[Congressional Record Volume 146, Number 62 (Thursday, May 18, 2000)]
[Senate]
[Pages S4193-S4199]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. VOINOVICH:
  S. 2590. A bill to reauthoize and amend the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980; to the 
Committee on Environmental and Public Works.


                 BROWNFIELDS REVITALIZATION ACT OF 2000

 Mr. VOINOVICH. Mr. President, I rise today to introduce 
legislation that will provide incentives to clean up abandoned 
industrial sites--or brownfields--across the country and put them back 
into productive use and preserve our greenspaces.
  It is time to create more certainty in the brownfields cleanup 
process. Parties that clean up non-Superfund sites under state cleanup 
laws need certainty about the rules that apply to them, particularly 
that their actions terminate the risk of future liability under the 
federal Superfund program.
  The bill that I introduce today, the Brownfield Revitalization Act of 
2000, creates that certainty by allowing states to release parties that 
have cleaned up sites under state laws and programs from federal 
liability. This bill has strong bipartisan support from our nation's 
Governors who have written to me expressing their support for this 
legislation.
  I strongly believe that there should be no requirement that the U.S. 
Environmental Protection Agency (EPA) pre-approve state laws and 
programs. State brownfields programs address sites that are not on the 
National Priorities List (NPL) and where the federal government has 
played little or no role.
  States are leading the way in cleaning up sites more efficiently and 
cost-effectively. According to state solid waste management officials, 
states average more than 1,400 cleanups per year. And they are 
addressing approximately 4,700 sites at any given time.
  This is helping to recycle our urban wastelands, prevent urban sprawl 
and preserve our farmland and greenspaces. These programs are cleaning 
up eyesores in our inner cities, making them more desirable places to 
live. Because they are putting abandoned sites back into productive 
use, they are the key to providing economic rebirth to our urban areas, 
and good-paying jobs to local residents. This bill makes sense for our 
environment and it makes sense for our economy.
  The bill I am introducing today is similar to the brownfields 
provisions in S. 1090, the Superfund Program Completion Act of 1999, by 
Senator Bob Smith and the late-Senator John Chafee. The purpose of my 
bill is to build upon the success of state programs by providing even 
more incentives to clean up brownfield sites in order to provide better 
protection for the health and safety of our citizens and the 
environment. What we don't need are delays caused by the U.S. EPA's 
second-guessing of state decisions.
  A good example of second-guessing occurred in my own state of Ohio. 
One company, TRW completed a cleanup at its site in Minerva under 
Ohio's enforcement program in 1986. Despite these cleanup efforts, the 
U.S. EPA placed the site on the NPL in 1989. However, after listing the 
site, the U.S. EPA took no aggressive steps for additional cleanup. The 
site has been untouched for years. In fact, it is now likely that the 
site will be delisted.
  To enhance and encourage further cleanup efforts, Ohio has 
implemented a private sector-based program to clean up brownfields 
sites. When I was Governor, Ohio EPA, Republicans and Democrats in the 
Ohio Legislature and I worked hard to implement a program that we 
believe works for Ohio. Our program is already successful in improving 
Ohio's environment and economy.
  In almost 20 years under the federal Superfund program, the U.S. EPA 
has only cleaned up 18 sites in Ohio. In contrast, 103 sites have been 
cleaned up under Ohio's voluntary cleanup program in 5 years. And many 
more cleanups are underway.
  States clearly have been the innovators in developing voluntary 
cleanup programs, and Ohio's program has been very successful in 
getting cleanups done more quickly and cost effectively. For example, 
the first cleanup conducted under our program--the Kessler Products 
facility, near Canton--was estimated to cost $2 million and take 3 to 5 
years to complete if it had been cleaned under Superfund. However, 
under Ohio's voluntary program, the cost was $600,000 and took 6 months 
to complete. These cleanups are good for the environment and good for 
the economy.
  Mr. President, Ohio and other states have very successful programs 
that clean up sites more efficiently and cost effectively. This bill 
would help build on their success by providing assurances to parties 
that when they clean up a site correctly, they will not be held liable 
under Superfund down the road. The bill precludes the federal 
government from taking action at a site where cleanup is being 
conducted under a state program except under certain circumstances, 
such as when a state requests federal action, when the U.S. EPA 
determines that a state is unwilling or unable to take appropriate 
action, or when contamination has migrated across state lines. The bill 
does not take away the U.S. EPA's authority to conduct emergency 
removals or their authority to conduct tests at a site to determine if 
a site should be listed on the NPL.
  This legislation also ensures that Federal facilities are subject to 
the

[[Page S4195]]

same environmental cleanup requirements as private sites. In 1992, 
Congress enacted the Federal Facilities Compliance Act (FFCA), which 
holds Federal facilities accountable to meet State and Federal 
environmental laws regulating hazardous waste. However, subsequent 
Federal court decisions have undermined the intent of FFCA and similar 
language in other statutes. We should be reminded that contamination 
problems at Federal facilities are largely the result of years of self-
regulation by Federal agencies. It is essential that States have the 
authority to oversee cleanup and enforce their own laws and standards. 
My bill merely ensures that Federal agencies are held accountable to 
the same state and federal regulations that govern private entities.
  This bill is just plain commonsense. It provides more protection for 
the environment by providing incentives to clean up hazardous waste 
sites. It helps preserve our greenspaces. And it helps our economy by 
putting abandoned sites back into productive use, providing jobs and 
better places to live in our urban areas.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2590

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the 
     ``Brownfields Revitalization Act of 2000''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

                  TITLE I--BROWNFIELDS REVITALIZATION

Sec. 101. Brownfields.

                   TITLE II--STATE RESPONSE PROGRAMS

Sec. 201. State response programs.
Sec. 202. State cost share.

