leadership, the 
Showcase Program has helped East Palo Alto obtain brownfields 
assessment and clean-up funding, staff assistance, economic 
development funding from HUD and the Economic Development 
Administration, technical assistance for flood control, and 
ecosystem restoration from the Corps of Engineers, and 
brownfield job training from the National Institute of 
Environmental Health Sciences. I can tell you without a doubt 
that East Palo Alto would not be moving forward on our 
brownfield goals without the partnership of the Federal 
Government.
    That is why approaches like S. 350 are so important to us. 
S. 350 provides important tools that will help local 
communities revitalize their brownfields, including critical 
funding for localities for site assessment, clean-up grants and 
local clean-up loan funds, liability protections for innocent 
parties, and authority for the State brownfields programs to 
take the lead on brownfield clean-ups while preserving EPA's 
ability to provide a safety net for the public health and 
environment of exceptional circumstances. Together these 
provisions represent a strong approach that would go a long way 
toward meeting the needs of America's communities.
    NALGEP wishes to raise two other important issues for local 
communities. First, Federal law should ensure that brownfields 
funding can be provided to localities to address brownfield 
impact by petroleum, by lead, and by asbestos in buildings. 
Under current law, these pollutants are excluded from Federal 
brownfield assistance. These contaminants are some of the most 
difficult problems facing local communities. Abandoned gas 
stations, housing with severe lead paint hazards, and buildings 
contaminated with asbestos blight communities across America.
    One example can be seen in Kansas City, Missouri. A former 
YMCA building, a historic site where the Negro Baseball League 
was founded, is the target of a community effort to create the 
Negro Baseball League Archives. Kansas City has sought to 
obtain funding to deal with suspected contamination from 
asbestos, lead paint, and petroleum leaks from the heating oil 
tank, but they have been barred from using EPA assessment pilot 
funds because of the Superfund prohibition. Brownfield sites 
with these pollutants should be eligible for funding.
    Second, I want to reemphasize the importance of bringing 
together all the Federal agencies that can play a role in local 
brownfields. Brownfields are not an EPA only issue. HUD, the 
Economic Development Administration, Department of 
Transportation, the Army Corps of Engineers, and other Federal 
agencies have all contributed important resources to local 
brownfield projects.
    Congress should strengthen the ability of these agencies to 
help communities like East Palo Alto. For Example, East Palo 
Alto is working with the Corps of Engineers to clean up 
contamination, restore our ecosystem, and prevent flooding in 
the Ravenswood brownfield. And I understand that this committee 
has considered proposals to enhance the role of the Army Corps 
of Engineers brownfield clean-up along the Nation's waterways. 
These are positive and needed proposals and we urge Congress to 
support them.
    In conclusion, East Palo Alto and communities across 
America call on Congress to support the Federal-State-local 
partnerships that can put brownfields on a revitalization 
track. On behalf of NALGEP, I thank the subcommittee for this 
opportunity to testify, and I would be pleased to answer any 
questions. Thank you.
    Senator Chafee. Thank you, Mayor Walker.
    Dr. O'Brien?

  STATEMENT OF PHILIP J. O'BRIEN, DIRECTOR, DIVISION OF WASTE 
 MANAGEMENT, NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES

    Dr. O'Brien. Thank you. Good morning Mr. Chairman, members 
of the committee. I am Phil O'Brien, Director of the Division 
of Waste Management at New Hampshire Department of 
Environmental Services.
    New Hampshire is characterized by a few large cities, 
Nashua, Manchester, and a populace tier of counties near the 
southern border. The balance of the State is made up of small-
to-modest-size communities and substantially decreased 
population as one moves north. Old mills are found commonly in 
both large and small communities and are almost always located 
in community centers since those were the centers of employment 
in days when transportation was more limited. Nearly two-thirds 
of our brownfield sites are located in or near such small town 
centers.
    Our program in the State began in 1996 with State 
legislation which provided comprehensive liability protection 
to parties who assumed responsibility for property remediation 
but did not have a prior liability for clean-up. To date, 11 
sites have achieved that eligibility for a ``Covenant Not to 
Sue,'' and the remaining are making progress toward that goal.
    Since 1996 the State has explored and utilized a mix of 
authorities, including the Superfund Removals Program. The 
State Covenant Program is a means to provide leverage to 
private investment. While it is beyond the scope of this 
legislation, I want to say that the Removals Program has been 
indispensable to us in a number of clean-up efforts where 
immediate action was required and where subsequent brownfield 
works has led to very significant investment and community 
benefit. Our success to date has been based upon a detailed 
State Contaminated Site Risk Characterization Management Policy 
and by effective implementation of that policy.
    The State has also received four Brownfield Assessment 
Demonstration Pilot Grants, and nine municipalities have 
received Targeted Brownfields Assessment Grants for work at 
individual sites. The Department that I am a member of is 
currently working to establish a Brownfield Cleanup Revolving 
Loan Fund based on a $1.5 million EPA award granted to a 
coalition of five New Hampshire recipients.
    To date we have had approximately $30 million worth of 
redevelopment which has occurred, most notably in a 19-acre 
site near downtown Concord previously abandoned and vacant 
where a nonprofit organization took over the site, cleaned it 
up under their New Hampshire Covenant Program, and it is now a 
hotel/conference center and two office buildings with an 
invested value of some $20 million. I might add that the 
nonprofit basically said we will trust you New Hampshire that 
your provision of the Covenant Not to Sue will be durable when 
it comes to the Federal Government. So the issue that you had 
discussed earlier came up there and they accepted our word as a 
matter of faith and I think trust.
    Let me underline at this point the success and the 
excellent cooperation we have received from EPA Region I in 
accomplishing what we have done to date. The relationship is 
excellent and we could not have done the work we have done 
without our Federal partners. I might add that this is a 
critical factor which is impossible to imbed in legislation, 
per se, so I am always pleased to have the opportunity to 
indicate the good working relationship we have with Region I.
    We applaud the provisions of Title I that place priority on 
making grants to sites that will be developed as parks, 
greenways, or used for other nonprofit purposes. We have six 
sites in various communities which envision such uses.
    We also strongly support Title II liability clarification 
which mirrors provisions already present in New Hampshire law. 
In our experience, overhanging liability concerns have and will 
continue to influence prospective purchasers and developers as 
well as owners and prospective purchasers of neighboring 
properties.
    Also, New Hampshire strongly supports any assistance to the 
States to establish or enhance their response programs. We have 
a mature, risk-based site remediation program which integrates 
skills of qualified engineers and scientists to produce 
effective, durable, and protective remedies. Our statutory 
framework, administrative rules, and legal support from the New 
Hampshire Department of Justice ensure that the provisions of 
our program are enforceable. We at the same time are strongly 
supportive of State accountability and are glad to be held to 
account.
    Finally, we support the provisions that make available the 
additional uses of funds, including utilization and 
capitalization of revolving loan funds. We support the 
provision for deferral of final listing on the National 
Priority List, with which we have had recent experience.
    In closing, I would like to commend Senator Smith, Senator 
Chafee, and this committee for what they are doing with respect 
to moving S. 350 forward. Senator Smith, you have always been a 
very strong advocate and someone we have come to rely on very 
substantially for your support in matters of this sort and in 
dealing with environmental matters in general, and we are 
pleased to say that today. S. 350 promises to be a major step 
forward in environmental and economic site restoration, and we 
look forward to helping you in any way that we can to achieve 
that goal. Thank you.
    Senator Chafee. Thank you, Dr. O'Brien, and especially for 
your words of confidence in the EPA and in Region I in 
particular, and especially coming from the Live Free or Die 
State, it means a lot.
    [Laughter.]
    Senator Chafee. Any questions from the panel?
    [No response.]
    Senator Chafee. Any comments on some of our earlier lively 
discussion, Mayor Bollwage or Mayor Walker, on the finality 
issues?
    Mayor Walker. Well I was very pleased to hear Senator 
Clinton raise all the issues that she raised, and Senator 
Boxer. I think it certainly helps to clarify the fact that the 
States will be in control of the clean-ups and that the 
Environmental Protection Agency is just there as a backup.
    Mayor Bollwage. Mr. Chairman, the most heartening thing is 
I think there was a will for compromise here. That is probably 
the most important thing that I heard in the earlier discussion 
is that there is a will to compromise, and the Nation's mayors 
really need that.
    Senator Boxer. Mr. Chairman, may I just again thank all of 
the mayors for being here. I just want to say to Mayor Walker, 
you are on the front lines in a community that really is in 
fact getting better day by day. I think we can really help you, 
and you have made that point very clearly. This is an 
environmental issue, it is also environmental justice. We just 
happen to have a situation, Mr. Chairman, both my chairmen 
here, that most of these communities are pretty poor where 
these brownfields exist in large numbers. So it is something we 
can do that, as one of my colleagues said, I do not remember 
which, is a real win-win all the way around. So I wanted to 
thank you. I know it is a long trip. I do it every week so I 
know how hard it is.
    Last, I just say to my good friend Senator Crapo, whom I 
respect greatly, that if the fight is over local control, I 
think it is important to take note that the mayors support this 
bill. Now they might support it even with further changes. But 
I do think it is a carefully crafted compromise. We have done 
the compromise. And I will work with you, because we have some 
new language here that says you cannot come in EPA unless you 
have taken into consideration all of the responses that have 
been made by the State, and you have to prove EPA that if you 
do come in--and that is on page 45--what you do really is 
necessary. So I am just hopeful that we can continue to work 
together.
    Having served on this committee ever since I came here, our 
Superfund situation is so difficult, so difficult. Senator 
Smith and I sat there through hours and hours of amendments. We 
thought we were getting somewhere and we never got that off the 
ground. And breaking off this brownfields is so important to 
give hope to the people that we are not hopelessly deadlocked.
    Again, I just want to thank you all because you come here 
without partisanship, you come here because you are on the 
front lines and you support this bill, and I am very glad of 
that. Thank you.
    Senator Smith. Senator Boxer, in the conversation we had 
with some of the folks from the Parliament in the Netherlands 
they indicated a similar situation--and we may also be able to 
do this I think, Senator Crapo, with NRD. But they experienced 
the same frustration in not being able to get things in 
totality and therefore began to use pilot projects and to break 
things off, and it has been very successful for them. I think 
it might be a model we may want to follow. That, frankly, is 
180 degrees from where I was two or 3 years ago, I think all of 
us. But if it works, I think we ought to move forward.
    I might just make a comment regarding Phil O'Brien. We are 
very fortunate in New Hampshire to have a tremendous Department 
of Environmental Services, as many States do. It has been a 
real pleasure to work with them. One of the items you mentioned 
in your written testimony, Phil, was the town of Bradford, that 
here is a community that wants to take a brownfield site and 
make it into a park and basically has not been able to do that 
because of the conflicts in the law. So I am assuming that this 
would free Bradford to move forward with the park that they 
would like to create.
    Dr. O'Brien. Yes, it would, Senator. I think again 
characteristic of New Hampshire----
    Senator Smith. Small town.
    Dr. O'Brien. A small town. I think that is the key. There 
are many small towns whose long term viability depend upon an 
infusion of capital which will become the nucleus for that 
whole community's survival and thriving and will bring people 
back into the center of the community. So it has an 
extraordinary value from that perspective. I think we tend to 
think of these issues in terms of large cities, which is 
entirely appropriate since we have large city problems as well. 
But I think the small community also has to be remembered since 
it is the core of the country, so to say.
    Senator Clinton. Mr. Chairman, could I followup on what Dr. 
O'Brien said, because that is one of the big problems that we 
have in New York is the small and medium-size cities exactly as 
you described. I had referred earlier to Utica, but there are 
many other examples of what were mill and manufacturing 
centers.
    With respect to the work that you have done in New 
Hampshire, have you done the remediation where you have been 
able to retain the existing structures, or have you had to 
demolish the structures to do the brownfield work?
    Dr. O'Brien. It has been a combination of both, Senator 
Clinton. Unfortunately, sometimes old mills are very vulnerable 
to fire and vandalism, in other cases they have been preserved 
and have been rehabilitated and are again a vital part of the 
community. So, it is some of each. But we have had to piece 
together many different sources both of funding and authority 
to do any of them.
    Senator Clinton. And have you had to from the State level 
pay for the demolition of the structures where that was 
necessary to get to the underlying land and deal with the 
problems that were posed?
    Dr. O'Brien. Again, that has varied. We have even had 
Community Block Grants that have been used in part for that 
purpose. Almost every one is a separate case and with a 
different spin on it.
    Senator Clinton. I think for Senator Smith and I, and 
Senator Chafee as well, with a lot of these old mill 
communities, the money for demolition often stands in the way 
of trying to get to the brownfield issue because nobody can 
afford to tear the building down, so you cannot make it 
development ready, you cannot get to the brownfields. So I 
would hope that we would pay attention to that. I appreciate 
the work that you have done. I look forward to getting more 
information about it.
    Mayor Walker, I wanted to commend you for representing one 
of the Nation's few Brownfield Showcase Communities. I know how 
much work goes into that. There are two in New York--Glen Cove 
and Buffalo-Niagara--and it really does take a lot of community 
effort and partnership. I was heartened to hear that you 
believe this bill, S. 350, will really help you on the local 
level continue to make those partnerships so you could see even 
further work being possible with the infusion of dollars.
    But I wanted to ask all three of you just briefly, one of 
the problems is that if we rely principally on revolving loan 
funds, there will still be communities left out. And so we have 
to retain grants and subsidies of a significant nature. Do you 
see in this legislation the opportunity for both of those 
approaches in a sufficiently detailed way, that you will be 
able to get the money that you need to do what you think is 
necessary in your community?
    Mayor Walker. I think so. In East Palo Alto we have been 
able to put together a pool of money from various sources in 
order for us to be able to move forward. I think this bill is 
just another caveat that will allow us to move forward.
    The Ravenswood Industrial Area is an area that was totally 
contaminated with old wrecking yards, salvage yards, chemical 
yards. All the things that nobody else wanted was dumped into 
our community for many, many, many years. Our community is now 
on the cutting edge of trying to turn ourselves around. So we 
need all the dollars and all the help from all the agencies 
that we can possibly pull together in a very creative mode in 
order for us to make this project work. And it is essential, I 
want to say it, it is essential that this project work for East 
Palo Alto, because if it does not, we are going to be in the 
same condition that we have been in for the past 20 or 30 
years.
    Mayor Bollwage. Senator Clinton, thank you for that 
question. The Nation's mayors need both a revolving loan fund 
and grants because sometimes they can use those tools to 
combine with other issues such as State tax credits. In New 
Jersey, we had a State referendum on the ballot 2 years ago 
that appropriated $50 million for demolition costs. We can use 
that with Green Acre funding for the creation of parks or open 
space. And it would be up to the mayors what tools they could 
use, whether it be a revolving loan fund or a grant, that would 
benefit the specific project in question.
    Senator Clinton. So we have to have that whole array of 
tools?
    Mayor Walker. I agree with that strongly.
    Dr. O'Brien. I would echo both Mayors. The array I think is 
important because the flexibility comes from a variety of 
opportunities and not from necessarily one single source.
    I would add as an elaboration to your prior question, 
Senator, that in one site in Winchester, New Hampshire, the 
Economic Development Authority of the Department of Commerce 
provided a $350,000 grant which will be used for demolition of 
the buildings that are there.
    Senator Clinton. Thank you.
    Senator Chafee. Senator Crapo?
    Senator Crapo. Thank you. I will just briefly indicate that 
with regard to our prior lively discussion about State finality 
and the true role as to whether the local communities and the 
States will have the opportunity to implement this program, I 
appreciated the comment of Mayor Bollwage with regard to the 
fact that what he heard in the discussion was that there was a 
potential for some compromise here to find a good solution, and 
I saw Mayor Walker nodding. I assume you agree with that.
    Mayor Walker. Yes.
    Senator Crapo. I saw that too. In fact, I have had a number 
of comments privately made to me by other Senators as they have 
gone in and out about the fact that it appears that we are all 
working in generally the same area, we just have maybe a 
disagreement as to whether the language is exactly right yet to 
achieve the objectives. And I am quite hopeful about the 
outcome of this discussion that we have had here.
    I just have a brief question so the record is very clear 
here for both Mayors; and that is, if we are able to reach a 
compromise on the State finality language in context of what 
you have heard in the discussion here today, would that have 
any impact on your support of this legislation, if we were to 
make any adjustments to assure that there were some more clear 
definitions of what the circumstances would be when the EPA 
could step in and apply the safety net?
    Mayor Bollwage. Senator, first of all, it is difficult to 
answer the question unless you know exactly what the language 
would be and you would have to review the language. But you 
were talking early with my former Governor about the 
involvement of the EPA and the definition of imminent health 
threat and whether the Governor or the State can invite you in 
before an emergency. Everyone is going to define that language 
somewhat differently. I can only speak for New Jersey where RDP 
has been very proactive in dealing with issues of brownfields.
    I am also a home to a major Superfund site, a chemical 
control that blew up in 1980, and apparently there are two 
acres of cement there and we have no availability of that land 
for the next 99 years. However, if it were a brownfield site, 
we could remediate it and clean it and we could create jobs and 
rateables and economic opportunity. And I think we should keep 
in context that the times that this may come up throughout the 
Nation may be minimal. I believe that many of the State DEPs, 
as Dr. O'Brien said, are very active in dealing with the issues 
within their States.
    Senator Crapo. I agree.
    Mayor Bollwage. Therefore, the compromise in the language 
should be something that should be worked out. But we should be 
cognizant of the greater overall good, and that is passing S. 
350.
    Senator Crapo. Thank you.
    Mayor Walker?
    Mayor Walker. I think we have compromised on the bill from 
where it first started. We have noted many changes on it as we 
have watched it go through. But I have to stick with what we 
have there simply because it states that the EPA does not step 
in, they do not interfere. I have the utmost confidence in my 
State that they will do a very stringent job of clean-up. They 
have been there, they have done that. But I think we just need 
the EPA hanging out there in the wings where if the State needs 
them they can call on them to come and assist them. I think 
that is what the statute says.
    Senator Crapo. And if we can achieve that, then that is 
good.
    Mayor Walker. If we can achieve that, then I am happy.
    Senator Crapo. All right. I agree with you, your State 
sometimes is tougher than the EPA.
    Mayor Walker. They are tougher than a lot of folks.
    [Laughter.]
    Senator Crapo. Thank you.
    Senator Chafee. Thank you panel. As a former mayor myself, 
I can agree that there is nothing mayors like more than 
revenue. And by getting some of these sites on the property tax 
rolls and generating revenues, you can educate your children, 
you can pave your streets, and provide all the services your 
constituents require, and that is in all our best interest. So 
thank you for your time.
    Senator Chafee. I would like to invite our last panel to 
come forward. We look forward to your testimony. Mr. Mike Ford, 
representing the National Association of Realtors; Mr. Alan 
Front from the Trust for Public Land; Mr. John Arlington from 
the American Insurance Association; Mr. Grant Cope from the 
U.S. Public Interest Research Group; and Mr. Robert Fox from 
Manko, Gold, and Katcher; and Ms. Deeohn Ferris of Global 
Environmental Resources. Welcome.
    We will start with Mr. Mike Ford.

  STATEMENT OF MIKE FORD, MIKE FORD AGENCY, REPRESENTING THE 
                NATIONAL ASSOCIATION OF REALTORS

    Mr. Ford. Thank you for the opportunity to present the 
views of the National Association of Realtors on S. 350, the 
Brownfields Revitalization and Environmental Restoration Act. I 
wish to thank Chairman Chafee, Chairman Smith, Senators Reid 
and Boxer for your leadership in building bipartisan consensus 
on this very important issue.
    My name is Mike Ford. I own a full service residential and 
commercial real estate company in Clark, New Jersey, and I have 
been a real estate broker for 27 years. I am also the 2002 
Regional Vice President for the National Association of 
Realtors.
    It is often said, and I agree, that realtors do not sell 
homes, 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 our communities. We want clean 
air, clean water, 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 such.
    NAR supports S. 350 because it will effectively promote the 
clean-up and redevelopment of the hundreds of thousands of our 
Nation's brownfield sites through 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 they provide a cleaner 
and safer environment, these revitalized sites increase the tax 
base, create jobs, and provide new housing.
    In my home State of New Jersey, for example, 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 revenues. 
Under the strong leadership of Governor Whitman, New Jersey has 
worked closely with the private sector and begun an ambitious 
program to revitalize our 8,000 brownfield sites. One private 
developers took advantage of a State program which reimburses 
up to 75 percent of matching funds to clean up an abandoned 
factor site into a mixed-use project.
    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. However, significant hurdles remain. 
A shortage of clean-up funds and liability concerns continue to 
impede brownfields redevelopment. S. 350 effectively addresses 
these issues.
    First of all, it provides needed funding to Federal and 
State brownfields programs.
    Second, the bill clarifies the Superfund liability 
protection for innocent landowners and prospective purchasers 
who have not caused or contributed to hazardous waste 
contamination. It is important to get these innocent property 
owners out of the liability net so that resources can be 
targeted toward clean-up rather than litigation. When it comes 
to Superfund clean-up, we must ensure that the real polluters 
pay so that contaminated sites are returned to productive use 
as quickly as possible.
    Finally, S. 350 recognizes successful clean-ups undertaken 
under State brownfields programs. Through their programs, most 
of these States can provide real estate developers with 
incentives to make brownfields redevelopment more attractive.
    Typically, the State will provide some form of liability 
relief once it has approved a clean-up. In New Jersey, relief 
comes in the form of a ``No Further Action,'' an NFA letter 
from the State DEP. Unfortunately, there is no guarantee that 
the Federal EPA will not assert authority at a future date and 
require additional clean-up, which has been discussed many 
times here today. Without some degree of certainty that they 
are protected from Federal as well as from State liability, 
developers are reluctant to undertake development of 
contaminated sites. In conjunction with the creative leadership 
of Governor Whitman, I am confident that this bill provides the 
certainty that they need to go forward.
    In New Jersey, I have seen what can be accomplished when 
local, State, and Federal Governments work together with 
private business interests to make something out of nothing. In 
my hometown of Clark, General Motors has a contaminated site 
and they funded the taking down, the clean-up, and they funded 
a golf course. So now we have a golf course which is not quite 
on line yet, but the revenue from that will go to local 
government as soon as it becomes on line, which should be 
within about 6 months.
    S. 350 presents a win-win opportunity for everyone by 
cleaning up hazardous waste sites, putting them to new and 
productive uses, and enhancing community growth. Now is the 
time for Congress to assert bipartisan leadership and reinforce 
our nationwide effort to turn brownfields into greenfields. NAR 
looks forward to working with the committee and the entire 
Senate to pass a brownfields bill in the 107th Congress.
    Thank you again very much, Mr. Chairman, for the 
opportunity to present the views of the National Association of 
Realtors.
    Senator Chafee. Thank you very much, Mr. Ford.
    Mr. Front, welcome.

 STATEMENT OF ALAN FRONT, SENIOR VICE PRESIDENT, THE TRUST FOR 
                          PUBLIC LAND

    Mr. Front. Thank you, Mr. Chairman. I would like to begin 
this afternoon with a somewhat unusual deja vu reflection. It 
was just a couple of months ago in this very hearing room that 
I had the opportunity to share with you, Mr. Chairman, The 
Trust for Public Land's steadfast, full-bore support for truly 
visionary legislation that was then titled the Brownfields 
Revitalization and Environmental Restoration Act of 2000. The 
calendar page has flipped and we are happily back again talking 
about BRERA 2001. But I do have a fervent request of the 
subcommittee, and in fact of the committee and of this 
Congress, that none of us be in the position of considering and 
discussing BRERA in 2002 or 2003 because this is an extremely 
time-sensitive issue, as I will discuss.
    I very much appreciate, because of the time-sensitivity of 
this issue, Mr. Chairman, your leadership and the leadership of 
Senator Boxer, of Senator Smith, and Senator Reid, the early 
leadership of cosponsors like Senator Clinton, and the 
willingness of Senator Crapo and others to work together toward 
something that hopefully will be enacted quickly.
    I am Alan Front of The Trust for Public Land, a national 
nonprofit organization that works with landowners, public 
officials, and communities to protect open spaces. There has 
been a lot of discussion already today about the benefits of 
brownfield clean-up and revitalization. And so rather than 
plowing those old furrows, I would like to agree with much of 
what has already been said but perhaps to put an open space/
land conservation exclamation point on some of the words that 
have already been offered today.
    Open spaces, as you, Mr. Chairman, and as the committee 
knows, are disappearing at a rapid rate. There is disagreement 
as to how rapid a rate, but it is going fast. Will Rogers, the 
home-spun philosopher, said that it was always going to go fast 
because ``they ain't making it anymore.'' Whatever the reason, 
every minute acres and acres of open space disappear. In fact, 
during the 5 minutes of my statement to you today, an open 
space the size of the footprint of the Dirksen Senate Office 
Building will be irretrievably lost. There is not time to wait. 
And brownfields clean-up can be a real tool, a real opportunity 
not only to reuse idle properties but to lay claim to open 
spaces before they are gone forever.
    At the same time that these open spaces are disappearing, 
at the same time that undeveloped, previously unserviced lands 
are serviced and developed--there are an estimated 600,000 
brownfields across America, dotting the landscape. Every one of 
those brownfields, every one of those sites is a white elephant 
that is not being redeveloped because of uncertainty about 
environmental liability, because of uncertainty about the 
potential costs involved. Every one of those sites, left idle, 
also represents a greenfield that is being developed, a 
potential alternate site for a strip mall or a home site 
development that is being raised today instead of greenfields.
    In addition to protecting ``exurban'' land from sprawl, 
brownfields clean-up can do so much for our urban centers. Now, 
again, you have heard already from other witnesses some of the 
economic goods that are associated with brownfields restoration 
and clean-up and appropriate redevelopment--job creation, 
housing stock, other economic virtues. In addition to those, 
there are the especially where brownfields to parks conversions 
are concerned, when parks are included in the brownfields 
equation multifold benefits that accrue--not just in terms of 
quality of life, not just in terms of the compelling additions 
to the social fabric that brownfield clean-up can bring to 
areas that are truly park poor, that do not have social 
programs and recreation on the ground and can--but study after 
study has demonstrated the economic benefit of parks in inner-
cities. In fact restoring brownfields to greenfields can spark 
a revival, a genuine revitalization of a neighborhood, and it 
can spawn exponentially more private investment and much more 
local economic activity than just about anything else.
    How then do we tap into that untapped benefit of 
brownfields? How do we unlock the banged up and slightly soiled 
community chest of brownfields?
    Well, The Trust for Public Land simply believes that S. 350 
can do the job. We especially appreciate the flexibility and 
the fairness and the funding in Title I for brownfields 
conversions. Those provisions are discussed at greater length 
in my written statement. We also, as a non-responsible party 
who is working with community leaders to try to clean up 
brownfields and restore them to community use, we very much 
appreciate the liability relief which is going to allow us and 
our partners around the country to clean up many more 
brownfields and to do it in a much more expeditious way. Again, 
though, time is what is at a premium here. Time is of the 
essence. And so appreciating the dialog about other provisions 
of the bill, one urgent, fervent request of The Trust for 
Public Land is that any dialog about modifications of the bill 
not go on long enough for another 400 acres an hour to 
disappear off of our open space inventory.
    We really appreciate everything, Mr. Chairman, that you 
have done, that your colleagues have done to move this 
legislation. We look forward to working with you toward timely, 
expeditious, hopefully almost immediate enactment. Thank you.
    Senator Chafee. Thank you very much, Mr. Front.
    Mr. Arlington, welcome.

