[Congressional Record Volume 147, Number 53 (Wednesday, April 25, 2001)]
[Senate]
[Pages S3879-S3912]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2001
The PRESIDING OFFICER. The clerk will report S. 350 by title.
The legislative clerk read as follows:
A bill (S. 350) 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.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Environment and Public
Works, with an amendment to strike all after the enacting clause and
insert in lieu thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Brownfields Revitalization and Environmental Restoration
Act of 2001''.
(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 FUNDING
Sec. 101. Brownfields revitalization funding.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
Sec. 201. Contiguous properties.
Sec. 202. Prospective purchasers and windfall liens.
Sec. 203. Innocent landowners.
TITLE III--STATE RESPONSE PROGRAMS
Sec. 301. State response programs.
Sec. 302. Additions to National Priorities List.
TITLE I--BROWNFIELDS REVITALIZATION FUNDING
SEC. 101. BROWNFIELDS REVITALIZATION FUNDING.
(a) Definition of Brownfield Site.--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) Brownfield site.--
``(A) In general.--The term `brownfield site' means real
property, the expansion, redevelopment, or reuse of which may
be complicated by the presence or potential presence of a
hazardous substance, pollutant, or contaminant.
``(B) Exclusions.--The term `brownfield site' does not
include--
``(i) a facility that is the subject of a planned or
ongoing removal action under this title;
``(ii) a facility that is listed on the National Priorities
List or is proposed for listing;
``(iii) a facility that is the subject of a unilateral
administrative order, a court order, an administrative order
on consent or judicial consent decree that has been issued to
or entered into by the parties under this Act;
``(iv) a facility that is the subject of a unilateral
administrative order, a court order, an administrative order
on consent or judicial consent decree that has been issued to
or entered into by the parties, or a facility to which a
permit has been issued by the United States or an authorized
State under the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.), 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.);
``(v) a facility that--
``(I) is subject to corrective action under section 3004(u)
or 3008(h) of the Solid Waste Disposal Act (42 U.S.C.
6924(u), 6928(h)); and
``(II) to which a corrective action permit or order has
been issued or modified to require the implementation of
corrective measures;
``(vi) 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;
``(vii) a facility that is subject to the jurisdiction,
custody, or control of a department, agency, or
instrumentality of the United States, except for land held in
trust by the United States for an Indian tribe;
``(viii) a portion of a facility--
``(I) at which there has been a release of polychlorinated
biphenyls; and
``(II) that is subject to remediation under the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.); or
``(ix) 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.
[[Page S3880]]
``(C) Site-by-site determinations.--Notwithstanding
subparagraph (B) and on a site-by-site basis, the President
may authorize financial assistance under section 128 to an
eligible entity at a site included in clause (i), (iv), (v),
(vi), (viii), or (ix) of subparagraph (B) if the President
finds that financial assistance will protect human health and
the environment, and either promote economic development or
enable the creation of, preservation of, or addition to
parks, greenways, undeveloped property, other recreational
property, or other property used for nonprofit purposes.
``(D) Additional areas.--For the purposes of section 128,
the term `brownfield site' includes a site that--
``(i) meets the definition of `brownfield site' under
subparagraphs (A) through (C); and
``(ii)(I) is contaminated by a controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)); or
``(II) is mine-scarred land.''.
(b) Brownfields Revitalization Funding.--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. 128. BROWNFIELDS REVITALIZATION FUNDING.
``(a) Definition of Eligible Entity.--In this section, the
term `eligible entity' means--
``(1) a general purpose unit of local government;
``(2) 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;
``(3) a government entity created by a State legislature;
``(4) a regional council or group of general purpose units
of local government;
``(5) a redevelopment agency that is chartered or otherwise
sanctioned by a State;
``(6) a State; or
``(7) an Indian Tribe.
``(b) Brownfield Site Characterization and Assessment Grant
Program.--
``(1) Establishment of program.--The Administrator shall
establish a program to--
``(A) provide grants to inventory, characterize, assess,
and conduct planning related to brownfield sites under
paragraph (2); and
``(B) perform targeted site assessments at brownfield
sites.
``(2) Assistance for site characterization and
assessment.--
``(A) In general.--On approval of an application made by an
eligible entity, the Administrator may make a grant to the
eligible entity to be used for programs to inventory,
characterize, assess, and conduct planning related to 1 or
more brownfield sites.
``(B) Site characterization and assessment.--A site
characterization and assessment carried out with the use of a
grant under subparagraph (A) shall be performed in accordance
with section 101(35)(B).
``(c) Grants and Loans for Brownfield Remediation.--
``(1) Grants provided by the president.--Subject to
subsections (d) and (e), the President shall establish a
program to provide grants to--
``(A) eligible entities, to be used for capitalization of
revolving loan funds; and
``(B) eligible entities or nonprofit organizations, where
warranted, as determined by the President based on
considerations under paragraph (3), to be used directly for
remediation of 1 or more brownfield sites owned by the entity
or organization that receives the grant and in amounts not to
exceed $200,000 for each site to be remediated.
``(2) Loans and grants provided by eligible entities.--An
eligible entity that receives a grant under paragraph (1)(A)
shall use the grant funds to provide assistance for the
remediation of brownfield sites in the form of--
``(A) 1 or more loans to an eligible entity, a site owner,
a site developer, or another person; or
``(B) 1 or more grants to an eligible entity or other
nonprofit organization, where warranted, as determined by the
eligible entity that is providing the assistance, based on
considerations under paragraph (3), to remediate sites owned
by the eligible entity or nonprofit organization that
receives the grant.
``(3) Considerations.--In determining whether a grant under
paragraph (1)(B) or (2)(B) is warranted, the President or the
eligible entity, as the case may be, shall take into
consideration--
``(A) the extent to which a grant will facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes;
``(B) 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 site is
located because of the small population or low income of the
community;
``(C) the extent to which a grant will facilitate the use
or reuse of existing infrastructure;
``(D) the benefit of promoting the long-term availability
of funds from a revolving loan fund for brownfield
remediation; and
``(E) such other similar factors as the Administrator
considers appropriate to consider for the purposes of this
section.
``(4) Transition.--Revolving loan funds that have been
established before the date of enactment of this section may
be used in accordance with this subsection.
``(d) General Provisions.--
``(1) Maximum grant amount.--
``(A) Brownfield site characterization and assessment.--
``(i) In general.--A grant under subsection (b)--
``(I) may be awarded to an eligible entity on a community-
wide or site-by-site basis; and
``(II) shall not exceed, for any individual brownfield site
covered by the grant, $200,000.
``(ii) Waiver.--The Administrator may waive the $200,000
limitation under clause (i)(II) to permit the brownfield site
to receive a grant of not to exceed $350,000, based on the
anticipated level of contamination, size, or status of
ownership of the site.
``(B) Brownfield remediation.--
``(i) Grant amount.--A grant under subsection (c)(1)(A) may
be awarded to an eligible entity on a community-wide or site-
by-site basis, not to exceed $1,000,000 per eligible
entity.
``(ii) Additional grant amount.--The Administrator may make
an additional grant to an eligible entity described in clause
(i) for any year after the year for which the initial grant
is made, taking into consideration--
``(I) the number of sites and number of communities that
are addressed by the revolving loan fund;
``(II) the demand for funding by eligible entities that
have not previously received a grant under this section;
``(III) the demonstrated ability of the eligible entity to
use the revolving loan fund to enhance remediation and
provide funds on a continuing basis; and
``(IV) such other similar factors as the Administrator
considers appropriate to carry out this section.
``(2) Prohibition.--
``(A) In general.--No part of a grant or loan under this
section may be used for the payment of--
``(i) a penalty or fine;
``(ii) a Federal cost-share requirement;
``(iii) an administrative cost;
``(iv) a response cost at a brownfield site for which the
recipient of the grant or loan is potentially liable under
section 107; or
``(v) a cost of compliance with any Federal law (including
a Federal law specified in section 101(39)(B)), excluding the
cost of compliance with laws applicable to the cleanup.
``(B) Exclusions.--For the purposes of subparagraph
(A)(iii), 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 a natural resource.
``(3) Assistance for development of local government site
remediation programs.--A local government that receives a
grant under this section may use not to exceed 10 percent of
the grant funds to develop and implement a brownfields
program that may include--
``(A) monitoring the health of populations exposed to 1 or
more hazardous substances from a brownfield site; and
``(B) monitoring and enforcement of any institutional
control used to prevent human exposure to any hazardous
substance from a brownfield site.
``(e) Grant Applications.--
``(1) Submission.--
``(A) In general.--
``(i) Application.--An eligible entity may submit to the
Administrator, through a regional office of the Environmental
Protection Agency and in such form as the Administrator may
require, an application for a grant under this section for 1
or more brownfield sites (including information on the
criteria used by the Administrator to rank applications under
paragraph (3), to the extent that the information is
available).
``(ii) NCP requirements.--The Administrator may include in
any requirement for submission of an application under clause
(i) a requirement of the National Contingency Plan only to
the extent that the requirement is relevant and appropriate
to the program under this section.
``(B) Coordination.--The Administrator shall coordinate
with other Federal agencies to assist in making eligible
entities aware of other available Federal resources.
``(C) Guidance.--The Administrator shall publish guidance
to assist eligible entities in applying for grants under this
section.
``(2) Approval.--The Administrator shall--
``(A) at least annually, complete a review of applications
for grants that are received from eligible entities under
this section; and
``(B) award grants under this section to eligible entities
that the Administrator determines have the highest rankings
under the ranking criteria established under paragraph (3).
``(3) Ranking criteria.--The Administrator shall establish
a system for ranking grant applications received under this
subsection that includes the following criteria:
``(A) The extent to which a grant will stimulate the
availability of other funds for environmental assessment or
remediation, and subsequent reuse, of an area in which 1 or
more brownfield sites are located.