                   TITLE III--PROPERTY CONSIDERATIONS

Sec. 301. Contiguous properties.
Sec. 302. Prospective purchasers and windfall liens.
Sec. 303. Safe harbor innocent landholders.

               TITLE IV--FEDERAL ENTITIES AND FACILITIES

Sec. 401. Applicability of law; immunity.

                  TITLE I--BROWNFIELDS REVITALIZATION

     SEC. 101. BROWNFIELDS.

       Title I of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
     seq.) is amended by adding at the end the following:

     ``SEC. 127. BROWNFIELDS.

       ``(a) Definitions.--In this section:
       ``(1) Brownfield facility.--
       ``(A) In general.--The term `brownfield facility' means 
     real property, the expansion or redevelopment of which is 
     complicated by the presence or potential presence of a 
     hazardous substance.
       ``(B) Exclusions.--The term `brownfield facility' does not 
     include--
       ``(i) any portion of real property that, as of the date of 
     submission of an application for assistance under this 
     section, is the subject of an ongoing removal under this 
     title;
       ``(ii) any portion of real property that has been listed on 
     the National Priorities List or is proposed for listing as of 
     the date of the submission of an application for assistance 
     under this section;
       ``(iii) any portion of real property with respect to which 
     cleanup work is proceeding in substantial compliance with the 
     requirements of an administrative order on consent, or 
     judicial consent decree that has been entered into, or a 
     permit issued by, the United States or a duly authorized 
     State under this Act, the Solid Waste Disposal Act (42 U.S.C. 
     6901 et seq.), section 311 of the Federal Water Pollution 
     Control Act (33 U.S.C. 1321), the Toxic Substances Control 
     Act (15 U.S.C. 2601 et seq.), or the Safe Drinking Water Act 
     (42 U.S.C. 300f et seq.);
       ``(iv) a land disposal unit with respect to which--

       ``(I) a closure notification under subtitle C of the Solid 
     Waste Disposal Act (42 U.S.C. 6921 et seq.) has been 
     submitted; and
       ``(II) closure requirements have been specified in a 
     closure plan or permit; or

       ``(v) a portion of a facility, for which portion assistance 
     for response activity has been obtained under subtitle I of 
     the Solid Waste Disposal Act (42 U.S.C. 6991 et seq.) from 
     the Leaking Underground Storage Tank Trust Fund established 
     under section 9508 of the Internal Revenue Code of 1986.
       ``(C) Facilities other than brownfield facilities.--That a 
     facility may not be a brownfield facility within the meaning 
     of subparagraph (A) has no effect on the eligibility of the 
     facility for assistance under any provision of Federal law 
     other than this section.
       ``(2) Eligible entity.--
       ``(A) In general.--The term `eligible entity' means--
       ``(i) a general purpose unit of local government;
       ``(ii) a land clearance authority or other quasi-
     governmental entity that operates under the supervision and 
     control of or as an agent of a general purpose unit of local 
     government;
       ``(iii) a government entity created by a State legislature;
       ``(iv) a regional council or group of general purpose units 
     of local government;
       ``(v) a redevelopment agency that is chartered or otherwise 
     sanctioned by a State;
       ``(vi) a State; and
       ``(vii) an Indian Tribe.
       ``(B) Exclusion.--The term `eligible entity' does not 
     include any entity that is not in substantial compliance with 
     the requirements of an administrative order on consent, 
     judicial consent decree that has been entered into, or a 
     permit issued by, the United States or a duly authorized 
     State under this Act, the Solid Waste Disposal Act (42 U.S.C. 
     6901 et seq.), the Federal Water Pollution Control Act (33 
     U.S.C. 1251 et seq.), the Toxic Substances Control Act (15 
     U.S.C. 2601 et seq.), or the Safe Drinking Water Act (42 
     U.S.C. 300f et seq.) with respect to any portion of real 
     property that is the subject of the administrative order on 
     consent, judicial consent decree, or permit.
       ``(3) Secretary.--The term `Secretary' means the Secretary 
     of Housing and Urban Development.
       ``(b) Brownfield Site Characterization and Assessment Grant 
     Program.--
       ``(1) Establishment of program.--The Administrator shall 
     establish a program to provide grants for the site 
     characterization and assessment of brownfield facilities.
       ``(2) Assistance for site characterization and assessment 
     and response actions.--
       ``(A) In general.--On approval of an application made by an 
     eligible entity, the Administrator may make grants to the 
     eligible entity to be used for the site characterization and 
     assessment of 1 or more brownfield facilities.
       ``(B) Site characterization and assessment.--A site 
     characterization and assessment carried out with the use of a 
     grant under subparagraph (A)--
       ``(i) shall be performed in accordance with section 
     101(35)(B); and
       ``(ii) may include a process to identify or inventory 
     potential brownfield facilities.
       ``(c) Brownfield Remediation Grant Program.--
       ``(1) Establishment of program.--In consultation with the 
     Secretary, the Administrator shall establish a program to 
     provide grants to be used for response actions (excluding 
     site characterization and assessment) at 1 or more brownfield 
     facilities.
       ``(2) Assistance for response actions.--On approval of an 
     application made by an eligible entity, the Administrator, in 
     consultation with the Secretary, may make grants to the 
     eligible entity to be used for response actions (excluding 
     site characterization and assessment) at 1 or more brownfield 
     facilities.
       ``(d) General Provisions.--
       ``(1) Maximum grant amount.--
       ``(A) In general.--The total of all grants under 
     subsections (b) and (c) shall not exceed, with respect to any 
     individual brownfield facility covered by the grants, 
     $350,000.
       ``(B) Waiver.--The Administrator may waive the $350,000 
     limitation under subparagraph (A) based on the anticipated 
     level of contamination, size, or status of ownership of the 
     facility.
       ``(2) Prohibition.--
       ``(A) In general.--No part of a grant under this section 
     may be used for payment of penalties, fines, or 
     administrative costs.
       ``(B) Exclusions.--For the purposes of subparagraph (A), 
     the term `administrative cost' does not include the cost of--
       ``(i) investigation and identification of the extent of 
     contamination;
       ``(ii) design and performance of a response action; or
       ``(iii) monitoring of natural resources.
       ``(3) Audits.--The Inspector General of the Environmental 
     Protection Agency shall conduct such reviews or audits of 
     grants under this section as the Inspector General considers 
     necessary to carry out the objectives of this section. Audits 
     shall be conducted in accordance with the auditing procedures 
     of the General Accounting Office, including chapter 75 of 
     title 31, United States Code.
       ``(4) Leveraging.--An eligible entity that receives a grant 
     under this section may use the funds for part of a project at 
     a brownfield facility for which funding is received from 
     other sources, but the grant shall be used only for the 
     purposes described in subsection (b) or (c).
       ``(5) Agreements.--Each grant made under this section shall 
     be subject to an agreement that--
       ``(A) requires the eligible entity to comply with all 
     applicable State laws (including regulations);
       ``(B) requires that the eligible entity shall use the grant 
     exclusively for purposes specified in subsection (b) or (c);
       ``(C) in the case of an application by an eligible entity 
     under subsection (c), requires payment by the eligible entity 
     of a matching share (which may be in the form of a 
     contribution of labor, material, or services) of at least 20 
     percent of the costs of the response action for which the 
     grant is made, is from non-Federal sources of funding.
       ``(D) contains such other terms and conditions as the 
     Administrator determines to be necessary to carry out this 
     section.
       ``(e) Grant Applications.--
       ``(1) Submission.--