STATEMENT OF JOHN ARLINGTON, ASSISTANT VICE PRESIDENT, AMERICAN 
                     INSURANCE ASSOCIATION

    Mr. Arlington. Mr. Chairman, my name is John Arlington. I 
am the Assistant Vice President for Federal Affairs for the 
American Insurance Association. AIA is a trade association of 
some 350 property/casualty insurance carriers who write a very 
large percentage of the commercial insurance available in the 
United States and elsewhere.
    It is indeed a pleasure and an honor to be here today to 
speak in support of S. 350. For insurers, environmental 
insurance and environmental risk is a small but growing area of 
business. AIA member companies have insured now hundreds of 
brownfields and other environmentally sensitive redevelopment 
projects from Massachusetts to California. These have varied in 
scale from former gas stationsites that are now restaurants to 
the privatization of large military facilities such as the 
current redevelopment of the Presidio in San Francisco. While 
we are proud of our work on these projects, they are but a 
fraction of the tens and hundreds of thousands of brownfield 
sites around the country.
    S. 350, in our view, has the potential to expand the 
universe of redeveloped sites by providing targeted funding and 
administrative support to help State and local governments 
identify and classify and market the more problematic sites, 
properties that might otherwise go unnoticed. In some cases, 
with grants to provide direct funding of clean-up activities 
for local governments, those projects will be able to succeed 
when the economics of the projects would not otherwise support 
funding of remedial measures necessary to protect human health 
and the environment.
    There has been a great deal of discussion, Mr. Chairman, 
earlier this morning about the finality provisions of Title III 
of the bill and I would like to comment briefly on that. We in 
the insurance industry recognize that as a matter of public 
policy, no matter what Title III winds up looking like, no 
waste clean-up is ever going to be entirely a final in the 
sense that there will never be an opportunity for future 
government intervention. This is one of the areas where we 
believe a combination of risk management techniques, including 
insurance, can facilitate the redevelopment of contaminated 
properties notwithstanding this lack of finality. Insurance is 
currently available to pay the costs of additional clean-up of 
specified contaminants after the initial clean-ups have been 
completed and approved by State or Federal regulators. In some 
cases, insurance policies may also be written to respond to 
additional clean-up that may be required due to even future 
changes in environmental laws.
    In addition to insurance against the possible reopening of 
completed clean-ups, insurance is now being written to cover 
all aspects of clean-ups--cost overruns for specific remedial 
action plans; the discovery and remediation of new, hitherto 
unknown contaminants; and third party bodily injury, property 
damage, and clean-up claims arising from newly discovered 
contaminants. In some cases, insurance may be available also to 
all parties to a brownfields redevelopment transaction, 
including the sellers and the buyers, the banks making the 
loans for the purchase, and for the engineers and contractors 
involved in the clean-up, as well as for the clean-up itself.
    Mr. Chairman, in sum, we think that S. 350 will help unlock 
the market value hidden in many now fallow brownfields sites. 
In so doing, these otherwise valuable properties can reenter 
and remain in the stream of commerce where they can generate 
the economic growth on which our communities depend. We applaud 
your bipartisan efforts to support this emerging marketplace.
    Senator Chafee. Thank you very much, Mr. Arlington. How far 
did you travel to get here?
    Mr. Arlington. Oh, about ten blocks.
    [Laughter.]
    Senator Chafee. Good. Well, welcome.
    Mr. Cope, welcome.

STATEMENT OF GRANT COPE, ENVIRONMENTAL ADVOCATE, UNITED STATES 
                 PUBLIC INTEREST RESEARCH GROUP

    Mr. Cope. Thank you, Mr. Chairman. I would like to thank 
you and the other members of the subcommittee for inviting me 
to speak about the issue of brownfields. My name is Grant Cope. 
I am an environmental advocate for the United States Public 
Interest Research Group. We are an environmental consumer 
advocacy group with offices in about 38 States across the 
Nation.
    I would like to briefly touch on four main points today. 
First, the need to redevelop brownfields; second is the 
beneficial aspects of your bill that accomplish that; third, 
some serious concerns that we have regarding the legislation; 
and then fourth, I would like to briefly touch on an issue that 
one of the panelists spoke of earlier.
    First, the need to redevelop brownfields has been spoken of 
at length. The need to redevelop brownfields is unquestionable. 
Certainly, it can help everything from funneling funds into 
inner-city areas to stopping sprawl. Both of those things can 
help protect public health as well as environmental quality.
    Now particularly with your bill, some of the beneficial 
aspects that we really like are the increased funding and also 
the way in which it is funded. It focuses the dollars to 
address both things like promoting greenways, open spaces, and 
also making certain that the citizens at a local level are 
there helping to make certain that money is used to facilitate 
redevelopment in their communities. A third aspect which is 
extremely beneficial are the program criteria. In all honesty, 
they are the best set of program criteria that we have seen in 
a piece of legislation. They are really fantastic. To that end, 
we would like to commend your office as well as the other 
offices, and in particular the office of former Senator Frank 
Lautenberg, in constructing these provisions.
    Now with respect to some of the concerns that we have. One 
would be we believe that technical corrections should be made 
to the definition of ``eligible response sites'' just to ensure 
that that term is consistent with the drafters' intent that 
only sites with low levels of contamination be included as a 
brownfield site.
    Second, and in somewhat of a departure from past bills, 
there is no up front State clean-up review by the Federal 
Government of clean-up programs. That is problematic because, 
quite frankly, State clean-up programs are really all over the 
map on their ability to protect public health, integrate 
communities into local decisionmaking, monitor sites long term. 
Let me give you an example. In the State of Ohio, they have a 
clean-up program where they have supplied financial incentives 
for redevelopment but that redevelopment has not included any 
clean-up. Now when you combine that with the increased amount 
of funds that this bill seeks to provide, which admittedly are 
needed, you could be facing a situation where you are really 
promoting ineffective and unprotective clean-ups across the 
country. That would be extremely problematic.
    The third main concern that we have, and it is a grave 
concern because it is an extreme departure from past bills, is 
the bar on Federal enforcement authorities. Now the question 
about reopeners aside, just the bar itself is a departure. It 
is really unneeded in the first case. As Mr. Arlington just 
stated, insurance can cap the liability at some of these sites. 
There are three very good liability exemption provisions 
provided within S. 350--prospective purchasers, innocent 
landowners, and contiguous landowners. For good developers, 
developers who want to do a good job, this is really all they 
need. Going any further than that then you are really catering 
to a different type of developer, somebody who is concerned 
that they might not do a good job or rather wants to ensure 
profits over the protection of public health. That is something 
that the U.S. Senate should not continence.
    I would now like to move on to one other issue that was 
spoken of very briefly concerning gas stations. There is a need 
to provide funding for these sites in their redevelopment. That 
is pretty much unquestioned. GAO and Environmental Protection 
Agency have spoken at length about this need. But importantly, 
where these sites are part of a franchise, the Government, in 
our opinion, should not provide a weakening of Federal 
enforcement authorities or limiting of liability for the parent 
corporations. That would weaken the polluter pays principle and 
certainly cut back on public health protections.
    Finally, and in conclusion, looking forward to markup, it 
would be we believe a grave mistake to take the weakening of 
Federal enforcement authority any further than it has already 
gone, particularly with respect to the reopeners. Any 
modification to that language that currently is in the bill 
would engender a strong amount of opposition from the 
environmental community. Thank you, sir.
    Senator Chafee. Thank you very much, Mr. Cope.
    Mr. Fox, welcome.

 STATEMENT OF ROBERT FOX, PARTNER, MANKO, GOLD AND KATCHER, LLP

    Mr. Fox. Thank you. Good afternoon, Mr. Chairman. My name 
is Robert Fox and I am a partner at the Philadelphia area law 
firm of Manko, Gold, and Katcher. During the past 16 years as 
an environmental lawyer, I have been fortunate to represent a 
wide range of clients, including property owners and 
developers, lenders, land conservancies, citizen groups, local 
governments, and industrial and economic development agencies. 
I firmly believe brownfields redevelopment presents a unique 
and unprecedented opportunity for all such groups not only to 
find common ground, forged through compromise, but to reach a 
higher plateau.
    During the last 5 years, States have vigorously heeded the 
call to promote brownfields development. Currently, at least 43 
States have some form of brownfields program. I am very proud 
of my home State of Pennsylvania which since 1995 has been at 
the forefront of this movement. To date, 918 sites have been 
remediated through Pennsylvania's brownfields program.
    At the same time, Federal environmental statutes typically 
impose strict liability on parties owning contaminated 
property, even where those parties did not cause the 
contamination. It is this perceived threat of EPA intervention 
under these statutes that significantly inhibits developers 
from approaching brownfields sites. In this case, perception is 
reality. Fundamentally then, Federal brownfields legislation 
must ensure that for those sites where EPA is not currently 
requiring remediation under Federal environmental statues, and 
remediation has been completed under a State program, EPA will 
not as a matter of law seek further remediation.
    S. 350 proposes to fill this need for Federal brownfields 
legislation. Although it provides certain important elements 
toward that goal, S. 350 does not go far enough in certain 
significant and important ways. I would like to suggest some 
common-sense amendments to S. 350 critical to providing the 
required certainty, finality, and liability protections while 
at the same time maintaining an adequate Federal ``safety 
net.''
    The first issue relates to the Federal ``safety net'' 
itself. S. 350 contains four reopeners authorizing EPA to 
exercise its enforcement authorities under CERCLA. The fourth 
such reopener allows EPA to require remediation where 
supposedly new information exists which reveals that a site 
already remediated under State law continues to pose a threat. 
This reopener is overly broad and threatens to undermine the 
finality and certainty that S. 350 seeks to achieve. The mere 
existence of any ``new'' information that presents any 
``threat'' is a standard without boundaries.
    Assume that 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 reopener potentially applies 
notwithstanding the validity of the report or whether the risk 
posed by that contaminant remains well within the range 
documented as part of the approved State clean-up. Even 
migrations of contaminants within a site where expected 
seasonal fluctuations in sampling results could potentially 
subject a site to this reopener. In sum, under this reopener 
the quality, reliability, authority, and environmental 
significance of new information is unconstrained. As such, this 
reopener should be deleted.
    The next issue relates to who is entitled to receive the 
liability protections under S. 350. Section 129 applies only to 
a person who is ``conducting'' or ``has completed'' a response 
action under a State brownfields program. This language 
potentially excludes both current developers of a brownfields 
site as well as future owners and tenants of that site. For 
example, where a property owner completes required remediation 
under State law prior to closing, a developer will not be a 
person ``conducting'' or ``completing'' the required response 
action. Second, where a developer conducts and completes the 
clean-up and 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. 
Therefore, Section 129 should expressly apply to future owners 
or tenant's.
    The next issue concerns S. 350's application to CERCLA 
alone and therefore its failure to provide any liability 
protection regarding petroleum contaminated sites. The absence 
of any protections for petroleum contaminated sites represents 
an extremely significant limitation. 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. Since there 
are numerous petroleum contaminated sites, and these sites 
present attractive development opportunities, S. 350 should 
provide at least the same liability protections for petroleum 
contaminated sites as for sites contaminated with CERCLA 
hazardous substances.
    Finally, since S. 350 applies to CERCLA alone, a person 
remediating hazardous substance contamination under a State 
brownfields program remains subject to potential Federal 
intervention under other Federal statutes, such as RCRA and 
TSCA, for the exact same hazardous substances. Accordingly, S. 
350 should be amended to include enforcement limitations under 
RCRA and TSCA as well.
    I appreciate your consideration of the specific comments I 
have raised to S. 350 and thank the committee for this 
opportunity to testify.
    Senator Chafee. Thank you. Very well said.
    Ms. Ferris, welcome. You are the last batter.

  STATEMENT OF DEEOHN FERRIS, PRESIDENT, GLOBAL ENVIRONMENTAL 
                         RESOURCES INC.

    Ms. Ferris. Well, that would be the clean-up hitter, 
wouldn't it be?
    Again, my name is Deeohn Ferris. I am President of Global 
Environmental Resources Inc. We are a professional services 
firm. We provide management consulting, technical support and 
training to clients on environmental, natural resources, and 
public health issues. Among other things we concentrate on, we 
have a particular emphasis in the areas of environmental 
justice and community involvement, stakeholder engagement, and 
public participation. My personal bona fides in the 
environmental justice and sustainable communities arena is 
about a mile deep, so with your permission I will skip the 
personal plaudits and get right to the point.
    I have testified before this august body many, many times 
and have been in the trenches with you on Superfund and many 
other pieces of legislation. Frankly, I am just tickled pink to 
be up here talking about a bill that has the possibility of 
moving. So thanks for inviting me to be here.
    [Laughter.]
    Ms. Ferris. I will begin by saying revitalizing and 
redeveloping abandoned, often contaminated properties defined 
as brownfields demonstrate the convergence of complex 
environmental, social, and economic issues. For example, 
compared to their numbers in the general population, minority 
and low-income communities experience brownfields to a high 
degree in their neighborhoods. As a result, equity, race and 
class discrimination, the diminishing tax base in 
municipalities, and suburban sprawl are inseparable from the 
blight and marginalized communities that accompany brownfields. 
Clearly, in urban and rural communities experiencing under-
investment and other consequences associated with environmental 
contamination, economic development and neighborhood 
revitalization are issues of grave concern. Equally important, 
since they have been most affected by these consequences and 
will live with the consequences of future decisions, 
communities are urgently demanding inclusion in shaping 
development outcomes.
    As a result, I am here today in favor of S. 350, the 
Brownfields Revitalization and Environmental Restoration Act of 
2001. Essentially, and we have heard it lots of times today, S. 
350 is a compromise bill that would achieve protection of human 
health and the environment by balancing the goals of 
accelerating clean-ups, expanding economic development 
opportunities, increasing governmental flexibility, and 
reducing disincentives to brownfields reuse. Communities that 
have heretofore experienced difficulties finding funds to 
redress orphan sites and other sites which, according to 
brownfields jargon, do not qualify as the low-hanging fruit 
will be encouraged by the authorization levels in the bill. In 
the forthcoming budget process, I encourage the Senate to match 
the authorization to the appropriation.
    Expanding the number of sites eligible for action by a 
State response program should result in increased flexibility 
to clean up and reuse properties. Decoupling certain qualified 
sites from the stringency of the National Priority List 
process, and the language in the bill which clarifies liability 
should also help to accelerate brownfields redevelopment in 
areas specifically where such activity has languished.
    The linkage between conferring this flexibility upon the 
States and increased community and public involvement is 
crucial. Community involvement and public participation 
assurances in the bill, such as the language in Title I and 
Title III, elevate the significance of meeting community needs 
and inclusion in the decision process. Furthermore, by 
asserting that community involvement, training, research, and 
technical assistance are activities eligible for funding, 
grants issued pursuant to the bill should help build the 
capacity of communities to participate in redevelopment 
planning. I also favor the provisions in Title I which 
authorize waiver of the 20 percent match and the permission to 
leverage grant funds which should assist nonprofit entities, 
many of which operate with limited resources.
    I also appreciate the requirement in the bill that the 
States do a timely survey and inventory of brownfields sites as 
an element of their State response programs. There are 
estimates very broadly up to 500,000 of these brownfields sites 
around the Nation. The advantages that such inventories provide 
are at least threefold: First, the inventories will broaden 
available data; second, they will provide information about 
environmental and other conditions in our communities; and 
third, they should result in a more thorough catalogue of 
under-utilized sites nationwide that are eligible for 
productive reuse. With regard to communities, governmental 
decisionmakers, and prospective developers, the inventory 
should supply useful knowledge on an array of potential 
development opportunities.
    Much has been said today about what I consider to be a 
crucial safeguard in S. 350, and that is preservation of the 
Federal role in the event that threats emerge to human health 
or the environment. I tend to side with the opinion of Senator 
Clinton on this. What is a threat? If it is not a threat, you 
are either maimed or you are dead. So we need to do something 
affirmatively to ensure that people are not going to experience 
those results.
    Comparable to the Federal safety net provided by civil 
rights laws in the event that equal protection under law is 
jeopardized, Title III of the bill provides an oversight role 
and would reserve the right of the Federal Government to act, 
for example, in the event of significant threats or imminent 
hazards. Now probably like everybody else that has appeared on 
this panel, I would torque the bill this way or change and 
modify the bill another way. But for the sake of moving 
forward, I would say let's get it on. It appears that with this 
Federal safety net we can at least ensure that citizens and the 
environment are protected where problems with State programs 
could occur.
    In view of the efforts of communities to preserve already 
the limited greenspaces, I would like to concur with my 
colleague from The Trust for Public Land about the scope of the 
bill that seeks to encourage preservation of greenspace and 
creation of new greenspaces where it is possible. It is 
encouraging that the bill favors grants that facilitate, among 
other activities, creation and preservation of parkland. While 
economic development in certain areas is certainly highly 
desirable, quality of life is greatly enhanced by neighborhood 
beautification and amenities.
    In closing, again I would like to express my support for 
the bill and suggest that it should facilitate brownfields 
redevelopment. Moreover, we appreciate the potential for 
positive results in under-served minority and low-income 
communities. As an expert in sustainable communities and 
environmental justice fields and a proponent of brownfields 
revitalization, we conclude that the bill advances many 
critical goals and objectives. We applaud the subcommittee's 
leadership and look forward to working with you in the future.
    Senator Chafee. Thank you very much, Ms. Ferris.
    Thank you all for your perseverance here this morning, this 
afternoon. The chairman has informed me that he will be marking 
up the bill a week from Thursday, March 8, at 10.
    Thank you once again, and let's hope for success.
    The hearing is adjourned.
    [Whereupon, at 12:53 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]

STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR, ENVIRONMENTAL 
                           PROTECTION AGENCY

    Good morning, Mr. Chairman, and members of the subcommittee. It is 
my pleasure to appear before you in my first hearing as Administrator 
of the U.S. Environmental Protection Agency to discuss an important 
priority for President Bush and this Administration brownfields 
legislation.
    I commend Subcommittee Chairman Chafee and Senator Boxer, as well 
as Chairman Smith and Senator Reid for their leadership in introducing 
S. 350, the Brownfields Revitalization and Environmental Restoration 
Act of 2001. I am pleased to report that the Administration supports S. 
350. As we continue a more thorough review of the legislation, we would 
appreciate the opportunity to offer refinements that would be 
consistent with the President's principles and budget. I look forward 
to working with all members of this committee to move this important 
legislation to the Senate floor as soon as possible.
    Brownfields clean-up 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 committee 
are interested in reforming Superfund and I am committed to working 
with them, but I would urge that Superfund reform issues not hold up 
passage of S. 350.As you may know, President Bush is committed to 
strengthen State and local brownfields programs based on the following 
principles which he put forth during last fall's campaign:

      Brownfields legislation should remove a significant 
hurdle to brownfields clean-up 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 clean-ups 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 clean-up 
standards, and allow EPA to step in to enforce those standards 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 clean-up 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 Administration 
supports legislative efforts to make the tax incentive permanent.
    The States and the U.S. Environmental Protection Agency have been 
at the forefront of encouraging the clean-up and economic redevelopment 
of brownfields. EPA has awarded more than 360 assessment pilots of up 
to $200,000 each to States, Tribes, and local governments to assist 
them with brownfields redevelopment. Grantees report that EPA 
assistance helped leverage more than $2.8 billion in economic 
development and generated more than 10,000 jobs.
    In addition, EPA has awarded $32 million for Targeted Brownfields 
Assessments at more than 550 properties and has promoted local job 
training by awarding 37 Job Training and Development Grants.
    However, much remains to be done to facilitate the rapid, high-
quality assessment, clean-up 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.
    S. 350 is a major step forward in encouraging the clean-up and 
development of a full range of contaminated brownfields properties. S. 
350 authorizes grants and loan programs to identify, assess, and clean 
up brownfields properties, and provides more flexibility to implement 
these programs.
    In addition, S. 350 clarifies Superfund liability for contiguous 
property owners, prospective purchasers, and innocent landowners. These 
provisions have achieved broad bi-partisan support in Congress, and 
they represent an excellent way of encouraging brownfields 
redevelopment. S. 350 also preserves the Federal safety-net to ensure 
that clean-ups fully protect the environment and public health.
    This legislation also relieves the current program of unnecessary 
regulatory procedures for the Brownfields Cleanup Revolving Loan Fund, 
and clears the path for expedited funding of clean-up of contaminated 
properties by providing grants to States and local governments. In 
addition, this legislation provides needed grant funding to the States, 
local communities, and Tribes, to support assessment, clean-up and 
oversight of brownfields properties. The legislation provides flexible 
authority to fund State programs in ways that will enhance the already 
impressive achievements of the 47 State programs that address 
brownfields currently. States with emerging programs such as Nevada and 
Wyoming will gain valuable support in their use of creative approaches 
in encouraging protective assessment, clean-up and redevelopment of 
property. States with established brownfields programs, such as 
Pennsylvania, Rhode Island, Ohio and New Jersey, will benefit from 
provisions that will enhance successful brownfields redevelopment work.
    S. 350 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 and safe clean-ups while reducing cost can speed the 
redevelopment of brownfields across the nation.
    Whether States and localities receive Environmental Protection 
Agency grants for assessment and clean-up, Housing and Urban 
Development grants for redevelopment, Economic Development 
Administration grants, Department of Energy research support--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 derelict brownfields properties.
    Thank you for the opportunity to appear before you today and to 
describe the President's support for brownfields legislation. I look 
forward to working with you to achieve swift passage of brownfields 
legislation. Mr. Chairman, I will be happy to answer any questions you 
or the committee members may have.
                                 ______
                                 
  Responses by EPA Administrator Christine Todd Whitman to Additional 
                     Questions from Senator Chafee

    Question 1. How many times has the Environmental Protection Agency 
taken an enforcement action at a brownfield site that was being 
addressed under a State voluntary clean-up program without the 
concurrence of the State?
    Response. I am not aware of any instance in which EPA has taken a 
Superfund enforcement action without a request from the State at a 
brownfield site that was being addressed under a State voluntary clean-
up program.

    Question 2. Finality is a frequent topic of discussion in the 
brownfields debate and I believe we have gone a long way toward 
addressing that issue. However, finality must be balanced with 
protection of human health and the environment. In your opinion will S. 
350 protect human health and the environment?
    Response. I believe S. 350 has struck an appropriate balance. The 
bill encourages States to develop programs that result in protective 
clean-ups, and die enforcement bar only applies to clean-ups conducted 
in compliance with State programs that govern response actions for the 
protection of human health and the environment. S. 350 provides 
incentives for States to develop programs with a primary goal of 
protecting human health and the environment. Furthermore, the bill 
provides a Federal ``safety net'' to help ensure protective clean-ups.

    Question 3. What percentage of the total brownfields program 
funding in fiscal year 2000 were dedicated to administrative costs?
    Response. A breakdown of the administrative costs for fiscal year 
2000 is:


------------------------------------------------------------------------

------------------------------------------------------------------------
Salaries, overhead costs, and benefits for EPA         $7.0M
 employees.
Inter-Agency agreements with other Federal agencies..  $0.5M
Contract support for data management, etc............  $2.1M
Other EPA Offices....................................  $3.2M
------------------------------------------------------------------------
This is a total of $12.8M, or 14 percent of the fiscal year 2000
  brownfields budget of $91.6M

                                 ______
                                 
Responses by EPA Administrator Christine Todd Whitman to an Additional 
                      Question from Senator Smith

    Question. Do you agree that EPA grants, including Assessment and 
Clean-up grants, outlined in Title I and III of S. 350, to local and 
States can be used by those entities to purchase environmental 
insurance, including clean-up cost cap and pollution liability 
insurance, to facilitate the clean-up and development of a brownfield 
site?
    Response. Yes. We have found that insurance can be a valuable tool 
in the clean-up and redevelopment of brownfields properties. EPA 
believes that Titles I and III of S. 350, in conjunction with the 
general grant provisions in OMB Circular A-87, which establishes 
principles and standards for grants, contracts, and other agreements 
with State and local governments will allow for the purchase of 
environmental insurance.
                                 ______
                                 
  Responses by EPA Administrator Christine Todd Whitman to Additional 
                     Questions from Senator Inhofe

    Question 1. States like New Jersey have successfully developed 
brownfields programs that determine clean-up standards, assess 
attainment of standards, and over comprehensive liability protections. 
Yet EPA has often questioned the adequacy of these programs and the 
technological expertise of the States to develop and enforce State 
clean-up standards. As EPA Administrator, what steps will you take (or 
recommend that Congress take) to ensure that States have the authority 
to establish and enforce clean-up standards and determine the final 
closure status of local brownfields sites?
    Response. EPA has encouraged and supported States in the 
development of brownfields programs that facilitate economic 
redevelopment while protecting public health and the environment. EPA 
has provided over $80M in funding for State voluntary programs over the 
last 5 years in order to encourage brownfields assessment and clean-up. 
This Administration is committed to strengthening State brownfields 
programs by supporting legislation that clarifies limits on Federal 
liability and promotes high, yet flexible, clean-up standards. S. 350 
embodies these principles by granting States flexibility to develop 
innovative approaches to brownfields clean-up and redevelopment In 
accordance with S. 350, EPA will play a minimal role in the development 
of State programs. However, while States arc not required to follow any 
particular approach under S. 350, EPA has the authority to reward 
States that strive to meet program criteria identified in the bill. I 
support this use of incentives to promote protective clean-ups and 
economic growth. I do not believe in mandating how States should 
structure their programs.

    Question 2. Do you support browfields legislation, including a 
standard Federal definition of what constitutes a Brownfields site? 
Also, would you support including petroleum (and other common 
pollutants like asbestos, lead, and PCBs) in the definition of 
brownfields? Would you offer Federal liability protections that mirror 
State liability protections? And, would you allow States to determine 
clean-up standards for brownfields sites?
    Response. The Administration supports legislation that defines 
brownfields sites, as in S. 350. Many of the sites that you describe 
are eligible under the bill. S. 350 also provides EPA with the 
flexibility, site-by-site, to support brownfields clean-up and 
redevelopment at brownfields sites with contaminants or sites not 
otherwise included in the S. 350 definition of ``brownfields.'' EPA 
would like to work with the committee to ensure that brownfields 
legislation applies to all appropriate sites.
    With regard to appropriate liability protections, I would like to 
address these concerns a part of other legislative priorities. 
Questions related to the reform of statutes other than CERCLA should 
not hold up the passage of bipartisan brownfields legislation.
    The Administration supports legislation that directs EPA to work 
with States to ensure that they employ high, yet flexible, clean-up 
standards, and allows EPA to provide a ``safety net'' when necessary to 
protect human health and the environment.

    Question 3. 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. Because 
S. 350 only provides a liability exemption for CERCLA contaminates and 
not petroleum, given EPA's own statistics that almost half of the sites 
contain petroleum, isn't it possible that half of the brownfields sites 
in this country may go undeveloped because of the lack of Federal 
liability protection for petroleum pollutants? How would you address 
petroleum contamination and leaking underground storage tanks?
    Response. We agree with the estimates that between 100,000 and 
200,000 of the nation's brownfields contain abandoned, leaking 
underground storage tanks (USTs). S. 350 provides EPA with the 
flexibility site-by-site, to support brownfields clean-up and 
redevelopment of properties with leaking underground storage tanks. 
Questions related to the reform of other statutes should not hold up 
the passage brownfields legislation.
    As you may know, in partnership with the States and communities, 
EPA recently initiated a pilot program to encourage the clean-up and 
reuse of sites with abandoned, leaking underground tanks. The Agency 
has selected ten initial pilots and anticipates naming 40 more. One 
suggestion to provide funding to further clean-up and reuse abandoned 
ga stations and other underground tank sites would be to authorize the 
use of the Leaking Underground Storage Tank Fund to address these 
brownfield sites.

    Question 4. S. 350 allows EPA to ``reopen'' a site, even if that 
site has been approved or completed under a State program, if EPA 
``determines that information . . . not known to the State . . . has 
been discovered regarding contamination or conditions at a facility.'' 
Isn't this standard overly broad? What exactly constitutes new 
information?
    Response. As I understand it, EPA may use the ``new information'' 
reopener only when several specific conditions are met. First, new 
information means that the information was not known to the State at 
the time a clean-up was approved or after the clean-up was complete. 
Second, the information must demonstrate that conditions or 
contamination at the site pose a threat. Third, the conditions or 
contamination that poses a threat must require additional remediation 
to protect human health and the environment. Finally, EPA must make a 
``determination'' which suggests that the facts must support the 
decision.