``(B) The potential of the proposed project or the
development plan for an area in which 1 or more brownfield
sites are located to stimulate economic development of the
area on completion of the cleanup.
``(C) The extent to which a grant would address or
facilitate the identification and reduction of threats to
human health and the environment.
``(D) The extent to which a grant would facilitate the use
or reuse of existing infrastructure.
``(E) The extent to which a grant would facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
``(F) The extent to which a grant would 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 site is
located because of the small population or low income of the
community.
``(G) The extent to which the applicant is eligible for
funding from other sources.
[[Page S3881]]
``(H) The extent to which a grant will further the fair
distribution of funding between urban and nonurban areas.
``(I) The extent to which the grant provides for
involvement of the local community in the process of making
decisions relating to cleanup and future use of a brownfield
site.
``(f) Implementation of Brownfields Programs.--
``(1) Establishment of program.--The Administrator may
provide, or fund eligible entities or nonprofit organizations
to provide, training, research, and technical assistance to
individuals and organizations, as appropriate, to facilitate
the inventory of brownfield sites, site assessments,
remediation of brownfield sites, community involvement, or
site preparation.
``(2) Funding restrictions.--The total Federal funds to be
expended by the Administrator under this subsection shall not
exceed 15 percent of the total amount appropriated to carry
out this section in any fiscal year.
``(g) Audits.--
``(1) In general.--The Inspector General of the
Environmental Protection Agency shall conduct such reviews or
audits of grants and loans under this section as the
Inspector General considers necessary to carry out this
section.
``(2) Procedure.--An audit under this paragraph shall be
conducted in accordance with the auditing procedures of the
General Accounting Office, including chapter 75 of title 31,
United States Code.
``(3) Violations.--If the Administrator determines that a
person that receives a grant or loan under this section has
violated or is in violation of a condition of the grant,
loan, or applicable Federal law, the Administrator may--
``(A) terminate the grant or loan;
``(B) require the person to repay any funds received; and
``(C) seek any other legal remedies available to the
Administrator.
``(h) Leveraging.--An eligible entity that receives a grant
under this section may use the grant funds for a portion of a
project at a brownfield site for which funding is received
from other sources if the grant funds are used only for the
purposes described in subsection (b) or (c).
``(i) Agreements.--Each grant or loan made under this
section shall--
``(1) include a requirement of the National Contingency
Plan only to the extent that the requirement is relevant and
appropriate to the program under this section, as determined
by the Administrator; and
``(2) be subject to an agreement that--
``(A) requires the recipient to--
``(i) comply with all applicable Federal and State laws;
and
``(ii) ensure that the cleanup protects human health and
the environment;
``(B) requires that the recipient use the grant or loan
exclusively for purposes specified in subsection (b) or (c),
as applicable;
``(C) in the case of an application by an eligible entity
under subsection (c)(1), requires the eligible entity to pay
a matching share (which may be in the form of a contribution
of labor, material, or services) of at least 20 percent, from
non-Federal sources of funding, unless the Administrator
determines that the matching share would place an undue
hardship on the eligible entity; and
``(D) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
section.
``(j) Facility Other Than Brownfield Site.--The fact that a
facility may not be a brownfield site within the meaning of
section 101(39)(A) has no effect on the eligibility of the
facility for assistance under any other provision of Federal
law.
``(k) Funding.--There is authorized to be appropriated to
carry out this section $150,000,000 for each of fiscal years
2002 through 2006.''.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
SEC. 201. CONTIGUOUS PROPERTIES.
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 real property that is
contiguous to or otherwise similarly situated with respect
to, and that is or may be contaminated by a release or
threatened release of a hazardous substance from, real
property that is not owned by that person 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--
``(I) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through any direct or indirect familial relationship
or any contractual, corporate, or financial relationship
(other than a contractual, corporate, or financial
relationship that is created by a contract for the sale of
goods or services); or
``(II) the result of a reorganization of a business entity
that was potentially liable;
``(iii) the person takes reasonable steps to--
``(I) stop any continuing release;
``(II) prevent any threatened future release; and
``(III) prevent or limit human, environmental, or natural
resource exposure to any hazardous substance released on or
from property owned by that person;
``(iv) the person provides full cooperation, assistance,
and access to persons that are authorized to conduct response
actions or natural resource restoration at the vessel or
facility from which there has been a release or threatened
release (including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of
any complete or partial response action or natural resource
restoration at the vessel or facility);
``(v) the person--
``(I) is in compliance with any land use restrictions
established or relied on in connection with the response
action at the facility; and
``(II) does not impede the effectiveness or integrity of
any institutional control employed in connection with a
response action;
``(vi) the person is in compliance with any request for
information or administrative subpoena issued by the
President under this Act;
``(vii) the person provides all legally required notices
with respect to the discovery or release of any hazardous
substances at the facility; and
``(viii) at the time at which the person acquired the
property, the person--
``(I) conducted all appropriate inquiry within the meaning
of section 101(35)(B) with respect to the property; and
``(II) did not know or have reason to know that the
property was or could be contaminated by a release or
threatened release of 1 or more hazardous substances from
other real property not owned or operated by the person.
``(B) Demonstration.--To qualify as a person described in
subparagraph (A), a person must establish by a preponderance
of the evidence that the conditions in clauses (i) through
(viii) of subparagraph (A) have been met.
``(C) Bona fide prospective purchaser.--Any person that
does not qualify as a person described in this paragraph
because the person had, or had reason to have, knowledge
specified in subparagraph (A)(viii) at the time of
acquisition of the real property may qualify as a bona fide
prospective purchaser under section 101(40) if the person is
otherwise described in that section.
``(D) Ground water.--With respect to a hazardous substance
from 1 or more sources that are not on the property of a
person that is a contiguous property owner that enters ground
water beneath the property of the person solely as a result
of subsurface migration in an aquifer, subparagraph (A)(iii)
shall not require the person to conduct ground water
investigations or to install ground water remediation
systems, except in accordance with the policy of the
Environmental Protection Agency concerning owners of property
containing contaminated aquifers, dated May 24, 1995.
``(2) Effect of law.--With respect to a person described in
this subsection, nothing in this subsection--
``(A) limits any defense to liability that may be available
to the person under any other provision of law; or
``(B) imposes liability on the person that is not otherwise
imposed by subsection (a).
``(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).''.
SEC. 202. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.
(a) Definition of Bona Fide Prospective Purchaser.--Section
101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601) (as
amended by section 101(a)) is amended by adding at the end
the following:
``(40) Bona fide prospective purchaser.--The term `bona
fide prospective purchaser' means a person (or a tenant of a
person) that acquires ownership of a facility after the date
of enactment of this paragraph and that establishes each of
the following by a preponderance of the evidence:
``(A) Disposal prior to acquisition.--All disposal 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 in accordance with generally accepted good
commercial and customary standards and practices in
accordance with clauses (ii) and (iii).
``(ii) Standards and practices.--The standards and
practices referred to in clauses (ii) and (iv) of paragraph
(35)(B) shall be considered to satisfy the requirements of
this subparagraph.
``(iii) Residential use.--In the case of property in
residential or other similar use at the time of purchase 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 provides all legally required
notices with respect to the discovery or release of any
hazardous substances at the facility.
``(D) Care.--The person exercises appropriate care with
respect to hazardous substances found at the facility by
taking reasonable steps to--
``(i) stop any continuing release;
``(ii) prevent any threatened future release; and
``(iii) prevent or limit human, environmental, or natural
resource exposure to any previously released hazardous
substance.
``(E) Cooperation, assistance, and access.--The person
provides full cooperation, assistance, and access to persons
that are authorized to conduct response actions or natural
resource restoration at a vessel or facility (including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete or
partial response actions or natural resource restoration at
the vessel or facility).
``(F) Institutional control.--The person--
[[Page S3882]]
``(i) is in compliance with any land use restrictions
established or relied on in connection with the response
action at a vessel or facility; and
``(ii) does not impede the effectiveness or integrity of
any institutional control employed at the vessel or facility
in connection with a response action.
``(G) Requests; subpoenas.--The person complies with any
request for information or administrative subpoena issued by
the President under this Act.
``(H) No affiliation.--The person is not--
``(i) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through--
``(I) any direct or indirect familial relationship; or
``(II) any contractual, corporate, or financial
relationship (other than a contractual, corporate, or
financial relationship that is created by the instruments by
which title to the facility is conveyed or financed or by a
contract for the sale of goods or services); or
``(ii) the result of a reorganization of a business entity
that was potentially liable.''.
(b) Prospective Purchaser and Windfall Lien.--Section 107
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607) (as amended by
section 201) is amended by adding at the end the following:
``(p) Prospective Purchaser and Windfall Lien.--
``(1) Limitation on liability.--Notwithstanding subsection
(a)(1), a bona fide prospective purchaser whose potential
liability for a release or threatened release is based solely
on the purchaser's being considered to be an owner or
operator of a facility shall not be liable as long as the
bona fide prospective purchaser does not impede the
performance of a response action or natural resource
restoration.
``(2) Lien.--If there are unrecovered response costs
incurred by the United States at a facility for which an
owner of the facility is not liable by reason of paragraph
(1), and if each of the conditions described in paragraph (3)
is met, the United States shall have a lien on the facility,
or may by agreement with the owner, obtain from the owner a
lien on any other property or other assurance of payment
satisfactory to the Administrator, for the unrecovered
response costs.
``(3) Conditions.--The conditions referred to in paragraph
(2) are the following:
``(A) Response action.--A response action for which there
are unrecovered costs of the United States is carried out at
the facility.
``(B) Fair market value.--The response action increases the
fair market value of the facility above the fair market value
of the facility that existed before the response action was
initiated.