[[Page S4196]]

       ``(A) In general.--Any eligible entity may submit an 
     application to the Administrator, through a regional office 
     of the Environmental Protection Agency and in such form as 
     the Administrator may require, for a grant under this section 
     for 1 or more brownfield facilities.
       ``(B) Coordination.--In developing application 
     requirements, the Administrator shall coordinate with the 
     Secretary and other Federal agencies and departments, such 
     that eligible entities under this section are made aware of 
     other available Federal resources.
       ``(C) Guidance.--The Administrator shall publish guidance 
     to assist eligible entities in obtaining grants under this 
     section.
       ``(2) Approval.--The Administrator, in consultation with 
     the Secretary, shall make an annual evaluation of each 
     application received during the prior fiscal year and make 
     grants under this section to eligible entities that submit 
     applications during the prior year and that the 
     Administrator, in consultation with the Secretary, determines 
     have the highest rankings under the ranking criteria 
     established under paragraph (3).
       ``(3) Ranking criteria.--The Administrator, in consultation 
     with the Secretary, shall establish a system for ranking 
     grant applications that includes the following criteria:
       ``(A) The extent to which a grant will stimulate the 
     availability of other funds for environmental remediation and 
     subsequent redevelopment of the area in which the brownfield 
     facilities are located.
       ``(B) The potential of the development plan for the area in 
     which the brownfield facilities are located to stimulate 
     economic development of the area on completion of the 
     cleanup, such as the following:
       ``(i) The relative increase in the estimated fair market 
     value of the area as a result of any necessary response 
     action.
       ``(ii) The demonstration by applicants of the intent and 
     ability to create new or expand existing business, 
     employment, recreation, or conservation opportunities on 
     completion of any necessary response action.
       ``(iii) If commercial redevelopment is planned, the 
     estimated additional full-time employment opportunities and 
     tax revenues expected to be generated by economic 
     redevelopment in the area in which a brownfield facility is 
     located.
       ``(iv) The estimated extent to which a grant would 
     facilitate the identification of or facilitate a reduction of 
     health and environmental risks.
       ``(v) The financial involvement of the State and local 
     government in any response action planned for a brownfield 
     facility and the extent to which the response action and the 
     proposed redevelopment is consistent with any applicable 
     State or local community economic development plan.
       ``(vi) The extent to which the site characterization and 
     assessment or response action and subsequent development of a 
     brownfield facility involves the active participation and 
     support of the local community.
       ``(vii) The extent to which the applicant coordinated with 
     the State agency.
       ``(viii) Such other factors as the Administrator considers 
     appropriate to carry out the purposes of this section.
       ``(C) The extent to which a grant will enable the creation 
     of or addition to parks, greenways, or other recreational 
     property.
       ``(D) The extent to which a grant will meet the needs of a 
     community that has an inability to draw on other sources of 
     funding for environmental remediation and subsequent 
     redevelopment of the area in which a brownfield facility is 
     located because of the small population or low income of the 
     community.''.

                   TITLE II--STATE RESPONSE PROGRAMS

     SEC. 201. STATE RESPONSE PROGRAMS.