    Question 5. One of my concerns that I outlined in my opening 
staternent is the issue of an administrative cap on the amount of funds 
that can be used by the Federal EPA to administer the brownfields 
program. I believe that this administrative cost cap is essential to 
ensure that the majority of funds go to actual brownfields 
redevelopment. Can I have a commitment from you to address this issue?
    Response. I am committed to working within EPA to minimize the 
administrative costs of the brownfields program. The Brownfields 
program's total estimated administrative costs for fiscal year 2001 are 
$14.6 million, which is only 16 percent of the total $91.4M brownfields 
budget. Salaries, overhead costs and benefits for employees accounts 
for less than 50 percent of the $14.6M. Contract support is 
predominantly to provide data management on behalf of the city and 
State pilots so that EPA can provide to OMB, Congress and other 
stakeholders the outputs and outcomes of the program as required under 
the Government Performance and Results Act. The figure for contract 
support increased from the fiscal year 2000 budget in direct 
relationship to the number of pilots awarded by EPA. A break down of 
the administrative costs is:


------------------------------------------------------------------------

------------------------------------------------------------------------
Salaries' overhead costs' & benefits for EPA           $7.0M
 employees.
Inter-Agency agreements with other Federal agencies..  $0.5M
Contract support for data management, etc............  $5.3M
Other EPA Offices....................................  $1.8M
------------------------------------------------------------------------


    Question 6. EPA has never overfiled on a State-approved brownfields 
clean-up under CERCLA or any other statute. Yet, it is the perceived 
threat that impedes brownfields development. S. 350 only provides 
developers with a safety net for CERCLA. Experts, such as Robert Ford--
a witness at the hearing--stated that if the power of EPA to force 
clean-ups under Superfund is taken away, then the Federal EPA could 
sidestep the Chafee bill by using other statutes (e.g RCRA or TSCA) to 
force parties to clean up sites. Therefore, shouldn't Congress provide 
a similar safety net for other statutes, such as RCRA and TSCA ?
    Response. S. 350 provides States maximum flexibility to develop 
clean-up programs by not mandating criteria or requiring EPA review and 
approval of stare programs. EPA supports this approach and believes it 
will encourage innovative programs for the clean-up and redevelopment 
of brownfields. At the same time, S. 350 ensures protection of human 
health and the environment by maintaining a Federal ``safety net.''
                               __________

     STATEMENT OF HON. J. CHRISTIAN BOLLWAGE, MAYOR, ELIZABETH, NJ

    I am J. Christian Bollwage, Mayor of Elizabeth, New Jersey. I am 
pleased to appear today on behalf The United States Conference of 
Mayors, a national organization that represents more than 1,050 U.S. 
cities with a population of 30,000 or more.
    Within the Conference of Mayors, I now serve as a member of the 
organization's Advisory Board, and I am a co-chair of the Brownfields 
Task Force.
    Mr.Chairman, let me first express the appreciation of the nation's 
mayors to you, members of this Subcommittee, and Chairman Smith and 
Ranking Minority Member Reid for your leadership in introducing S. 350 
and for making this legislation a priority in the Senate.
    We are pleased to appear here this morning to convey our strong 
support for S. 350 and to appeal to you to act promptly on this 
bipartisan legislation.
    There is an opportunity to move this legislation forward and 
finally secure the many benefits of recycling brownfields all across 
this nation.
    This committee has previously sought testimony from the Conference 
and others involved in brownfields redevelopment and related issues. As 
such, I would like to simply add to this record by focusing my remarks 
on a couple of key areas.
Conference of Mayors' Support for S. 350
    Prior to introduction of S. 350, Conference President and Boise 
Mayor H. Brent Coles wrote to you, Mr. Chairman, committee Chairman 
Smith and Senators Reid and Boxer to convey the Conference's strong 
support for this legislation.
    This weekend, the Conference's top leaders met to review the top 
legislative priorities for this Congress, further emphasizing S. 350 as 
one of the top priorities for the nation's mayors. We also had the 
opportunity to meet and discuss the need for action on S. 350 with 
senior Bush Administration officials.
    The mayors are excited about your plans to move promptly on this 
priority legislation. We believe S. 350 provides the new Congress with 
a unique opportunity to make vital policy changes and deliver much 
needed resources directly to cities and other local areas in support of 
the many public and private efforts to reclaim brownfields all across 
this nation.
    We also believe that is most appropriate for this committee and the 
Senate to place particularly priority on S. 350, the same legislation 
that had garnered 67 Senate cosponsors in the 106th Congress. Mr. 
Chairman, I would also like to emphasize that this legislation enjoys 
broad support among the mayors and other public and business parties.
Brownfields Survey
    Mr. Chairman, let me again share some of the findings of the 
Conference's studies on the scope of the brownfields problem before 
this nation to underscore the need for action on this important 
legislation.
    Our survey work clearly shows that brownfields is a national 
problem and one of significant proportion. Mr. Chairman, one most 
recent report, Third National Report on Brownfields Redevelopment, was 
issued last year and is already part of this committee's record.
    First, let me summarize some of the key findings--
      210 cities estimated that they had more than 21,000 
brownfield sites; these sites consumed more than 81,000 acres of land.
      Brownfields are also not just a ``big'' city problem; 
more than six out of ten respondents from cities with less than 100,000 
people.
    We found the obstacles to redevelopment are the same for the third 
consecutive year:
      The number one obstacle was the need for local clean-up 
funds to bring these properties back into productive use, with 90 
percent of the respondents indicating that clean-up funds were needed.
      The second more common impediment issue was dealing with 
the issue of liability, followed by the need for more environmental 
assessments to determine the type and extent of the contamination.
    And, we also quantified the benefits of redeveloping these sites, 
underscoring why mayors have been so vocal in advocating support for 
new Federal policies to assist communities--
      Let's talk money first. Three-fourths of the survey 
respondents (about 178) estimated that if their brownfields were 
redeveloped, they would realize between $902 million to $2.4 billion in 
annual tax revenues.
      The second most frequently identified benefit was 
creating more jobs, with 190 cities estimated that over 587,000 jobs 
could be created if their brownfield sites were redeveloped.
    When you examine the key features of S. 350, you can see how this 
legislation responds directly to what communities have told us they 
need to further their efforts to recycle these properties.
    And, we know that these efforts to reclaim brownfields have broader 
implications for other national concerns. For some time, mayors and 
others have been calling attention to the potential of brownfields as 
one of the most viable options in the short term in addressing issues 
related to sprawl, including loss of farmland and open space. The 
legislation before you will help reverse some of the bias toward the 
development of pristine land resources as our first choice.
    One of the very interesting findings came from survey respondents 
who were to quantify how many people their communities could absorb 
without adding appreciably to their existing infrastructure.
      118 cities estimated they could support an additional 5.8 
million people, a capacity that is nearly equivalent to the population 
of Los Angeles and Chicago.
    This capacity is more than 2 years of U.S. population growth.
    Mr. Chairman, we believe this and other research helps to 
underscore the need for a broader Federal effort in this area, with S. 
350 responding directly to identified local needs.
Key Issues in S. 350
    Mr. Chairman, S. 350 takes the next step by putting place Federal 
policy in line with local and States efforts to get these sites cleaned 
up and returned to productive use. I want to just emphasize a couple of 
key points in this regard. First, we have gone as far as we can with 
the ongoing administrative efforts by the U.S. Environmental Protection 
Agency. Specific statutory changes are needed now to deal with the many 
liability concerns and constraints affecting the use of existing 
Federal resources.
    I want to recognize members of this committee, particularly Senator 
Bond and others who have worked to secure resources for local 
brownfield efforts in advance of final legislative action by this 
committee and the Congress. I also want to acknowledge the many efforts 
by the previous Administration for their work on policy reforms and 
other initiatives in support of our brownfield efforts. But despite 
these Congressional and administrative efforts, we believe that as a 
nation we have not made progress at a rate that is substantial enough 
given the substantial potential benefits for communities and the nation 
in moving our efforts to the next level.
    Mr. Chairman, I am pleased to note that many of the issues that we 
had previously raised in testimony before this committee are reflected 
in provisions of S. 350. The pending proposal provides the opportunity 
for cities and other local governments to receive funding for their 
programs directly. It provides these resources for both assessments and 
clean-ups. S. 350 deals with many of the liability reforms that should 
stimulate increased private participation in cleaning up and 
redeveloping these sites. It also provides resources directly to States 
to strengthen existing State clean-up program efforts, making available 
resources to the States for these important programs.
Closing Comments
    Mr. Chairman and members of this committee, the nation's mayors 
believe that the time has come for bipartisan action on brownfields. We 
have waited a long time for final Congressional action on brownfields 
legislation and we are excited that S. 350 is scheduled for immediate 
action by this committee. This is a carefully crafted legislative 
package that provides a very strong foundation for an expanded 
commitment to recycling America's land. In moving forward with S. 350, 
you can count on the strong and continuing support of the nation's 
mayors.
    On behalf of The United States Conference of Mayors, I thank you 
for this opportunity to share the views of the nation's mayors on these 
important issues.
                                 ______
                                 
  Responses by Hon. J. Christian Bollwage, Mayor of Elizabeth, NJ to 
                Additional Questions from Senator Chafee

    Question 1. Finality is a frequent topic of discussion in the 
brownfields debate and I believe we have gone a long way toward 
addressing that issue. However, finality must be balanced with 
protection of human health and the environment. In your opinion, will 
S. 350 protect human health and the environment?
    Response. It is the Conference's view that this language will be 
protective of human health and the environment. It is particularly 
important to mayors and other municipal officials that this balance as 
set forth in S. 350 because so many brownfields and other potentially 
contaminated properties are located within our communities. The 
Conference also believes that ``finality'' in S. 350 not only provides 
a workable standard, but it is one that has been vetted extensively 
with Federal officials, both on Capitol Hill and within Executive 
agencies, as well as with many individual public and private sector 
entities and organizations.

    Question 2. Can you identify specific projects in your community 
that may move forward as a result of enactment of S. 350?
    Response. The City of Elizabeth currently has an inventory of 
nearly 40 brownfields. The two major roadblocks to seeing these sites 
remediated and put back into productive use, are the absence of Federal 
resources and liability reforms that would stimulate private 
participation in brownfield clean-up and redevelopment.
    A great example of the effect S. 350 could have on a community is 
Elizabeth's oldest neighborhood, Elizabethport. Elizabethport is just 
one example of the kind of positive community impact S. 350 could have. 
There are brownfields all over Elizabeth, New Jersey and this nation, 
but Elizabethport is certainly a good example of what Federal 
legislation could do.
    Large eyesores in a redeveloping community negatively impact on the 
residents' quality of life. Right on the Waterfront, what should be 
prime real estate, are sites such as American Chrome and Borne 
Chemical. Within a few blocks of the same neighborhood are such 
contaminated sites as Johnson Machinery and Iron Oxide. While in this 
area, we are cutting crime, building new houses, training workers, 
building parks, and bringing an old neighborhood back to life with the 
help of the residents, these deteriorating brownfields stand in the way 
of the communities' potential. We believe this legislation will help 
Elizabeth tackle these sites.
                               __________
   STATEMENT OF HON. MYRTLE WALKER, MAYOR, EAST PALO ALTO, CALIFORNIA

                              INTRODUCTION

    Mr. Chairman and distinguished members of the Subcommittee, my name 
is Myrtle Walker, and I am the Mayor of the City of East Palo Alto, 
California. Thank you for inviting me to testify today on behalf of the 
National Association of Local Government Environmental Professionals, 
or ``NALGEP.'' I especially thank Senator Barbara Boxer for her 
invitation to be here. NALGEP appreciates the opportunity to present 
this testimony on the views of local government officials from across 
the nation on the need for Federal brownfields legislation to support 
the clean-up, redevelopment and productive reuse of brownfields sites. 
Today, I wish to convey how S. 350, the ``Brownfields Revitalization 
and Environmental Restoration Act of 2001,'' would meet the needs of 
American communities to promote brownfields revitalization.
    NALGEP represents local government officials responsible for 
ensuring environmental compliance, and developing and implementing 
environmental policies and programs. NALGEP's membership consists of 
more than 140 local government entities located throughout the United 
States. NALGEP represents many of the leading brownfields communities 
in the country such as Los Angeles, San Diego, San Francisco, Anaheim 
and other communities in California; Providence, Rhode Island; 
Richmond, Virginia; Enid, Oklahoma; Portland, Oregon; Boise, Idaho; 
Philadelphia, Pennsylvania; Trenton, New Jersey; Rochester, Glen Cove, 
North Hempstead, and other communities in New York; and Columbus, 
Cincinnati, Cuyahoga County and many other communities in Ohio, to name 
a few.
    In 1995, NALGEP initiated a brownfields project to determine local 
government views on national brownfields initiatives such as the EPA 
Brownfields Action Agenda. The NALGEP brownfields project culminated in 
a report, entitled Building a Brownfields Partnership from the Ground 
Up: Local Government Views on the Value and Promise of National 
Brownfields Initiatives, which was issued in February, 1997. That 
report called for new Federal resources to support brownfields 
revitalization, particularly clean-up. The report also called for new 
liability clarification, new resources and partnerships for brownfields 
revitalization, and authority for States to take a lead in voluntary 
brownfields clean-up. As this committee knows, local governments have 
sought Federal brownfields law for many years now.
    During the past few years, NALGEP has continued its work on 
brownfields through coordinating projects involving local officials to 
address the following issues: (1) Brownfields Cleanup Revolving Loan 
Funds; (2) use of HUD Community Development Block Grants for 
brownfields; (3) initiatives to reduce sprawl and promote smart growth; 
(4) training workshops for localities on brownfields revitalization; 
and (5) implementation of the Administration's Brownfields Showcase 
Community initiative. As a result of these efforts, NALGEP is well 
qualified to provide the Subcommittee with a representative view of how 
local governments, and their environmental and development 
professionals, believe the nation must move ahead to create long-term 
success in the revitalization of brownfields properties.
    NALGEP's testimony today will focus on the following areas:
    (1) the urgent need for increased Federal funding to support the 
assessment, clean-up and redevelopment of brownfields sites across the 
country;
    (2) the need for liability clarification to encourage States, 
localities, and the private sector to step forward and revitalize more 
sites, while preserving the safety net of U.S. EPA involvement in 
exceptional circumstances;
    (3) the need for Federal brownfields legislation to provide funding 
for the clean-up of brownfields blighted by lead, asbestos and 
petroleum; and
    (4) the need to facilitate the participation of other Federal 
agencies, such as the Army Corps of Engineers and the Department of 
Housing and Urban Development, in local brownfields initiatives.
    Overall, our view of the opportunity created by S. 350 is 
straightforward--this bill provides critical, positive support to local 
governments who badly need resources and regulatory incentives for the 
revitalization of America's brownfields. S. 350 is one of the most 
important environmental initiatives undertaken by the U.S. Congress, 
and there is no better time or opportunity to enact this important 
legislation.
    The clean-up and revitalization of brownfields represents one of 
the most exciting, and most challenging, environmental and economic 
initiatives in the Nation. Brownfields are abandoned, idled, or under-
used properties where expansion or redevelopment is hindered by real or 
perceived contamination. The brownfields challenge faces virtually 
every community; experts estimate that there may be as many as 500,000 
brownfields sites throughout the country.
    The brownfields issue illustrates the connection among 
environmental, economic and community goals that can be simultaneously 
fostered through a combination of national leadership, State 
incentives, and the innovation of local and private sector leaders. 
Cleaning up and redeveloping brownfields provides many environmental, 
economic and community benefits including:
      expediting the clean-up of thousands of contaminated 
sites;
      renewing local economies by stimulating redevelopment, 
creating jobs, expanding the local tax base, and enhancing the vitality 
of communities; and
      limiting sprawl and its associated environmental problems 
such as air pollution, water pollution, traffic and the development of 
rapidly disappearing open spaces.

                EAST PALO ALTO'S BROWNFIELDS INITIATIVES

    The City of East Palo Alto is a community that demonstrates the 
great challenges and opportunities presented by brownfields. East Palo 
Alto is a small community of 25,000 people that has never enjoyed the 
economic prosperity of its neighboring communities in Silicon Valley. 
The City has the highest levels of unemployment and poverty and lowest 
median income in San Mateo County. In addition, the City has struggled 
to significantly reduce its crime rate, which was one of the highest in 
the nation in the early 1990s. A major stumbling block to overcoming 
these problems is the brownfields contamination that impacts a 
substantial portion of our land, left behind from decades of industrial 
waste, illegal dumping and pesticide pollution. Because of this 
brownfields contamination, East Palo Alto suffers from a lack of 
investment in the transportation, utility and economic infrastructure 
necessary to revitalize abandoned and unproductive areas in our 
community.
    However, the City is successfully moving forward to revitalize our 
community. East Palo Alto was selected by a partnership of 20 Federal 
agencies as one of the first Brownfields Showcase Communities 
nationwide. As part of the Showcase initiative, we are working with 
Federal and State agencies to promote sustainable environmental clean-
up and economic development.
    Our focus is the Ravenswood Industrial Area and the adjacent Four 
Corners redevelopment area. The Ravenswood Industrial Area, a large, 
contiguous region of approximately 130 developable acres in a 
historically mixed agricultural, commercial and industrial area, was 
designated as a U.S. EPA Brownfields Assessment Pilot in 1996. The 
property is affected by a multitude of toxic substances, including 
arsenic, chromium and other heavy metals, pesticides and herbicides, 
chlorinated solvents and petroleum contamination. The City partnered 
with U.S. EPA Region 9 and the San Francisco Bay Regional Water Quality 
Control Board to assess the site. The value of these brownfields 
assessment resources is demonstrated by East Palo Alto's experience. 
For many years the private sector avoided the Ravenswood Industrial 
Area because its past history led many to believe that clean-up costs 
could top $30 million. With the help of environmental assessment 
resources, we now know that remediation costs are likely to be $2 to $5 
million, a much lesser amount that could be incorporated into 
redevelopment costs.
    The City has developed a strategic plan and design to redevelop 
this area into a mixed-use development and employment center, with up 
to 2 million square feet of commercial and high-technology offices and 
light manufacturing. New, medium-density housing is also planned 
nearby. The City will seek to promote the location of environmentally-
sensitive businesses, the use of green building practices, and 
development that enhances and protects the beauty of adjacent resources 
such as San Francisco Bay, wetlands, and open space areas. The Four 
Corners portion is slated for the establishment of a new town center 
including government buildings, civic space and commercial 
establishments. The overall design will enhance the community and its 
livability. The City expects that redevelopment of the entire 
Ravenswood Industrial Area will create 4,000 new jobs and generate more 
than $1 million per year in new tax revenues.
    The redevelopment of Ravenswood will also benefit the broader 
region. Silicon Valley is rapidly running out of office space and 
developable land. This leaves the Ravenswood Industrial Area poised to 
take advantage of a tight real estate market and finally enjoy the 
prosperity of the booming regional economy. Moreover, there is a 
housing crisis in Silicon Valley that East Palo Alto can help alleviate 
with the development of new housing in the Ravenswood area.
    However, revitalizing this area will not be easy. Our challenge 
will be to obtain the $2 to $5 million required to clean up the site. 
Currently, there are few available sources at any level of government 
to fill this gap. Moreover, the uncertain liability scheme that hovers 
over brownfields under the current State of the law discourages the 
private sector from taking on these expensive clean-up challenges. 
Consequently, East Palo Alto's last remaining developable area remains 
underutilized.
    In addition, we will need to secure funds to upgrade the 
infrastructure in the area, including expanding and improving the major 
entrance road to Ravenswood, enhancing flood control and prevention 
along the San Francisco Bay, and upgrading our utilities. East Palo 
Alto's challenges clearly demonstrate the need for innovative 
partnerships and increased Federal funding if California is to fully 
reap the many benefits from redeveloping brownfields like the 
Ravenswood area.
    The Federal Government, particularly the U.S. EPA, has played an 
important role in helping East Palo Alto develop and advance our 
brownfields redevelopment efforts. Specifically it has:
      provided critical funding and a staff person to enable us 
to institutionalize a local program and to help investigate and clean 
up specific sites. East Palo Alto stresses the importance of the EPA 
staffperson working in our City under the Intergovernmental Personnel 
Act. The challenges in East Palo Alto cannot be solved simply by 
providing Federal money. Success requires the expertise, transfer of 
success stories from other communities, and the local/Federal 
partnership that a Federal on-site manager can provide;
      provided technical assistance and other resources through 
the Brownfields Showcase Community initiative that have helped us learn 
from other communities and take on the many challenging obstacles to 
brownfields revitalization;
      connected us with other Federal agencies that have 
resources and technical expertise;
      helped East Palo Alto create the first brownfields job 
training program in America, which has now been established as a full 
pre-apprenticeship and environmental jobs program to train workers in 
the scientific, technical and clean-up skills needed in our 
brownfields; and
      most importantly, EPA provided the critical leadership 
needed to educate the many stakeholders and the general public that 
redeveloping brownfields can be done and that it can provide 
significant economic and environmental benefits for communities across 
the nation.
    Other Federal agencies are also playing a critical role in 
revitalizing local brownfields in communities like East Palo Alto. The 
brownfields challenge cannot be viewed in isolation as merely an 
environmental clean-up problem. Brownfields revitalization must bring 
together environmental clean-up with economic and infrastructure 
development, transportation planning, housing, education and public 
health, and many other community development components. Brownfields is 
not an ``EPA-only'' issue, but must be a partnership among local and 
State government, the private sector, and an array of Federal agencies 
like the 20-plus agencies leading the Brownfields Showcase Community 
Initiative. For example, East Palo Alto's revitalization of the 
Ravenswood brownfield area will not be successful without the help of 
the Army Corps of Engineers to address flooding and ecosystem issues, 
without the support of the Department of Transportation to develop 
workable transportation options, without the resources of the 
Department of Commerce's Economic Development Administration, without 
the help of HUD for affordable housing and economic development, and 
without the help of other Federal and State agencies.

 THE PROPOSED LEGISLATION WILL MEET LOCAL GOVERNMENT NEEDS FOR FEDERAL 
                         BROWNFIELDS INCENTIVES

    Local governments across America need Federal incentives and 
assistance for brownfields revitalization. Localities are a key player 
in brownfields revitalization: as owners of contaminated municipal 
properties, localities need resources and regulatory incentives for 
revitalization; as the lead for local economic development and 
environmental programs, localities view brownfield redevelopment as a 
top priority; and as a catalyst for efforts by the private sector to 
turn brownfields into productive places, localities support liability 
clarification incentives. As explained below, priority brownfields 
needs for localities include funding for assessment and clean-up, 
liability clarification for parties who can foster the clean-up of 
brownfields, clear authority for State-led brownfields clean-ups, and 
the partnership of other Federal agencies to put brownfields on a 
revitalization track.

I. Ensuring Adequate Resources for Brownfields Revitalization
    As East Palo Alto's efforts to revitalize the Ravenswood Industrial 
Area clearly demonstrate, local governments need additional Federal 
funding for site assessment, remediation and economic redevelopment to 
ensure long-term success in revitalizing our brownfields. The costs of 
site assessment and remediation can create a significant barrier to the 
redevelopment of brownfields sites. In particular, the uncertainty 
associated with brownfields sites pose an initial obstacle that drives 
development away from brownfields sites. With this initial obstacle 
removed, localities eliminate uncertainty, save time, and are much 
better able to put sites on a redevelopment track. In addition, the 
allocation of public resources for site assessment can provide a signal 
to the private sector that the government is serious about resolving 
liability issues at a site and putting it back into productive reuse. 
In fact, the resources provided to East Palo Alto through the EPA 
brownfield assessment pilot program enabled the City to get serious 
about the redevelopment of our priority brownfield sites. Without this 
EPA help, many brownfields will continue to blight communities across 
America and encourage sprawling patterns of development.
    Likewise, resources for clean-up are the missing link for many 
brownfield sites--a link that keeps brownfields from being redeveloped 
into productive areas in many communities like East Palo Alto. Although 
the private sector has a key role to play in brownfields clean-up, the 
catalyst of Federal clean-up dollars is needed at many sites to 
leverage private clean-up funds and to help level the development 
playing field between brownfields and our precious open spaces. The use 
of public funds for the assessment and clean-up of brownfields sites is 
a smart investment. Public funding can be leveraged into substantial 
private sector resources. Investments in brownfields yield the economic 
fruit of increased jobs, expanded tax bases for cities, and urban 
revitalization.
    The $150 million in annual Federal funding for brownfields 
revitalization provided in S. 350 would go a long way toward helping 
communities make progress on this daunting brownfields problem. 
Furthermore, S. 350 properly recognizes a wide variety of local 
entities as eligible entities for Federal brownfields funding, 
including not only local governments, States and tribes, but also local 
development agencies, regional economic development districts, and 
other entities that play key roles in local brownfields revitalization. 
The following types of Federal funding will help local communities 
continue to make progress in revitalizing our brownfields sites:
      Grants for Site Assessments and Investigation: EPA's 
Brownfields Assessment Pilot grants have been extremely effective in 
helping localities to establish local brownfields programs, inventory 
sites in their communities, investigate the potential contamination at 
specific sites, and educate key stakeholders and the general public 
about overcoming the obstacles to brownfields redevelopment. Additional 
funding for site assessments and investigation is needed to help more 
communities establish local brownfields programs and begin the process 
of revitalizing these sites in their communities. S. 350 recognizes the 
value of Federal funding for brownfields assessments, and appropriately 
provides money for the development of local assessment programs, as 
well as for targeted brownfields assessment activities.
      Grants for Clean-up of Brownfields Sites: There is a 
strong need for Federal grants to support the clean-up of brownfields 
sites across the country. The U.S. Conference of Mayors' recent report 
on the status of brownfields sites in 223 cities nationwide indicates 
that the lack of clean-up funds is the major obstacle to reusing these 
properties. For many brownfields sites, a modest grant targeted for 
clean-up can make the critical difference in determining whether a site 
is redeveloped--creating new jobs, tax revenues and return on 
investment--or whether the site remains polluted, dangerous and 
abandoned. The approach in S. 350 recognizes this critical funding 
need, and appropriately provides direct grants for clean-up, based on 
considerations including the protection of green space and parks, and 
the re-use of existing infrastructure.
      Grants to Capitalize Brownfields Cleanup Revolving Loan 
Funds: In addition to grants, Federal funding to help localities and 
States to establish revolving loan funds (RLFs) for brownfields clean-
up is another effective mechanism to leverage public and private 
resources for redevelopment. EPA deserves credit for championing 
brownfields RLFs as a mechanism for helping communities fill a critical 
gap in clean-up funding. However, under current law the Brownfields 
Cleanup RLF program is needlessly burdened by bureaucratic requirements 
of the Superfund law. These burdens include conformance with the 
Superfund National Contingency Plan and unworkable requirements for the 
dedication of personnel to run local RLF programs. East Palo Alto has 
been stymied by these obstacles, and communities across the nation have 
been unable to move RLF resources into brownfields projects because of 
these concerns. NALGEP therefore commends S. 350 for providing needed 
improvements to the RLF program by enabling EPA to separate clean-up 
grants for loan funds from the burdensome and unnecessary requirements 
of the Superfund National Contingency Plan that have hindered the 
effective use of RLF funds.
    NALGEP also emphasizes the important recognition in S. 350 between 
brownfields revitalization and smart growth. The investment of public 
resources in brownfields areas will help revitalize established 
communities with existing infrastructure, and avoid sprawling growth on 
the fringe of metropolitan areas. Such a smart growth approach can help 
defer the environmental and economic costs that can result from unwise, 
sprawling development outside of our urban centers. In NALGEP's report 
Profiles of Business Leadership in Smart Growth, we highlighted the 
efforts of businesses who seek to reduce business costs, retain 
qualified workers, and maintain quality of life by redeveloping 
brownfields and avoiding sprawl. Likewise, NALGEP's recent report 
Profiles of Local Clean Air Innovation recognizes the air quality 
benefits that can come from brownfields redevelopment and smart growth. 
Now, NALGEP is working with a coalition of partners on a Smart Growth 
for Clean Water project that will demonstrate how smart growth tools 
like land conservation and brownfields redevelopment can help protect 
and improve the nation's surface, ground and drinking water.

II. Liability Clarification at Brownfields Sites
    On the issue of Federal Superfund liability associated with 
brownfields sites, NALGEP has found that the Environmental Protection 
Agency's overall leadership and its package of liability clarification 
policies have helped establish a climate conducive to brownfields 
renewal, and have contributed to the clean-up of specific sites 
throughout the nation. Congress can enhance these liability reforms by 
further clarifying in legislation that Superfund liability does not 
apply to certain ``non-responsible'' parties such as innocent 
landowners, prospective purchasers and contiguous property owners. S. 
350 would clearly address these issues, and overcomes a hurdle that has 
kept innocent parties from voluntarily cleaning brownfields sites.

III. Enhancing the Role of the States in Brownfields Clean-up, 
        Improving State Programs, and Keeping the Safety Net of EPA 
        Protection
    Addressing the American brownfields problem will require Federal 
law that provides effective State brownfields clean-up programs with 
the authority to foster clean-ups and clarify liability at these sites. 
Moreover, resources and support are needed to improve the effectiveness 
of many State brownfields clean-up programs. At the same time, the law 
must preserve the ability of U.S. EPA to protect citizens and local 
governments from the extraordinary situation of bad clean-ups and 
ineffective State programs. The approach proposed by S. 350 would put 
forth a well-crafted, workable approach that can help foster increased 
brownfields revitalization.
    It is clear that effective brownfields revitalization is most 
likely to take place in States with effective voluntary clean-up 
programs. NALGEP has also found that States are playing a critical lead 
role in promoting the revitalization of brownfields. More than 40 
States have established voluntary or independent clean-up programs that 
have been a primary factor in successful brownfields clean-up, 
including my home State of California. The effectiveness of State 
leadership in brownfields is demonstrated by those 15 States that have 
taken primary responsibility for brownfields liability clarification 
pursuant to Superfund ``Memoranda of Agreement'' (``MOAs'') with U.S. 
EPA. These MOAs defer liability clarification authority to those 
States, and have resulted in increased brownfields activities in local 
communities that can make use of these State-EPA agreements.
    The Federal Government should further encourage States to take the 
lead at brownfields sites. States are more familiar with the 
circumstances and needs at individual sites. A State lead will increase 
local flexibility and provide confidence to developers, lenders, 
prospective purchasers and other parties that brownfields sites can be 
revitalized without the specter of Superfund liability or the 
involvement of Federal enforcement personnel. Parties developing 
brownfields want to know that the State can provide the last word on 
liability, and that there will be only one ``policeman,'' barring 
exceptional circumstances. Moreover, it is clear that U.S. EPA lacks 
the resources or ability to provide the assistance necessary to 
remediate and redevelop the hundreds of thousands of brownfields sites 
in our communities.
    S. 350 provides that EPA will not take Superfund enforcement or 
cost recovery action against a person who is conducting or has 
completed a response action, with regard to a specific release that is 
addressed by the response action that is in compliance with a State 
program. This liability protection applies under any State program 
which governs response actions for the protection of public health and 
the environment. The approach taken by S. 350 would help effective 
State brownfields programs to take a lead in brownfields clean-up, and 
give confidence to brownfields developers that they can get the job 
done. NALGEP commends the bill's sponsors for an approach that can work 
well and overcome the long-time stalemate on the issue of ``finality.''
    At the same time, local officials are also concerned that citizens 
need to be protected from inadequate brownfields clean-ups, in which a 
State program does not effectively protect public health or in other 
exceptional circumstances. States vary in the technical expertise, 
resources, staffing, and commitment necessary to ensure that 
brownfields clean-ups are adequately protective of public health and 
the environment. If brownfields sites are improperly assessed, 
remediated or put into reuse, it is most likely that the local 
government will bear the largest impact from any public health 
emergency or contamination of the environment. Moreover, NALGEP 
believes that EPA's supportive approach to brownfields over the last 6 
years demonstrates that, under S. 350, the Agency can play an 
appropriate deferential role for local governments and the private 
sector. Thus, it is important to keep the safety net of U.S. EPA 
Superfund authority intact for those exceptional circumstances in which 
a State needs help at a particular brownfields clean-up, the site 
presents an imminent and substantial threat to health or the 
environment, or in other limited situations. The approach in S. 350 
keeps this important safety net for our citizens and the environment in 
place, and provides a balanced and workable State-Federal approach.
    The approach provided in S. 350 goes even further, by providing 
resources and assistance to enable States to develop and improve their 
brownfields clean-up programs, so that brownfield clean-ups are 
effective and circumstances of public health threat remain truly 
exceptional. By providing $50 million in annual grants to States for 
the enhancement of clean-up programs, and encouraging States to 
establish adequate provisions for meaningful public participation, 
enforcement, and mechanisms for the approval of clean-ups, S. 350 would 
help promote State leadership on brownfields clean-up.