``(4) Amount; duration.--A lien under paragraph (2)--
``(A) shall be in an amount not to exceed the increase in
fair market value of the property attributable to the
response action at the time of a sale or other disposition of
the property;
``(B) shall arise at the time at which costs are first
incurred by the United States with respect to a response
action at the facility;
``(C) shall be subject to the requirements of subsection
(l)(3); and
``(D) shall continue until the earlier of--
``(i) satisfaction of the lien by sale or other means; or
``(ii) notwithstanding any statute of limitations under
section 113, recovery of all response costs incurred at the
facility.''.
SEC. 203. INNOCENT LANDOWNERS.
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 first sentence, in the matter preceding clause
(i), by striking ``deeds or'' and inserting ``deeds,
easements, leases, or''; and
(B) in the second sentence--
(i) by striking ``he'' and inserting ``the defendant''; and
(ii) by striking the period at the end and inserting ``,
provides full cooperation, assistance, and facility access to
the persons that are authorized to conduct 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), is in compliance with any land use restrictions
established or relied on in connection with the response
action at a facility, and does not impede the effectiveness
or integrity of any institutional control employed at the
facility in connection with a response action.''; 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 demonstrate to a
court that--
``(I) on or before the date on which the defendant acquired
the facility, the defendant carried out all appropriate
inquiries, as provided in clauses (ii) and (iv), 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 took reasonable steps to--
``(aa) stop any continuing release;
``(bb) prevent any threatened future release; and
``(cc) prevent or limit any human, environmental, or
natural resource exposure to any previously released
hazardous substance.
``(ii) Standards and practices.--Not later than 2 years
after the date of enactment of the Brownfields Revitalization
and Environmental Restoration Act of 2001, the Administrator
shall by regulation establish standards and practices for the
purpose of satisfying the requirement to carry out all
appropriate inquiries under clause (i).
``(iii) Criteria.--In promulgating regulations that
establish the standards and practices referred to in clause
(ii), the Administrator shall include each of the following:
``(I) The results of an inquiry by an environmental
professional.
``(II) Interviews with past and present owners, operators,
and occupants of the facility for the purpose of gathering
information regarding the potential for contamination at the
facility.
``(III) 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.
``(IV) Searches for recorded environmental cleanup liens
against the facility that are filed under Federal, State, or
local law.
``(V) Reviews of Federal, State, and local government
records, waste disposal records, underground storage tank
records, and hazardous waste handling, generation, treatment,
disposal, and spill records, concerning contamination at or
near the facility.
``(VI) Visual inspections of the facility and of adjoining
properties.
``(VII) Specialized knowledge or experience on the part of
the defendant.
``(VIII) The relationship of the purchase price to the
value of the property, if the property was not contaminated.
``(IX) Commonly known or reasonably ascertainable
information about the property.
``(X) The degree of obviousness of the presence or likely
presence of contamination at the property, and the ability to
detect the contamination by appropriate investigation.
``(iv) Interim standards and practices.--
``(I) Property purchased before may 31, 1997.--With respect
to property purchased before May 31, 1997, in making a
determination with respect to a defendant described of clause
(i), a court shall take into account--
``(aa) any specialized knowledge or experience on the part
of the defendant;
``(bb) the relationship of the purchase price to the value
of the property, if the property was not contaminated;
``(cc) commonly known or reasonably ascertainable
information about the property;
``(dd) the obviousness of the presence or likely presence
of contamination at the property; and
``(ee) the ability of the defendant to detect the
contamination by appropriate inspection.
``(II) Property purchased on or after may 31, 1997.--With
respect to property purchased on or after May 31, 1997, and
until the Administrator promulgates the regulations described
in clause (ii), the procedures of the American Society for
Testing and Materials, including the document known as
`Standard E1527-97', entitled `Standard Practice for
Environmental Site Assessment: Phase 1 Environmental Site
Assessment Process', shall satisfy the requirements in clause
(i).
``(v) 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.''.
TITLE III--STATE RESPONSE PROGRAMS
SEC. 301. STATE RESPONSE PROGRAMS.
(a) Definitions.--Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601) (as amended by section 202) is amended
by adding at the end the following:
``(41) Eligible response site.--
``(A) In general.--The term `eligible response site' means
a site that meets the definition of a brownfield site in
subparagraphs (A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
``(B) Inclusions.--The term `eligible response site'
includes--
``(i) notwithstanding paragraph (39)(B)(ix), 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; or
``(ii) a site for which, notwithstanding the exclusions
provided in subparagraph (C) or paragraph (39)(B), the
President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement
under section 129 at sites specified in clause (iv), (v),
(vi) or (viii) of paragraph (39)(B) would be appropriate and
will--
``(I) protect human health and the environment; and
``(II) promote economic development or facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
``(C) Exclusions.--The term `eligible response site' does
not include--
``(i) a facility for which the President--
``(I) conducts or has conducted a preliminary assessment or
site inspection; and
``(II) after consultation with the State, determines or has
determined that the site obtains a preliminary score
sufficient for possible listing on the National Priorities
List, or that the site otherwise qualifies for listing on the
National Priorities List;
unless the President has made a determination that no further
Federal action will be taken; or
``(ii) facilities that the President determines warrant
particular consideration as identified by regulation, such as
sites posing a threat to a sole-source drinking water aquifer
or a sensitive ecosystem.''.
[[Page S3883]]
(b) 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(b))
is amended by adding at the end the following:
``SEC. 129. STATE RESPONSE PROGRAMS.
``(a) Assistance to States.--
``(1) In general.--
``(A) States.--The Administrator may award a grant to a
State or Indian tribe that--
``(i) has a response program that includes each of the
elements, or is taking reasonable steps to include each of
the elements, listed in paragraph (2); or
``(ii) is a party to a memorandum of agreement with the
Administrator for voluntary response programs.
``(B) Use of grants by states.--
``(i) In general.--A State or Indian tribe may use a grant
under this subsection to establish or enhance the response
program of the State or Indian tribe.
``(ii) Additional uses.--In addition to the uses under
clause (i), a State or Indian tribe may use a grant under
this subsection to--
``(I) capitalize a revolving loan fund for brownfield
remediation under section 128(c); or
``(II) develop a risk sharing pool, an indemnity pool, or
insurance mechanism to provide financing for response actions
under a State response program.
``(2) Elements.--The elements of a State or Indian tribe
response program referred to in paragraph (1)(A)(i) are the
following:
``(A) Timely survey and inventory of brownfield sites in
the State.
``(B) Oversight and enforcement authorities or other
mechanisms, and resources, that are adequate to ensure that--
``(i) a response action will--
``(I) protect human health and the environment; and
``(II) be conducted in accordance with applicable Federal
and State law; and
``(ii) if the person conducting the response action fails
to complete the necessary response activities, including
operation and maintenance or long-term monitoring activities,
the necessary response activities are completed.
``(C) Mechanisms and resources to provide meaningful
opportunities for public participation, including--
``(i) public access to documents that the State, Indian
tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site
activities; and
``(ii) prior notice and opportunity for comment on proposed
cleanup plans and site activities.
``(D) Mechanisms for approval of a cleanup plan, and a
requirement for verification by and certification or similar
documentation from the State, an Indian tribe, or a licensed
site professional to the person conducting a response action
indicating that the response is complete.
``(3) Funding.--There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of fiscal
years 2002 through 2006.
``(b) Enforcement in Cases of a Release Subject to State
Program.--
``(1) Enforcement.--
``(A) In general.-- Except as provided in subparagraph (B)
and subject to subparagraph (C), in the case of an eligible
response site at which--
``(i) there is a release or threatened release of a
hazardous substance, pollutant, or contaminant; and
``(ii) a person is conducting or has completed a response
action regarding the specific release that is addressed by
the response action that is in compliance with the State
program that specifically governs response actions for the
protection of public health and the environment;
the President may not use authority under this Act to take an
administrative or judicial enforcement action under section
106(a) or to take a judicial enforcement action to recover
response costs under section 107(a) against the person
regarding the specific release that is addressed by the
response action.
``(B) Exceptions.--The President may bring an
administrative or judicial enforcement action under this Act
during or after completion of a response action described in
subparagraph (A) with respect to a release or threatened
release at an eligible response site described in that
subparagraph if--
``(i) the State requests that the President provide
assistance in the performance of a response action;
``(ii) the Administrator determines that contamination has
migrated or will migrate across a State line, resulting in
the need for further response action to protect human health
or the environment, or the President determines that
contamination has migrated or is likely to migrate onto
property subject to the jurisdiction, custody, or control of
a department, agency, or instrumentality of the United States
and may impact the authorized purposes of the Federal
property;
``(iii) after taking into consideration the response
activities already taken, the Administrator determines that--
``(I) a release or threatened release may present an
imminent and substantial endangerment to public health or
welfare or the environment; and
``(II) additional response actions are likely to be
necessary to address, prevent, limit, or mitigate the release
or threatened release; or
``(iv) the Administrator determines that information, that
on the earlier of the date on which cleanup was approved or
completed, was not known by the State, as recorded in
documents prepared or relied on in selecting or conducting
the cleanup, has been discovered regarding the contamination
or conditions at a facility such that the contamination or
conditions at the facility present a threat requiring further
remediation to protect public health or welfare or the
environment.
``(C) Public record.--The limitations on the authority of
the President under subparagraph (A) apply only at sites in
States that maintain, update not less than annually, and make
available to the public a record of sites, by name and
location, at which response actions have been completed in
the previous year and are planned to be addressed under the
State program that specifically governs response actions
for the protection of public health and the environment in
the upcoming year. The public record shall identify
whether or not the site, on completion of the response
action, will be suitable for unrestricted use and, if not,
shall identify the institutional controls relied on in the
remedy. Each State and tribe receiving financial
assistance under subsection (a) shall maintain and make
available to the public a record of sites as provided in
this paragraph.