       (a) Definitions.--Section 101 of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (42 U.S.C. 9601) is amended by adding at the end the 
     following:
       ``(39) Bona fide prospective purchaser.--The term `bona 
     fide prospective purchaser' means a person that acquires 
     ownership of a facility after the date of enactment of this 
     paragraph, or a tenant of such a person, that establishes 
     each of the following by a preponderance of the evidence:
       ``(A) Disposal prior to acquisition.--All deposition of 
     hazardous substances at the facility occurred before the 
     person acquired the facility.
       ``(B) Inquiries.--
       ``(i) In general.--The person made all appropriate 
     inquiries into the previous ownership and uses of the 
     facility and the facility's real property in accordance with 
     generally accepted good commercial and customary standards 
     and practices.
       ``(ii) Standards and practices.--The standards and 
     practices referred to in paragraph (35)(B)(ii) or those 
     issued or adopted by the Administrator under that paragraph 
     shall be considered to satisfy the requirements of this 
     subparagraph.
       ``(iii) Residential use.--In the case of property for 
     residential or other similar use purchased by a 
     nongovernmental or noncommercial entity, a facility 
     inspection and title search that reveal no basis for further 
     investigation shall be considered to satisfy the requirements 
     of this subparagraph.
       ``(C) Notices.--The person provided all legally required 
     notices with respect to the discovery or release of any 
     hazardous substances at the facility.
       ``(D) Care.--The person exercised appropriate care with 
     respect to each hazardous substance found at the facility by 
     taking reasonable steps to stop any continuing release, 
     prevent any threatened future release and prevent or limit 
     human or natural resource exposure to any previously released 
     hazardous substance.
       ``(E) Cooperation, assistance, and access.--The person has 
     not failed to substantially comply with the requirement 
     stated in section 122(p)(2)(H) with respect to the facility.
       ``(F) No affiliation.--The person is not affiliated through 
     any familial or corporate relationship with any person that 
     is or was a party potentially responsible for response costs 
     at the facility.
       ``(40) Facility subject to state cleanup.--The term 
     `facility subject to State cleanup' means a facility other 
     than a facility--
       ``(A) that is listed on the National Priorities List;
       ``(B) that is proposed for listing on the National 
     Priorities List, based on a determination by the 
     Administrator published in the Federal Register that the 
     facility qualifies for listing under section 105; or
       ``(C) for which an administrative order on consent or 
     judicial consent decree requiring response action has been 
     entered into by the United States with respect to the 
     facility under--
       ``(i) this Act;
       ``(ii) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
     seq.);
       ``(iii) the Federal Water Pollution Control Act (33 U.S.C. 
     1251 et seq.);
       ``(iv) the Toxic Substances Control Act (15 U.S.C. 2601 et 
     seq.); or
       ``(v) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
       ``(41) Qualifying state response program.--The term 
     `qualifying State response program' means a State program 
     that includes the elements described in section 128(b).''.
       (b) Qualifying State Response Programs.--Title I of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9601 et seq.) (as amended by 
     section 101(a)) is amended by adding at the end the 
     following:

     ``SEC. 128. QUALIFYING STATE RESPONSE PROGRAMS.

       ``(a) Assistance to States.--The Administrator shall 
     provide grants to States to establish and expand qualifying 
     State response programs that include the elements listed in 
     subsection (b).
       ``(b) Elements.--The elements of a qualifying State 
     response program are the following:
       ``(1) Oversight and enforcement authorities or other 
     mechanisms that are adequate to ensure that--
       ``(A) response actions will protect human health and the 
     environment and be conducted in accordance with applicable 
     Federal and State law; and
       ``(B) in the case of a voluntary response action, if the 
     person conducting the voluntary response action fails to 
     complete the necessary response activities, including 
     operation and maintenance or long-term monitoring activities, 
     the response activities will be completed as necessary to 
     protect human health and the environment.
       ``(2) Adequate opportunities for public participation, 
     including prior notice and opportunity for comment in 
     appropriate circumstances, in selecting response actions.
       ``(3) Mechanisms for approval of a response action plan, or 
     a requirement for certification or similar documentation from 
     the State to the person conducting a response action 
     indicating that the response is complete.
       ``(c) Enforcement in Cases of a Release Subject to a State 
     Plan.--
       ``(1) Enforcement.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     in the case of a release or threatened release of a hazardous 
     substance at a facility subject to State cleanup, neither the 
     President nor any other person, except the State, may use any 
     authority under this Act to take an administrative or 
     enforcement action against any person regarding any matter 
     that is within the scope of a response action--
       ``(i) that is being conducted or has been completed under 
     State law; or
       ``(ii) at a site, the cleanup of which shall be subject to 
     State oversight.
       ``(B) Exceptions.--The President may bring an enforcement 
     action under this Act with respect to a facility described in 
     subparagraph (A) if--
       ``(i) the enforcement action is authorized under section 
     104;
       ``(ii) the State requests that the President provide 
     assistance in the performance of a response action and that 
     the enforcement bar in subparagraph (A) be lifted;
       ``(iii) at a facility at which response activities are 
     ongoing the Administrator--

       ``(I) makes a written determination that the State is 
     unwilling or unable to take appropriate action, after the 
     Administrator has provided the Governor notice and an 
     opportunity to cure; and
       ``(II) the Administrator determines that the release or 
     threat of release constitutes a public health or 
     environmental emergency under section 104(a)(4);

       ``(iv) the Administrator determines that contamination has 
     migrated across a State line, resulting in the need for 
     further response action to protect human health or the 
     environment; or

[[Page S4197]]

       ``(v) in the case of a facility at which all response 
     actions have been completed, the Administrator--

       ``(I) makes a written determination that the State is 
     unwilling or unable to take appropriate action, after the 
     Administrator has provided the Governor notice and an 
     opportunity to cure; and
       ``(II) makes a written determination that the facility 
     presents a substantial risk that requires further remediation 
     to protect human health or the environment, as evidenced by--

       ``(aa) newly discovered information regarding contamination 
     at the facility;
       ``(bb) the discovery that fraud was committed in 
     demonstrating attainment of standards at the facility;
       ``(cc) the failure of the remedy to prepare a site for the 
     intended use of the site;
       ``(dd) a structural failure of the remedy; or
       ``(ee) a change in land use giving rise to a clear threat 
     of exposure to which a State is unwilling to respond.
       ``(C) EPA notification.--
       ``(i) In general.--In the case of a facility at which there 
     is a release or threatened release of a hazardous substance, 
     pollutant, or contaminant and for which the Administrator 
     intends to undertake an administrative or enforcement action, 
     the Administrator, prior to taking the administrative or 
     enforcement action, shall notify the State of the action the 
     Administrator intends to take and wait a for a period of 30 
     days for an acknowledgment from the State under clause (ii).
       ``(ii) State response.--Not later than 30 days after 
     receiving a notice from the Administrator under clause (i), 
     the State shall notify the Administrator if the facility 
     contains a site, the cleanup of which--

       ``(I) is being conducted or has been completed under State 
     law; or
       ``(II) shall be subject to State oversight.