IV. Addressing the Local Need to Clean Up Brownfields with Lead, 
        Asbestos, and Petroleum Contamination
    NALGEP suggests one major improvement for S. 350 which is needed to 
address a priority local problem--the clean-up of brownfields impacted 
by petroleum, or by lead and asbestos in the structures of buildings.
    Under current law and agency programs, these pollutants are 
excluded from Federal brownfields assistance. These environmental 
contaminants are some of the most difficult problems facing local 
communities. Abandoned gas stations, housing with severe lead paint 
hazards, and buildings contaminated with asbestos blight communities 
across America, and represent a top local priority for clean-up. In 
fact, EPA reports that there are nearly 200,000 abandoned gas stations 
in the United States.
    One example of the problem associated with the petroleum, lead and 
asbestos exclusion from CERCLA can be seen in Kansas City, Missouri. A 
former YMCA building, a historic site where the Negro Baseball League 
was founded, is the target of a community and City effort to create the 
Negro Baseball League Archives. The City has sought to obtain funding 
to deal with suspected contamination from asbestos, lead-based paint, 
and petroleum leaks from a heating oil tank, but has been barred from 
using EPA Assessment Pilot funds because of the CERCLA prohibition.
    Brownfield sites with these pollutants should be eligible for 
funding. Local governments should be granted the flexibility to direct 
their brownfields resources, including Federal funds provided by S. 
350, to their priority brownfields projects, including those that are 
blighted by petroleum, lead or asbestos. NALGEP urges the Congress to 
empower localities to make the choice to focus brownfields resources on 
contaminated properties where they are most needed.
    Further, NALGEP urges the Congress to support the clean-up of 
abandoned gas stations in ways that go beyond the incentives of S. 350. 
EPA's Office of Underground Storage Tanks (``UST'') has launched a 
pilot program to clean up and revitalize abandoned gas stations across 
America. This ``USTFields Redevelopment Initiative'' has already picked 
ten pilot localities, and seeks to choose 40 more partnerships with 
local governments to clean up and revitalize properties marred by 
leaking underground storage tanks. Congress should support and fund 
this initiative to address a top environmental priority for nearly 
every local community. V. Facilitating the Partnership of Other Federal 
Agencies in Brownfields Revitalization
    The clean-up and redevelopment of a brownfields site is often a 
challenging task that requires coordinated efforts among different 
government agencies at the local, State and national levels, public-
private partnerships, the leveraging of financial resources from 
diverse sources, and the participation of many different stakeholders. 
Many different Federal agencies can play a valuable role in providing 
funding, technical expertise, regulatory flexibility, and incentives to 
facilitate brownfields revitalization. For example, HUD, the Economic 
Development Administration, the Department of Transportation, and the 
Army Corps of Engineers have all contributed important resources to 
expedite local brownfields projects. The U.S. EPA has provided strong 
leadership through the Brownfields Showcase Community Initiative that 
is demonstrating how the Federal Government can coordinate and leverage 
resources from many different Federal agencies to help localities solve 
their brownfields problems.
    Congress can help strengthen the national brownfields partnership 
by further clarifying that the various Federal partners play a critical 
role in redeveloping brownfields, increasing funding for agency 
brownfields programs, and by encouraging the agencies to meet local 
needs and to create innovative new approaches. For example, Congress 
should be commended for legislation passed in 1998 to clarify that HUD 
Community Development Block Grant funds can be used for all aspects of 
brownfields projects including site assessments, clean-up and 
redevelopment. This simple step has cleared the way for communities 
across the country to use these funds in a flexible fashion to meet 
their specific local needs. In addition, Congress has provided $25 
million in each of the past 2 years for HUD's Brownfields Economic 
Development Initiative. NALGEP understands that HUD Secretary Mel 
Martinez has indicated his intention to promote brownfields 
revitalization and smart growth policies through that Department. These 
HUD brownfields initiatives should be supported and expanded.
    Similarly, Congress should clarify that it is appropriate and 
desirable for the Army Corps of Engineers to use its resources and 
substantial technical expertise for local brownfields projects. In East 
Palo Alto, for instance, we need the Corps of Engineers' help to 
succeed in our revitalization of the Ravenswood Industrial Area, and 
are working with the Corps toward this goal. East Palo Alto is severely 
impacted by flooding, environmental contamination, and the need for 
restoration of the local aquatic ecosystem. Without the assistance of 
the Corps of Engineers, we simply do not have the capacity or resources 
to overcome these challenges. NALGEP is also aware of Corps of 
Engineers involvement in more than 50 local projects across the nation 
that involve the challenges of brownfields. In these projects, Corps 
expertise and resources conducted under continuing authorities or 
congressional directive are making a critical difference.
    However, the role of the Corps of Engineers in brownfields projects 
that are connected to the nation's waterways should be clarified and 
enhanced by the Congress. For instance, last year Senator Chafee 
introduced legislation which would provide the Corps with clear 
authority and additional resources to conduct brownfields activities 
along America's waterways. NALGEP believes that these approaches could 
make a big difference for East Palo Alto and many other communities, 
and we urge this committee to support these proposals.
    Congress also should work with EPA and the Administration to 
determine how other agencies can help facilitate more brownfields 
revitalization. For example, the Department of Transportation, headed 
by a Secretary who hails from my hometown area in California, Secretary 
Norman Mineta, should be playing a key role in directing transit and 
transportation infrastructure into the nation's established communities 
impacted by brownfields. As this committee begins to think about the 
reauthorization of TEA-21, NALGEP urges you to keep the challenge of 
transportation and brownfields in mind. By taking these steps, Congress 
can give communities additional tools, resources, and flexibility to 
overcome the many obstacles to brownfields redevelopment.
    NALGEP also emphasizes the importance of the Federal Government 
staying involved in the brownfields challenge for the long haul. You 
can not turn around a brownfield--or a local community--in one 
quarterly reporting period. Success requires local, Federal, State and 
private partners to work together to achieve a long-term community 
vision. S. 350 is so important because it provides a long-term 
commitment to community brownfields revitalization.

                               CONCLUSION

    Senator Robert Kennedy once declared ``give me a place on which to 
stand, and I shall move the earth.'' The people of America, the people 
of our local communities, and people in this Congress are standing up 
on our brownfields and in our streets and in our neighborhoods and we 
are saying, let's move the earth! Let us take these places that have 
been abandoned, and let us turn them back to jobs and business and 
parks and homes. Let us show that we can bring business people and 
environmental groups and City Hall and the Federal agencies together 
toward a common, exciting goal. Let us take this notion that jobs and 
the environment are a tradeoff, and recycle it into a new notion of 
better communities where these goals are linked and supportive of each 
other. And let's do it now.
    In conclusion, local governments are excited to work with the 
Federal Government to promote the revitalization of brownfields, 
through a combination of increased Federal investment in community 
revitalization, further liability clarification, and other mechanisms 
to strengthen the Federal/local partnership to clean up and redevelop 
our communities. On behalf of NALGEP, I thank the Subcommittee for this 
opportunity to testify, and welcome your requests to provide further 
input as the process moves forward.
                               __________

  STATEMENT OF PHILIP J. O'BRIEN, PH.D., DIRECTOR, DIVISION OF WASTE 
     MANAGEMENT, NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES

    Good morning Mr. Chairman, members of the committee, I am Philip J. 
O'Brien, Director of the Division of Waste Management of the Department 
of Environmental Services, State of New Hampshire. I am here today to 
represent the State of New Hampshire's views on S. 350, the Brownfields 
Revitalization and Environmental Restoration Act of 2001. Thank you for 
this opportunity.

                         BACKGROUND AND CONTEXT

    When the topic is brownfields clean-up and redevelopment, New 
Hampshire may not be a State that readily comes to mind. Most people 
think of New Hampshire as a rural State? not a place where contaminated 
industrial sites lead to urban sprawl and the economic decline of 
communities. And while New Hampshire enjoys a strong and growing 
economy, and an overall high quality of life, our towns and cities have 
not escaped the ill effects of brownfields.
    Our State was one of the first States in the nation to feel the 
effects of the dawning industrial age. During the 19th and early 20th 
centuries, its cities and small towns grew up around textile and other 
manufacturing mills, which drew their power from New Hampshire's many 
rivers. For a time, the old mills were adapted to accommodate a 
changing industrial base. However, over the last few decades, as New 
Hampshire's economy evolved to rely more heavily on high-tech 
manufacturing, the mills were largely abandoned in favor of newly 
constructed facilities located outside of our town centers. Despite 
their prime downtown locations, redevelopment and reuse of these 
facilities has been hindered by concerns about the liability and costs 
associated with environmental contamination. As they fall into 
disrepair, many have become fire hazards and dangerous attractions. On 
an economic scale, they exact a heavy toll on our communities. Local 
jobs are lost; property taxes often go unpaid; and the mere presence of 
dilapidated, abandoned buildings depresses neighboring property values, 
and generally gives the appearance of a community in economic decline. 
In our larger cities, this can be a serious, and difficult problem to 
solve. In our smaller towns, it can mean local economic disaster. 
Nearly two-thirds of our brownfields sites are located in or near the 
centers of these small towns.

                  NEW HAMPSHIRE'S BROWNFIELDS PROGRAM

    In order to meet the formidable challenge posed by our State's 
brownfields sites, New Hampshire has built an active, flourishing 
brownfields program. The program began in 1996 with the passage of 
State brownfields legislation. The legislation established the NH 
Brownfields Covenant Program, which provides incentives for brownfields 
clean-up and redevelopment in the form of liability protection. New 
Hampshire's brownfields initiatives include the covenant program and 
other State incentives, as well as initiatives funded at the Federal 
level under CERCLA. Taken together, these programs form an integrated 
approach to brownfields redevelopment, which is to utilize resources 
available through local, State, and Federal sources, as a means to 
leverage private investment in brownfields revitalization. This 
approach is implemented against a backdrop of sound brownfields clean-
up policy and the need to make judicious use of public funds.
    New Hampshire has received four EPA Brownfields Assessment 
Demonstration Pilot Grants over the last 4 years to perform site 
investigation, remedial action planning, and to generally promote 
brownfields redevelopment in the State. New Hampshire grant recipients 
include the Department of Environmental Services (DES), the Office of 
State Planning Coastal Program, the City of Concord, and the City of 
Nashua. In addition, nine municipalities have received EPA Targeted 
Brownfields Assessment Grants for site investigations at individual 
sites, four of which were administered by DES using State contractors. 
DES is currently working to establish a Brownfields Cleanup Revolving 
Loan Fund (BCRLF), under a $1.45 million EPA grant awarded to a 
coalition of five New Hampshire grant recipients. The recipients 
include DES (the lead agency), the Office of State Planning, the City 
of Concord and the towns of Durham and Londonderry.
    Under these federally funded initiatives, more than 100 sites have 
had baseline environmental assessments performed. Seventeen sites have 
had full site investigations and associated clean-up planning 
performed. DES expects that an additional eight to ten site 
investigations will be performed during 2001. Of this universe of 
sites, approximately ten (10) sites have begun or completed clean-up 
and redevelopment.
    The NH Brownfields Covenant Program mentioned above is an integral 
component of our brownfields redevelopment initiatives. It is designed 
to provide incentives for both environmental clean-up and redevelopment 
of brownfields sites by persons who did not cause the contamination. 
The program provides a process by which eligible persons can undertake 
site investigation and clean-up in accordance with DES requirements, 
and in return receive liability protections in the form of a ``Covenant 
Not to Sue'' from the N.H. Department of Justice. To date, 20 (20) 
sites have participated in our covenant program. Eleven (11) sites have 
achieved eligibility for a covenant, and the remaining sites are making 
progress toward that goal.
    Taken together, sites that have received assistance under New 
Hampshire's brownfields initiatives have benefited from approximately 
$30,000,000 worth of redevelopment investments. In the most notable 
case, a 19-acre site located near downtown Concord, our capital city, 
has been cleaned up and redeveloped. This site was abandoned and vacant 
for over 10 years due to concerns about environmental contamination. A 
local non-profit redevelopment corporation investigated and cleaned up 
the site under the NH Brownfields Covenant Program. The site now hosts 
a hotel/conference center, and two office buildings. When completely 
built out, redevelopment investments in the site will exceed $20 
million. This project would not have gone forward without the liability 
protections afforded by the covenant program.
    I should also note that New Hampshire law contains specific 
provisions addressing liability protections for lenders, municipalities 
taking properties by tax deed, contiguous property owners, and innocent 
landowners. While the adoption of these provisions preceded our formal 
brownfields legislation, they play a key role in our work to revitalize 
brownfields sites.

                  SUPPORT OF KEY PROVISIONS OF S. 350

Title I--Brownfields Revitalization Funding
    S. 350 provides significant resources to States, municipalities, 
and other eligible entities that may be used to provide direct grants 
for site clean-up. This represents a significant improvement over the 
existing brownfields grant programs, which provide money only for 
assessment and remedial planning. New Hampshire believes that these 
resources would facilitate revitalization of brownfields sites in our 
State that have languished under the existing framework. In addition, 
these funds will serve to augment the existing brownfields initiatives 
in place in New Hampshire and across the country.
    Our brownfields revitalization efforts have benefited tremendously 
from the Federal assistance that New Hampshire has received, for which 
we are very grateful. However, to date, resources for actual clean-up 
of brownfields sites have been limited to the BCRLF programs, which 
initially provided money to be used only for making loans. For many 
brownfields sites, the clean-up costs are of such magnitude that 
redevelopment of the site solely by the private sector is not 
financially feasible, regardless of whether the clean-up is financed 
using a low interest BCRLF loan or a conventional commercial loan. 
Accordingly, assistance beyond the traditional brownfields assessment 
and BCRLF funding is needed in order to leverage private redevelopment 
investment at many sites.
    New Hampshire is particularly pleased with the provisions of Title 
I that place a priority on making grants for sites that will be 
developed as parks, greenways, or used for other nonprofit purposes. We 
have at least six sites participating in our brownfields program where 
the communities envision creation of public parks and greenspaces, and 
many others where nonprofit uses are being contemplated. One site in 
particular, in the small town of Bradford, is an 18-acre parcel that is 
located virtually in the center of town, near the main street. In their 
master planning process, the citizens of Bradford have identified 
redevelopment of the site as a park, which the town currently lacks, as 
the No. 1 priority. The Town took the bold step of acquiring the 
property, which has a long history of environmental abuse by the 
previous owner. However, given the formidable environmental problems 
posed by the site and modest resources of the town, financing the 
remediation will be a very difficult task. Greenspace development 
typically provides no future income with which to service debt. 
Accordingly, the use of loans to finance the remediation becomes 
impractical. The ability to provide direct grants to facilitate 
projects like this will provide New Hampshire with a powerful and 
effective tool for preserving and enhancing the quality of life in our 
State.

The Success of Current Federal Assistance for Clean-up
    I would like to take this opportunity to comment on the great 
success that New Hampshire has had in integrating its brownfields 
initiatives with the efforts of the EPA Emergency Removals Program to 
address some of our worst sites. Currently, the Removals Program 
represents the only available direct EPA grant assistance for clean-up 
of non-NPL sites. The resources and expertise of this important CERCLA 
program are sometimes needed, in combination with traditional 
brownfields assistance, to protect the public and revitalize 
brownfields sites. In our experience, the Removals Program, when 
properly utilized, is the most effective and efficient tool available 
under CERCLA for achieving timely and protective site clean-up. While 
it may be beyond the direct scope of this legislation, I would offer 
that additional funding support, and expansion of the Removals 
Program's mission would be an efficient and cost effective way to 
substantially improve the performance and success of the Superfund 
program.
    For some of our brownfields projects, use of the Removals Program 
has been the indispensable first step toward successful clean-up and 
redevelopment. In some cases, sites have significant environmental 
problems that pose imminent threats to human health and the 
environment. Immediate action must be taken to abate those threats. In 
many instances, we have called upon the expert assistance of the 
Removals Program to address such hazards. Subsequent to an appropriate 
removal action, significant environmental problems may still remain, 
leaving a traditional brownfields site. New Hampshire then uses its 
brownfields program, including Federal brownfields assessment monies 
and our State Brownfields Covenant program to work with municipalities 
and private developers to successfully clean-up and redevelop these 
sites.
    Two examples of sites where the Removals Program was needed are 
described below. They illustrate how direct assistance with clean-up 
can leverage redevelopment of sites with very significant environmental 
problems.

Lamont Laboratories Site, Londonderry, New Hampshire
    This 5-acre site is located in the Manchester/Grenier Industrial 
Air Park and was most recently used by a chemical distributor for 
blending, packaging and storage of finished chemical products. In 1992, 
the business ceased operations and later filed for bankruptcy. Left 
behind was a plethora of environmental problems, including numerous 
containers of hazardous materials that posed an imminent threat to 
public health and the environment. In 1994, at the request of the Town 
and DES, the U.S. EPA Region 1 conducted an Emergency Removal Action to 
remove and properly dispose of abandoned chemicals from the facility, 
expending nearly $700,000. That same year, the Town of Londonderry 
acquired the property by tax foreclosure.
    With soil and groundwater problems remaining, DES and EPA teamed up 
to perform site investigation and remedial action planning using the 
Targeted Brownfields Assessment program and DES's Brownfields 
Assessment Pilot Grant. Armed with this information, the Town of 
Londonderry paid for and performed the soil and groundwater clean-up 
and sold the property to the Londonderry Housing and Redevelopment 
Authority (LHRA). LHRA has invested more than $1 million to construct a 
facility for a long-term lessee (a nationwide car rental company). This 
tenant will provide local jobs and significant revenues to the Town for 
car registration fees for its fleet. This success would not have been 
possible without the assistance of the New Hampshire and EPA 
brownfields programs, and the significant financial assistance for 
actual clean-up provided by the EPA Removals Program.
Surrette America Battery Site, Northfield, New Hampshire
    This 7-acre parcel is the site of a 19th century textile mill that 
was more recently used to manufacture lead-acid batteries. The site 
abuts the Winnipesaukee River and local residences. It is located in 
close proximity to an elementary school, a private secondary school, 
and downtown Tilton, New Hampshire. The activities of the battery 
company, which ceased operations at the site in 1994, resulted in 
extensive contamination of the building, manufacturing equipment, and 
soil on the site with lead oxide. In 1994, after the closure and 
virtual abandonment of the facility by its owners, DES and EPA began 
working to clean up the site and abate the threats posed by the 
contamination.
    EPA performed an Emergency Removal Action at the facility in 1995, 
to address abandoned chemicals and lead-contaminated soil at the 
facility. Following a catastrophic fire in 1998, EPA performed a second 
Emergency Removal Action to address heavily contaminated fire debris 
and additional lead-contaminated soils. Total EPA contractor clean-up 
costs were approximately $2.6 million. Upon completion of the removal 
action last fall, DES began site investigation activities under its 
Brownfields Assessment Pilot Grant to evaluate groundwater quality at 
the site, and prepare a comprehensive remedial action plan, pursuant to 
New Hampshire's site remediation program requirements.
    The Town of Northfield has acquired the property by tax deed, and 
is working to sell the property for redevelopment by private 
developers. The Town envisions the construction of privately owned and 
operated elderly housing/assisted living facility, and is currently 
performing a reuse study using a small HUD CDBG grant. Northfield is 
also participating in the Brownfields Covenant program, and when the 
final remedy is implemented, the purchaser will also enjoy the 
protections of the covenant.
    Given the significant environmental problems that existed at this 
property, the cost of clean-up far outweighed the property's value when 
clean. It is clear that site clean-up and redevelopment could not have 
been achieved without the direct assistance provided by the EPA 
Emergency Removal Program.
    The examples described above illustrate how effective direct 
assistance for clean-up costs can be in leveraging private investment 
in site clean-up and reuse. We extend our full support for the 
provisions of Title I, and encourage the committee to consider our 
recommendation to expand the role of the EPA Emergency Removals Program 
in facilitating brownfields redevelopment.

Title II--Brownfields Liability Clarifications
    New Hampshire strongly supports the liability clarifications 
provided in the bill. These reliefs in many ways mirror liability 
provisions that already exist in New Hampshire law. Accordingly, the 
clarifications will make it simpler and clearer for site owners and 
prospective purchasers to determine their liability exposure for a site 
under both State and Federal law. In our experience, Federal liability 
concerns are an important issue for prospective purchasers and 
developers of brownfields sites. Similarly, they are an important issue 
for owners and prospective purchasers of neighboring properties. We 
applaud these new provisions, and believe that they will help to remove 
a significant barrier to brownfields redevelopment in our State and 
across the nation.

Title III--State Response Programs
            Sec. 301. State Response Programs
    New Hampshire strongly supports the provisions of S. 350 that 
provide for assistance to States to establish or enhance their response 
programs. New Hampshire has a mature, risk-based site remediation 
program, which integrates the skills of qualified engineers, 
geologists, and health risk assessors to ensure that site remedies are 
effective, durable, and protective of human health and the environment. 
Further, our statutory framework, administrative rules, and legal 
support from the NH Department of Justice ensure that the provisions of 
our program are enforceable. Nonetheless, the very success of our 
brownfields initiatives can tax our ability to respond in a timely and 
effective fashion to the needs of our stakeholders. The ability to 
apply for additional funding to support our efforts will be extremely 
valuable.
    New Hampshire also supports the provisions that make additional 
uses of this money available, including capitalization of revolving 
loan funds, and development of alternative mechanisms to finance 
response actions. We have not yet investigated the use of a risk 
sharing pool, indemnity pool, or insurance mechanism to finance site 
clean-ups, but will evaluate these options to see if they would be 
effective in our State.
    New Hampshire believes that the elements of a State response 
program that are outlined in Sec. 301 are reasonable and do not pose an 
undue hardship on the States. We strongly support the provisions that 
would prevent a Federal enforcement action in cases where the State is 
appropriately exercising oversight authority. Federal liability 
concerns are an important issue for prospective purchasers and 
developers of brownfields sites. Concerns that site closure by the 
State alone is not enough, and that the site will be reopened by EPA, 
remain at the forefront of many developers' minds. While we have often 
been able to address such concerns using the CERCLA archive process, 
comfort letters, or prospective purchaser agreements, there have been 
many projects that have faltered due to residual uncertainty associated 
with liability under Superfund and the lack of finality. Replacement of 
these administrative approaches to the problem with definitive changes 
to the law should go a long way toward resolving these concerns.

            SEC. 302. ADDITIONS TO NATIONAL PRIORITIES LIST

    New Hampshire supports the provision for deferral of final listing 
on the National Priorities List for sites that States wish to address 
using their voluntary clean-up programs. We recently attempted to defer 
such a listing in our State when we were approached by a private 
developer interested in performing the clean-up. After several months 
of negotiations with both EPA and the developer, it became clear that 
the project would not work financially, and we requested that EPA 
proceed with listing. Nonetheless, the lack of a clear process for 
deferral made our discussions with EPA difficult and the path unclear. 
While EPA Region 1 worked diligently and cooperatively with DES to 
address the issue, the proposed legislation would have made clear New 
Hampshire's right to request the deferral, and the criteria that would 
need to be met to sustain a deferral. Accordingly, we fully support the 
provisions of Sec. 302.
    In closing, I would like to commend Sen. Smith and the committee 
members for crafting an excellent Brownfields bill. Thank you again for 
the opportunity to provide New Hampshire's perspective. We will follow 
the progress of this legislation with great interest and will be happy 
to respond to further questions or to provide clarification of the 
comments contained in this testimony. Testimony of Philip J. O'Brien, 
Ph.D. N.H. Department of Environmental Services Hearing on S. 350 
February 27, 2001 Page 8
                               __________

        STATEMENT OF MIKE FORD, NATIONAL ASSOCIATION OF REALTORS

    Thank you for the opportunity to present the views of the National 
Association of Realtors (NAR) on S. 350, the Brownfields Revitalization 
and Environmental Restoration Act. I wish to thank Chairman Chafee, 
Chairman Smith, and Senators Reid and Boxer for your leadership in 
building bi-partisan consensus on this very important issue.
    My name is Mike Ford. I own a full service residential and 
commercial real estate company in Clark, New Jersey, and I have been a 
real estate broker for 27 years. I am also the 2002 Regional Vice 
President for NAR Region 2.
    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 S. 350 because it will effectively promote the clean-
up 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.
    In my home State of New Jersey, for example, 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. Under the strong 
leadership of Governor Whitman, New Jersey has worked closely with the 
private sector and begun an ambitious program to assess and remediate 
our 8,000 contaminated sites. One private developer took advantage of a 
State program which reimburses up to 75 percent of remediation and 
clean-up costs to turn an abandoned factory site into a mixed-use 
project which includes commercial, retail and 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. However, significant hurdles remain. A shortage of clean-up 
funds and liability concerns continue to impede brownfields 
redevelopment.
    S. 350 effectively addresses these issues. First of all, it 
provides needed funding to Federal and State brownfields programs.
    Secondly, the bill clarifies the Superfund liability protection for 
innocent landowners 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 clean-up rather than litigation. When it comes to Superfund 
clean-up, we must ensure that the real polluters pay so that 
contaminated sites are returned to productive use as quickly as 
possible.
    Finally, S. 350 recognizes successful clean-ups undertaken under 
State brownfields programs. Through their programs, most of these 
States provide real estate developers with incentives to make 
brownfields redevelopment more attractive.
    Typically, the State will provide some form of liability relief 
once it has approved a clean-up. In New Jersey, relief comes in the 
form of a ``No Further Action'' letter from the State DEP. 
Unfortunately, there is no guarantee that the Federal EPA will not 
assert authority at a future date and require additional clean-up. 
Without some degree of certainty that they are protected from Federal 
as well as from State liability, developers are reluctant to undertake 
development of contaminated sites. This bill provides the certainty 
they need to go forward.
    In New Jersey, I've seen what can be accomplished when local, State 
and Federal Government work together with private business interests to 
make something out of nothing. In my hometown of Clark, General Motors 
cleaned up a contaminated property and funded construction of a golf 
course. The local government runs the course and makes a healthy 
profit.
     S. 350 presents a ``win-win'' opportunity for everyone by cleaning 
up hazardous waste sites, putting them to new and productive uses, and 
enhancing community growth. Now is the time for Congress to assert bi-
partisan leadership and reinforce our nationwide effort to turn 
``brownfields'' into ``greenfields.'' NAR looks forward to working with 
this committee and the entire Senate 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.
                                 ______
                                 
   Responses by Mike Ford to Additional Questions from Senator Chafee
    Question 1. Would enactment of S. 350 improve upon the current 
brownfields program?
    Response. Yes. By clarifying the liability protection for innocent 
owners and prospective purchasers, increasing funding assistance for 
brownfields assessment and clean-up, and limiting EPA's authority to 
``re-open'' clean-ups completed under State brownfields programs, S. 
350 significantly improves the current program.

    Question 2. In your opinion, will enactment of S. 350 provide 
business persons in the real estate community with the comfort 
necessary for them to redevelop brownfields sites?
    Response. Yes. The ``finality'' language in S. 350 improves upon 
the current situation. The provision's limitation on EPA's authority to 
``re-open'' sites will provide business persons with sufficient 
certainty that they are protected from Federal liability. As EPA 
Administrator, Governor Whitman will work closely with the States to 
ensure that their brownfields clean-ups are adequately protective of 
human health and the environment.
                                 ______
                                 
   Responses by Mike Ford to Additional Questions from Senator Inhofe
    Question 1. States like New Jersey have successfully developed 
brownfields programs that determine clean-up standards, assess 
attainment of standards, and offer comprehensive liability protections. 
Yet EPA has often questioned the adequacy of these programs and the 
technological expertise of the States to develop and enforce State 
clean-up standards. As EPA Administrator, what steps will you take (or 
recommend that Congress take) to ensure that States have the authority 
to establish and enforce clean-up standards and determine the final 
closure status of local brownfields sites?
    Response. As the former Governor of New Jersey, Governor Whitman is 
very familiar with the relationship between Federal and State 
government on the issue of brownfields clean-up.
    S. 350 provides funding to States to establish and enhance their 
clean-up programs. EPA has authority to undertake administrative 
initiatives, such as Memoranda of Agreement, to recognize strong State 
brownfields programs and limit Federal authority to require further 
remediation of sites cleaned up under such programs. We're confident 
that Governor Whitman will work closely with the States to ensure, to 
the maximum extent possible, that their brownfields clean-ups are 
adequately protective of human health and the environment and therefore 
``final.''