``(D) EPA notification.--
``(i) In general.--In the case of an eligible response site
at which there is a release or threatened release of a
hazardous substance, pollutant, or contaminant and for which
the Administrator intends to carry out an action that may be
barred under subparagraph (A), the Administrator shall--
``(I) notify the State of the action the Administrator
intends to take; and
``(II)(aa) wait 48 hours for a reply from the State under
clause (ii); or
``(bb) if the State fails to reply to the notification or
if the Administrator makes a determination under clause
(iii), take immediate action under that clause.
``(ii) State reply.--Not later than 48 hours after a State
receives notice from the Administrator under clause (i), the
State shall notify the Administrator if--
``(I) the release at the eligible response site is or has
been subject to a cleanup conducted under a State program;
and
``(II) the State is planning to abate the release or
threatened release, any actions that are planned.
``(iii) Immediate federal action.--The Administrator may
take action immediately after giving notification under
clause (i) without waiting for a State reply under clause
(ii) if the Administrator determines that 1 or more
exceptions under subparagraph (B) are met.
``(E) Report to congress.--Not later than 90 days after the
date of initiation of any enforcement action by the President
under clause (ii), (iii), or (iv) of subparagraph (B), the
President shall submit to Congress a report describing the
basis for the enforcement action, including specific
references to the facts demonstrating that enforcement action
is permitted under subparagraph (B).
``(2) Savings provision.--
``(A) Costs incurred prior to limitations.--Nothing in
paragraph (1) precludes the President from seeking to recover
costs incurred prior to the date of enactment of this section
or during a period in which the limitations of paragraph
(1)(A) were not applicable.
``(B) Effect on agreements between states and epa.--Nothing
in paragraph (1)--
``(i) modifies or otherwise affects a memorandum of
agreement, memorandum of understanding, or any similar
agreement relating to this Act between a State agency or an
Indian tribe and the Administrator that is in effect on or
before the date of enactment of this section (which agreement
shall remain in effect, subject to the terms of the
agreement); or
``(ii) limits the discretionary authority of the President
to enter into or modify an agreement with a State, an Indian
tribe, or any other person relating to the implementation by
the President of statutory authorities.
``(3) Effective date.--This subsection applies only to
response actions conducted after February 15, 2001.
``(c) Effect on Federal Laws.--Nothing in this section
affects any liability or response authority under any Federal
law, including--
``(1) this Act, except as provided in subsection (b);
``(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(5) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).''.
SEC. 302. ADDITIONS TO NATIONAL PRIORITIES LIST.
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605) is
amended by adding at the end the following:
``(h) NPL Deferral.--
``(1) Deferral to state voluntary cleanups.--At the request
of a State and subject to paragraphs (2) and (3), the
President generally shall defer final listing of an eligible
response site on the National Priorities List if the
President determines that--
``(A) the State, or another party under an agreement with
or order from the State, is conducting a response action at
the eligible response site--
``(i) in compliance with a State program that specifically
governs response actions for the protection of public health
and the environment; and
``(ii) that will provide long-term protection of human
health and the environment; or
``(B) the State is actively pursuing an agreement to
perform a response action described in subparagraph (A) at
the site with a person that the State has reason to believe
is capable of conducting a response action that meets the
requirements of subparagraph (A).
``(2) Progress toward cleanup.--If, after the last day of
the 1-year period beginning on the date on which the
President proposes to list
[[Page S3884]]
an eligible response site on the National Priorities List,
the President determines that the State or other party is not
making reasonable progress toward completing a response
action at the eligible response site, the President may list
the eligible response site on the National Priorities List.
``(3) Cleanup agreements.--With respect to an eligible
response site under paragraph (1)(B), if, after the last day
of the 1-year period beginning on the date on which the
President proposes to list the eligible response site on the
National Priorities List, an agreement described in paragraph
(1)(B) has not been reached, the President may defer the
listing of the eligible response site on the National
Priorities List for an additional period of not to exceed 180
days if the President determines deferring the listing would
be appropriate based on--
``(A) the complexity of the site;
``(B) substantial progress made in negotiations; and
``(C) other appropriate factors, as determined by the
President.
``(4) Exceptions.--The President may decline to defer, or
elect to discontinue a deferral of, a listing of an eligible
response site on the National Priorities List if the
President determines that--
``(A) deferral would not be appropriate because the State,
as an owner or operator or a significant contributor of
hazardous substances to the facility, is a potentially
responsible party;
``(B) the criteria under the National Contingency Plan for
issuance of a health advisory have been met; or
``(C) the conditions in paragraphs (1) through (3), as
applicable, are no longer being met.''.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. REID. Mr. President, I ask that my friend, the chairman of the
committee, yield for a brief minute.
Mr. President, we have nine Senators who wish to speak on this
legislation, and there may be others at a subsequent time. I wonder if
my friend from New Hampshire would allow us to give a rough idea of
when people should be here. I know the Senator from Oklahoma, a
valuable member of the committee, wishes to speak before the chairman,
and I have no problem with that. I am wondering, how long does the
Senator from Oklahoma wish to speak?
Mr. INHOFE. Five minutes.
Mr. REID. Following that, Mr. President, I wonder if we may have a
unanimous consent agreement that the Senator from New Hampshire speak
for up to 20 minutes; the Senator from Nevada, Mr. Reid, 15 minutes;
Senator Chafee, 15 minutes; Senator Boxer, 15 minutes; Senator Bond, 15
minutes; Senator Clinton, 15 minutes; Senator Crapo, 15 minutes; and
Senator Corzine, 15 minutes. That will use about an hour and 20 minutes
and still leave time for others who wish to come.
Mr. INHOFE. Let me change that to about 7 minutes.
Mr. REID. Let's make it 10 minutes.
Mr. INHOFE. All right.
Mr. REID. I have failed to list Senator Carper, but we will do him
after that for 15 minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. SMITH of New Hampshire. Mr. President, I yield 10 minutes to the
Senator from Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. INHOFE. Mr. President, while I was one who opposed S. 350 when it
was in committee because of some problems that were there that we have
tried to address, we have gotten a lot of cooperation from the
committee in the meantime to address the problems. I think S. 350
contains provisions that would be a positive first step toward
revitalizing brownfields in this country.
S. 350 provides developers with moderate assurances for Superfund-
forced cleanups. While some of my concerns over the finality of the
language remain, I am comforted by the remarks of the chairman and
ranking member of the committee concerning new information. That is,
the information referred to in S. 350 pertains to information of the
highest quality, objectivity, and weight which is acquired after
cleanup has begun. With this language, I don't think the abuses I was
concerned about are going to be there. If they are, we will be
monitoring it.
The scope of the cleanup finality provision is still of concern. The
EPA could simply sidestep the bill by using RCRA, the Resource
Conservation and Recovery Act, or even the Toxic Substances and Control
Act to force parties to clean up sites. This is one of the concerns we
tried to address in the committee. I don't think it has been addressed
to our satisfaction, but at least we are in a position to monitor it.
It has been the argument of supporters of the legislation that EPA
has never overfiled on a brownfields site. If the EPA overfiles a State
cleanup, S. 350 now requires the EPA to notify Congress. I wasn't
satisfied with just the fact that they had not done this in the past
because there is always that first time. We will be closely monitoring
this to make sure that provision stays in the legislation.
I still have concerns that businesses will not feel adequately
protected, and, therefore, brownfields may not get cleaned up. In the
end, the developers and businesses will be the judges of S. 350's
successes or failures.
A lot of people forget this and look at the bureaucracy and say: We
are going to have all this language. I can assure you, Mr. President,
if we do not have some protection for developers and businesses that
are willing to bid on cleanup sites, they are not going to be able to
do it. It does not do any good to pass legislation unless there is
enough confidence in the business community that they will not be
abused if they bid on these projects.
According to the EPA's figures, there are 200,000 sites contaminated
primarily from petroleum. This is roughly half the approximately
450,000 brownfields in the United States. During the markup, I had
concerns that by failing to address RCRA, Congress was neglecting the
200,000-plus sites that are petroleum-contaminated brown-
field sites in this country. By not addressing these sites in S. 350,
Congress is preventing almost half the brownfields in this country from
being cleaned up and developed.
I insisted Congress must address this issue. I stated that it was not
right to allow so many brownfields to remain contaminated under this
program.
I am proud to say today help is on the way for these sites. The
Inhofe amendment, which is incorporated into the managers' amendment,
will take a first major step toward cleaning up petroleum-contaminated
sites.
Specifically, the Inhofe amendment, A, allows relatively low-risk
brown-
field sites contaminated by petroleum or petroleum products to apply
for brownfields revitalization funding and, B, authorizes $50 million
to be used for petroleum sites.
My amendment will allow the large amount of abandoned gas stations
and other mildly petroleum-contaminated sites all across the Nation to
be cleaned up and put back into productive use.
Finally, I still want to work to place a cap on the administrative
costs set aside by the Federal EPA. A cost cap will ensure States and
parties seeking to clean up and redevelop brownfields are getting the
vast majority of the funds for brownfields programs and not just for
administrative costs.
EPA has informed us they are currently using approximately 16 percent
of brownfields funds appropriated on administrative costs. This amount
is unacceptable. I will be watching very closely to see what can be
done perhaps in the appropriations process. Senator Bond and some
others can perhaps propose an amendment to get this cap on and avoid
excessive administrative costs.
Over the last several years, the Senate Committee on Environment and
Public Works has worked very hard on Superfund reform. With S. 350, the
committee has decided for now to address only brownfields.
There are a lot of other problems. In the very beginning, I said
let's not cherry-pick this thing; let's not just address brownfields.
Let's get into it and look at retroactive liability, natural resource
damages, joint and several liability, and some of the abuses that have
taken place in this system.
I believe we now have the assurance of enough Members that we will go
ahead with a more comprehensive program and address these other
problems.