       ``(iii) Public health or environmental emergency.--If the 
     Administrator finds that a release or threatened release 
     constitutes a public health or environmental emergency under 
     section 104(a)(4), the Administrator may take appropriate 
     action immediately after giving notification under clause (i) 
     without waiting for State acknowledgment.
       ``(2) Cost or damage recovery actions.--Paragraph (1) shall 
     not apply to an action brought by a State, Indian Tribe, or 
     general purpose unit of local government for the recovery of 
     costs or damages under this Act.
       ``(3) Savings provision.--
       ``(A) Existing agreements.--A memorandum of agreement, 
     memorandum of understanding, or similar agreement between the 
     President and a State or Indian tribe defining Federal and 
     State or tribal response action responsibilities that was in 
     effect as of the date of enactment of this section with 
     respect to a facility to which paragraph (1)(C) does not 
     apply shall remain effective until the agreement expires in 
     accordance with the terms of the agreement.
       ``(B) New agreements.--Nothing in this subsection precludes 
     the President from entering into an agreement with a State or 
     Indian tribe regarding responsibility at a facility to which 
     paragraph (1)(C) does not apply.''.

     SEC. 202. STATE COST SHARE.

       Section 104(c) of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9604(c)) 
     is amended--
       (1) by striking ``(c)(1) Unless'' and inserting the 
     following:
       ``(c) Miscellaneous Limitations and Requirements.--
       ``(1) Continuance of obligations from fund.--Unless'';
       (2) in paragraph (1), by striking ``taken obligations'' and 
     inserting ``taken, obligations'';
       (3) by striking ``(2) The President'' and inserting the 
     following:
       ``(2) Consultation.--The President''; and
       (4) by striking paragraph (3) and inserting the following:
       ``(3) State cost share.--
       ``(A) In general.--The Administrator shall not provide any 
     funding for remedial action under this section unless the 
     State in which the release occurs first enters into a 
     contract or cooperative agreement with the Administrator that 
     provides assurances that the State will pay, in cash or 
     through in-kind contributions, 10 percent of--
       ``(i) the remedial action costs; and
       ``(ii) operation and maintenance costs.
       ``(B) Activities with respect to which state cost share is 
     required.--No State cost share shall be required except for 
     remedial actions under this section.
       ``(C) Indian tribes.--The requirements of this paragraph 
     shall not apply in the case of remedial action to be taken on 
     land or water--
       ``(i) held by an Indian Tribe;
       ``(ii) held by the United States in trust for an Indian 
     Tribe;
       ``(iii) held by a member of an Indian Tribe (if the land or 
     water is subject to a trust restriction on alienation); or
       ``(iv) within the borders of an Indian reservation.

                   TITLE III--PROPERTY CONSIDERATIONS

     SEC. 301. CONTIGUOUS PROPERTIES.

       (a) In General.--Section 107 of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (42 U.S.C. 9607) is amended by adding at the end the 
     following:
       ``(o) Contiguous Properties.--
       ``(1) Not considered to be an owner or operator.--
       ``(A) In general.--A person that owns or operates real 
     property that is contiguous to or otherwise similarly 
     situated with respect to real property on which there has 
     been a release or threatened release of a hazardous substance 
     and that is or may be contaminated by the release shall not 
     be considered to be an owner or operator of a vessel or 
     facility under paragraph (1) or (2) of subsection (a) solely 
     by reason of the contamination if--
       ``(i) the person did not cause, contribute, or consent to 
     the release or threatened release;
       ``(ii) the person is not affiliated through any familial or 
     corporate relationship with any person that is or was a party 
     potentially responsible for response costs at the facility; 
     and
       ``(iii) the person exercised appropriate care with respect 
     to each hazardous substance found at the facility by taking 
     reasonable steps to stop any continuing release, prevent any 
     threatened future release and prevent or limit human or 
     natural resource exposure to any previously released 
     hazardous substance.
       ``(B) Ground water.--With respect to hazardous substances 
     in ground water beneath a person's property solely as a 
     result of subsurface migration in an aquifer from a source or 
     sources outside the property, appropriate care shall not 
     require the person to conduct ground water investigations or 
     to install ground water remediation systems.
       ``(2) Cooperation, assistance, and access.--A party 
     described in paragraph (1) may be considered an owner or 
     operator of a vessel or facility under paragraph (1) or (2) 
     of subsection (a) if the party has failed to substantially 
     comply with the requirement stated in section 122(p)(2)(H) 
     with respect to the facility.
       ``(3) Assurances.--The Administrator may--
       ``(A) issue an assurance that no enforcement action under 
     this Act will be initiated against a person described in 
     paragraph (1); and
       ``(B) grant a person described in paragraph (1) protection 
     against a cost recovery or contribution action under section 
     113(f).''.
       (b) National Priorities List.--
       (1) In general.--Section 105 of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (42 U.S.C. 9605) is amended--
       (A) in subsection (a)(8)--
       (i) in subparagraph (B), by inserting ``and'' after the 
     semicolon at the end; and
       (ii) by adding at the end the following:
       ``(C) provision that in listing a facility on the National 
     Priorities List, the Administrator shall not--
       ``(i) list the facility unless the Administrator first 
     obtains concurrence for the listing from the Governor of the 
     State in which the facility is located; and
       ``(ii) include in a listing any parcel of real property at 
     which no release has actually occurred, but to which a 
     released hazardous substance, pollutant, or contaminant has 
     migrated in ground water that has moved through subsurface 
     strata from another parcel of real estate at which the 
     release actually occurred, unless--
       ``(I) the ground water is in use as a public drinking water 
     supply or was in such use at the time of the release; and
       ``(II) the owner or operator of the facility is liable, or 
     is affiliated with any other person that is liable, for any 
     response costs at the facility, through any direct or 
     indirect familial relationship, or any contractual, 
     corporate, or financial relationship other than that created 
     by the instruments by which title to the facility is conveyed 
     or financed.''; and
       (B) by adding at the end the following:
       ``(h) Listing of Particular Parcels.--
       ``(1) Definition.--In subsection (a)(8)(C) and paragraph 
     (2) of this subsection, the term `parcel of real property' 
     means a parcel, lot, or tract of land that has a separate 
     legal description from that of any other parcel, lot, or 
     tract of land the legal description and ownership of which 
     has been recorded in accordance with the law of the State in 
     which it is located.
       ``(2) Statutory construction.--Nothing in subsection 
     (a)(8)(C) limits the Administrator's authority under section 
     104 to obtain access to and undertake response actions at any 
     parcel of real property to which a released hazardous 
     substance, pollutant, or contaminant has migrated in the 
     ground water.''.
       (2) Revision of National Priorities List.--Not later than 
     180 days after the date of enactment of this Act, the 
     President shall revise the National Priorities List to 
     conform with the amendments made by paragraph (1).
       (c) Conforming Amendment.--Section 107(a) of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9607) is amended by striking 
     ``of this section'' and inserting ``and the exemptions and 
     limitations stated in this section''.