    Question 2. Do you support Federal brownfields legislation, 
including a standard Federal definition of what constitutes a 
brownfields site? Also, would you support including petroleum (and 
other common pollutants like asbestos, lead and PCBs) in the definition 
of brownfields? Would you offer Federal liability protections that 
mirror State liability protections? And, would you allow States to 
determine clean-up standards for brownfields sites?
    Response. The NATIONAL ASSOCIATION OF REALTORS supports Federal 
brownfields legislation which includes a standard brownfields 
definition, such as is provided by S. 350. We do not support the 
expansion of S. 350 to include petroleum and other common pollutants in 
the definition of brownfields. We feel that the Federal liability 
protections in S. 350 provide adequate assurance that the Federal 
Government will not step in at some future date and require additional 
remediation.

    Question 3. 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. Because 
S. 350 only provides a liability exemption for CERCLA contaminates and 
not petroleum, given EPA's own statistics that almost half of the sites 
contain petroleum, isn't it possible that half of the brownfields sites 
in this country may go undeveloped because of the lack of Federal 
liability protection for petroleum pollutants? How would you address 
petroleum contamination and leaking underground storage tanks?
    Response. As introduced, S. 350 is of great value to the real 
estate industry. By addressing funding and liability concerns, it will 
spur brownfields redevelopment throughout the country. It effectively 
balances economic, health and environmental issues to ensure that all 
considerations are addressed. It should not be expanded to include 
petroleum sites.

    Question 4. S. 350 allows EPA to reopen a site, even if that site 
has been approved or completed under a State program, if EPA 
``determines that information. . . not known by the State. . . has been 
discovered regarding the contamination or conditions at a facility.'' 
Isn't this standard overly broad? What exactly constitutes ``new 
information?''
    Response. We feel that the finality language of S. 350 provides 
business persons with sufficient certainty that they are protected from 
Federal liability. It provides greater certainty than under current 
law, and this will make developers feel more comfortable in moving 
forward with brownfields redevelopments. We're confident that, under 
Governor Whitman's leadership, EPA will work closely with the States 
and form a workable partnership to accelerate the pace of brownfields 
redevelopment. We expect that EPA will respect the successful clean-up 
efforts that are underway at the State level and only exercise its re-
opener authority when absolutely necessary to protect human health or 
the environment.

    Question 5. EPA has never filed on a State-approved brownfields 
clean-up under CERCLA or any other statute. Yet, it is the perceived 
threat that impedes brownfields redevelopment.
    Response. S. 350 only provides developers with a safety net for 
CERCLA. Experts, such as Robert Fox--a witness at the hearing--stated 
that if the power of EPA to force clean-ups under Superfund is taken 
away, then the Federal EPA could sidestep the Chafee bill by using 
other statutes (e.g., RCRA or TSCA) to force parties to clean up sites. 
Therefore, shouldn't Congress provide a similar safety net for other 
statutes, such as RCRA and TSCA?
    S. 350 is the product of a bi-partisan compromise among the 
leadership of the Senate Environment and Public Works Committee. It 
represents a significant step forward for the real estate industry, and 
the NATIONAL ASSOCIATION OF REALTORS strongly supports it. S. 350 
should not be expanded to address issues related to other statutes such 
as RCRA and TSCA.
                               __________

 STATEMENT OF ALAN FRONT, SENIOR VICE PRESIDENT, THE TRUST FOR PUBLIC 
                                  LAND

    Mr. Chairman, my name is Alan Front, and it is my pleasure to 
appear once again before the Subcommittee to share with you the 
unqualified support of The Trust for Public Land, and of a broad 
spectrum of conservation and environmental groups, for the vision and 
the specific provisions of S. 350, the Brownfields Revitalization and 
Environmental Restoration Act of 2001.
Brownfields--the Perils, and the Possibilities
    S. 350 is a carefully crafted, critically needed response to a 
pernicious problem that affects countless communities across America. 
Brownfields--those once-productive properties now left idle because of 
actual or perceived low-level hazardous material contamination--hang 
like albatrosses around the necks of thousands of urban and not-so-
urban neighborhoods. Irrespective of their true potential, these sites 
often remain unloved and unused due to the inconvenience, uncertainty, 
and liabilities that clean-up responsibility entails.
    Public and private land-use decision-makers often find it simplest 
to bypass brownfields, focusing their attention instead on virgin 
properties and other lands that do not pose the same challenges. As a 
consequence, even as intensifying development pressures migrate 
elsewhere, communities with these land-use white elephants miss out on 
economic opportunities; moreover, the very existence of derelict 
properties shrouded in possibly toxic mystery squelches land use and 
community spirit neighborhood-wide. And the ripple effect extends far 
beyond, since housing, commercial, or community facilities construction 
frequently shifts instead to ``path of development'' lands at the 
leading edge of urban sprawl.
    In our work with municipal governments, community groups, private 
landowners, and other local partners, the Trust for Public Land (TPL) 
has seen the withering effect that unremediated brownfields can have on 
community landscapes. Conversely, we have witnessed first-hand how 
reclamation of these challenged sites--as economic engines, or as 
parklands with incalculable quality-of-life rewards--can bring new life 
not only to old properties, but to local economies and esprit as well. 
In short, our on-the-ground work affirms the desperate need for 
precisely the helping-hand approach and practical land-reclamation 
tools that S. 350 provides.

TPL, Green Spaces, and Brownfields
    Since 1972, TPL has worked to protect land for people, helping 
government agencies, property owners, and local interests to establish 
and enhance public spaces for public use and enjoyment. By arranging 
conservation real estate transactions, TPL has facilitated the 
protection of well over a million acres of park, forest, agricultural, 
and other resource lands. Through these ``win-win'' partnerships, many 
communities have woven an appropriate open-space thread into their 
overall land-use fabric. In the process, they have recognized the 
interdependence of the built environment and the natural one, and have 
reaped the benefits of balanced growth.
    At the same time, land-use trends on a national scale are raising 
new concerns about whether this tenuous balance can be maintained. We 
have seen the rate of open space conversion more than double in the 
past decade; according to recent U.S. Department of Agriculture 
statistics, farmland and other open space is yielding to development at 
an average rate of nearly 400 acres every hour. And from the wilderness 
to the inner city, even as these open spaces are being lost, Americans 
are more and more urgently expressing their need for more parks, 
greenways, wildlife areas, community gardens, and scenic protection.
    From TPL's earliest days, it has been clear that brownfields--even 
before the word was coined--have been a necessary, integral component 
of any full-fledged strategy to meet the needs of both development and 
conservation. Left unremediated, these idled properties pose a serious, 
often-insurmountable threat to neighborhood stability, economic 
development, public health and safety, and quality of life. Conversely, 
brownfields reclamation--through new commercial or residential 
development, or through creation of new community parks or playgrounds, 
or through a combination of these land uses--can spark a true 
neighborhood renaissance.
    In some of TPL's first projects, in the inner cities of Oakland, CA 
and Newark, NJ, we watched just this sort of redemption as community 
groups turned trash-strewn, contaminated lots into gardens and pocket 
parks. Since then, we have participated in a wide range of brownfields-
to-parks conversions. In Atlanta, new visitor facilities at the Martin 
Luther King National Historic Site have replaced an old Scripto Pen 
factory. In Chicago, mothballed railroad property was transformed into 
playgrounds and ballfields at the city's Senka Park. And along the Los 
Angeles River--that desolate concrete channel best known as a film 
location for ``Terminator'' movies--new parks and recreation areas are 
rising up on previously contaminated factory sites.
    There is ample historical precedent for these powerful symbols of 
neighborhood renewal. In Kansas City, for example, abandoned industrial 
sites were the foundation for the city's entire park system. Chicago's 
long-admired lakefront park system sits on the site of the city's 
former tannery district; New York's Bryant Park and Boston's Charles 
River greenway have similarly challenged pedigrees. And in each case, 
the greening of abandoned lands brought new private investment, new 
economic opportunity, and new urban vitality.
    Moreover, just as newspaper recycling saves trees, brownfields 
recycling saves undeveloped landscapes. The simple fact is that there 
is not enough ``new'' land in our urban areas and rapidly growing 
suburbs to provide for the mix of open space and development upon which 
healthy communities depend. Each of the estimated 600,000 brownfields 
in America is a missed opportunity for a public recreation facility, a 
housing complex, or an office park that likely will be built elsewhere. 
Consequently, unrestored brownfields serve only to ramp up the 
competing land-use pressures on the ever-shrinking inventory of 
pristine lands.
    Plainly put, brownfields recovery can green neighborhoods, resolve 
development-versus-preservation conflicts, promote economic expansion, 
and inhibit sprawl. For all of these reasons, TPL encourages the 
Subcommittee to add some much-needed arrows to the brownfields-
conversion quiver by considering and reporting S. 350, a bill that 
brings the Federal Government, as an appropriate partner, into the mix. 
As you well know, we are far from alone in this request: this 
legislation enjoys an unprecedented spectrum of support that ranges 
from public officials to private industry to the public-interest 
community.
    S. 350's vitally important brownfields solutions attracted a broad 
bipartisan sponsorship--a total of 67 Senators--in the 106th Congress, 
and momentum is again building. With far-reaching support in Washington 
and across America, we believe this bill could be the first major 
environmental statute enacted by the 107th Congress, so long as it is 
not amended in any way that diminishes this unparalleled balance of 
enthusiastic public and private support. For this reason, and for the 
more specific community-empowering reasons spelled out below, we urge 
prompt approval of S. 350 as introduced.

S. 350--New Tools to Renew Lands
    The Trust for Public Land is particularly appreciative of the 
programs for community revitalization included in Title I of the 
Brownfields Revitalization and Environmental Restoration Act. These 
provisions will provide a much-needed new Federal commitment to 
brownfields reclamation and reuse, and will leverage considerable 
nonfederal partnership funding. As a direct result, S. 350 will 
exponentially increase the canon of restoration success stories and 
will vastly improve economic and environmental vitality nationwide.
    TPL is especially encouraged by the inclusion of the following 
specifics in S. 350:
      The criteria for entities eligible to receive grants and 
loans are appropriately inclusive, allowing a diversity of conservation 
and/or redevelopment partners--including Indian tribes and State-
created conservancies--to participate.
      The bill's Site Characterization and Assessment Grants 
are similar to the successful model of EPA's assessment demonstration 
pilot program, which already have been an important component in 
brownfields-to-parks conversions.
      The proposed revolving loan funds offer a tailored seed-
money approach regarding remediation funding, including the 
authorization of grants where recipients are unable to draw upon other 
funding sources. This provision ensures that those who can pay back 
will, and that the underserved communities with some of the greatest 
need for brownfields revitalization will also benefit.
      The bill explicitly encourages grants for parks, 
greenways, and other undeveloped public uses. This provision, which 
recognizes the importance of improving quality of life in brownfields-
affected neighborhoods, places open-space and community recreation 
appropriately in the equation alongside revenue-producing economic 
redevelopment
      EPA will have important flexibility to apply resources to 
areas where the need is greatest. The bill allows for increased 
assessment grants for more critical and difficult projects; additional 
support for communities best able to leverage nonfederal commitments; 
assistance for development of site remediation programs; and the 
potential waiver of the program's matching requirement for communities 
truly unable to meet this obligation.
      The bill's grant-ranking criteria include further 
encouragements for environmental justice projects, economic stimulus, 
brownfields-to-parks conversion, synergy with nonfederal funds, and use 
of existing infrastructure
      Last and certainly not least, the meaningful annual 
funding levels for these programs will allow the Federal Government to 
become a true partner to State and local entities working to reclaim 
their landscapes.
    With all these benefits, the Brownfields Revitalization and 
Environmental Restoration Act of 2001 will enable urgently needed, 
place-specific Federal participation in efforts across the country to 
foster recreation, open space opportunities, and redevelopment on 
appropriate sites, and by extension will help to conserve undeveloped 
resource lands that might otherwise be built upon.
    Mr. Chairman, please accept the thanks of the Trust for Public Land 
for your commitment to and craftsmanship of S. 350. We eagerly look 
forward to working with you, Chairman Smith, Senators Reid and Boxer, 
and the bill's other cosponsors toward enactment.
                               __________

  STATEMENT OF JOHN G. ARLINGTON ON BEHALF OF THE AMERICAN INSURANCE 
                              ASSOCIATION

    Mr. Chairman and members of the Subcommittee: This testimony is 
submitted on behalf of the American Insurance Association (``AIA''). 
The AIA is the principal trade association for property and casualty 
insurance companies, representing more than 370 major insurance 
companies which provide all lines of property and casualty insurance 
and write more than one-third of all direct commercial property and 
casualty insurance in the United States.
    We are delighted to have this opportunity to comment on S. 350, the 
Brownfields Revitalization and Environmental Restoration Act of 2001. 
We believe the bill constitutes a small, but positive step toward 
cleaning up hazardous waste sites. We are especially happy to observe 
that the bill does this through a mechanism other than litigation. 
Finally, we are pleased to note the bill is the product of a bipartisan 
consensus of the leadership of the Senate Environment Committee and we 
congratulate the sponsors of this bill for this achievement.
    Mr. Chairman, we believe S. 350 will help facilitate the clean-up 
and redevelopment of hazardous waste sites throughout the country. 
Brownfields redevelopment--facilitated, encouraged, and stimulated by 
this bill--is undeniably good environmental policy and it is also good 
business. In fact, insurance related to the redevelopment of old 
industrial sites and even Federal facilities is a small, but growing 
area of business for the insurance industry. Thus we are seeing a 
welcome conjunction between the interests of cities and towns in need 
of revitalization and the interests of businesses seeking new markets.
    The brownfields problem this bill helps address is being faced by 
cities throughout the country. The contaminated properties we call 
``brownfields'' are typically abandoned industrial or commercial 
properties that are no longer owned by the parties who were responsible 
for the contamination. Usually these properties have been obtained by 
local governments through foreclosure on mortgages, taxes, or other 
assessments that were in arrears. In other cases the sites are owned by 
trusts or estates that are financially unable to clean up the 
contamination. Local governments, trusts, and estates are rarely in a 
position to indemnify potential purchasers against environmental 
liability for known or unknown contamination. Some cities now own 
hundreds of such properties and simply cannot afford to hire 
consultants to characterize the environmental condition of these sites 
and certainly cannot afford to pay for cleaning up the contamination. 
If cities offer some limited form of indemnity for purchasers or 
developers of these properties, they risk a downgrading of their 
financial ratings due to the requirement to report contingent 
liabilities to auditors and rating organizations. For most cities this 
would be disastrous.
    The predicament for many cities is that they don't have the 
resources to address the brownfields problem, but they can't develop 
the resources without addressing the brownfields problem. This would 
seem to provide an appropriate opportunity for Federal legislation, 
such as S. 350.
    Title I authorizes grants to State and local governments, and to 
various redevelopment agencies for site assessment and remediation. 
While we will leave detailed comments on this provision to the mayors 
who are testifying today, we would point out that ``grants'' as opposed 
to ``loans'' are exactly what is needed. That's because as one might 
expect, the cities and towns most in need of brownfields redevelopment 
activity are often those that can least afford it, by definition. A 
loan simply digs the financial hole they are already in a little 
deeper. Therefore, grants are often the only practical way for these 
cities to begin to address the problem.
    Title II makes modest amendments to the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (``CERCLA'' or 
commonly referred to as ``Superfund'') by exempting from liability 
innocent contiguous property owners; innocent prospective purchasers; 
and innocent landowners. All of these exemptions would apply only under 
very limited circumstances, detailed with great specificity in the 
bill. It is uncertain whether many parties would be affected by the 
contiguous property and innocent landowner provisions; no doubt the few 
who may be affected will certainly be enthusiastic supporters of these 
exemptions. It should be noted, however, that there are a number of 
risk management techniques, including insurance, currently available to 
prospective purchasers. Some of the types of insurance available to 
prospective purchasers and others involved in these transactions are 
mentioned below. Title III sets standards for Federal intervention 
during or after a State-supervised clean-up. We realize this issue has 
been a source of significant controversy. In any event, we also 
recognize that as a matter of public policy no clean-up is ever going 
to be entirely ``final'' in the sense that there will never be an 
opportunity for future government intervention. This is one of the 
areas where a combination of risk management techniques, including 
insurance, can facilitate the redevelopment of contaminated properties 
notwithstanding this lack of ``finality.'' Insurance is currently 
available to pay the costs of additional clean-up of specified 
contaminants after the initial clean-ups have been completed and 
approved by State or Federal regulators. In some cases, insurance 
policies may also be written to respond to additional clean-up that may 
be required due to future changes in the environmental laws.
    Insurance is now emerging as a useful tool for managing 
environmental liability risk in the redevelopment of contaminated 
properties. In addition to insurance against the possible re-opening of 
completed clean-ups (as discussed above), insurance is now being 
written to cover: cost overruns for specific remedial action plans; the 
discovery and remediation of new contaminants; and third party bodily 
injury, property damage, and clean-up claims arising from newly-
discovered contaminants. In some cases, insurance may be available to 
all parties to a brownfields redevelopment transaction, including the 
sellers and buyers, the banks making the loans for the purchase, and 
for the engineers and contractors involved in the clean-up, as well as 
for the clean-up itself.
    S. 350 will provide necessary relief to many cities struggling with 
the problem of abandoned, contaminated properties. Significantly, we 
note that no attempt has been made to reinstate the Superfund taxes as 
part of this bill and no attempt has been made to add other special 
liability exemptions for favored parties. We heartily endorse this 
approach. But we must emphasize that, while we think this bill is 
beneficial in its current form, we will very strongly oppose any 
attempt to reinstate the expired Superfund corporate taxes without the 
enactment of comprehensive liability and remedy selection reform. 
Likewise, we will oppose any special liability exemptions that may be 
added for sympathetic groups of responsible parties if the costs of 
those exemptions are shifted to the remaining parties.
    Mr. Chairman, once again we congratulate you on this consensus bill 
and we sincerely hope this is the first in a long line of consensus 
legislation to come.
                               __________

           TESTIMONY OF GRANT COPE ON BEHALF OF THE U.S. PIRG

    Good morning Mr. Chairman and distinguished members of the Senate 
Subcommittee on Superfund, Waste Control, and Risk Assessment. I would 
like to thank you for the opportunity to speak about the important 
issue of brownfields legislation, in particular, ``The Brownfields 
Revitalization and Environmental Restoration Act of 2001.'' (S. 350).
    My name is Grant Cope. I am an Environmental Advocate for the 
United States Public Interest Research Group. U.S. PIRG is a nonprofit, 
nonpartisan environmental and consumer organization with offices in 38 
States across the nation.
    Today, I will address four issues: first, the need to safely and 
expeditiously redevelop brownfields; second, the beneficial aspects of 
S. 350; third, the main deficiencies of the legislation; and fourth, 
deficiencies in other proposals that may come before the committee.

 I. THERE IS A GREAT NEED TO CLEAN UP AND SAFELY REDEVELOP BROWNFIELDS

    There is a serious need in thousands of communities across our 
nation to safely and expeditiously clean up brownfields. While there is 
no definite tally on the number of contaminated sites across our 
nation, there may be as many as 450,000 such sites. Regardless of the 
ultimate number of sites, there is a clear consensus that the nation 
needs to clean up and safely redevelop brownfield sites.
    The adverse effects of failing to meet this charge are clear. The 
health of women, men, and particularly children that live or work near 
contaminated sites will continue to be put at risk. Developers will 
continue to seek out greenfields, rather than helping to redevelop 
blighted inner-city areas in need of reinvestment. Of course, this will 
lead to sprawl, which contributes to numerous health and environmental 
problems, including increased contamination of our nation's water 
resources, air pollution, and fragmentation of wildlife habitat. 
Clearly, good brownfields redevelopment needs to occur across our 
nation.
    Good brownfields redevelopment programs, that include strong clean-
up standards, provisions to ensure that polluters pay to clean up their 
contamination, and meaningful involvement of citizens in clean-up 
decisions are essential to help combat the dangers associated with 
contaminated sites.
    The Federal Government can help facilitate these types of programs 
by providing common sense criteria for State clean-up programs and 
Federal funds to help spur beneficial redevelopment efforts.
    Over the years, members in both the House and Senate have put 
forward responsible bills that sought to address the brownfield issue 
head on. S. 350 has incorporated some of the best ideas from these 
bills. Unfortunately, on three key issues, S. 350 also departs from 
important provisions of bills introduced in previous sessions of 
Congress.
    I would now like to briefly highlight three benefits and three 
areas of concern associated with S. 350.

                      II. THREE BENEFITS OF S. 350

A. Good State Program Criteria
    First, S. 350 lays out very good State program criteria. 
Unfortunately, unless further clarifications to the bill are made, 
these great program criteria may be not be enforceable. That being 
said, U.S. PIRG supports S. 350's provisions for State surveys and 
inventories of brownfield sites, public notice and comment on proposed 
clean-up plans, public access to all documents used to develop a clean-
up proposal, State lists of institutional controls (including the types 
of such controls and the parties responsible for enforcing the 
institutional controls used at brownfield sites), strong State 
oversight and enforcement programs and activities that ensure the long-
term operation and maintenance of contaminated sites.
    U.S. PIRG suggests one other program criteria. States should give 
any person the right under State law to ensure developers comply with 
clean-up plans and, for the sake of consistency and increased 
safeguards, also provide for such a right under Federal law. Some 
States can be enormously unreliable in ensuring that business interests 
comply with the law. In these States, informed citizens, acting in 
their proper role as private attorneys generals, are often the last 
best hope for adequate enforcement of public health and environmental 
laws.

B. Increased Funding Will Help Spur Redevelopment
    Second, S. 350 provides much needed Federal funds to help promote 
the already ongoing process of redeveloping brownfields. In fact, a 
1999 Report by the National Conference of Mayors, based on a survey of 
231 city officials from across the nation, found that the lack of money 
to clean up sites was the number on factor inhibiting redevelopment. 
\1\ S. 350 appropriately addresses this need.
---------------------------------------------------------------------------
    \1\ National Conference of Mayors, Recycling America's Land, 11 
(Feb. 2000).
---------------------------------------------------------------------------

C. Funding Focused On The Appropriate Issues
    Third, S. 350's funding structure concentrates on preserving and 
promoting parks and open spaces while also responding to the needs of 
local community, which sets an appropriate, and very beneficial, focus 
for such legislation.
    We commend the many hours of hard work by your offices, and the 
office of former Senator Frank Lautenberg, in crafting a bill with 
these and other beneficial provisions.

                III. THREE AREAS OF CONCERN WITH S. 350

    I would now like to briefly highlight three areas of concern 
regarding S. 350.

A. Clarification Needed On Ambiguous Term
    First, the drafters of S. 350 crafted a bill that is intended to 
apply only to sites with low levels of contamination. We request that 
your staff make a technical correction to the definition of ``eligible 
response sites'' that unambiguously clarifies this fact. We have 
supplied your staff with suggested language that we believe accurately 
reflects the drafters' intent.

B. Lack of Upfront Review of State Programs Eschews a Preventative 
        Approach For Protecting Public Health
    Second, unlike past bills, S. 350 fails to require an upfront 
Federal review of State clean-up programs. The lack of this upfront 
review process could result in Federal funds increasing the capacity, 
but not the quality, of State clean-up programs. This could 
dramatically accelerate ill-planned and unprotective redevelopment 
activities. If this occurs, our nation could face a new public health 
crisis in the coming decades. After all, lead, arsenic, and mercury 
will be toxic long after the last developer leaves a brownfield site 
and the first homeowner moves in. Therefore, it is vital that States 
ensure developers thoroughly clean up sites.
    Put another way, prevention is the best approach when protecting 
public health and environmental quality. Therefore, U.S. PIRG strongly 
supports an upfront Federal review of State programs prior to the 
distribution of any Federal funds or transfer of oversight authorities. 
A front-end review process is a preventative measure that helps to 
ensure peoples' lives are not put at risk by inadequate and 
unprotective State programs.

1. Upfront Review is Commonplace Under Other Programs
    An upfront review is commonplace in other environmental programs, 
including the Resource Conservation and Recovery Act and the Clean Air 
and Water Acts. \2\ Despite this type of review, experience with these 
programs demonstrates that States are extremely varied in their ability 
and commitment to strongly enforce these laws that protect public 
health and environmental quality. \3\ Simply put, some States do a 
better job of protecting public health than do others. However, because 
there are minimum standards, citizens can both work to ensure their 
States meet these minimal standards and, realizing the true benefits of 
federalism, push their States to go beyond these minimal protections.
---------------------------------------------------------------------------
    \2\ Resources Conservation and Recover Act, 42 U.S.C. Sec. 6926; 
Clean Air Act, 42 U.S.C. Sec. 7410; and Clean Water Act, 33 U.S.C. 
Sec.  1342(b).
    \3\ E.g., United States Public Interest Research Group, Poisoning 
Our Water (2000) (finding a lack of State and Federal enforcement 
actions against significant noncompliers under the Clean Water Act); 
Environmental Working Group, Prime Suspects: The Law Breaking Polluters 
America Fails To Inspect (2000) (finding weak State monitoring and 
enforcement measures against sources of pollutants under the Clean Air 
Act); General Accounting Office, More Consistency Needed Among EPA 
Regions in Approach to Enforcement, GAO/RECD-00-108 (2000); Inside EPA 
has printed a number of articles on State enforcement of environmental 
laws and EPA enforcement and oversight of State programs that implement 
such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21. 
Articles are based on internal EPA reports from the Office of 
Enforcement and Compliance Assurance that Inside EPA obtained through 
Freedom of Information Act requests. (Documents can be downloaded at 
http://www.iwpextra.com); Environmental Protection Agency, Office of 
Enforcement and Compliance Assurance, Enforcement and Compliance 
Evaluation of Region 5, Final Evaluation Report, (Dec. 1998) (finding 
general decreases in State enforcement of environmental programs); 
Environmental Protection Agency, Office of Enforcement and Compliance 
Assurance, Enforcement and Compliance Evaluation of Region 9, Final 
Evaluation Report, 29, 31 (May, 1998) (same); Office of Inspector 
General, Environmental Protection Agency, Superfund, State Deferrals: 
Some Progress, But Concerns For Long-Term Protectiveness Remain, (Sept. 
10, 1998) (finding that EPA administration of policy that allows States 
to clean up hazardous waste sites that would otherwise qualify as 
Superfund sites to result in less than adequate protections for public 
health); and Office of Inspector General, Region 6's Enforcement and 
Compliance Assurance Program (1997) (noting that stronger State 
enforcement is needed to ensure effective deterrent against polluters 
breaking the law).
---------------------------------------------------------------------------
2. Upfront Review Is Needed Because Some States Have Inadequate Clean 
        Up Programs
    It is clear that not all State programs are alike. However, some 
broad themes are evident from the available data. For example, initial 
data on State clean-up programs demonstrates that some States do an 
inadequate job of protecting public health, meaningfully involving the 
public in clean-up decisions, ensuring that polluters pay to clean up 
contamination, enforcing the law, managing contained sites over the 
long-term, funding their clean-up programs, and retaining and 
developing sufficient technical expertise to remediate very 
contaminated sites.
    These failings highlight the need to ensure that State programs 
meet minimum, commonsense criteria that protect public health and 
environmental quality.

a. Some States heavily Rely On Institutional Controls To Decrease Human 
        Exposure, Rather Than Cleaning Up Contamination
    For example, one of the most controversial issues regarding the 
clean-up of contaminated sites is the use of institutional controls to 
decrease human exposure to toxic substances that are left on-site after 
clean-up activities are complete. Institutional controls are legal 
instruments, such as a deed restriction, that restricts the use of land 
as a way of controlling exposure to toxic substances.
    In 1997, the Association of State and Territorial Solid Waste 
Management Officials (ASTSWMO) conducted a survey of 40 States to 
determine how they used institutional controls when remediating toxic 
waste sites. \4\ The survey found that 31 States required the use of 
institutional controls, while 8 States allowed them as an option in 
clean-ups. Of the 40 States, only 16 States required public 
notification or participation when there is a restriction put on the 
use of the land and only 11 required public notification and 
involvement when the there was restriction placed on the use of 
contaminated groundwater.
---------------------------------------------------------------------------
    \4\ ASTSWMO, Survey of State Institutional Control Mechanisms (Dec. 
1997).
---------------------------------------------------------------------------
    Importantly, limiting the use of land or groundwater in an area can 
adversely impact a community. For example, cleaning up areas to only 
industrial or commercial standards may decrease the amount of 
residential development in a neighborhood, while vastly increasing the 
amount of industrial development. This could increase pollution, 
depress property values and degrade the residential quality of nearby 
communities. These types of issues affect the entire community; 
therefore, States should reach out and attempt to integrate the public 
into the decision-making process for cleaning up contaminated sites.
    The ASTSWMO study also surveyed States about their enforcement of 
institutional controls. \5\ Only 9 States provided for fines or 
penalties for a failure to comply with institutional controls. Further, 
many types of institutional controls rely on local government for 
enforcement. However, 20 States noted that local governments generally 
lack adequate funding to enforce institutional controls. \6\ The 
ASTSWMO survey also found problems with enforcing institutional 
controls, as well as raft of problems that inhibit the successful use 
of these controls.
---------------------------------------------------------------------------
    \5\ Id.
    \6\ Other reports have noted similar problems. Resources for the 
Future, Linking Land Use and Superfund Clean-ups (1997) (The report 
noted that an ICMA focus group had indicated ``many State and local 
officials do not fully appreciate the long-term demands--including 
oversight and enforcement--that institutional controls may place upon 
local governments.''); and Robert Hersh, et. al., Linking Land Use and 
Superfund Clean-ups, Uncharted Territory, at 91 (1997) (citing 
International City/Council Management Association, ICMA Draft 
Preliminary Summary of Findings of Institutional Controls Study 
(Washington, DC, Nov. 1996) (the survey ``suggested that fewer than 10 
percent of the local government respondents have experience 
implementing and enforcing institutional controls at former hazardous 
waste sites.'') (emphasis added).
---------------------------------------------------------------------------
    Another study, by the Environmental Law Institute, examined the 
effectiveness of institutional controls at Superfund sites. \7\ This 
study found problems with enforcement at a local level, even at these 
highly contaminated sites. One problem noted was the failure to 
implement some institutional controls, as required in clean-up plans. 
Other failures included the lack of a public education program 
regarding the dangers of waste left on-site and the failure to pass 
local regulations restricting the use of contaminated sites. The study 
also documents instances of possible human exposure to contaminated 
waste as a result of noncompliance with institutional controls.
---------------------------------------------------------------------------
    \7\ Environmental Law Institute, Protecting Health at Superfund 
Sites: Con Institutional Controls Meet the Challenge? (1999).
---------------------------------------------------------------------------
    Importantly, a report published by Northeast-Midwest Institute in 
2000 found that States are encouraging residential development on 
brownfields. \8\
---------------------------------------------------------------------------
    \8\ Northeast-Midwest Institute (on behalf of the National 
Association of Homebuilders), Brownfields and Housing: How are State 
VCPs Encouraging Residential Development?, (May 2000).
---------------------------------------------------------------------------
    For example, California reported that 5,200 new housing units had 
been built on brownfields, and Colorado reported the construction of 
2,855 such units. The report goes on to site numerous incentives that 
States have implemented to encourage residential development on 
brownfields. Particularly at residential sites, of developers use 
institutional controls, it is vital that the controls are effective.
    However, even if a site is initially cleaned up and developed for 
commercial or industrial development, it is still vital that 
authorities monitor for any changing land use and the adequacy of 
protections over the long term. Land use is a dynamic process of 
economic and social growth, not static endpoint. Commercial 
developments can hold day care centers and industrial areas can be 
transformed into housing developments. Therefore, it is essential that 
authorities monitor the adequacy and enforce the requirements of 
institutional controls.

b. The Effectiveness of States Clean Up Programs Vary A wealth of data 
        indicates a variety of problems with States clean-up programs.