I thank the chairman and the ranking member and specifically Senators
Crapo, Bond, and Voinovich who are helping me on some of the issues
about which I have concerns and also the staff who have spent many
hours coming up with a bill that I think is acceptable. I yield the
floor.
Mr. REID. Mr. President, Senator Smith is right outside the door. I
am told that is the case.
Based on a prior unanimous consent agreement, Senator Smith will
speak from 11:40 a.m. until 12 o'clock. I will
[[Page S3885]]
speak from 12 to 12:15 p.m. Senator Chafee will speak from 12:15 p.m.
to 12:30 p.m. Senator Boxer will speak from 12:30 p.m. to 12:45 p.m.
Senator Bond will speak from 12:45 p.m. to 1 p.m. Senator Clinton will
speak from 1 p.m. to 1:15 p.m. Senator Crapo will speak from 1:15 p.m.
to 1:30 p.m. Senator Corzine will speak from 1:30 p.m. to 1:45 p.m.
Senator Carper will speak from 1:45 p.m. to 2 p.m.
If anyone wants to juggle those times, they can contact the Members.
That is the way it is now.
Mr. President, while Senator Smith is on his way, I wish to express
my appreciation to the majority leader. I have been on the floor the
last 3 days indicating why we did not go to this legislation, and we
are now considering it.
I extend my appreciation to Senator Lott for moving forward this very
important piece of legislation. It is something that is long overdue,
years overdue, but it is something that could not be more timely to
clean up half a million sites and do a lot of good things about which
we will hear in the next couple of hours.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I am very proud to be
debating the brownfields legislation, known as the Brownfields
Revitalization and Environmental Restoration Act of 2001, or S. 350. It
is a bill we have worked on for a long time--many years actually. It is
exciting to be at this point and to have bipartisan legislation that,
frankly, we know after we finish the debate is going to pass. That does
not happen every day in the Senate. So it is exciting.
I am proud that two-thirds of the Senate, both political parties, are
cosponsors--68 to be exact. Also, the President supports the bill. If
we can get the cooperation of the House of Representatives, this will
pass quickly, and the President will sign it. We are very excited about
that.
This bill has the full bipartisan support of all members of the
Environment and Public Works Committee across the political spectrum.
Make no mistake about it, in spite of the support the bill has, it
has not been an easy process. Superfund, so-called, is a very difficult
subject. That is an issue I have worked on and I know Senator Reid and
Senator Chafee and others have for many years.
Ever since I began my service in the Congress, I have tried to reform
this flawed Superfund law. It has been a bitter battle with a lot of
differences of opinion as to how we do it, sometimes partisan and
sometimes regional. But basically on reforming Superfund, other than a
few short fixes on certain things such as recyclers, we really have not
accomplished very much in the last 11 years.
I have always believed we are in need of comprehensive Superfund
reform to make the program work. I still believe after we pass the bill
there is a lot to be done. Today we have a chance to do something good.
It is not comprehensive Superfund reform. Frankly, I am at the point
now where comprehensive Superfund reform is not going to happen, and
maybe it should not happen. Maybe we should just move forward on a
piece-bill basis and do the right thing.
I was pleased to be joined by the committee's ranking member, the
Superfund subcommittee chairman and its ranking member, Senators Reid,
Chafee, and Boxer. I commend all of my colleagues who are present--
Senator Reid, Senator Boxer, Senator Chafee--for their leadership and
working tirelessly and in good faith in a bipartisan manner. Without
their cooperation and help, we would not be here today.
It is always easy to reach agreement on easy issues, but the
difficult issues, such as some of the issues with which we deal in the
environment, are not that easy and we have to work hard, respect the
other side's position, and try to come to a compromise.
If there is any positive spinoff from a 50/50 Senate, about which so
much is written and spoken, it is that, even if we do not want to, we
have to work together because we are not going to pass anything
meaningful, anything positive. We will not pass anything out of
committee going anywhere on the floor unless it is bipartisan.
We may not always agree on how to achieve our goals, but we all share
the same desire for a safe and healthy environment for all of our
families and for the future and our future generations. As I have said
many times, environment should be about the future. It shouldn't be
about politics of today. It should be about tomorrow and our children.
Sometimes in the decisions we make we would like to have immediate
results, but we don't get them. It takes time to see the fruits of our
labors.
I think you will see in the brownfields legislation, when it passes,
the process of cleaning up the old abandoned industrial sites.
I thank President Bush, as well, and his new EPA administrator,
Christine Whitman, for unwavering support. When they first took office,
my very first meeting was with then-Governor Whitman, now Administrator
Whitman. She gave me her full support and commitment on this issue, as
did the President. The President stated the brownfields reform is a top
environmental priority for his administration. It will now pass the
Senate within the first 100 days of the administration. That is a
promise made and a promise kept--sometimes rare in politics these days.
The President recognizes what it means for the environment. I am
proud the Senate will pass this priority and do it today.
As former Governors, both President Bush and Administrator Whitman
understand the importance of cleaning up the sites, and the President
deserves credit for making this a top priority, as do my colleagues in
the Senate. Without the support of the President, we would not see this
legislation become law. To his credit, President Clinton, as well, was
a supporter of the brownfields bill.
It has not been easy, but we have worked in good faith. I thank all
Senators involved for their willingness to work together toward this
common goal. It is amazing what can be accomplished when we set aside
the rhetoric and focus on the goal; or, indeed, if we have the
rhetoric, complete the rhetoric and sit down and get focused on getting
the job done.
Last year, the committee was successful in passing good, balanced,
bipartisan legislation, including estuaries restoration, clean beaches,
and the most famous of all, the historic Everglades restoration, which
was a prime project of the Senator from Rhode Island, our distinguished
father and former colleague, Mr. John Chafee.
I made a commitment after Senator Chafee's passing that I would, in
fact, shepherd that bill through the Senate, which we did, and
President Clinton signed it. It is now law. We will see that great
natural resource restored.
Again, it will take time. It will not happen tomorrow. We will not
see the Everglades restored tomorrow, but we will see it done over a
period of 10, 20, 30 years. We will not see every brownfield restored
today after passage of the bill, but we will see industrial site after
industrial site, abandoned industrial sites all over America, gradually
become green or restored in a way that they are productive and
producing tax revenues in the communities across our Nation.
When you see a brownfield, abandoned site, and you see activity, with
people working and cleaning it up, and it is looking nice in your
community, you can reference back to this legislation and know that is
why it is being done.
People say, why do you need the legislation? The answer is, under
current law no one will clean them up. I will discuss the reasons in a
moment. With brownfields, we have proven we can work together in
cooperation, as opposed to confrontation, and we can accomplish great
things. When we talk about all the great issues of the day, whether
China, the budget, or whatever, brownfields is not exactly something
that gets a lot of glamour. We had a huge debate on the Ashcroft
confirmation. That received a lot of publicity. However, down in the
trenches, these are the kinds of issues that don't get a lot of
attention. Maybe the trade press follows them. The national press
doesn't do much. Indeed, sometimes not even your local press, but it is
important. It is very important to the communities because we will be
restoring these sites.
I am hopeful the effort will set the stage for more cooperation and
also get
[[Page S3886]]
at more of the old Superfund law to pick away and try to reform various
parts of the bill so we don't need Superfund anymore. We will be
cleaning up all of these sites as soon as we can.
We have learned environmental politics delays environmental
protection. Let me repeat that: Environmental politics delays
environmental protection. The more we argue about things, the longer it
takes to get something in place that will bring this to resolution, and
the resolution would be the cleanup. The expedited cleanup of
brownfield sites is very important to my constituents in New Hampshire,
as it is to other constituents in other States. My State helped to
drive this economy during the industrial age--little old New Hampshire,
with the mills along the Merrimack. We have more than our share of
these likely contaminated sites waiting to be turned back into positive
assets, including abandoned railroad sites, along the railroads, along
the rivers. Frequently, these are the sites we are talking about. It
could be Bradford, Keene, Concord, or New Ipswich. This bill will be of
monumental benefit to not only those towns but many towns all over
America. This bill will also create opportunities for the development
of more facilities such as the Londonderry eco-industrial park. Now
these brownfield sites will turn into industrial parks. Or, indeed, if
they are not parks, they may very well be ``green'' parks as opposed to
industrial parks. Again, this bill provides help in that regard.
If you take an abandoned industrial site and convert it to a good
commercial site, producing revenues for the community, it enhances the
community in a beautification way, produces revenue, puts people to
work. It is a win-win-win. Furthermore, it takes the pressure off of
green space. We won't go outside of Frankfurt, KY, somewhere and pull
off acres of land to build an industrial park if we have 10 acres of
abandoned brownfield sites to bring back and revitalize and use again.
That is the beauty of the legislation.
I am proud to help communities all across the Nation. We estimate as
many as 400,000 to 500,000 brownfield sites exist across America. We
will see activity now on these sites.
A brief background on the bill. On March 8, the Environmental and
Public Works Committee reported S. 350, the Brownfields Revitalization
and Environmental Restoration Act of 2001. There were a few dissenting
votes, but we worked with those individuals who had concerns and the
Members now have been able to reconcile those differences. As far as I
know, we have a totally united front. That is a tribute to every member
of that committee, on both sides, a tribute to the staffs of the
members working hard to address the concerns to come out with a totally
unified effort on a bipartisan bill.
This is a strong bill. It deserves the support of the full Senate,
not only the 68 cosponsors but the other 32 out there, as well.
How is S. 350 better than current law? That is the issue. Current law
is what it is and we are now cleaning up sites. How do we improve it?
Simply stated, our bill provides an element of finality that does not
exist today in current law. While allowing for Federal involvement
under specific conditions, current law allows EPA to act whenever there
is a release or a threatened release. Again, current law allows EPA to
act whenever there is a release or threatened release.