     SEC. 302. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.

       Section 107 of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9607) (as 
     amended by section 301(a)) is amended by adding at the end 
     the following:
       ``(p) Prospective Purchaser and Windfall Lien.--
       ``(1) Limitation on liability.--Notwithstanding subsection 
     (a), a bona fide prospective purchaser whose potential 
     liability for a release or threatened release is based solely

[[Page S4198]]

     on the purchaser's being considered to be an owner or 
     operator of a facility shall not be liable as long as the 
     bona fide prospective purchaser does not impede the 
     performance of a response action or natural resource 
     restoration.
       ``(2) Lien.--If there are unrecovered response costs at a 
     facility for which an owner of the facility is not liable by 
     reason of subsection (n)(1) and each of the conditions 
     described in paragraph (3) is met, the United States shall 
     have a lien on the facility, or may obtain from appropriate 
     responsible party a lien on any other property or other 
     assurances of payment satisfactory to the Administrator, for 
     such unrecovered costs.
       ``(3) Conditions.--The conditions referred to in paragraph 
     (1) are the following:
       ``(A) Response action.--A response action for which there 
     are unrecovered costs is carried out at the facility.
       ``(B) Fair market value.--The response action increases the 
     fair market value of the facility above the fair market value 
     of the facility that existed 180 days before the response 
     action was initiated.
       ``(C) Sale.--A sale or other disposition of all or a 
     portion of the facility has occurred.
       ``(4) Amount.--A lien under paragraph (2)--
       ``(A) shall not exceed the increase in fair market value of 
     the property attributable to the response action at the time 
     of a subsequent sale or other disposition of the property;
       ``(B) shall arise at the time at which costs are first 
     incurred by the United States with respect to a response 
     action at the facility;
       ``(C) shall be subject to the requirements of subsection 
     (l)(3); and
       ``(D) shall continue until the earlier of satisfaction of 
     the lien or recovery of all response costs incurred at the 
     facility.''.

     SEC. 303. SAFE HARBOR INNOCENT LANDHOLDERS.

       (a) Amendment.--Section 101(35) of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (42 U.S.C. 9601(35)) is amended--
       (1) in subparagraph (A)--
       (A) in the matter that precedes clause (i), by striking 
     ``deeds or'' and inserting ``deeds, easements, leases, or''; 
     and
       (B) in the matter that follows clause (iii)--
       (i) by striking ``he'' and inserting ``the defendant''; and
       (ii) by striking the period at the end and inserting ``, 
     has provided full cooperation, assistance, and facility 
     access to the persons that are responsible for response 
     actions at the facility, including the cooperation and access 
     necessary for the installation, integrity, operation, and 
     maintenance of any complete or partial response action at the 
     facility, and has taken no action that impeded the 
     effectiveness or integrity of any institutional control 
     employed under section 121 at the facility.''; and
       (2) by striking subparagraph (B) and inserting the 
     following:
       ``(B) Reason to know.--
       ``(i) All appropriate inquiries.--To establish that the 
     defendant had no reason to know of the matter described in 
     subparagraph (A)(i), the defendant must show that--

       ``(I) at or prior to the date on which the defendant 
     acquired the facility, the defendant undertook all 
     appropriate inquiries into the previous ownership and uses of 
     the facility in accordance with generally accepted good 
     commercial and customary standards and practices; and
       ``(II) the defendant exercised appropriate care with 
     respect to each hazardous substance found at the facility by 
     taking reasonable steps to stop any continuing release, 
     prevent any threatened future release and prevent or limit 
     human or natural resource exposure to any previously released 
     hazardous substance.

       ``(ii) Standards and practices.--The Administrator shall by 
     regulation establish as standards and practices for the 
     purpose of clause (i)--

       ``(I) the American Society for Testing and Materials (ASTM) 
     Standard E1527-94, entitled `Standard Practice for 
     Environmental Site Assessments: Phase I Environmental Site 
     Assessment Process'; or
       ``(II) alternative standards and practices under clause 
     (iii).