    (1) OhioPublic notice and involvement in clean-up decisions is 
critical for ensuring the long-term protection of public health, 
particularly when contamination is left on-site. When the public is 
informed about the risks of a site and understands the tools used to 
decrease those risks, they are uniquely situated to help enforce those 
controls, whether by telling children not to play in certain areas or 
by informing new residents or businesses not to undertake certain 
actions. \9\
---------------------------------------------------------------------------
    \9\ Robert Hersh, et. al., Linking Land Use and Superfund Clean-
ups, Uncharted Territory (1997).
---------------------------------------------------------------------------
    However, a study by the Northeast-Midwest Institute on Ohio's 
Voluntary Action Program (VAP) found that the public might not be 
notified of a clean-up plan until after a clean-up occurs and the State 
has issued a covenant not to sue. \10\
---------------------------------------------------------------------------
    \10\ Northeast-Midwest Institute (on behalf of the National 
Association of Homebuilders), Brownfields and Housing: How are State 
VCPs Encouraging Residential Development?, 5 (May 2000).
---------------------------------------------------------------------------
    A coalition of groups recently reviewed Ohio's VAP. \11\ Their 
findings are rather disturbing. Under Ohio's VAP, if the Ohio EPA 
agrees that a site meets the standards set forth in the VAP, Ohio EPA 
will issue a Covenant Not to Sue, which releases the owner from State 
civil liability. By releasing developers from liability, the State 
largely forecloses its primary tool to ensure that landowners or 
developers pay to clean up dangerous contamination left on-site.This 
means that taxpayers may bear the costs of any future clean-ups.
---------------------------------------------------------------------------
    \11\ Greene Environmental Coalition, The State of Ohio's Voluntary 
Action Program: Findings and Recommendations (Jan. 2001).
---------------------------------------------------------------------------
    The report lists a number of other disturbing findings regarding 
Ohio's VAP. For example, Ohio provided financial incentives for some 
sites to participate in the VAP, but the sites were never cleaned. 
Additionally, the report notes that the VAP process did not address 
offsite contamination concerns, as required by Ohio statutes, and that 
``[s]ome sites were located on or near critical resource aquifers, 
wells, and/or municipal water supplies. On- and offsite [contamination] 
threatened these critical resources, [and] potentially [threatened] 
human health.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 7.
---------------------------------------------------------------------------
    The VAP program also strongly relies on institutional or 
engineering controls as a form of clean-up, rather than requiring 
contamination to be remediated or removed. For example, deed 
restrictions on land use or groundwater use, the most common form of 
institutional control employed, were applied at 49.5 percent of the 111 
surveyed sites. Additionally, Ohio's program has an Urban Setting 
Designation that allows developers to avoid cleaning up contaminated 
groundwater. Thus far, the Ohio Program has issued 57 ``Covenants Not 
to Sue'' at VAP sites; of these sites, 17,526 acres of groundwater have 
been defined as Urban Setting Designators, while another 525 acres of 
groundwater and 828 acres of land have also been restricted through 
institutional controls.
    Currently, citizens across Ohio are urging their State government 
to improve their program by meeting EPA's standards that would allow 
for a Memoranda of Agreement. Thus far, the State has failed to make 
the required program improvements.

(2) New York
    Problems have also been found with New York's State clean-up 
program. In February 2001, the New York comptroller published an audit 
of the State clean-up program. \13\ The audit found that since 1979, 
167 sites have been taken off of the State contaminated site list. Of 
those sites, only two met the goal of being as clean as they were 
before being polluted. Of the 221 treated sites that were still on the 
list, 30 did not meet the State's minimum standards for protecting 
public health. At five other sites, State workers had failed to meet 
their own clean-up goals. At 141 other sites, the comptroller found 
that State records did not demonstrate whether the State's clean-up 
goals were met. The audit also noted that gaps in the system could have 
left the public unaware of the continuing dangers or the restrictions 
on some sites. Finally, the State administration has recently projected 
that the State clean-up fund will be exhausted by March, with a 
projected deficit of about $50 million.
---------------------------------------------------------------------------
    \13\ H. Carl McCall, New York State Comptroller, Dept. of 
Environmental Conservation, Selected Operating Practices Related to the 
Remediation of Inactive hazardous Waste Disposal Sites (99-S-33) (Feb. 
2001) (discussing audit); New York Times, McCall Faults Pataki's Record 
on Clean-up of Toxic Waste (Feb. 9 2001); and Times Union, Superfund 
Clean-up Record Hit In Audit (Feb. 9 2001) (discussing audit).
---------------------------------------------------------------------------

(3) California
    In 1999, the California legislature failed to reauthorize the 
State's Superfund clean-up law. \14\ On November 19, 1998, a State 
agency had to adopt emergency clean-up regulations, which were 
effective for only 120 days.
---------------------------------------------------------------------------
    \14\ Legislative Analyst's Office, State Superfund Reauthorization 
Expediting Hazardous Substance Site Clean-up, http://www.lao.ca.gov/
011199--superfund--reprint.html, 1 (January 11, 1999) (noting sunset of 
law on January 1, 1999).
---------------------------------------------------------------------------
    In 1998, the Los Angeles Daily News reported that at least nine Los 
Angeles schools were built on sites that school district officials knew 
might be contaminated. \15\ These findings came from a study prepared 
by California's Joint Legislative Audit Committee.
---------------------------------------------------------------------------
    \15\ David Baker, Nine Schools on Possibly Toxic Ground, Los 
Angeles Daily News, http://democrats. assembly.ca.gov/members/
a43art98.htm (Aug. 28, 1998).
---------------------------------------------------------------------------

(4) Pennsylvania
    The Philadelphia Inquirer reported that ``many States [including 
Pennsylvania], under the banner of so-called brownfields, have 
dramatically loosened clean-up regulations and standards in recent 
years to spur the development, or sales, of contaminated lands.'' \16\ 
The story quotes Rick Gimello, assistant commissioner at New Jersey's 
Department of Environmental Protection as stating, ``I don't think any 
State is as busy as we are. . . Our pace [of putting properties through 
the program] is off the charts.''
---------------------------------------------------------------------------
    \16\ Bob Fernandez, Rules let contaminants be covered, not cleaned, 
The Philadelphia Inquirer (April 13, 1999).
---------------------------------------------------------------------------

(5) Washington
    On April 16, 1999, the Seattle Post-Intelligencer reported that the 
State fund which pays for the clean-up of toxic spills and 
environmental contamination is facing a $5.9 million shortfall, about a 
seventh of the program's annual budget. \17\ The story noted that 
clean-up work could be halted or delayed at a minimum of 12 highly 
contaminated, high-priority sites. The shortfall could also severely 
limit monitoring and testing operations. The paper referenced Jim 
Pendowski, manager of the State toxic clean-up program, as stating that 
the ``shortfall would compromise the department's ability to detect 
emerging toxic problems in the environment and deal with existing 
ones.''
---------------------------------------------------------------------------
    \17\ Heath Foster, $5.9 million shortfall for toxic clean-up, 
Seattle Post-Intelligencer Reporter, http://www.ceattle-pi.com/pi/
local/eco16.shtml (Fri., April 16, 1999).
---------------------------------------------------------------------------
    A series of reports by the same paper present compelling evidence 
that the State's Department of Ecology failed to protect 635 Hispanic 
migrant workers from drinking contaminated groundwater, while providing 
other (mostly Caucasian) people with bottled drinking water. \18\ The 
migrant workers lived for ``several years at a camp with a well that 
had ethylene dibromide levels 17 times higher than Federal regulators 
considered safe.'' The paper quotes agency memos from 1988 and 1989 
that describe agency debate about whether to provide bottled water to 
workers. The memos also express concern about the public reaction if 
people learned that the agency was providing water to white residents, 
but not Hispanic workers.
---------------------------------------------------------------------------
    \18\ Heath Foster, Migrant workers heard nothing of pesticide 
danger, Seattle Post-Intelligencer Reporter, http://www.seattle-pi.com/
pi/local/migr22.shtml (Mon., March 22, 1999).
---------------------------------------------------------------------------

(6) New Jersey
    In a series of stories, the Bergen Record reported that the Mayor 
of Secaucus, New Jersey failed to notify citizens and city council 
members about the migration of contamination from a nearby Superfund 
site, under the homes of nearby residents. \19\ The paper also reported 
that the Mayor ordered engineers to locate test wells on municipal 
property where there was no requirement to notify the public. The Mayor 
stated that since the waste did not pose a danger to the residents, 
release of the information would have unnecessarily alarmed the public. 
While some city council members agreed with the Mayor's decision, the 
paper reported that homeowners and other city council members insisted 
that they should have been included in the decision making process.
---------------------------------------------------------------------------
    \19\ Peter Sampson, Something foul is spreading in the ground, The 
Bergen Record (Fri., May 14, 1999); Peter Sampson, Council clears air 
on toxic plume, The Bergen Record (Fri., May 21, 1999).
---------------------------------------------------------------------------

c. Problems May Be National In Scope
    These problems do not appear to be relegated to the few State 
programs highlighted above. A 1999 report by the National Conference of 
Mayors surveyed officials in 231 cities across the nation. The survey 
asked the officials to rank their State's voluntary clean-up program. 
\20\ Only 23 percent of the officials reported that their State 
programs were excellent, while almost one out of every five officials 
reported that their State program was not very good. Perhaps more 
troubling, 34 percent could not rank their States program, pointing to 
a large gap in knowledge or a lack of any coherent efforts at 
education, oversight, and implementation.
---------------------------------------------------------------------------
    \20\ National Conference of Mayors, Recycling America's Land (Feb. 
2000).
---------------------------------------------------------------------------

d. Inadequate State Clean Up Programs Threaten Vital Public Resources
    Recent EPA reports on the quality of our nation's groundwater 
document the extremely high value of this resource and startling 
statistics on groundwater contamination. \21\ These reports find that 
groundwater use is of fundamental importance to human life and is of 
significant important to our nation's economic vitality. \22\ 
Groundwater supplies drinking water to half of the nation and virtually 
all people living in rural areas. Some States obtain more than 50 
percent of their total water supply from ground water. Groundwater 
supports billions of dollars worth of food and industrial production. 
It also supplies the majority of streamflow in large areas of the 
nation and provides much of the water in our country's lakes and 
wetlands. \23\
---------------------------------------------------------------------------
    \21\ Safe Drinking Water Act, Section 1429 Ground Water Report to 
Congress, (1999) (Section 1429 Report); Environmental Protection 
Agency, National Water Quality Inventory, 1998 Report to Congress, 
(2000) (National Inventory).
    \22\ National Inventory, 187.
    \23\ Section 1429 Report, ii, 5-6 and National Inventory, 157-58, 
162-23.
---------------------------------------------------------------------------

e. Hazardous Waste Sites Threaten Our Nation's Groundwater Resources
    A variety of agricultural, industrial, commercial, and waste 
disposal practices contaminate our nation's ground water supply. \24\ 
Some of the most frequently cited major sources of potential ground 
water contamination are landfills, hazardous waste sites, impoundments, 
industrial facilities, and hazardous waste generators. \25\ ``Spills 
[of industrial contaminants] are a source of grave concerns among 
States.'' \26\ Unfortunately, because of existing data gaps, inaccurate 
data submitted by States, and a lack of appropriate analytical tools, 
the problem of groundwater contamination may be far worse than 
currently estimated. \27\
---------------------------------------------------------------------------
    \24\ Section 1429 Report, ii, 15-16 (emphasis added); National 
Inventory, 161-64.
    \25\ Section 1429 Report, 12 (emphasis added) and National 
Inventory, 164, 166, 168 (emphasis added).
    \26\ National Inventory, 168.
    \27\ National Inventory, 187, 189; Section 1429 Report, iii, 25, 
35-36; and U.S.G.S., Strategic Directions for the U.S. Geological 
Survey Ground-Water Resources Program: A Report To Congress, 4, 11-12 
(1998) (hereinafter U.S.G.S. Strategic Direction).
---------------------------------------------------------------------------

(1) More Vigorous Oversight and Enforcement Is Needed To Clean Up 
        Contaminated Ground Water
    A wide variety of public health and environmental concerns 
accompany groundwater contamination from hazardous waste sites. \28\ 
Only through the expense of millions of dollars to clean up 
contaminated groundwater have ``people [been protected] from exposure 
to ground water contaminants released from sources such as hazardous 
waste sites and leaking underground storage tanks.'' \29\ However, 
despite these clean-up efforts, the reports recognize that more 
Federal, State and local coordination is needed to prevent future 
contamination and to clean up contaminated ground water resources. \30\
---------------------------------------------------------------------------
    \28\ National Inventory, 191; Section 1429 Report, 5-6, 19-20, 35.
    \29\ Section 1429 Report, 11.
    \30\ Section 1429 Report, iii, 11, 35-36. National Inventory, 158.
---------------------------------------------------------------------------

f. Conclusion
    In order to protect public health and environmental quality, U.S. 
PIRG supports an upfront Federal review of State programs prior to 
giving these programs the resources to ramp up their redevelopment 
activities. This position is supported by data that indicates a wide 
disparity between the protections afforded by State programs. 
Certainly, absent an upfront review, it is critical that EPA ensures 
States will adhere to S. 350's ``reasonable steps standards'' by 
implementing all of the bill's program criteria within 2-3 years.
    Looking at clean-up programs along a continuum, upfront Federal 
review protects public health by ensuring that State programs meet 
common sense criteria, while EPA's order authority protects public 
health at the back end. Because there is no upfront review, it is even 
more critical to maintain EPA's current authority to order people to 
clean up contamination.
    I would like to address this issue next.

C. Federal Government Should Preserve Protections For Public Health
    Unlike past bills, S. 350 contains a bar on EPA's authority to 
order people to clean up contaminated sites. As established under 
currently law, EPA's order authority provides a vital Federal safety 
net that is the last line of defense for protecting public health and 
environmental quality. EPA's order authority actually has numerous 
beneficial effects. For example, State clean-up officials rely on EPA's 
order authority to force intransigent parties to negotiate in good 
faith, or risk involvement by Federal authorities. \31\ Similarly, 
concerned citizens can go to the EPA and request that they facilitate 
clean-up efforts.
---------------------------------------------------------------------------
    \31\ General Accounting Office, Superfund, Stronger EPA-State 
Relationship Can Improve Clean-ups and Reduce Costs, GAO/RECD-97-77, 4-
5 (1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New 
Hampshire, and Texas. The report choose these States because they ``are 
among the most experienced in leading clean-ups as NPL sites'').
---------------------------------------------------------------------------
    EPA's order authority ensures that people have the choice to seek 
protections from both the State and Federal Governments. U.S. PIRG 
believes that the Federal Government should not degrade the public's 
choice on a fundamentally vital issue, and risk weakening vital 
protections.

1. There Is No Need To Modify EPA's Enforcement Authorities
    Proponents of barring or modifying EPA's order authority fail to 
present coherent arguments for such actions. The main rational 
generally given is the need to ensure developers get ``finality.'' A 
brief examination of S. 350, EPA's historic use of its order authority 
and a growing market for environmental insurance demonstrate that there 
is no need for this increased ``finality.''
    In fact, by applying the bar and failing to initiate any upfront 
review process, S. 350 could weaken EPA's current process of developing 
Memoranda of Agreement (MOA) with States. Under the MOA process, EPA 
agrees to limit its enforcement activities in States that meet minimum 
criteria that protect public health and environmental quality. 
Unfortunately, S. 350 would actually eliminate incentives for States 
with inadequate clean-up programs to participate in the MOA process. 
This is unfortunate because citizens are already using this process as 
a tool to leverage increased protection under inadequate State 
programs. \32\
---------------------------------------------------------------------------
    \32\ E.g., Greene Environmental Coalition, The State of Ohio's 
Voluntary Action Program: Findings and Recommendations (Jan. 2001).
---------------------------------------------------------------------------

a. S. 350 Already Gives Responsible Developer Exemptions From Liability
    S. 350 contains three different provisions that exempt responsible 
developers from liability. These provisions include exemptions for 
prospective purchasers, innocent landowners and contiguous landowners, 
which provide ample finality for responsible developers.

b. EPA Has Not Abused Its Order Authority
    Development interests and other that call for finality beyond these 
three exemptions fail to point to any instance where EPA has abused its 
order authority. In fact, a 1999 study by the Northeast-Midwest 
Institute that surveyed 42 State clean-up programs found that 
``virtually all of the States [confirmed] that U.S. EPA is not involved 
or only minimally active in monitoring the State's [voluntary clean-up 
programs] .'' Yet another 1999 study by the Northeast-Midwest Institute 
found that most State voluntary clean-up programs offer ``Covenants Not 
to Sue'' or ``No Further Action Letters'' to developers that complete 
the clean-ups under State programs. With these documents, a State 
largely forecloses its ability to make developers civilly liable for 
the costs of future clean-ups.

c. Insurance Policies Also Provide Developers With Protection
    There is an already established and growing environmental insurance 
market for brownfields redevelopment. The Northern Kentucky University 
and The E.P Systems Group, Inc. published a 1999 report of such 
products that is based, in part, on a survey and interviews with 
insurance carriers and brokers, including AIG Environmental and Kemper. 
\33\ The report found that developers already widely use such policies; 
further, the types of coverage, occurrences covered, dollar limits, and 
coverage periods of polices are expanding, while costs and 
preconditions to coverage are decreasing. The report quotes one 
insurance carrier representative, ``The market now provides very broad 
coverage, which it didn't 5 years ago.'' \34\
---------------------------------------------------------------------------
    \33\ Northern Kentucky University, The E.P Systems Group, Inc., 
Environmental Insurance Products Available for Brownfields 
Redevelopment (Nov. 1999).
    \34\ Id. at 52.
---------------------------------------------------------------------------
    These insurance policies, which are no different from any other 
type of real estate insurance coverage, provide real estate buyers and 
developers with certainty. These policies cap liability, thereby 
enabling buyers and developers to better assess the impacts of market 
forces. Ultimately, these market forces dictate when, where, and how 
redevelopment occurs.

d. Conclusion
    With minimal or no Federal oversight, and bars on State civil 
liability for future clean-up costs, developers actually enjoy broad 
guarantees of ``finality,'' so long as they do one simple thing: ensure 
that clean-ups adequately protect public health. Indeed, the only 
people that would need additional ``assurance'' are developers that do 
an inadequate job of cleaning up contamination. Importantly, this is 
the very situation where the Federal Government should retain--
unencumbered--its ability to protect public health.
    There is an old saying, ``If it ain't broke, don't fix it.'' 
Nowhere is this adage more true than with the fundamental protection 
for public health that is currently embodied in EPA's order authority.

 IV. CONCERNS WITH OTHER PROPOSALS TO MODIFY EPA'S ABILITY TO PROTECT 
                             PUBLIC HEALTH

    I would like to address a few concerns that we have with other 
proposals that may come before the committee. Some parties, including 
the National Association of Homebuilders, have proposed limiting EPA's 
order authority under numerous statutes, not just Superfund. \35\ This 
request for ``relief'' is a slippery slope that has led some parties to 
even suggested language to bar criminal fines and penalties. U.S. PIRG 
strongly urges the government to eschew eroding EPA's ability to 
protect public health and environmental quality in this fashion.
---------------------------------------------------------------------------
    \35\ Numerous statutes authorize EPA to issue clean-up orders and 
assign liability, including 42 U.S.C. Sec. Sec.  9606 (Superfund); 6973 
(RCRA); 33 U.S.C. Sec. Sec.  1321(c) (Clean Water Act); 15 U.S.C. 
Sec. 2606 (TSCA: standard is ``unreasonable risk''); 30 U.S.C. 
Sec. 1271 (SMCRA: standard is ``imminent danger to the health or safety 
of the public, or is causing, or can reasonably be expected to cause 
significant, imminent environmental harm.''); 42 U.S.C. Sec. 107(a) 
(Superfund: must pay clean-up costs); 42 U.S.C. Sec. Sec. 7003 (RCRA: 
penalties for violating orders) and 6991b (RCRA: order and penalty 
authority for releases of petroleum); and 42 U.S.C. 404 (TSCA: Federal 
enforcement authority under Federal programs concerning lead 
abatement).
---------------------------------------------------------------------------

A. Numerous Statutes Provide People With Protection Against Particular 
        Contaminants
    EPA and other Federal agencies rely on these authorities to protect 
public health under a variety of circumstances. For example, EPA 
currently uses its order authority under the Resource Conservation and 
Recovery Act to protect children from lead based paint. Similar 
provisions also exist under the Toxic Substances Control Act (TSCA). 
TSCA and RCRA orders also apply to polychlorinated biphenyls, dioxin 
and a variety of other highly toxic substances. There is no justifiable 
reason to weaken EPA's authority with respect to such dangerous 
substances.
    Any attempt to modify EPA's enforcement authorities under numerous 
statutes is fraught with peril. Different statutes apply differing 
standards to a variety of regulatory requirements that pertain to 
hundreds of highly toxic substances. Modifying EPA's authority under 
numerous statutes risks not only creating massive confusion, but also 
an across the board weakening of EPA ability to protect public health 
and environmental quality.
    The same is true when modifying EPA's order authority under one 
statute. For example, EPA's order authority under RCRA includes the 
ability to enforce a variety of different requirements at different 
types of sites regulated under the program. Varying standards provide 
flexibility while protecting human health. Modifying this structure 
would create an adverse ripple effect across the RCRA program.

B. At Gas Stations, Large Corporate Polluters Should Pay To Clean Up 
        Contamination
    Some parties also claim that the government should limit EPA's 
ability to issue clean-up orders at sites contaminated with petroleum, 
such as old gas stations. While the government can and should 
contribute funds to help redevelop these sites, there is absolutely no 
need to restrict EPA's enforcement authorities at gas stations or 
petroleum sites. Many gas stations, while independently run, operate 
under franchise agreements with large oil and gas companies. Since 
these companies financially gained from the polluting activity, they 
should pay to clean up the contamination.

C. ``Substantial and Continuous'' State Activities Should Not Bar EPA 
        Authorities
    Parties have also suggested that EPA's clean-up enforcement 
authorities should be barred if there is ``substantial and continuous'' 
clean-up activities or if a response action is in compliance with a 
clean-up plan that a State has certified is complete. As demonstrated 
above, not all State programs are alike. And, even if they were all 
equally good, mistakes happen.

D. Owners And Operators That Benefit From Profits Should Also Shoulder 
        Risks
    Parties have suggested language that would shift liability for 
clean-up from property owners and developers onto the back of innocent 
taxpayers. For example, one party has suggested modification that could 
give liability exemptions to owners and operators of contaminated sites 
who fail to supply the government with all legally required notices. 
People or corporations that financial profit from a polluting activity, 
and will likely experience financial gain from redevelopment, should 
shoulder the financial burden of their actions and pay for clean-ups.
E. Conclusion
    The government should not conduct a fire sale on the last 30 years 
of environmental protections to placate fears that are based more on 
fiction than fact. Developers are currently redeveloping brownfield 
sites, earning profits, and contributing to economic growth. The 
Federal Government should increase funding and provide commonsense 
criteria for State clean-up programs.

                             V. CONCLUSION

    In conclusion, with respect to S. 350, the areas of concerns that I 
outlined earlier could weaken both upfront and backend protections 
during the clean-up process. For these reasons, we believe it is vital 
that the sponsors make certain clarifications to the bill that will 
protect public health and environmental quality. However, any 
modification to the substance of the bill that weakens protections 
would certainly engender strong opposition from the environmental 
community. In particular, this includes the elimination of any reopener 
or the modification to any reopener that would weaken protections. 
Eliminating or modifying any of these provisions in this fashion would 
surely undo the many hours spent by your offices fine-tuning the 
language.
    Thank you very much for opportunity to testify today. I will be 
happy to answer any questions that you may have.
                               __________

    STATEMENT OF ROBERT D. FOX, PARTNER, MANKO, GOLD & KATCHER, LLP

    I am pleased to testify today as you consider S. 350, entitled 
``The Brownfields Revitalization and Environmental Restoration Act of 
2001 (``S. 350''). This legislation proposes to promote the clean-up 
and reuse of brownfields, to provide financial assistance for 
brownfields revitalization and to enhance State response programs. My 
testimony is based on my 16 years of experience as an environmental 
attorney representing a wide range of clients, including industry, 
developers, local governments, economic and industrial development 
agencies, land conservancies and citizen groups, that are interested or 
involved in brownfield development and environmental issues. My 
testimony focuses on the following issues relating to S. 350:
    1. The benefits of brownfields development;
    2. State initiatives supporting brownfields development;
    3. The need for Federal brownfields legislation; and
    4. An evaluation of certain limitations in S. 350 along with 
suggested amendments.

               I. THE BENEFITS OF BROWNFIELDS DEVELOPMENT

    Brownfields are agricultural, commercial or industrial properties 
which have been impacted by contaminants, including hazardous 
substances as defined under the Comprehensive Environmental Response, 
Compensation and Liability Act, 42 U.S.C. Sec.  9601 et seq. 
(``CERCLA'' or ``Superfund'') and petroleum products. Developers 
historically avoided such properties because of several legitimate 
concerns primarily relating to the uncertain environmental liabilities 
at those properties under State and Federal environmental laws.
    Because of these concerns, brownfields properties were typically 
overlooked in favor of previously undeveloped ``greenfields'' sites, 
such as farmland or woodland, where potential contamination and the 
related liability and costly remediation would not present obstacles. 
These environmental and financial policies that lead developers to 
pursue previously undeveloped properties, rather than to rehabilitate 
abandoned agricultural, commercial and industrial sites, caused 
deleterious results. On the one hand, contaminated sites were left as 
blights on the surrounding communities and, in some cases, threats to 
public health and the environment, while contributing little or nothing 
to the local economy. On the other hand, pressures mounted to develop 
more and more open space.
    To the extent these obstacles to brownfields development can be 
minimized or mitigated significant benefits will surely follow. First, 
redevelopment of brownfields property has the potential to slow the 
development of open space and farmland. Second, redevelopment of 
brownfields property creates a potential ``win, win, win'' situation: 
property owners and developers will gain access to brownfields sites 
located in desirable locations, with existing infrastructure and 
affordable pricing; contaminated properties will be remediated; and 
local governments will receive increased real estate tax revenue 
(assuming no tax abatements are granted). Third, brownfields 
redevelopment is consistent with the notion of reestablishing our 
communities. Many brownfields sites are located in areas within walking 
distance or in close proximity to existing amenities (restaurants, 
shops, the arts). This proximity both fosters the sense of community 
and satisfies the increasing needs of our aging population (including 
the growing number of young ``empty-nesters'').

