[Congressional Record Volume 143, Number 23 (Thursday, February 27, 1997)]
[Extensions of Remarks]
[Pages E349-E351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               INTRODUCING THE LAND RECYCLING ACT OF 1997

                                 ______
                                 

                        HON. JAMES C. GREENWOOD

                            of pennsylvania

                    in the house of representatives

                      Thursday, February 27, 1997

  Mr. GREENWOOD. Mr. Speaker, today I am introducing the Land Recycling 
Act of 1997, legislation designed to spur economic growth in virtually 
every community across the country, particularly in America's urban 
core.


                        the brownfields epidemic

  My bill is an aggressive attack on brownfields, abandoned or 
underutilized former industrial properties where actual or potential 
environmental contamination hinders redevelopment or prevents it 
altogether. The U.S. Environmental Protection Agency [EPA] estimates 
that there may be as many as 500,000 such sites nationwide. In my own 
congressional district, the southern portion of

[[Page E350]]

Bucks County is estimated to have 3 square miles of abandoned or 
underutilized industrial property.
  This epidemic poses continuing risks to human health and the 
environment, erodes State and local tax bases, hinders job growth, and 
allows existing infrastructure to go to waste. Moreover, the reluctance 
to redevelop brownfields has led developers to undeveloped greenfields, 
which do not pose the risk of liability. Development in these areas 
contributes to suburban sprawl, and eliminates future recreational and 
agricultural uses. The Land Recycling Act will help stop urban erosion, 
and provide incentives to the redevelopment of our cities and towns 
across the country.


                       the sources of the problem

  The brownfields problem has many sources. Foremost among them is 
Federal law itself. Under the Comprehensive Environmental Response, 
Compensation and Liability Act [CERCLA], more commonly known as 
Superfund, parties who currently own or operate a facility can be held 
100 percent liable for any cleanup costs regardless of whether they 
contributed to the environmental contamination and regardless of 
whether they were in any way at fault. The imposition of this liability 
has led to tragic consequences, including the potential that a 
completely innocent purchaser of property can be held liable for 
catastrophic environmental damage. Because of the potential for this 
kind of liability, it is no wonder that potential developers recoil 
from any site with a history of industrial activity. It is simply not 
worth dealing with the environmental exposure when they have the 
alternative of developing in rural areas with no potential for 
liability.
  The Resource Conservation and Recovery Act [RCRA] poses nearly 
identical concerns. Under section 7003 of that law, for instance, EPA 
has broad authority to order a current owner-operator to address 
environmental contamination, again, regardless of fault.
  RCRA also hinders redevelopment of properties that may be subject to 
its corrective action program, many of which are in Pennsylvania and 
throughout the Great Lakes region. Enacted in 1984, RCRA's corrective 
action provisions comprise two relatively innocuous looking paragraphs 
requiring environmental cleanup of hazardous waste releases for certain 
regulated facilities. Unfortunately, Congress failed in these 
provisions to set out with any real specificity how EPA was to 
implement these requirements. As a result, well over a decade after 
enactment of the statute, EPA still has not finalized regulations 
governing the corrective action program. The glacial pact of EPA's 
rulemaking, in turn, has left many owners of facilities subject to 
corrective action in a regulatory void, either unwilling to begin 
environmental cleanups because of the uncertainty as to what will be 
required of them, or simply unable to because of the lack of regulatory 
guidance. Like other brownfields, these sites lie idle. In many 
instances, it simply makes no business sense to begin performing 
cleanups in the absence of some certainty as to what standards will be 
used in addressing them. This is frustrating for the business that own 
these properties and for the communities in which they are located.

  In the past several years Congress has considered a variety of 
proposals to combat these problems. Unfortunately, we have not yet 
enacted, been able to enact, amendments to CERCLA or RCRA.
  In stark contrast, 32 States have launched so-called voluntary 
cleanup programs. Under these initiatives property owners comply with 
State cleanup plans and are then released from further environmental 
liability at the site. The subcommittee has received testimony in the 
past from a variety of States and the U.S. Environmental Protection 
Agency [EPA] demonstrating that these State voluntary cleanup programs 
have been responsible for the redevelopment of hundreds of brownfields.
  In the first year the Commonwealth of Pennsylvania enacted its 
brownfields program, it succeeded in cleaning 35 sites.
  Although many of these State laws have proven successful, States, 
businesses, and other experts have tested that they could be far more 
effective if participation in a State voluntary cleanup program also 
included a release from Federal environmental liability. At field 
hearings in my district last September and in Columbus, OH, on February 
14, 1997, the House Commerce Subcommittee on Finance and Hazardous 
Materials, chaired by Mr. Oxley heard testimony that the possibility of 
continuing Federal liability despite an agreement to limit State 
liability--the so-called dual master problem--seriously diminishes the 
effectiveness of State voluntary cleanup programs. Because redevelopers 
face the potential for cleanup obligations above and beyond what a 
State has decided is appropriate to protect health and the environment, 
they may hesitate to enter into agreements with sellers to purchase 
idle properties. The testimony establishes, in my mind, that if 
brownfields redevelopers could be confident that the cleanup agreements 
entered into with States would not be second-guessed by EPA, then they 
would be far more likely to agree to conduct a cleanup.