This bill changes that requirement, ups the ante a little bit, and
provides four things: One, EPA to find that ``the release or threatened
release may present an imminent and substantial endangerment to public
health, welfare or the environmnent'' 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.
We put some conditions on there for the EPA's finding.
We also find that the action should come at the request of the State
if we need to come back.
Third, contamination may have migrated across a State line.
Fourth, there may be new information to emerge after the cleanup that
results in the site presenting a threat.
That is not all our bill does. It also authorizes $200 million in
critically needed funds to assess and clean up brownfield sites as well
as $50 million to assist State cleanup programs. This is more than
double the level of funding currently expended on the EPA brownfield
program.
I also want to point out this is not about only Federal dollars. The
Federal dollars, the $200 million we are talking about here, are
nowhere near enough money to clean up 500,000 brownfield sites. What
this does is it limits the liability and brings us closer to finality
in cleanup so we can now get contractors to go on these sites. They can
get the insurance, they can take the risk, and they are not going to be
held accountable if a hot spot or some other problem that was not their
fault occurs several years down the road. That has been the problem to
date. They cannot do it because they will be held liable so they say,
fine, we are not going to go on the site and clean it up and take the
risk.
If a contractor comes onto a site, he is responsible. If he does what
he is supposed to do, follows the plans as he is supposed to, cleans it
up and does it in good faith and we find something later, he is not
accountable. That is why this bill will go so far toward moving us in
the right direction, getting these sites cleaned up.
Individuals and towns and property owners will now invest in cleaning
up these sites. Banks will lend money. There are millions and millions
of dollars--tens of millions, if not hundreds of millions--that will be
used now from the private sector to clean up these sites, far beyond
the $200 million we are talking about in this bill.
This will promote conservation through redevelopment, as I said
before, as opposed to new greenfield development, and will help to
revitalize our city centers and create new jobs in the inner cities. It
is a win for the environment, a win for the economy, a win for the
Nation, a win for every State, including New Hampshire, and a lot of
communities with those brownfield sites. It is a giant step forward. We
now have a chance to move forward on a piece of legislation that will
make a significant difference in communities across the Nation.
The real winners are the people who live near these abandoned sites--
sometimes those are minorities--the renewed urban centers that will see
development and jobs replace blighted, contaminated sites, the local
communities that will be revitalized, and the green space that is
preserved. It is a win, win, win, win, win, no matter how you cut it.
Thanks to the leadership of my colleagues, Senators Reid, Boxer, and
Chafee, and all my colleagues on the committee, we have a chance to
enact now, for the first time in all the years I have been in Congress,
which is 16--the first time to enact meaningful brownfields reform. We
came out of the gate running. I hope the House will follow suit,
because if they do, it will be on the President's desk shortly and the
President can sign this bill before the end of the summer.
There are numerous interests that support S. 350. I ask unanimous
consent that several letters of support I have received--and all of us
have received them--be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Conference of
State Legislatures,
March 7, 2001.
Hon. Bob Smith,
Chairman, Committee on Environment and Public Works, Dirksen
Senate Office Building, Washington, DC.
Dear Chairman Smith: I am writing on behalf of the National
Conference of State Legislatures (NCSL) to commend you for
your continued commitment to the issue of Brownfields
revitalization. Without the necessary reforms to the
Comprehensive Response, Compensation and Liability Act
(CERCLA), clean up and redevelopment opportunities are lost
as well as new jobs, new tax revenues, and the opportunity to
manage growth. NCSL's Environment Committee has made this a
top priority and we applaud the committee's leadership for
designating it as one of the first environmental issues to be
brought before the 107th Congress.
The Brownfields Revitalization and Environmental
Restoration Act of 2001 (S 350) provides a welcome increase
in federal funding for the assessment and cleanup of state
brownfields. We are encouraged by the committee's efforts to
provide some level of liability reform for innocent property
owners. NCSL would also like to acknowledge the committee's
success in garnering broad bi-partisan support on an issue
that is of concern in all 50 states.
[[Page S3887]]
As you continue work on The Brownfields Revitalization and
Environmental Restoration Act of 2001, we urge you to
reexamine the following:
The 20% cost share (under CERCLA the cost share is 10%)--
this could discourage states with tight budgets from
participating in the program. NCSL suggests that you maintain
the cost share provision of 10% under CERCLA.
NCSL recognizes that finality has been a contentious issue.
NCSL acknowledges that the bill provides relief from
Superfund liability, but we urge the committee to reexamine
the power of the Administrator with a view towards according
the states the appropriate deference prior to initiation of
an enforcement action.
Additions to the National Priorities List--NCSL supports
the listing of a facility only after the Administrator
obtains concurrence from the Governor of the respective
state.
We appreciate the efforts of the chief sponsors of S. 350
and the subcommittee to bring forward a bill to further
advance brownfields cleanup and redevelopment. We look
forward to working with you on this issue. For additional
information, please contact Molly Stauffer in NCSL's
Washington, D.C. office at (202) 624-3584 or by email at
[email protected].
Sincerely,
Representative Joe Hackney,
Chair, NCSL Environment Committee.
____
The United States
Conference of Mayors,
Washington, DC, February 14, 2001.
Hon. Bob Smith,
Chairman, Committee on Environment and Public Works, Dirksen
Senate Office Building, Washington, DC.
Hon. Lincoln Chafee,
Chairman, Subcommittee on Superfund, Waste Control, and Risk
Assessment, Senate Office Building, Washington, DC.
Hon. Harry Reid,
Ranking Minority Member, Committee on Environment and Public
Works, Dirksen Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
Ranking Minority Member, Subcommittee on Superfund, Waste
Control, and Risk Assessment, Dirksen Senate Office
Building, Washington, DC.
Dear Senators Smith, Reid, Chafee and Boxer: On behalf of
The United States Conference of Mayors, I am writing to
express the strong support of the nation's mayors for your
bipartisan legislation, the ``Brownfields Revitalization and
Environmental Restoration Act of 2001.'' The mayors believe
that this legislation can dramatically improve the nation's
efforts to recycle abandoned and other underutilized
brownfield sites, providing new incentives and statutory
reforms to speed the assessment, cleanup and redevelopment of
these properties.
This is a national problem that deserves a strong and
prompt federal response. The mayors believe that this
bipartisan legislation will help accelerate ongoing private
sector and public efforts to recycle America's land.
We thank you for your leadership on this priority
legislation for the nation's cities. We strongly support this
legislation and we encourage you to move forward
expeditiously so that the nation can secure the many positive
benefits to be achieved from the reuse and redevelopment of
the many thousands of brownfields throughout the U.S.
Sincerely,
H. Brent Coles,
President,
Mayor of Boise.
____
Hon. Bob Smith,
Chairman, Environment and Public Works Committee, U.S.
Senate, Washington, DC.
Hon. Harry Reid,
Ranking Member, Environmental and Public Works Committee,
U.S. Senate, Washington, DC.
Hon. Lincoln Chafee,
Chairman, Subcommittee on Superfund, Waste Control and Risk
Assessment, U.S. Senate, Washington, DC.
Hon. Barbara Boxer,
Ranking Member, Subcommittee on Superfund, Waste Control and
Risk Assessment, U.S. Senate, Washington, DC.
Dear Chairman Smith, Chairman Chafee, Senator Reid, and
Senator Boxer: We are writing to thank you for the
outstanding leadership you have demonstrated by your re-
introduction of the Brownfields Revitalization and
Environmental Restoration Act of 2001. Our organizations, and
our many community partners across America, are heartened by
the benefits that this legislation would impart upon our
landscapes, economies, public parks and our communities as a
whole. Transforming abandoned brownfield sites into
greenfields or new development will provide momentum for
increasing ``smart growth'' and reducing sprawl by utilizing
existing transportation infrastructure, which in turn will
lead to better transportation systems and the revitalization
of historic areas and our urban centers.
As you are well aware, brownfields pose some of the most
critical land-use challenges--and afford some of the most
promising revitalization opportunities--facing our nation's
communities, from our cities to more rural locales.
Revitalization of these idled sites into urgently needed
parks and green spaces or into appropriate redevelopment will
provide great benefits to our neighborhoods and local
economies. In the process, it has also proven to be an
extremely powerful tool in local effort to control urban
spawl by directing economic growth to already developed
areas, encouraging the restoration and reuse of historical
sites, and in addressing longstanding issues of environmental
justice in underserved areas.
We acknowledge the commitment that the Environmental
Protection Agency and other federal agencies have
demonstrated to brownfields restoration through existing
programs. At the same time, given that there are an estimated
450,000--600,000 brownfield properties nationwide, we
recognize that these limited resources have been stretched
too far to allow for an optimal federal role. Additional
investment, at higher levels and in new directions, is
essential to meeting the enormous backlog of need and to
establish the truest federal partnership with the many state,
local, and private entities working to renew brownfield
sites.
The Brownfield Revitalization and Environmental Restoration
Act of 2001 would provide this much needed federal response.
Through our work with local governments, our organizations
have witnessed first-hand--and have often worked as a partner
to help create--the benefits that this bill would provide. We
are particularly gratified by the emphasis your legislation
places on brownfields-to-parks conversion, and the
flexibility it provides to tailor funding based on a
community's particular needs. In all, this bill provides the
framework and funding that an effective national approach to
brownfields will require.
Accordingly, we appreciate your vision in developing this
legislation, and we look forward to working with your towards
its enactment.
Sincerely,
The Trust for Public Land.
Scenic America.
American Planning Association.
The Enterprise Foundation.
National Association of Regional Councils.
Smart Growth America.
Surface Transportation Policy Project.
National Recreation and Park Association.
____
American Bar Association,
Governmental Affairs Office,
Washington, DC, March 6, 2001.