       ``(iii) Alternative standards and practices.--

       ``(I) In general.--The Administrator may by regulation 
     issue alternative standards and practices or designate 
     standards developed by other organizations than the American 
     Society for Testing and Materials after conducting a study of 
     commercial and industrial practices concerning the transfer 
     of real property in the United States.
       ``(II) Considerations.--In issuing or designating 
     alternative standards and practices under subclause (I), the 
     Administrator shall consider including each of the following:

       ``(aa) The results of an inquiry by an environmental 
     professional.
       ``(bb) Interviews with past and present owners, operators, 
     and occupants of the facility and the facility's real 
     property for the purpose of gathering information regarding 
     the potential for contamination at the facility and the 
     facility's real property.
       ``(cc) Reviews of historical sources, such as chain of 
     title documents, aerial photographs, building department 
     records, and land use records to determine previous uses and 
     occupancies of the real property since the property was first 
     developed.
       ``(dd) Searches for recorded environmental cleanup liens, 
     filed under Federal, State, or local law, against the 
     facility or the facility's real property.
       ``(ee) Reviews of Federal, State, and local government 
     records (such as waste disposal records), underground storage 
     tank records, and hazardous waste handling, generation, 
     treatment, disposal, and spill records, concerning 
     contamination at or near the facility or the facility's real 
     property.
       ``(ff) Visual inspections of the facility and facility's 
     real property and of adjoining properties.
       ``(gg) Specialized knowledge or experience on the part of 
     the defendant.
       ``(hh) The relationship of the purchase price to the value 
     of the property if the property was uncontaminated.
       ``(ii) Commonly known or reasonably ascertainable 
     information about the property.
       ``(jj) The degree of obviousness of the presence or likely 
     presence of contamination at the property, and the ability to 
     detect such contamination by appropriate investigation.
       ``(iv) Site inspection and title search.--In the case of 
     property for residential use or other similar use purchased 
     by a nongovernmental or noncommercial entity, a facility 
     inspection and title search that reveal no basis for further 
     investigation shall be considered to satisfy the requirements 
     of this subparagraph.''.
       (b) Standards and Practices.--
       (1) Establishment by regulation.--The Administrator of the 
     Environmental Protection Agency shall issue the regulation 
     required by section 101(35)(B)(ii) of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (as added by subsection (a)) not later than 1 year after 
     the date of enactment of this Act.
       (2) Interim standards and practices.--Until the 
     Administrator issues the regulation described in paragraph 
     (1), in making a determination under section 101(35)(B)(i) of 
     the Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (as added by subsection (a)), there 
     shall be taken into account--
       (A) any specialized knowledge or experience on the part of 
     the defendant;
       (B) the relationship of the purchase price to the value of 
     the property if the property was uncontaminated;
       (C) commonly known or reasonably ascertainable information 
     about the property;
       (D) the degree of obviousness of the presence or likely 
     presence of contamination at the property; and
       (E) the ability to detect the contamination by appropriate 
     investigation.

               TITLE IV--FEDERAL ENTITIES AND FACILITIES

     SEC. 401. APPLICABILITY OF LAW; IMMUNITY.

       Section 120 of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9620) is 
     amended--
       (1) by striking the section heading and inserting the 
     following:

     ``SEC. 120. FEDERAL ENTITIES AND FACILITIES.'';

       (2) in subsection (a)--
       (A) by striking paragraph (1) and inserting the following:
       ``(1) In general.--
       ``(A) Definition of service charges.--In this paragraph, 
     the term `service charge' includes--
       ``(i) a fee or charge assessed in connection with--

       ``(I) the processing or issuance of a permit, renewal of a 
     permit, or amendment of a permit;
       ``(II) review of a plan, study, or other document; or
       ``(III) inspection or monitoring of a facility; and

       ``(ii) any other charge that is assessed in connection with 
     a State, interstate, or local response program.
       ``(B) Application of federal, state, interstate, and local 
     law.--
       ``(i) In general.--Each department, agency, and 
     instrumentality of the executive, legislative, or judicial 
     branch of the United States shall be subject to and shall 
     comply with this Act and all other Federal, State, 
     interstate, and local substantive and procedural requirements 
     and other provisions of law relating to a response action or 
     restoration action or the management of a hazardous waste, 
     pollutant, or contaminant in the same manner, and to the same 
     extent, as any nongovernmental entity is subject to those 
     provisions of law.
       ``(ii) Provisions included.--The provisions of law referred 
     to in clause (i) include--

       ``(I) a permit requirement;
       ``(II) a reporting requirement;
       ``(III) a provision authorizing injunctive relief 
     (including such sanctions as a court may impose to enforce 
     injunctive relief);
       ``(IV) sections 106 and 107 and similar provisions of 
     Federal, State, or local law relating to enforcement and 
     liability for cleanup, reimbursement of response costs, 
     contribution, and payment of damages;
       ``(V) a requirement to pay reasonable service charges; and
       ``(VI) all administrative orders and all civil and 
     administrative penalties and fines, regardless of whether the 
     penalties or fines are punitive or coercive in nature or are 
     imposed for an isolated, intermittent, or continuing 
     violation.

       ``(C) Waiver of immunity.--
       ``(i) In general.--The United States waives any immunity 
     applicable to the United States with respect to any provision 
     of law described in subparagraph (B).
       ``(ii) Limitation.--The waiver of sovereign immunity under 
     clause (i) does not apply to the extent that a State law 
     would apply any

[[Page S4199]]