                    The Land Recycling Act Solutions

  Based on the input of all of the stakeholders in the brownfields 
debate--the Federal Government, States, local governments, sellers, 
buyers, developers, lenders, environmentalists, community interests, 
and others--and in particular based on my own experiences in my 
district, I have drafted the Land Recycling Act to remove Federal 
barriers to the cleanup of brownfields across the country. The 
solutions I propose, I am proud to say, do not cost the American 
taxpayers one nickel. Instead, they will unleash the enormous capital 
of the private sector to get brownfields cleaned up and put back to 
productive use.
  First, the act removes what I believe is the most significant 
obstacle to redevelopment: the fear of EPA intervention at a site being 
cleaned up pursuant to a State voluntary cleanup program. The Land 
Recycling Act prohibits any person--other than a State--from using any 
enforcement provision of CERCLA or RCRA with respect to a release of 
hazardous substances at any facility that is being addressed pursuant 
to a State voluntary cleanup program. In order to take advantage of 
this liability shield, a State must certify to EPA that it has enacted 
a voluntary cleanup program and that it has the resources necessary to 
carry out the program, and notify EPA of the facilities being addressed 
pursuant to the program.
  I am very sensitive to the concern that this provision could lead to 
a ``race to the bottom'' among the States, which, some argue, may lower 
their cleanup standards in order to attract new jobs at the expense of 
health and the environment. Accordingly, my bill makes numerous 
exceptions to the EPA enforcement ban. Sites listed on the Superfund 
National Priorities List [NPL] are not eligible, for instance, nor 
would any site that EPA proposed for listing on the NPL; nothing in the 
legislation limits EPA's current authority to investigate sites 
pursuant to CERCLA section 104 to determine whether they are eligible 
for listing on the NPL. Thus, Federal enforcement authorities will not 
be limited at any site that is truly of national significance. Further, 
the limitations on enforcement will not apply to any site that is 
already being addressed pursuant to consent decrees or other agreements 
with the United States. If someone has agreed with EPA to clean up a 
site, they should clean it up--the Act is not an escape hatch for 
parties responsible for cleaning up environmental contamination.

  This limitation on enforcement will allow parties tremendous 
certainty in their decisionmaking. Knowing that they only have to deal 
with a State, redevelopers can be certain that once they have reached 
agreement with a State on the scope and extent of any necessary 
cleanup, that agreement will not be second-guessed by the Federal 
Government.
  The act has two provisions aimed directly at ensuring Superfund's 
sweeping liability scheme does not apply to innocent parties. The first 
protects prospective purchasers of property from Superfund liability if 
they conduct a baseline assessment of a facility's contamination, do 
not contribute to any contamination at a property, and otherwise comply 
with law. It is EPA's current policy to grant this relief, but it may 
only be accomplished through the cumbersome, time-consuming process of 
negotiating and entering into an agreement with the United States. The 
bona fide prospective purchaser provision is self-executing, and 
therefore obviates the need to conduct a time-consuming negotiation for 
a prospective purchaser agreement with EPA.
  Another provision deals with innocent landowners. Building on 
language that has had a bipartisan consensus over the last several 
years, the Land Recycling Act shields innocent landowners from CERCLA 
liability if they have made all appropriate inquiry into the condition 
of a property prior to acquiring it. The bill requires an environmental 
assessment of the property to have been performed within 180 days of 
acquisition in order to satisfy the all appropriate inquiry standard.
  I believe these three straightforward solutions will provide an 
aggressive antidote to the epidemic of brownfields in America. Let me 
say, though, that I am not, nor do I think my original cosponsor 
Congressman Klink, are wedded to any particular provision contained in 
the bill. I know that my friends in the environmental community will 
have concerns with some of the approaches we have taken. Some in 
industry, on the other hand, have told me that legislation like this 
does not go nearly far enough, either in the kinds of sites it 
addresses nor in the certainty that it provides under Federal 
environmental law. I look forward to a vigorous debate because I am 
confident that we can resolve these issues.


                   the need for comprehensive reform

  While I am confident that the Land Recycling Act will go a very long 
way toward getting the half million brownfields sites across the 
country cleaned up, we in Congress have a much larger task at hand. I 
strongly support

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a comprehensive overhaul of the Superfund Program to ensure that we do 
not perpetuate the brownfields problem across the country. The Congress 
needs to address liability issues, remedy selection concerns, and other 
matters that have prevented Superfund from accomplishing more in its 
17-year existence. I am both dissatisfied with the current pace of NPL 
site cleanups convinced that the roots of many of the brownfields 
problems lie throughout the Superfund statute.
  I look to the chairman of the Commerce Committee, Mr. Bliley, and the 
chairman of the Finance and Hazardous Materials Subcommittee, Mr. 
Oxley, for leadership on comprehensive Superfund reform. These two 
chairmen ably fought for Superfund reform in the last Congress, but the 
process unfortunately broke down in the mire of election year politics. 
I hope that 1997 offers more promise, and that they will consider 
including the Land Recycling Act as part of their Superfund reform 
package.

                          ____________________