                   II. STATE BROWNFIELDS INITIATIVES

    During the last 5 years, State legislatures and environmental 
protection agencies have acted vigorously to promote brownfields 
development through legislative and regulatory initiatives. Currently 
at least 43 States have some form of brownfields legislation or 
voluntary clean-up 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. See also, Hazardous Waste Sites--State Clean-up Practices, GAO/
RCED-99-39. 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 
clean-ups to reflect the actual risk posed by the contamination at a 
site; and (3) transferable liability protection to property owners and 
tenants once these remediation standards have been attained. In 
essence, developers of contaminated property want to know that the cost 
of clean-up will not render the development financially untenable, and, 
as or more importantly, that once remediation is completed to the 
satisfaction of the State environmental agency, they and future owners 
and tenants will not be subject to further remediation liability.

           III. THE NEED FOR FEDERAL BROWNFIELDS LEGISLATION

    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.
    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 
an empirical matter, the United States Environmental Protection Agency 
(``EPA'') rarely requires additional remediation of brownfields 
properties under these Federal authorities once a property has been 
remediated to State clean-up standards. However, nothing forecloses EPA 
from doing so. Therefore, it is the perceived threat of EPA 
intervention, rather than EPA's actual enforcement activities to date, 
that significantly inhibits developers from approaching candidate 
brownfields sites. In this case, perception is reality. Developers 
rightfully ask: ``Why should I acquire a brownfields site, remediate it 
to the satisfaction of a State environmental agency and still face the 
potential for EPA enforcement?''
    Recognizing this fact and seeking to create incentives to develop 
brownfields property, EPA actually 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.
    EPA is to be commended for these regulatory initiatives; however, 
EPA's policies simply do not go far enough. In short, they do not 
provide any binding liability protection for developers or owners of 
contaminated property under Federal environmental statutes who 
remediate property to State standards, \1\ and therefore do not remove 
the perception that EPA may seek to 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.
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    \1\ EPA has entered into Memoranda of Agreement (``MOA'') with 
certain States (approximately 14) whereby EPA agrees not to take 
enforcement action against an owner of contaminated property who has 
remediated its property to the satisfaction of a State environmental 
agency under State law. However, these MOAs contain broad reservations 
of rights for EPA which do not fully insulate property owners against 
liability under Federal environmental statutes.
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    Fundamentally, then, 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. 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 protection. At 
the same time, this framework necessarily must retain appropriate 
enforcement authority for EPA, a so-called Federal ``safety net,'' 
under clearly defined circumstances.

                        IV. EVALUATION OF S. 350

    S. 350 proposes to fill the above-referenced need for Federal 
brownfields legislation. S. 350 provides certain important elements to 
satisfy the framework identified above. First, S. 350 provides 
substantial grants and loans for brownfields assessment and 
remediation. Second, S. 350 establishes clarifications to CERCLA's 
liability provisions providing potential exemptions (subject to lengthy 
qualifying criteria) for bona fide prospective purchasers, contiguous 
property owners and innocent landowners. Third, S. 350 provides a 
limited bar to EPA enforcement, under CERCLA only, at sites remediated 
to the satisfaction of a State agency.
    Despite these useful provisions, S. 350 does no go far enough in 
significant and important ways. Accordingly, set forth below is an 
evaluation of six provisions of S. 350 along with suggested amendments 
aimed at providing the required certainty, finality and liability 
protection while at the same time maintaining an appropriate Federal 
``safety net.'' By no means is this an exhaustive evaluation of all 
issues raised by S. 350, but rather represents an attempt to highlight 
certain salient issues.

A. S. 350 Should Be Amended To Remove 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. The 
specific reopener provided for in Section 129(b)(1)(B)(iv) of S. 350 is 
overly broad and as a result threatens to significantly undermine the 
finality and certainty that S. 350 correctly seeks to achieve.
    Specifically, Section 129(b)(1)(B)(iv) provides that EPA may bring 
an enforcement action if:

    The Administrator determines that information that on the earlier 
of the date on which clean-up was approved or completed, was not known 
by the State, as recorded in documents prepared or relied on in 
selecting or conducting the clean-up, 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. 
(emphasis added)
    There are two fundamental problems with this provision. First, 
information known to the State ``on the earlier of the date on which 
clean-up 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 clean-up plan and 
the remediator thereafter continues to generate data during the course 
of designing and implementing the approved clean-up. 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. Accordingly, Section 
129(b)(1)(B)(iv) should be amended to read ``on the later of the date 
on which clean-up was approved or completed. . .''
    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 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 clean-up. Second, any migration of 
contaminants within a site, 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) which 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 seeks to create. It should therefore be deleted.

B. S. 350 Should Be Amended To Expand The Enforcement Protections To 
        Future Owners and Tenants
    The enforcement limitations provided by Section 129(b)(1)(A) of S. 
350 apply only to a person who ``is conducting or has completed a 
response action regarding the specific release'' under a State 
brownfields program. See 129(b)(1)(A)(ii). Read literally, this 
language potentially excludes from S. 350'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 that 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, now 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 should be amended to expressly apply 
to all parties who participate in the response action and all future 
owners or tenants of that property. \2\
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    \2\ It could be argued that future owners and tenants are protected 
by the new provisions relating to prospective purchasers. See Section 
202 of S. 350. However, the new prospective purchaser provisions 
contain detailed requirements and prerequisites not contained in 
Section 129(b)(1)(A). Therefore, as currently written, S. 350 provides 
that an innocent future owner or tenant would be subject to more 
stringent requirements than the initial seller or developer of the 
property. There is no basis for this distinction.
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C. S. 350 Should Be Amended To Apply To Petroleum Contaminated Sites
    Proposed Section 129(b)(1)(A) of S 350 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 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 does not provide any liability 
protection regarding petroleum contaminated sites.
    The absence of any protections for petroleum contaminated sites 
represents an extremely significant limitation to S. 350. 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 which contain abandoned underground storage 
tanks or are impacted by petroleum leaks. EPA USTfields Initiative, 
www.epa.gov/swerosps/bf/index.html. In addition, petroleum contaminated 
sites are obvious targets for redevelopment because of the 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.
    S. 350 can be amended easily to rectify this problem. Petroleum 
contamination is subject to liability under RCRA's general enforcement 
authority, 42 U.S.C. Sec.  6973, and under RCRA's provisions relating 
to a release of petroleum from underground storage tanks, 42 U.S.C. 
Sec.  6991b(h). Therefore, S. 350 should be amended to include 
protection for petroleum contaminated sites by including RCRA Sections 
6973 and 6991b(h) within the provisions of Section 129(b)(1)(A). \3\
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    \3\ Of course, this proposed amendment to S. 350 is not intended 
and should not be constructed to modify, amend or alter the petroleum 
exclusion under CERCLA.
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D. S. 350 Should Be Amended To Provide More Complete Finality
    The clear intent of Section 129(b)(1)(A) of S. 350 is to provide a 
strong measure of finality for persons remediating hazardous substance 
contamination in compliance with State brownfields programs. By 
limiting EPA's enforcement authorities under CERCLA, S. 350 partially 
accomplishes this goal. However, without similar limitations on EPA 
enforcement authorities under RCRA and TSCA, S. 350 lacks the certainty 
and finality necessary to overcome the perception of EPA intervention 
which currently inhibits brownfields development.
    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 both 
RCRA and TSCA 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 an 
enforcement action under RCRA, 42 U.S.C. Sec.  6973 \4\ or TSCA, 15 
U.S.C. Sec.  2606(a)(1)(B). \5\
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    \4\ Section 6973 of RCRA authorizes EPA to bring suit requiring 
remediation against any person who has contributed to or is 
contributing to storage, handling, treatment, transportation or 
disposal of any solid waste or hazardous waste, (which term is included 
within CERCLA's definition of ``hazardous substances''), that may 
present an imminent and substantial endangerment to human health or the 
environment.
    \5\ Section 2606(a)(1)(B) of TSCA authorizes EPA to bring suit 
requiring remediation against any person who uses or disposes of an 
imminently hazardous chemical or mixture (which term is also included 
within CERCLA's definition of ``hazardous substances'').
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    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 in the 
first instance. Accordingly, Section 129(b)(1)(A) of S. 350 should be 
amended to include enforcement limitations under Section 6973 of RCRA 
and Section 2606(a)(1)(B) of TSCA. \6\
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    \6\ Any such limitation explicitly should not affect EPA's ability 
or authority to enforce other regulatory requirements of RCRA or TSCA, 
including those discussed in Section IV.E. below.
---------------------------------------------------------------------------

E. Sites Impacted By Polychlorinated Biphenyls (``PCBs'') Should Not Be 
        Excluded From the Definition of Brownfields Sites
    Section 101(a) of S. 350 provides a new definition for brownfields 
sites by adding Section 101(39) to CERCLA's definitions. Proposed 
Section 101(39)(B)(viii) states that brownfields sites subject to the 
protection of S. 350 do not include facilities where there has been a 
release of PCBs that is subject to remediation under TSCA. Presumably, 
PCB sites have been specifically excluded because EPA has, unlike for 
other hazardous substances under CERCLA, promulgated specific clean-up 
standards for PCB clean-ups under TSCA. However, EPA's clean-up 
standards under TSCA are in no way inconsistent with including PCB 
impacted sites within S. 350.
    Specifically, S. 350 should provide that EPA cannot exercise its 
enforcement authority under TSCA at PCB impacted sites, except where 
(1) PCB contamination is subject to TSCA and the State approved or 
completed remediation does not meet TSCA's clean-up standards, or (2) 
where the reopener conditions in Section 129(b)(1)(B) of S. 350, as 
amended, are satisfied. Under this approach, PCB sites would be on 
equal footing with other sites, subject to caveat that where 
applicable, the TSCA PCB clean-up standards must be satisfied.

F. The Savings Provision Relating To Existing MOAs Should Be Amended
    Section 129(b)(2)(B) provides that:
    Nothing in Section 129 modifies or affects the memorandum of 
agreement, memorandum of understanding or any other similar agreement 
relating to this Act between a State agency . . . and the Administrator 
that is in effect on or before the date of enactment of this Section. . 
..
    As noted above, there are at least 14 existing MOAs between EPA and 
the States. Each of these MOAs has unique and distinctive provisions. 
Most significantly, these MOAs do not provide the full enforcement 
protections provided for by S. 350 as it currently stands and/or as 
suggested for amendment herein. Accordingly, Section 129(b)(2)(B) 
undermines the more complete liability protections offered by S. 350. 
For this reason, Section 129(b)(2)(B) should be amended to state that 
the existing MOAs should provide no less complete enforcement 
prohibitions than that provided by S. 350 as amended.

                             V. CONCLUSION

    Brownfields developments provides a unique opportunity for a wide 
variety of interest groups, government, developers, site owners, 
community groups and environmentalists to reach common ground. While S. 
350 provides certain important elements toward that end, the specific 
suggested amendments herein, including inclusion of petroleum 
contaminated sites, inclusion of protections under RCRA and TSCA, 
explicit recognition of protections for future owners and tenants, 
elimination of ambiguous reopeners and inclusion of PCB contaminated 
sites, would strike an appropriate balance between providing certainty, 
finality and liability protection to brownfields developers and 
maintaining the Federal ``safety net.''
    Respectfully submitted,
                                     Robert D. Fox, Esquire
                                         Manko, Gold & Katcher, LLP
                               __________

 STATEMENT OF DEEOHN FERRIS, PRESIDENT, GLOBAL ENVIRONMENTAL RESOURCES 
                                  INC.

    Mr. Chairman and members of the Subcommittee, I appreciate the 
opportunity to appear before you today in support of S. 350, ``The 
Brownfields Revitalization and Environmental Restoration Act of 2001.''
                               background
    I am President of Global Environmental Resources Inc. (GERI), a 
professional services firm that provides management consulting, 
technical support services and training to clients on environmental, 
natural resources and public health programs and projects. 
Concentrating on community involvement and environmental justice, 
stakeholder engagement and public participation, GERI's assists clients 
in improving environmental performance, achieving smart growth and 
sustainability.
    Revitalizing and redeveloping abandoned, often contaminated 
properties, defined as brownfields, demonstrate the convergence of 
complex environmental, social and economic issues. For example, 
compared to their numbers in the general population, many of these 
properties are in minority and low-income neighborhoods. Thus, equity, 
race and class discrimination, the diminished tax base in 
municipalities and suburban sprawl are inseparable from the blight and 
marginalized communities that accompany brownfields.
    In the past decade, a coherent holistic vision has emerged, which 
addresses the relationship of these issues to the health and vitality 
of a community. Commonly referred to as sustainable communities, this 
vision recognizes the significance of meeting community needs and 
aspirations, and positions those who live within it as integral 
partners in decision-making. The sustainable communities approach is 
the junction of equity, economics and the environment. It's focused on 
building the capacity of communities to participate in decisions, 
creating partnerships with other stakeholders, mobilizing resources and 
producing sustainable results.
    My background, spanning twenty-three years, reflects GERI's 
commitment to a sustainable communities approach to environmental 
decision-making. Among other responsibilities, I have served as an 
enforcement official at the U.S. Environmental Protection Agency 
addressing compliance in communities around the nation. I've worked to 
advance the tenets of equal protection, including equal environmental 
protection, as Program Director of the Environmental Justice Project at 
the Lawyers' Committee for Civil Rights, and as the founding Executive 
Director of the Washington Office on Environmental Justice, a multi-
cultural national organization representing community-based groups, on 
legal and policy issues, in the nation's capitol.
    I am pleased to share with members of the Subcommittee that I 
introduced and led the grassroots campaign that resulted in 
Presidential Executive Order 12898 on Environmental Justice, and other 
public policy tools such as the National Environmental Justice Advisory 
Council (NEJAC) and the Federal Inter-Agency Workgroup on Environmental 
Justice. \1\ To help illumine the nexus between environmental impacts 
in minority and low-income neighborhoods and impediments to community 
development, I am Vice Chair of the Partnership for Sustainable 
Brownfields Redevelopment and direct the Partnership's national 
research project on multi-stakeholder involvement in brownfields 
decision-making.
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    \1\ I served as a charter member of NEJAC and the first Chair of 
the Enforcement Subcommittee.
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    Clearly, in urban and rural communities experiencing under-
investment and other consequences associated with environmental 
contamination, economic development and neighborhood revitalization, 
are issues of grave concern. Equally important, since they have been 
affected most by those consequences and will live with the consequences 
of future decisions, communities are urgently demanding inclusion in 
shaping development outcomes. As a result, I am here, today, in favor 
of S. 350, ``The Brownfields Revitalization and Environmental 
Restoration Act of 2001.''

                           ANALYSIS OF S. 305

    Essentially, S. 350 appears to be a compromise bill, which would 
achieve protection of human health and the environment by balancing the 
goals of accelerating clean-ups, expanding economic development 
opportunities, increasing governmental flexibility and reducing 
disincentives to brownfields reuse. Communities that have, heretofore, 
experienced difficulties finding funds to redress orphan sites or sites 
which, according to brownfields jargon, don't qualify as low-hanging 
fruit, will be encouraged by the appropriation levels in the bill. In 
the forthcoming budget process, I encourage the Senate to match the 
authorization to the appropriation.
    Expanding the number of sites eligible for action via State 
response programs should result in increased flexibility to clean up 
and reuse properties in minority and low-income communities. De-
coupling certain qualified sites from the stringency of the National 
Priority List process and the language in S. 350, which clarifies 
liability, \2\ should help to accelerate brownfields redevelopment in 
areas where such activity has languished. The linkage between 
conferring this flexibility upon the States and increased community and 
public involvement is crucial.
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    \2\ Title II appears to clarify liability without abrogating 
CERCLA's strict, joint and several liability standard.
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    Community involvement and public participation assurances in the 
bill, such as the language framing the Loans and Grants Considerations 
and the Ranking Criteria in Title I, and the provisions contained in 
Title III under State Response Programs, elevate the significance of 
meeting community needs and inclusion in the decision process. 
Furthermore, by asserting that community involvement, training, 
research and technical assistance are activities eligible for funding, 
grants issued pursuant to the bill should help build the capacity of 
communities to participate in redevelopment planning. The provisions in 
Title I, which authorize waiver of the twenty-percent match and 
leveraging grant funds, will assist nonprofit entities operating with 
limited resources.
    S. 350 would require States \3\ to timely survey and inventory 
brownfields sites as an element of the State response program. Some 
experts have suggested more than 500,000 sites nationwide fall within 
the brownfields category. \4\ The advantages of such inventories are at 
least threefold. First, the inventories will broaden available data; 
second they will provide information about environmental and other 
conditions; and, third, they should result in a more thorough catalogue 
of under-utilized sites nationwide that are eligible for productive re-
use. With regard to communities, governmental decision makers and 
prospective developers, the inventories should supply useful knowledge 
and an array of potential development opportunities.
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    \3\ States and Tribes would be required to develop a brownfields 
site inventory.
    \4\ See e.g., ``Industrial Site Reuse and Urban Development: An 
Overview,'' Collaton and Bartch, Cityscape: A Journal of Policy 
Development and Research, Volume 2, No. 3, U.S. HUD (September 1996).
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    Another crucial safeguard provided by S. 350 is the preservation of 
the Federal role in the event that threats emerge to human health or 
the environment. Comparable to the Federal safety net provided by civil 
rights laws in the event that equal protection under law is 
jeopardized, \5\ Title III of the bill provides an oversight role and 
would reserve the right of the Federal Government to act, for example, 
in the event of significant threats or imminent hazards. Although 
requiring a State to demonstrate the effectiveness and equity of its 
voluntary clean-up plan, prior to delegation of the brownfields 
program, would provide additional assurances (via a showing of a 
successful track record), it appears that citizens and the environment 
are protected where problems with State programs could occur.
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    \5\ See e.g., Title VI of the Civil Rights Act of 1964.
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    In view of efforts of communities to preserve already limited green 
spaces within, in particular, the urban environment, it's encouraging 
that the bill favors grants that facilitate, among other activities, 
creation and preservation of parkland. While, economic development in 
certain areas is highly desirable, quality of life is greatly enhanced 
by neighborhood beautification and amenities.

                PRINCIPLES OF BROWNFIELDS REDEVELOPMENT

    GERI has established 10 Principles for Cooperation Between 
Communities and Developers in Brownfields: \6\ They are shared, here, 
with the Subcommittee to assist with future work on brownfields and 
community involvement.
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    \6\ ``10 Principles for Cooperation Between Communities and 
Developers in Brownfields,'' Ferris, D., The Brownfields Report, 
October 26, 2000.
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    Principle No. 1: Planners and developers must develop a policy that 
includes people and small businesses already located in brownfields 
areas. They have been most affected by adverse neighborhood conditions 
and they will be most affected by proposed changes. Residents have the 
most at stake in redevelopment and including them should be 
fundamental.
    Principle No. 2: Recognize that community involvement means helping 
neighborhood residents and businesses take part in the brownfields 
dialogue. Stakeholders must invest in education and training to create 
a common language that leaves no one at a communications disadvantage.
    Principle No. 3: Honor communities and neighborhoods as whole 
places, not solely as brownfields sites, where people want to live, 
learn, work and play.
    Principle No. 4: Honor diversity. In undertaking brownfields 
redevelopment, it will be necessary that all concerned respect 
diversity of races, cultures, and perspectives, even if their various 
viewpoints challenge the status quo. A community's contributions 
inevitably improve redevelopment plans and make for a more thorough, 
informed process.
    Principle No. 5: The goal of brownfields redevelopment is 
beneficial land reuse. Land reuse can either replicate the economic and 
environmental consequences that created brownfields, or it can lead to 
changes that will benefit all stakeholders. Further, race, class and 
poverty issues are intricately intertwined with the history of land use 
and under-investment in certain communities. This history must be 
considered in today's decision-making affecting neighborhoods.
    Principle No. 6: Every effort must be made to avoid displacing 
residents. Neither tax increases, nor escalating property values, nor 
rising rents, shall force families, workers and small businesses to 
unwillingly flee their neighborhoods.
    Principle No. 7: Economic and environmental advantages that come 
from brownfields redevelopment must benefit the communities, which have 
suffered and survived through years of blight, degradation and under-
investment.
    Principle No. 8: Health and the environment must be considered on a 
par with the importance of the brownfields real estate deal. Thirty 
States have passed laws on liability releases and investment tax 
incentives and they should not obscure this cardinal point.
    Principle No. 9: Recognize the intersection of the three Es: 
Equity, Economics and the Environment. This is the path to sustainable 
development.
    Principle No. 10: Invest sufficient resources to accomplish the 
community involvement objective. This is an area where the public and 
private sectors expend the fewest resources and expect to get the most 
bang for the buck. Community involvement is not public relations and it 
is more than public participation. It is resource-intensive 
relationship building that is sensitive and pursued over the long term. 
It demands that low-income and under-served people have a place at the 
table.

                               CONCLUSION

    Enactment of S. 350, ``The Brownfields Revitalization and 
Environmental Restoration Act of 2001,'' should facilitate brownfields 
redevelopment. Moreover, we appreciate the potential for positive 
results in under-served minority and low-income communities. The new 
funding sources, increased flexibility and elevation of the 
significance of community inclusion in the decision process are 
favorable goals. As an expert in the sustainable communities and 
environmental justice fields and a proponent of brownfields 
revitalization, GERI concludes that the bill advances many critical 
goals and objectives. We applaud the Subcommittee's leadership and look 
forward to working with you in the future.
                                 ______
                                 
Responses by Deeohnn Ferris to Additional Questions from Senator Inhofe

    Question 1. States like New Jersey have successfully developed 
brownfields programs that determine clean-up standards, assess 
attainment of standards, and offer comprehensive liability protections. 
Yet EPA has often questioned the adequacy of these programs and the 
technological expertise of the States to develop and enforce State 
clean-up standards. As EPA Administrator, what steps will you take (or 
recommend that Congress take) to ensure that States have the authority 
to establish and enforce clean-up standards and determine the final 
closure status of local Brownfields sites?
    Response. In the interests of advancing the compromise brownfields 
legislation, S. 350, the ``Brownfields Revitalization and Environmental 
Restoration Act of 2001,'' GERI has relied on language in the bill 
retaining the Federal oversight role and reservation of the Federal 
right to act to protect human health and the environment. Therefore, we 
have not urged the Senate to include provisions that would require a 
stringent showing of State expertise and brownfields program adequacy. 
However, requiring a State to demonstrate the effectiveness and equity 
of its voluntary clean-up program prior to delegation of the 
brownfields program by the Federal Government, would provide assurances 
via a showing of a successful track record.

    Question 2. Do you support Federal brownfields legislation, 
including a standard Federal definition of what constitutes a 
Brownfields site? Also, would you support including petroleum (and 
other common pollutants like asbestos, lead, and PCBs) in the 
definition of Brownfields? Would you offer Federal liability 
protections that mirror State liability protections? And, would you 
allow States to determine clean-up standards for Brownfields sites?
    Response. Providing that it captures brownfields in rural as well 
as urban areas, a standard definition of what constitutes a brownfields 
site would assist stakeholders, including agencies, developers, 
communities, elected officials and others, in terms of clarifying 
issues and the relationships of stakeholders to those issues, 
standardizing approaches to addressing them and standardizing the 
process of formulating redevelopment plans. Overall, it could 
contribute certainty with regard to factors involved in brownfields 
clean-up and redevelopment.
    Among others, petroleum, lead, asbestos and PCBs are commonly 
encountered toxic substances contaminating brownfields sites. Asbestos 
and lead in abandoned and/or old buildings, PCBs (e.g., either in 
storage drums or old equipment) and underground storage tanks pose 
problems at these sites. Thus, addressing these contaminants should be 
included within the realm of eligible expenditures.
    The questions above, regarding liability and clean-up standards are 
intertwined. To provide certainty to all stakeholders involved in 
brownfields redevelopment, ranging from communities to government, 
insurers and developers, both liability exemptions and clean-up 
standards should be standard. For example, developers and insurers need 
certainty to calculate costs, make financial commitments and 
guarantees. Similarly, communities and governments need certainty about 
the sufficiency of environmental and health protection measures and 
clean-ups. Standards will prohibit what is equivalent to judicial forum 
shopping by preventing stakeholders from choosing States and localities 
for brownfields redevelopment depending on the laxity or stringency of 
laws and regulations.

    Question 3. 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. Because 
S. 350 only provides a liability exemption for CERCLA contaminates and 
not petroleum, given EPA's own statistics that almost half of the sites 
contain petroleum, isn't it possible that half of the brownfields sites 
in this country may go undeveloped because of the lack of Federal 
liability protection for petroleum pollutants? How would you address 
petroleum contamination and leaking underground storage tanks?
    Response. Addressing leaking underground storage tanks should be 
included within the realm of eligible expenditures under S. 350. See 
our response to Question No. 2.

    Question 4. S. 350 allows EPA to ``reopen'' a site, even if that 
site has been approved or completed under a State program, if EPA 
``determines that information not known by the State has been 
discovered regarding the contamination or conditions at a facility.'' 
Isn't this standard overly broad? What exactly constitutes ``new 
information?''
    Response. EPA should work with the States to craft regulatory 
language about what constitutes sufficient grounds or criteria to 
reopen a site. The Senate could provide direction in legislative 
history. The definition of new information should include actual or 
imminent threats to human health or the environment. The uncertainty 
about new information would be greatly diminished if liability 
protections and clean-up standards are standardized throughout the 
nation.