     standard or requirement to the Federal department, agency, or 
     instrumentality in a manner that is more stringent than the 
     manner in which the standard or requirement would apply to 
     any other person.
       ``(D) Civil and criminal liability.--
       ``(i) Injunctive relief.--Neither the United States nor any 
     agent, employee, or officer of the United States shall be 
     immune or exempt from any process or sanction of any Federal 
     or State court with respect to the enforcement of injunctive 
     relief referred to in subparagraph (B)(ii)(III).
       ``(ii) No personal liability for civil penalty.--No agent, 
     employee, or officer of the United States shall be personally 
     liable for any civil penalty under any Federal or State law 
     relating to a response action or to management of a hazardous 
     substance, pollutant, or contaminant with respect to any act 
     or omission within the scope of the official duties of the 
     agent, employee, or officer.
       ``(iii) Criminal liability.--An agent, employee, or officer 
     of the United States shall be subject to any criminal 
     sanction (including a fine or imprisonment) under any Federal 
     or State law relating to a response action or to management 
     of a hazardous substance, pollutant, or contaminant, but no 
     department, agency, or instrumentality of the executive, 
     legislative, or judicial branch of the United States shall be 
     subject to any such sanction.
       ``(E) Enforcement.--
       ``(i) Abatement actions.--The Administrator may issue an 
     order under section 106 to any department, agency, or 
     instrumentality of the executive, legislative, or judicial 
     branch of the United States. The Administrator shall initiate 
     an administrative enforcement action against such a 
     department, agency, or instrumentality in the same manner and 
     under the same circumstances as an action would be initiated 
     against any other person.
       ``(ii) Consultation.--No administrative order issued to a 
     department, agency, or instrumentality of the United States 
     shall become final until the department, agency, or 
     instrumentality has had the opportunity to confer with the 
     Administrator.
       ``(iii) Use of penalties and fines.--Unless a State law in 
     effect on the date of enactment of this clause requires the 
     funds to be used in a different manner, all funds collected 
     by a State from the Federal Government as penalties or fines 
     imposed for violation of a provision of law referred to in 
     subparagraph (B) shall be used by the State only for projects 
     designed to improve or protect the environment or to defray 
     the costs of environmental protection or enforcement.
       ``(F) Contribution.--A department, agency, or 
     instrumentality of the United States shall have the right to 
     contribution under section 113 if the department, agency, or 
     instrumentality resolves its liability under this Act.'';
       (B) in the second sentence of paragraph (3), by inserting 
     ``(other than the indemnification requirements of section 
     119)'' after ``responsibility''; and
       (C) by striking paragraph (4); and
       (2) in subsection (e), by adding at the end the following:
       ``(7) State requirements.--Notwithstanding any other 
     provision of this Act, an interagency agreement under this 
     section shall not impair or diminish the authority of a 
     State, political subdivision of a State, or any other person 
     or the jurisdiction of any court to enforce compliance with 
     requirements of State or Federal law, unless those 
     requirements have been specifically addressed in the 
     agreement or waived without objection after notice to the 
     State before or on the date on which the response action is 
     selected.''.
                                  ____



                               National Governors Association,

                                     Washington, DC, May 16, 2000.
     Hon. George V. Voinovich,
     U.S. Senate, Washington, DC.
       Dear Senator Voinovich: On behalf of the National 
     Governors' Association (NGA), we are pleased with the 
     introduction of the Brownfields Revitalization Act of 2000. 
     NGA has reviewed the bill and believe that it addresses key 
     issues raised by the nation's Governors to facilitate the 
     speedy cleanup of brownfields sites and make some important 
     corrections to the Superfund statute. We hope that all 
     Senators will work with you to ensure passage of legislation 
     that the President can sign this year.
       We would like to briefly comment on four provisions in the 
     bill. We applaud the inclusion of a provision dealing with 
     certainty at state brownfields sites. The bill's finality 
     provision would improve the effectiveness and pace of 
     hazardous waste cleanups by allowing state voluntary cleanup 
     programs to provide assurance to landowners who wish to 
     develop their property without fear of being engulfed in the 
     federal liability scheme. There is no question that voluntary 
     cleanup programs and brownfields redevelopment are currently 
     hindered by the pervasive fear of federal liability under the 
     Superfund law. Your bill addresses this problem by precluding 
     enforcement by the federal government at sites where cleanup 
     has occurred or is being conducted under a state program. In 
     instances when a state is unwilling or unable to take 
     appropriate action, or if contamination has migrated across 
     state lines, your bill contains reasonable exceptions to this 
     preclusion of enforcement.
       In addition, the Governors greatly appreciate the inclusion 
     of a provision requiring gubernatorial concurrence before a 
     site is listed on the National Priorities List. Such a 
     requirement will help avoid duplication of effort when a 
     state can take the lead in restoring a site to productive 
     use. As you know, states are currently overseeing most 
     cleanups; listing a site on the NPL when a state is prepared 
     to apply its own authority is not only wasteful of federal 
     resources, it is often counterproductive, resulting in 
     increased delays and greater costs.
       We also support the provision in the bill that clarifies 
     that the state cost-share at Superfund sites is limited to 
     ten percent for both remedial activities and operations and 
     maintenance (O & M). This provision has been interpreted to 
     require states to be responsible for 100 percent of the O & M 
     expenses at a site. Your provision will correct this 
     inequitable situation, and at the same time, help ensure that 
     there is no financial bias toward remedies that involve more 
     intensive O & M than necessary.
       The funding provisions in the bill that provide grants to 
     states and local governments for both response actions as 
     well as site assessments are very positive steps in assuring 
     that financial assistance is available so that sites can 
     actually move toward final cleanups.
       Lastly, we applaud you for adding a provision that makes 
     all federal facilities subject to CERCLA and state hazardous 
     waste laws to the same extent as other nongovernmental 
     entities. There is no legitimate rationale for exempting the 
     federal government from the same environmental protection 
     laws that apply to businesses, individuals and state and 
     local government.
       We look forward to continuing our strong working 
     relationship with you on these issues. The nation's Governors 
     believe that brownfields revitalization and some reasonable 
     Superfund ``fixes'' can be accomplished if done in a 
     bipartisan manner and we believe that your bill will go a 
     long way toward accomplishing that goal. We will work with 
     you to ensure that this bill has bipartisan support as it 
     begins to move. If we can be of any assistance, please 
     contact us directly or have your staff contact Diane S. Shea 
     at 202/624-5389.
           Sincerely,
     Governor Kenny C. Guinn,
                                                            Chair,
                                   Committee on Natural Resources.
     Gov. Thomas J. Vilsack,
                                                       Vice Chair,

                           Committee on Natural Resources.

                                 ______