Hon. Robert C. Smith,
Chairman, Committee on Environment and Public Works, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: On behalf of the American Bar
Association, we write to express our support for the
liability reforms contained in S. 350, the ``Brownfield
Revitalization and Environmental Restoration Act of 2001,''
and we urge you and your committee to support these
provisions during the markup of the measure scheduled for
March 8, 2001. By enacting these reforms, Congress can help
to expedite the cleanup and redevelopment of more than
450,000 contaminated brownfield sites throughout the country
while at the same time breathing new life into the inner
cities in which these sites are concentrated.
As the largest association of attorneys in the United
States with over 400,000 members nationwide, the American Bar
Association has a strong interest in working with Congress in
order to ensure that federal environmental law, including the
Comprehensive Environmental Response, Compensation, and
Liability Act (``CERCLA'' or ``Superfund''), encourages and
does not impede the cleanup of brownfields. In an effort to
play a meaningful role in this area, the ABA House of
Delegates adopted a resolution in 1999 outlining detailed
suggestions for encouraging the redevelopment of brownfields,
and this resolution and the accompanying background report
are enclosed.
In recent years, brownfields increasingly have reduced the
quality of urban life in America. These contaminated
properties often lie unused or underutilized for long periods
of time largely due to the perceived legal liabilities that
confront potential new owners and developers of these
properties. While these sites remain idle, employment levels
suffer, particularly among disadvantaged communities within
the inner city. Often this accelerates urban flight,
increases sprawl, and creates the need to carve out yet more
space for suburban development, with the related
infrastructure needs that such development requires. By
encouraging the redevelopment of brownfields, we can
revitalize our urban core, preserve open space, conserve
resources, and make far better use of public dollars.
By now, almost all of the states have adopted their own
state brownfields programs, including statutes and
regulations designed to encourage the voluntary remediation
of brownfields. These programs generally set clear cleanup
standards that are designed to protect human health and the
environment while also taking future site use into
consideration. In order to encourage developers to
participate in these voluntary cleanup programs, most states
also grant liability relief to those who successfully clean
up the sites to the states' standards.
[[Page S3888]]
These programs have been recognized as being among the most
successful state environmental programs of the last decade.
Through these programs, sites across the country are being
cleaned up and redeveloped, creating new jobs and economic
opportunities, limiting the development of so called
``greenfields,'' and restoring state and local tax bases.
While these programs have met with considerable success, the
continuing threat of Superfund liability discourages many
developers from buying and then voluntarily cleaning up
contaminated property. As a result, many brownfield sites
remain idle for extended periods of time, despite the state
cleanup programs.
The ABA supports a number of key provisions contained in S.
350, including those provisions that encourage developers to
participate in state brownfields cleanup programs. The ABA
believes that in order to promote the continued economic use
of contaminated properties and reduce unnecessary litigation,
Congress should eliminate all Superfund liability for parties
who successfully clean up properties pursuant to a state
brownfields program, so long as the state programs (1) impose
cleanup standards that are protective of human health and the
environment; (2) ensure appropriate public notice and public
participation; and (3) provide the financial and personnel
resources necessary to carry out their programs.
S. 350 goes a long way towards achieving these aims by
preventing the President and the EPA from pursuing
enforcement actions against those involved in state
brownfields cleanup programs except in certain specific
circumstances, such as when a state requests federal
assistance, the contamination migrates across state lines or
onto federal property, or there is an imminent and
substantial endangerment to public health, welfare or the
environment so that additional response actions are likely to
be necessary. By preventing the EPA from intervening in state
cleanups except in these limited situations, S. 350 will
encourage developers and other parties to participate in
state cleanup programs and bring brownfields back into
productive use by granting greater ``finality'' to these
programs.
The ABA also supports those provisions in S. 350 that would
grant Superfund liability exemptions to certain types of
innocent parties, including bona fide prospective purchasers
who do not cause or worsen the contamination at a brownfields
site and innocent owners of real estate that is continguous
to the property where the hazardous waste was released. The
ABA favors comprehensive reform of Superfund, including the
elimination of joint and several liability in favor of a
``fair share'' allocation system in which liability is
allocated based upon each party's relative contribution to
the harm. Until Congress enacts comprehensive reform
legislation, however, the ABA believes that truly innocent
parties, including those covered by S. 350, should be
released from potential Superfund liability. These reforms
are consistent with the principle that ``polluters should
pay,'' but only for the harm that they cause and not for the
harm caused by others. Innocent parties who have neither
caused nor worsened environmental hazards should not be
subject to liability under Superfund, and S. 350 furthers
this important principle.
The ABA has been a consistent advocate of legislation that
would expedite the cleanup of brownfields and Superfund
sites, reduce litigation, and promote fairness to all
parties, and the liability reforms contained in S. 350 make
significant strides towards achieving these goals. For these
reasons, we urge you to support these reforms during the full
committee markup scheduled for March 8.
Thank you for considering the views of the ABA on these
important matters. If you would like more information
regarding the ABA's positions on these issues, please contact
our legislative counsel for environmental law matters, Larson
Frisby, at 202/662-1098.
Sincerely,
Robert D. Evans.
____
American Institute of Architects,
San Francisco, CA, March 2, 2001.
Hon. Bob Smith,
Chairman, U.S. Senate Committee on Environment and Public
Works, Dirksen Senate Office Building, Washington, DC.
Dear Chairman Smith: On behalf of the 67,000 members of the
American Institute of Architects (AIA). I am writing to
commend you on the introduction of the Brownfields
Revitalization and Environmental Restoration Amendments Act
of 2001. This measure, S. 350, demonstrates your commitment
and leadership in keeping the brownfields redevelopment issue
at the forefront of the national agenda. The AIA endorses
this important measure since it offers practical solutions to
the key issues, including liability reform and financing
options. It is important for Congress to pass meaningful
brownfields redevelopment legislation this year. Superfund
reform issues should not be allowed to delay passage of S.
350.
As you know, there are brownfields problems in nearly every
community in the United States. If enacted, your bill would
offer thousands of communities the flexibility to access
grants or loan capitalization funds. Thus, S. 350 recognizes
that one size does not fit all and offers user-friendly
solutions that communities desperately need. Passage of S.
350 will stimulate and rejuvenate the economic development
components of cities. Thus, it would better integrate some
state and local environmental and economic development
programs.
Liability reform is clearly at the heart of a successful
brownfields proposal. Your measure provides protection for
innocent landowners and for those whose property may have
been contaminated through no fault of their own. Architects
and other members of the private sector are keenly aware that
these provisions are needed if progress is to occur at the
estimated 500,000 brownfields sites nationwide.
For your review and for inclusion in the Committee record,
I have enclosed a copy of a chapter entitled ``The New Market
Frontier: Unlocking Community Capitalism Through Brownfields
Redevelopment'' from the American Bar Association's book,
Brownfields: A Comprehensive Guide to Redeveloping
Contaminated Property, which shows architects in three case
studies providing practical solutions to brownfields
problems. In addition, I have enclosed a copy of a recent AIA
publication ``Communities by Design,'' which demonstrates the
value of good design.
Finally, the AIA welcomes the opportunity of working with
you and your staff so that S. 350 advances and is signed into
law during the 107th Congress. If you need further assistance
contact Dan Wilson, senior director, Federal Affairs at (202)
626-7384.
Sincerely,
Gordon H. Chong,
Chairman, Government Affairs
Advisory Committee.
____
American Society of Civil Engineers,
Washington, DC, April 4, 2001.
Hon. Robert Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: The American Society of Civil Engineers
(ASCE), which represents 126,000 civil engineers in private
practice, academia and government service, respectfully
requests your support for passage of S. 350, the Brownfields
Revitalization and Environmental Restoration Act of 2001.
We urge you to contact the Senate leadership to request
that the bill be brought to the floor as soon as possible.
ASCE advocates legislation that would eliminate statutory
and regulatory barriers to the redevelopment of
``brownfields,'' lands that effectively have been removed
from productive capacity due to serious contamination. These
sites, properly restored, aid in the revival of blighted
areas, promote sustainable development, and invest in the
nation's industrial strength.
As you are aware, the current brownfields program was
established by the Environmental Protection Agency (EPA) in
1993 under the Superfund program. That program, which has
expanded to include more than 300 brownfields assessment
grants (most for $200,000 over 2 years) totaling more than
$57 million, now needs to be placed on a sound statutory
footing in order to ensure future success.
ASCE considers the program vital because we support limits
on urban sprawl to achieve a balance between economic
development, rights of individual property owners, public
interests, social needs and the environment. Community growth
planning based on the principles of sustainable development
should give consideration to the public needs, to private
initiatives and to local, state and regional planning
objectives.
Moreover, revitalized brownfields would reduce the demand
for the undeveloped land. Full provision of public
infrastructure and facilities redevelopment must be included
in all growth initiatives and should be made at the lowest
appropriate level of government.
We believe that a targeted brownfields restoration program
should take into account site-specific environmental exposure
factors and risk based on a reasonable assessment of the
future use of the property.
To ensure a uniform and protective cleanup effort
nationally, we would hope that S. 350 also would require
minimum criteria for adequate state brownfields programs.
ASCE believes the states should be required to demonstrate
that their programs satisfy minimum restoration criteria
before a bar to federal enforcement would apply.
We support systems to ensure appropriate public
participation in state cleanups or provide assurance through
state review or approval that site cleanups are adequate.
Sincerely yours,
Robert W. Bein,
President.
____
The Trust for Public Land,
Washington, DC, February 15, 2001.
Hon. Bob Smith,
Chairman, Environment and Public Works Committee, U.S.
Senate, Washington, DC.
Hon. Harry Reid,
Ranking Member, Environment and Public Works Committee, U.S.
Senate, Washington, DC.
Hon. Lincoln Chafee,
Chairman, Subcommittee on Superfund, Waste Control and Risk
Assessment, U.S. Senate, Washington, DC.
Hon. Barbara Boxer,
Ranking Member, Subcommittee on Superfund, Waste Control and
Risk Assessment, U.S. Senate, Washington, DC.