    Question 5. EPA has never overfiled on an State-approved 
brownfields clean-up under CERCLA or any other statute. Yet, it is the 
perceived threat that impedes brownfields redevelopment. S. 350 only 
provides developers with a safety net for CERCLA. Experts, such as 
Robert Fox--a witness at the hearing--stated that if the power of EPA 
to force clean-ups under Superfund is taken away, then the Federal EPA 
could side step the Chafee bill by using other statutes (e.g. RCRA or 
TSCA) to force parties to clean up sites. Therefore, shouldn't Congress 
provide a similar safety net for other statutes, such as RCRA and TSCA?
    Response. We are uncertain what is meant by this question. However, 
Federal EPA already has the right to overfile or take action in lieu of 
the States under both TSCA and RCRA. Thus, the safety net already 
exists.
                               __________
     Statement of American Institute of Chemical Engineers (AIChE)
    I am Dr. Peter B. Lederman of New Providence, New Jersey and I am 
pleased to submit this testimony for the record on behalf of the 
American Institute of Chemical Engineers (AIChE). The AIChE has been 
concerned with clean-up of contaminated sites since the ``Superfund'' 
statute was implemented. We believe that the current Brownfields 
initiatives should be broadened and encouraged through statutory 
provisions and regulatory initiatives. These changes must be made at 
both the State and Federal levels.
    Some States, such as New Jersey, are leading in the effort to 
provide regulatory relief and innocent landowner protection. These 
State initiatives must be strengthened by parallel Federal legislation 
and regulations. At the present time a person redeveloping a 
Brownfields site may be protected under State law but can still be held 
accountable for actions taken by previous owners under the current 
Superfund Amendments and Reauthorization Act (SARA). This dichotomy 
makes developers hesitant to redevelop contaminated sites because of 
the unknown exposure under Federal law. We encourage the Congress to 
enact legislation that will protect innocent landowners thus providing 
certainty for the parties conducting the clean-ups. This will go a long 
way to providing a favorable platform for redevelopment of Brownfields.
    The clean-up of contaminated sites is governed by a rigorous set of 
steps under the National Contingency Plan. These steps are dictated by 
SARA, which was intended to provide Congressional guidance for the 
Superfund program. AIChE believes that there is a better way to manage 
clean-up of contaminated Brownfields sites. We have championed the 
``engineering Approach'' to clean-up as presented in the AIChE position 
paper ``An Engineering Approach to Superfund Clean-ups.'' A copy of 
that paper is attached, and we request that it be made part of the 
record. We believe that this streamlined approach to site clean-up is 
in the interest of all parties in that it will create a more favorable 
economic climate for clean-up while maintaining the goals of protecting 
the health, safety and welfare of the public.
    AIChE holds paramount the health and welfare of the public. We 
believe that a result-soriented clean-up methodology will achieve a 
better environment, and, hence better protect the public. AIChE 
supports language that focuses on streamlining the remediation process 
creating a more efficient, safe, cost-feasible clean-up for 
Brownfields.
    Thank you for the opportunity to submit our written testimony. We 
stand ready to assist the committee and members should they wish to 
discuss this matter in greater detail.
                                 ______
                                 
             AN ENGINEERING APPROACH TO SUPERFUND CLEANUPS
                           EXECUTIVE SUMMARY

    The professionals of the American Institute of Chemical Engineers 
desire to see CERCLA restructured so that the overall risk to human 
health and the environment at Superfund sites is reduced and that 
actions to reduce the risks are done in the most timely, efficient, and 
cost-effective manner possible.
    Although well-intentioned, CERCLA is not meeting expectations. 
Clean-ups are too slow, and cost too much.
    CERCLA clean-ups could be done more efficiently and quickly and at 
a significantly lower cost if the process were reformed so that the 
individuals responsible for clean-ups could apply sound engineering 
principles and methodologies from the beginning--in other words, if an 
engineering-based, results-oriented approach were adopted. Such an 
approach would entail:
      Establishing clear clean-up goals that are focused on 
reducing risks at the site--identifying substances of concern early and 
utilizing a site-specific risk-assessment based on realistic 
assumptions--and that take into account the intended future use of the 
land.
      Determining meaningful clean-up priorities under a more 
flexible, timely, and cost-effective prioritization process and a 
system to categorize and assign sites for action based on the level of 
clean-up action necessary.
      Streamlining the remediation process by incorporating an 
engineering-based, results-oriented process that permits compression of 
the multiple study processes into a single engineering study and 
identifies and implements a remedy in a timely manner.
      Assuring the availability of the right remediation 
technology through promotion of research, development, and 
implementation of new, innovative, and cost-efficient technologies that 
meet identified needs.
      Delegating responsibility for achieving clean-up goals to 
the parties doing the clean-ups, with an appropriate level of 
oversight.
      Promoting community involvement throughout the clean-up 
using a ``no surprises'' approach.
    AIChE's approach places much greater emphasis on expediting site 
clean-ups in order to reduce as quickly as possible the risk to human 
health and the environment, rather than on the administrative 
compliance that is the hallmark of the current process.
                                 ______
                                 
             AN ENGINEERING APPROACH TO SUPERFUND CLEANUPS

Background
    The Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA), commonly known as Superfund, was enacted in 
1980 in response to the discovery of chemical disposal sites at Love 
Canal, NY, and elsewhere. CERCLA requires that the U.S. Environmental 
Protection Agency (EPA) determine the nation's most serious abandoned 
polluted sites and gives the agency the power to force those 
responsible to clean the sites.
    To ensure prompt action, EPA can conduct clean-ups itself and later 
sue the responsible parties to recover the costs. EPA can also put 
States in charge of clean-ups. In order to cover EPA's,clean-up costs, 
CERCLA established a ``Superfund'' consisting of revenues from taxes on 
petroleum and feedstock chemicals, a broad-based corporate income tax, 
and general revenues.
    CERCLA prescribes what appears to be a straightforward, simple 
procedure for selecting clean-up remedies, but in practice the 
procedure is complex. The law requires that a Remedial Investigation, 
Feasibility Study, Remedial Design and Remedial Action be undertaken at 
each site. It also provides for public participation and establishes 
liability standards. These steps are implemented under the National 
Contingency Plan (NCP) through extensive detailed regulations.
    Thus far, EPA has identified approximately 40,000 potential CERCLA 
sites. The sites considered the most hazardous have been placed on the 
National Priorities List (NPL) for CERCLA clean-up; there currently are 
about 1200 sites on the NPL. Clean-ups have been fully implemented at 
more than 400 NPL sites, and clean-up activities are ongoing at 
approximately 500 other PAL sites. Clean-ups have been averaging 12 
years and $30 million per site. It is estimated that the Superfund and 
private parties have spent over $30 billion to clean CERCLA sites.
An Engineering Approach
    As engineering professionals, the members of the American Institute 
of Chemical Engineers (AIChE) desire to see CERCLA restructured so that 
it reduces the overall risk to human health and the environment posed 
by Superfund sites in the most timely, efficient, and cost-effective 
manner possible.
    The problems with CERCLA are well documented: in many cases, clean-
ups are too slow, cost too much, and are unfair as to who pays. 
Although CERCLA is well intentioned, it is not meeting expectations, 
and the current clean-up process inures to no-one's benefit.
    CERCLA's shortcomings are in great part a result of the focus on 
process over results. Currently, CERCLA operates like a person with a 
broken arm who goes to the hospital and says, ``My arm is broken. I 
think I need an x-ray, a cast, and some painkillers.'' But the doctor 
says, ``We have to find out what is wrong with you. We need to do a 
complete physical. I am ordering a blood test, a urinalysis, an MRI, 
and a cardiac stress test. After I've reviewed the results of your 
tests, we'll find a cure for what ails you.''
    The EPA Inspector General agrees that CERCLA's focus is misplaced. 
In a recent report, he noted:

    ``In general, lengthy remedial investigation/feasibility study and 
enforcement negotiations delayed actual clean-up of sites. Studying the 
sites and designing clean-up remedies accounted for about 75 percent of 
the time since the sites were discovered. . . . In addition, the 
requirements of [CERCLA] resulted in more focus on achieving process 
steps rather than clean-up of sites.'' \1\
---------------------------------------------------------------------------
    \1\ U.S. Environmental Protection Agency, Of Lice of Inspector 
General, ``Semiannual Report to Congress,'' October 1, 1995 through 
March 31, 1996, at 17 (May 1996).

    CERCLA needs to be reformulated to focus on results, while 
providing an expedited, efficient process to ensure that stakeholder 
needs are met.
    CERCLA clean-ups could be done more efficiently and more quickly 
and at a significantly lower cost if the individuals responsible for 
clean-ups could apply sound engineering principles and methodologies 
from the beginning. About one-half of the time and a significant amount 
of the costs can be saved if projects are allowed to proceed as normal 
engineering projects--in other words, if a problem-solving, engineering 
approach is adopted by all parties.
    A results-oriented approach would entail:

      Establishing clear clean-up goals
      Determining meaningful clean-up priorities
      Streamlining the remediation process
      Assuring the availability of the right technology
      Delegating responsibility for achieving clean-up goals
      Promoting community involvement throughout the clean-up

    This can be accomplished without sacrificing protection of the 
public.
Establishing Clear Clean-up Goals
    Fundamental to the success of any project is to identify the 
desired goals at the beginning. While mandating that site clean-ups 
meet the general standard of ``protective of human health and the 
environment,'' CERCLA does not provide specific clean-up goals. This 
has led many to wonder ``how clean is clean''? The lack of clear clean-
up goals has been a major cause of contention and delay in executing 
CERCLA clean-ups as those responsible for the clean-ups (called 
Potentially Responsible Parties or PRPs) and regulators argue over what 
standards should apply in each case.
    Clean-up goals must be clear. They must be realistic. They must be 
achievable. They must be measurable.
    Clean-up goals should focus on reducing the risks at the site, 
utilizing a site-specific assessment of risk based on realistic 
assumptions regarding the frequency, duration, and nature of potential 
exposure to hazardous substances. The goals must take into account the 
intended future use of the land, as determined in consultation with the 
landowner, the local community, and appropriate units of local and 
State governments.
    Establishing clear goals very early in the process would provide 
cost savings because: site assessments could be tailored to the clean-
up goals; applicable technologies could be identified early; the 
process could go forward with minimum oversight; and the party doing 
the clean-up could be measured against clear performance criteria when 
the clean-up is fully implemented.
Determining Meaningful Clean-up Priorities
    CERCLA's existing priority-setting mechanisms do not meet the 
objectives of conducting clean-ups quickly, efficiently, and at a 
reasonable cost and addressing the most serious (or ``worst'') sites 
first.
    Currently, all sites ranked for possible inclusion on the NPL are 
treated in essentially the same way; site-specific issues receive 
inadequate attention. However, all sites are not the same, not only 
with regard to the imminence of risk, but also the technological and 
economic feasibility of clean-up.
    CERCLA should allow for more flexible, timely, and cost-effective 
prioritization of sites clean-ups utilizing site-specific factors, 
including risk and future land use. Sites should be categorized based 
on the level of clean-up action necessary and assigned to one of the 
following categories:
      Removal or Remediation Pathway: Sites where there is an 
imminent or near-term risk and/or where technologies are available for 
mitigation should be subject, according to their relative priorities, 
to timely, risk-reducing removal or remediation actions.
      Immediate Removal/Monitor Pathway: Sites where full 
remedies are not practical or are of insufficient priority but require 
removal actions to provide a degree of protection should see such 
actions implemented immediately. Further action would be deferred until 
necessary or practical.
      Control/Monitor Pathway: Sites where practical remedies 
are not available should be stabilized and monitored. They could be 
returned to the standard track if conditions change.
      No Action/Monitor Pathway: Sites that do not require 
present action should be routed away from the main CERCLA pipeline and 
deferred until action is necessary. Sites should be rescored in the 
Hazard Ranking System (HRS) after field assessment as well as after 
interim actions. An expanded set of removal actions should be allowed 
and should be reflected in the HRS rescoring. These actions may obviate 
the need for inclusion on the NPL in specific cases.
Streamlining the Remediation Process
    In the conventional CERCLA process, every site is treated like the 
first, last, and only site. Little institutional memory is built into 
the process. The cost, in time and money, of starting every site from 
scratch may have value for legal defenses, but wastes technical 
resources and saps financial strength.
    The current remediation approach mandated by Congress has five 
major steps once a site has been placed on the NPL list: Remedial 
Investigation (RI); Feasibility Study (FS); Record of Decision (ROD); 
Remedial Design (RD); and Remedial Action (RA). In practice, the steps 
are very complex, with their attendant work plans, reviews, public 
participation, and related studies such as risk assessments. From 
inception of the Remedial Investigation to issuance of the Record of 
Decision often takes about 5 years. By the time the Remedial Action is 
fully implemented, on average 10 years have passed, with attendant 
added costs, since the decision to clean the site was made.
    The current process can be shortened by adopting an ``engineering 
approach.'' This approach would examine the most recent similar 
projects, look at what's different at the site, incorporate lessons 
learned at prior sites, modify the approach to account for the 
differences, and proceed to a remedy. It would focus on the ultimate 
goals of protecting human health and the environment. Investigations 
would be designed to produce only the data needed to make good 
decisions. Remedies would be selected from a truly feasible set and 
applied with flexibility to respond to site conditions. The key is to 
set, with the concurrence of the public and based on a risk assessment, 
the criteria by which the site will be judged as being remediated. The 
steps for this and the following actions are:
    Scope problem and define goals
  Identify contaminants of concern
  Conduct initial risk assessment to establish clean-up goals
  Develop initial feasible clean-up options
  Negotiate clean-up levels (subject to confirmation during 
    remedial investigation)
  Pick most likely clean-up scenario
    Conduct remedial investigation
  Establish extent of contamination
  Obtain sufficient data for feasibility study, confirming risk 
    assessment, and engineering solution
  Select feasible options
    Draft and adopt Record of Decision
    Develop remedial design (if necessary)
  Prepare bid specification for remedial action
    Conduct remedial action
  Perform actual remediation
  Prove site meets clean-up levels
  Monitor (if required) and remove from NPL or action list
    Obtain a release

    The steps outlined above are similar to the current remediation 
scenario, but with several major exceptions: more would be done in 
parallel; likely remedies would be selected and focused on much 
earlier; and the work would be directed toward cleaning up the site. 
The proposed process looks at developing minimum data to meet the needs 
of the solution. The process would not be rigid, but rather would be 
outcome-oriented on a case-by-case basis. Where sites have met the 
established clean-up criteria, a release should be available.
    The proposed process would require three to 5 years and should be 
carried out at two-thirds the cost because time, analytical, and 
engineering costs can be reduced significantly. The initial phase prior 
to the negotiation of clean-up levels should take 6 months. The 
negotiation should take 3 months. The feasibility study should take 6 
months, and the Record of Decision with public hearings another 6 
months. Clean-up should take 2 years for most sites; thus the entire 
process can be fully implemented in under 5 years.
Assuring the Availability of the Right Technology
    Selecting the right remediation technology is key to the success of 
an results-oriented approach to clean-ups. New, innovative and cost-
efficient technologies can improve site remediation by providing better 
clean-ups, accelerate the pace of clean-ups, and decrease costs. 
However, innovative technologies have not been effectively utilized 
because of a number of barriers. There is a general resistance to 
approving the application of an unproven remediation technology, and 
administrative procedures often delay the evaluation and approval of 
innovative technologies. PRPs often are hesitant to utilize innovative 
technologies because of the process delays, liability, and costs 
involved if an innovative technology fails to meet clean-up goals. 
Often there is,not a sufficient market for investors to fund 
development of innovative remediation technologies.
    Technology development should be refined so that it overcomes these 
barriers. The first step is to identify specific clean-up technology 
needs, particularly those that have the potential for the greatest 
cumulative risk reduction or a significant reduction in costs. The 
selection of the right remediation technology should be encouraged at 
four levels: cooperative research of new technologies; development of 
techniques for remediation of significant problems that would not 
sustain commercial development; risk-sharing methodologies for 
implementation of new technologies; and administrative incentives to 
promote the use of innovative technologies.
    Cost-effective clean-ups can be promoted through continued support 
of research to develop and demonstrate innovative clean-up technologies 
at the Hazardous Substance Research Centers (HSRCs) established under 
CERCLA.
Delegating Responsibility for Achieving Clean-up Goals
    EPA retains a great deal of supervision and oversight of the 
conduct of clean-ups, while legal representatives of PRPs exercise 
considerable control over clean-ups in order to protect their clients' 
interests. CERCLA generally precludes EPA from providing a release from 
future liability for unknown site conditions; in addition, EPA does not 
release PRPs who conduct clean-ups using remedies chosen and approved 
by EPA from liability if the remedy later fails or is found to be 
inadequate.
    With the establishment of clear goals and meaningful priorities, 
responsibility for achieving site clean-ups can and should be delegated 
to the parties doing the clean-ups. The delegated parties, in turn, 
should assign operational responsibility to the technical experts 
assigned to the clean-up.
    A single project team headed by an experienced technical 
professional should be selected to run the project. The team will need 
to include technically competent representatives of all agencies, 
communities, and firms involved in the clean-up. It should work 
together to resolve the technical aspects of the clean-up from a 
holistic approach. The professionals need to be empowered and supported 
by management, without unnecessary interference, but must be held 
accountable for achieving the clean-up goals.
    In order to ensure accountability, there needs to be appropriate 
oversight. Where possible, EPA should delegate the oversight, pursuant 
to Federal standards, to the State. The current oversight practice is 
to have a representative on the site overseeing the work of the 
engineers and PRP at every step and usually every day. The project team 
needs to be allowed to run the project, with review and concurrence at 
key milestones in the project but without detailed review of, and 
requiring changes in, items such as the Health and Safety Plan, the 
number and location of samples to be taken, and detailed work plans. 
This approach would put the responsibility for meeting the established 
operating practices, health and safety criteria, and clean-up levels 
where it should be: with the PRP and the engineer. PRPs who conduct 
clean-ups that are approved by EPA should be provided an opportunity to 
obtain a release from future liability for the remedy, absent non-
compliance with the approved clean-up plan.
Promoting Community Involvement Throughout the Clean-up
    The public often feels that it does not have adequate information 
about proposed CERCLA remedies and opportunities to provide timely 
input into the clean-up process. This results in a lack of trust in the 
adequacy of clean-ups.
    The plan to achieve the clean-up must be formulated with the 
assistance of the community. The public should be involved in clean-up 
decisions, using a ``no surprises'' approach. This means early and 
continuous public consultations. Each site should have a community 
advisory panel consisting of PRPs, local interest groups, local 
government representatives, and the general public to provide 
continuing involvement in decisionmaking.
    In addition, the general community should be brought into the 
process through public forums, periodic progress meetings, newsletters, 
press releases, open houses, and information sessions. In addition, all 
documentation should be available for easy public review.
    Most importantly, there must be an agreed-upon mission statement 
and commitment statement that guides the clean-up team members and 
identifies the community as their ``client.'' Community trust will only 
come about by recognized deeds and achievement of timely milestones.
Recommendations
    Because CERCLA affects our membership and because of our special 
skills, AIChE strongly urges that the CERCLA hazardous substance clean-
up process be reformulated to incorporate a more efficient and cost-
effective, engineering-based, results-oriented approach. This can be 
achieved by revising CERCLA and its implementing regulations to:
    1. Incorporate an engineering-based, results-oriented process that 
permits compression of the multiple study processes into a single 
feasibility study and identifies and implements a remedy in a timely 
manner.
    2. Mandate that site-specific risk assessments, based on realistic 
acceptable risk, be conducted wherever possible to determine the clean-
up goals and priority for each site.
    3. Require that the intended future use of the land, as determined 
in consultation with the affected community, be considered when 
determining clean-up goals and priorities.
    4. Revise the provisions establishing the National Priorities List 
and the Hazard Ranking System to: (a) allow for more flexible, timely, 
and cost-effective prioritization of site clean-ups; and (b) categorize 
and assign sites for action based on the level of clean-up action 
necessary.
    5. Increase funding to support research and development of 
innovative remediation technologies. Permit EPA to use the superfund to 
pay for a portion of the backup remedy if a pre-approved application of 
an innovative technology fails to meet the required clean-up level.
    6. Provide incentives for program managers to promote and approve 
the use of innovative technologies.
    7. Authorize EPA to provide releases to PRPs who conduct approved 
clean-ups, except in cases of non-compliance with the approved clean-up 
goals.
    8. Permit EPA to delegate authority to administer CERCLA clean-ups 
to States, where appropriate.
    9. Establish community advisory panels at each CERCLA site to 
provide continuing input and advice onsite clean-up decisions, 
including future land use.
    Finally, although these recommendations, if enacted, would greatly 
improve CERCLA, they will not totally solve CERCLA's problems. A number 
of the problems that CERCLA has experienced can be traced to the law's 
system for apportioning liability for clean-ups. It is impossible to 
fix CERCLA so that it conducts clean-ups quickly, efficiently, and 
cost-effectively without fixing the liability system. CERCLA must be 
amended to provide a liability system that promotes certainty, 
efficiency, equity, and finality--and does not delay clean-ups or 
disproportionally absorb clean-up resources. The system must provide 
both strong incentives, including liability releases for timely 
resolution of liability claims, and strong financial disincentives for 
failure to resolve liability issues quickly. As part of CERCLA 
liability reform, relief must be provided for response action 
contractors. CERCLA and EPA's associated guidance expose response 
action contractors to Superfund liability even though response action 
contractors are not responsible for site contamination. This drives up 
the cost of clean-ups as response action contractors seek to avoid 
liability by practicing ``defensive engineering'' and avoiding 
innovative technologies.
    The Superfund Task Force was established by AIChE's Government 
Relations Committee. The members of the task force are:
    Peter B. Lederman, Chairman, Dale E. Brooks, Bill Byers, John R. 
Ehrenfeld, William G. McGlasson, J. Winston Porter, Stanley I. Proctor,
Sunil I. Shah, Sean Devlin Bersell.
                                 ______
                                 

                  AICHE CREATING A WORLD OF DIFFERENCE

    The American Institute of Chemical Engineers (AIChE), founded in 
1908, is a non-profit, professional association that provides 
leadership in advancing the chemical engineering profession. Our 
membership of approximately 58,000 is made up of individuals who work 
in industry, government, academia, and consulting, as well as students 
and retirees. The Institute's efforts in the public policy arena are 
geared toward using the expertise of our members to provide sound 
technical information to government officials and others involved in 
public policy issues that impact the practice of chemical engineering 
and the industries and organizations where chemical engineering is 
utilized.
    Our members are creative problem solvers who use chemistry, 
physics, and mathematics to develop processes and design and operate 
plants that alter the physical or chemical states of materials to make 
useful products at a reasonable cost and in the safest manner possible. 
They play key roles in critical industries such as chemicals, 
petrochemicals, petroleum, agricultural chemicals, biotechnology, 
ceramics, electronics, fibers, food, glass, paper, pharmaceuticals, 
plastics, primary metals, and specialty chemicals. Chemical engineers 
are also at the forefront of research on environmental protection, 
process safety, and hazardous waste management to assure the safe and 
environmentally sound manufacture, use, and disposal of chemical 
products.
    To further our goal of promoting excellence in the development and 
practice of chemical engineering, we promote public understanding of 
the profession and its roles in resolving societal issues, provide 
forums to advance chemical engineering in theory and practice, create 
opportunities for individual chemical engineers to enhance their 
professional skills and capabilities, uphold and advance high 
professional standards and ethics, and support excellence in education. 
AIChE also sponsors pioneering research geared toward examining new 
technologies that can solve the problems of today and tomorrow.
    AIChE's position papers are intended to be informational and 
educational. They are the product of AIChE's commitment to using the 
expertise of our members and staff to provide sound technical 
information to government officials and others involved in public 
policy debates on issues that impact the practice of chemical 
engineering and the industries and organizations where chemical 
engineering is utilized.
                               __________

    STATEMENT OF THE ENVIRONMENTAL BUSINESS ACTION COALITION (EBAC)

    The Environmental Business Action Coalition (EBAC) strongly 
supports the Brownfields Revitalization and Environmental Restoration 
Act of 2001 introduced by Senators Lincoln Chafee of Rhode Island, 
Robert Smith of New Hampshire, Harry Reid of Nevada and Barbara Boxer 
of California. EBAC endorses this bipartisan effort and looks forward 
to working to secure its enactment this year.
    EBAC is an organization of leading environmental engineering, 
scientific and construction f rms representing over 60,000 
professional, managerial and support personnel trained in all aspects 
of the hazardous waste clean-up field. We represent the firms that are 
hired to perform clean-up actions at sites across the country--from the 
highly complex sites on the National Priorities List, to the high level 
waste and mixed waste sites operated by the Department of Energy, to 
the former and current military bases and facilities operated by the 
Department of Defense, to State-listed sites, to manufacturing and 
commercial facilities, landfills and other environmental projects.
    The Brownfields Revitalization and Environmental Restoration Act of 
2001 would provide the much-needed ``finality'' for States that already 
have successful clean-up programs. In addition, S. 350 would provide 
critically needed financial support for assessment and clean-up of 
brownfields. Finally, the proposal's liability reforms will go a long 
way in returning to productive use these abandoned sites burdening 
communities across the country. Overall, this bill provides the 
framework and funding that an effective national approach to 
Brownfields will require.
    While EBAC fully supports this well-crafted legislation and 
believes it will make important contributions to the redevelopment of 
countless abandoned properties nationwide, we strongly believe the 
liability reform provisions contained in S. 350 should be expanded to 
include protections for Response Action Contractors (RACs) from 
existing law's unfair liability scheme. Like those who favor finality, 
the firms performing clean-up services at hazardous waste sites need 
assurances that they won't be ensnared in the same liability scheme as 
PRPs. These protections are vital for encouraging and accelerating the 
clean-up of Brownfield sites across the country. Additionally, language 
that provides liability protections for clean-up firms will foster 
innovation in clean-ups and result in faster clean-ups at a reduced 
cost to the taxpayer.
    RACs are a critical part of the solution to hazardous waste 
problems; they are not the PRPs who own or operate the sites where the 
clean-ups are performed. RACs are the resource that employs highly 
trained, technically experienced staff to identify and prescribe 
remedies for waste at sites and to clean them up.
    However, current law does not restrict lawsuits to parties that 
caused a problem. In fact, the courts have allowed parties with direct 
Superfund liability to bring suits against RACs, drawing clean-up firms 
into the liability net without regard to fault or negligence in clean-
up activities. It is unfair to allow RACs to be placed on the same 
strict liability footing as polluters with direct responsibility for 
contamination of sites. Liability protection should be provided to RACs 
to facilitate the prompt clean-up of hazardous waste sites, including 
sites on the National Priorities List (NPL), Brownfields, and voluntary 
clean-up actions, in an expeditious, innovative and cost-effective 
manner.
                               __________

           STATEMENT OF THE AMERICAN INSTITUTE OF ARCHITECTS

Introduction
    The American Institute of Architects (AIA) is a professional 
society representing approximately 67,000 licensed architects and 
associated professionals located in 305 chapters throughout the United 
States. In large measure, AIA architects are small business men and 
woman working in firms with fewer than 10 employees. They are leaders 
in their community and understand the contributions small businesses 
make to the economic vitality of America. Working together with other 
elements of the design and construction industry, the AIA promotes a 
better quality of life through good design.

Brownfields Development Opportunities Abound
    Architects throughout this nation understand the enormous 
significance of redeveloping former industrial sites--Brownfields mixed 
uses including parks, shopping areas, learning centers, and affordable 
housing. Brownfield sites appear in every State and nearly every 
community, many in prime locations.
    Architects view Brownfields redevelopment legislation as an 
opportunity to redesign and enhance America's communities. The AIA 
stands ready to support the Brownfields Revitalization and 
Environmental Restoration Amendments Act of 2001 and assist the 
sponsors of this legislation and members of the Senate Committee on 
Environment and Public Works in its passage.
    Introduction of the Brownfields Revitalization and Environmental 
Restoration Act of 2001--(S. 350)--is a strong, positive step to 
provide much-needed relief to thousands of communities. The AIA 
commends Senator Bob Smith and Senator Lincoln Chafee for their strong 
leadership in keeping this issue at the forefront of the national 
agenda.
    More importantly, S. 350 provides long-awaited remedies for 
important funding and liability issues. This legislation would spur the 
clean-up of troublesome sites by providing financial resources and 
liability relief in a manner that both public and private sectors can 
endorse and wholeheartedly embrace. This measure provides communities 
with some of the key tools to tackle the reclamation of these 
unproductive lands and thus, it deserves broad Senate support.
    S. 350 would build on the Environmental Protection Agency's (EPA) 
current brownfields program by providing funding through a $150 million 
grant and loan program for fiscal years 2002-2006. These grants and 
loans are designed to help State and local governments identify and 
clean-up properties that are abandoned. EPA is authorized to provide 
grants to State or local governments and to set up Revolving Loan Fund 
for remediation grants.
    The bill recognizes that one size does not fit all and thus, it 
offers community friendly solutions. It provides flexibility to 
communities through grants and access to loan capitalization funds. It 
also provides remedies that will serve both urban and rural communities 
that are experiencing problems with contaminated sites.
    In addition to commitment of Federal financial resources, liability 
reform is critical to the success of brownfields redevelopment efforts. 
S. 350 provides liability protection for landowners--who did not 
contribute to the contamination--whose property may be contaminated by 
a contiguous contaminated site. This bill also provides relief for 
purchasers of contaminated property who did not contribute to the 
contamination. These are the types of liability reforms that the 
private sector developers, entrepreneurs and architects view as 
necessary ingredients to recycle the estimated 500,000 brownfields 
properties in our nation.

Realizing the Potential: Two Case Studies
    Two successful case studies of brownfields redevelopment where 
architects played a major role can be found in East Palo Alto, 
California and Atlanta, Georgia. Both case studies demonstrate the 
unique skills architects bring to the brownfields redevelopment debate.

Silcon Valley Gets a New Front Door
    East Palo Alto is a Brownfields Regional Pilot, a Federal 
Empowerment Zone, and an Enterprise Community. At the doorstep of the 
Silicon Valley, the town, incorporated for only about 15 years, is a 
prime location. It is still distancing itself from a disreputable past. 
The former downtown area was known as Whiskey Gulch and lived up to the 
moniker, according to those familiar with the area. East Palo Alto also 
had the dubious distinction of being the 1992 murder capital of the 
U.S. Enough was enough for community leaders who have begun to turn the 
tide, with the help of police from adjacent jurisdictions, eager 
developers, and The American Architectural Foundation (AAF).
    With a grant from the AAF, and with assistance from AIA San Mateo 
County and other area leaders, including Lee Lippert, AIA, and D. 
Michael Kastrop, AIA, East Palo Alto is in the process of planning to 
redevelop the 130-acre Ravenswood Industrial Area, an EPA-designated 
Regional Brownfield Pilot site. Clean-up of the site was initially put 
at $30 million, killing any chance of development. A more thorough 
evaluation put the clean-up cost at $2 to $5 million set a plan in 
motion. With an AAF grant funding a charrette, East Palo Alto residents 
finally have a chance to bring in such basics as grocery stores, other 
retail shops and small businesses. Prior to this effort, east Palo Alto 
had virtually no tax base to speak of. Architects have made a 
difference in this community and how it tackled its brownfields 
problem.

Restoring Steel Town
    In Atlanta, Thompson, Ventulett, Stainback & Associates, Inc.(TVS), 
has completed the master plan to redevelop the 138-acre former midtown 
site of Atlantic Steel. Combining 3,600 residential units, 6.25 million 
square feet of retail and entertainment space, and 1,000 hotel rooms, 
developers Jacoby Development, Inc., and CRB Realty Associates are 
creating a new in-town community. ``The long-term benefit of the 
redevelopment of this site is not only the amenities, but that the 
project also extends and complements the existing mass transit and 
pedestrian infrastructure'' said Philip A. Junger, AIA, TVS project 
manager. ``This project is big enough to make a real difference.'' 
There were no public funds for remediating the brownfield, said Thomas 
W. Ventulett, FAIA. Junger added that other than slag residue, a 
construction obstacle because it is expansive, there is minor 
contamination apparent. Architects view this not only as a financial or 
business opportunity but also as a successful community revitalization 
effort. 








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