Dear Chairman Smith, Chairman Chafee, Senator Reid, and
Senator Boxer: On behalf of the Trust for Public Land, I am
writing to thank you for introducing the Brownfields
Revitalization and Environmental Restoration Act of 2001. We
appreciate your outstanding efforts to promote
[[Page S3889]]
local environmental quality, as typified by your energetic
advocacy of this brownfields legislation.
TPL was honored to be part of the coalition that helped to
push this legislation to the brink of enactment at the end of
the 106th Congress, and we again look forward to working with
you to make this legislation a reality within the near
future. We are particularly grateful that you have re-
introduced identical legislation this time around.
Given our experience in community open-space issues, we are
heartened by the emphasis the legislation places on
brownfields-to-parks conversion where appropriate, and its
flexibility to tailor loan and grant funding based on
community needs and eventual uses. In all, this legislation
provides the framework and funding that an effective national
approach to brownfields requires, and offers the promise of a
much-needed federal partnership role in brownfields
reclamation.
Brownfields afford some of the most promising
revitalization opportunities from our cities to more rural
locales. This legislation will serve to help meet the
pronounced needs in underserved communities to reclaim
abandoned sites and create open spaces where they are most
needed. By transforming these idled sites into urgently
needed parks and green spaces, or by focusing investment into
their appropriate redevelopment, reclamation of brownfield
properties brings new life to local economies and to the
spirit of neighborhoods.
The Trust for Public Land gratefully recognizes the vision
and careful craftsmanship you have shown in your work to
advance this vital legislation, and we look forward to
working with you toward its enactment.
Sincerely,
Alan Front,
Senior Vice President.
____
Building Owners and Managers
Association International,
Washington, DC, March 29, 2001.
Hon. Bob Smith,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Smith: On behalf of commercial real estate
professionals nationwide, I am writing to ask for your
support, before the full Senate, of S. 350--the Brownfields
Revitalization and Environmental Restoration Act of 2001. The
Building Owners and Managers Association (BOMA) International
and its 18,000 members believe that this bill provides
Congress its best opportunity to improve our nation's
remediation efforts in 2001.
Thanks to the efforts of a dedicated collection of
senators, the Senate now has a bipartisan piece of
legislation that would generate improved liability
protections, enhanced state involvement and increased federal
cleanup funding. Adoption of S. 350 would have an immediate
and dramatic impact on reducing the 400,000 brownfields sites
across America.
As the Environment and Public Works Committee has forwarded
this legislation out of committee, we look for your support
in securing its approval by the full Senate. We ask for your
assistance in bringing this bill to the floor and achieving
its passage early in 2001. If you have any questions or
concerns, please contact Rick Sheridan at (202) 326-6338.
Sincerely,
Richard D. Baier,
President, BOMA International.
____
National Association of Realtors,
Washington, DC, February 14, 2001.
Hon. Robert Smith,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Smith: On behalf of the more than 760,000
members of the NATIONAL ASSOCIATION OF REALTORS, I wish to
convey our strong support for the ``Brownfields
Revitalization and Environmental Restoration Act.'' NAR
commends you for your efforts in crafting a practical and
effective bill which has garnered bipartisan support from the
leadership of the Senate Environment and Public Works
Committee.
NAR supports this bill because it:
Provides liability relief for innocent property owners who
have not caused or contributed to hazardous waste
contamination;
Increases funding for the cleanup and redevelopment of the
hundreds of thousands of our nation's contaminated
``brownfields'' sites;
Recognizes the finality of successful state hazardous waste
cleanup efforts.
Brownfields sites offer excellent opportunities for the
economic, environmental and social enrichment of our
communities. Unfortunately, liability concerns and a lack of
adequate resources often deter redevelopment of such sites.
As a result, properties that could be enhancing community
growth are left dilapidated, contributing to nothing but
economic ruin. Once revitalized, however, brownfields sites
benefit their surrounding communities by increasing the tax
base, creating jobs and providing new housing.
The new Administration has clearly indicated its support
for brownfields revitalization efforts. The ``Brownfields
Revitalization and Environmental Restoration Act'' is a
positive, broadly-supported policy initiative. NAR looks
forward to working together with you to enact brownfields
legislation in the 107th Congress.
Sincerely,
Richard Mendenhall,
2001 President.
____
Institute of Scrap
Recycling Industries, Inc.,
Washington, DC, February 14, 2001.
Hon. Robert C. Smith,
Chairman, Committee on Environment and Works, U.S. Senate,
Washington, DC.
Hon. Lincoln D. Chafee,
Chairman, Subcommittee on Superfund Waste Control and Risk
Assessment, U.S. Senate, Washington, DC.
Hon. Harry Reid,
Ranking Member, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Hon. Barbara Boxer,
Ranking Member, Subcommittee on Superfund, Waste Control and
Risk assessment, U.S. Senate, Washington, DC.
Dear Senators Smith, Reid, Chafee and Boxer: The Institute
of Scrap Recycling Industries, Inc. (ISRI), strongly supports
the passage of the Brownfields Revitalization and
Environmental Restoration Act of 2001. Passage of this
bipartisan bill will reduce the many legal and regulatory
barriers that stand in the way of brownfields redevelopment.
This important brownfields legislation will provide
liability relief for innocent property owners who purchase a
property without knowing that it is contaminated, but who
carry out a good faith effort to investigate the site. It
also recognizes the finality of successful state approved
voluntary cleanup efforts and provides funds to cleanup and
redevelop brownfields sites.
ISRI stands ready to help build support for passage of this
bipartisan borwnfields bill. In the previous Congress, ISRI's
membership worked to build grassroots support and sought
cosponsors for S. 2700 of the 106th Congress, the predecessor
bill to the Brownfields Revitalization and Environmental
Restoration Act of 2001.
ISRI looks forward to continuing to work with you to see
that the brownfields bill you have sponsored becomes law. We
believe that the Brownfields Revitalization and Environmental
Restoration Act of 2001 is a model for sensible bipartisan
environmental policy.
Sincerely,
Robin K. Wiener,
President.
Mr. SMITH of New Hampshire. Before I close, I take a moment, as we
usually do, to recognize some of the staff who have worked tirelessly
on this legislation. It has not been easy. Sometimes we go home for the
weekend or go back to our States and staffs are here working through
these issues.
I commend my own Department of Environmental Services, Phil O'Brien
and Mike Wimsatt, for their tireless work and input into this process;
from Senator Chafee's office--I am sure he will want to thank his own
staff--Ted Michaels; from Senator Reid's staff, Lisa Haage, Barbara
Rogers, and Eric Washburn--we appreciate all your help; Sara Barth from
Senator Boxer's office; Louis Renjel from Senator Inhofe's office;
Catherine Walters of Senator Voinovich's staff; and Gabrielle Tenzer
from Senator Clinton's staff; and from the EPA, Randy Deitz and Sven
Kaiser. Last but not least, my good committee staff: David Conover,
Chelsea Maxwell, Marty Hall, and Jim Qualters. I thank them for a lot
of effort, a lot of hard work in working together.
Of course, there are many more who deserve thanks.
Mr. President, I ask unanimous consent Senator Phil Gramm of Texas be
added as a cosponsor of the bill, which will get us up to 69.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Nevada.
Mr. REID. Mr. President, I join with my friend from New Hampshire in
expressing appreciation to the people who have worked to get this bill
to the point it is. He has certainly been gracious in extending
appreciation to my staff. Lisa Haage, Barbara Rogers, and Eric Washburn
have done excellent work. I also thank, as he has, the hard-working
staff of the committee: David Conover, Chelsea Maxwell, Marty Hall, and
Ted Michaels of Senator Chafee's office, who has done such an
outstanding job working with Sandra Barth of Senator Boxer's office.
Without this good staff, we would not be at the point we are.
I also want to take a minute to express my appreciation to the
Senator from New Hampshire. I worked with the Senator from New
Hampshire on the very volatile, difficult Select Committee On MIA/POWs.
For one intense year we worked on that. That is where I first got to
know the Senator from
[[Page S3890]]
New Hampshire. I recognize how strongly he feels about issues.
Then I had the good fortune of being able to work with him on the
Ethics Committee. He was the lead Republican, I was the lead Democrat
on the committee for I don't know how long--it was a long time--until
he got his chairmanship of this committee.
I have found him to be a person who understands the institution and
understands the importance of people being moral and living up to the
ethical standards that are important for this institution. I may not
always agree with him on issues, but I agree with him as a person. He
is one of the finest people with whom I have ever dealt. So I have the
utmost respect for him, how he has handled this committee.
For 17 days I was chairman of this committee. The treatment I
received while chairman, and while ranking member, has been
outstanding. Senator Bob Smith is a good person and somebody of whom
the citizens of the State of New Hampshire should be proud.
I have spoken on this bill for 3 days now, expressing my desire to
have it considered. It is here now. I already said I appreciate Senator
Lott bringing it before the Senate.
I have been talking about Senator Smith. I also want to talk about
the ranking member of the subcommittee who has been responsible for
bringing us to this point, and that is Senator Barbara Boxer. Senator
Boxer and I came to the House together in 1982. We have worked together
for all these years. I have tremendous admiration for Barbara Boxer.
She is someone who believes strongly in the issues. I have to say, she
has done great work for this country on exposing military fraud and
military incompetence. But the best work she has done, in my opinion,
has been in dealing with the environment. So as a member of this
committee that I have worked on since I have been in the Senate, she
has been an outstanding member. She has run the subcommittee very well.
An outstanding example is how she has been able to reach out to
Lincoln Chafee, who is a very able member of this committee. I had the
good fortune of serving in my time in the Senate with his father. I can
say John Chafee would be very proud of Lincoln for the work he has done
on this committee. This was John Chafee's committee. He was the
chairman, he was the ranking member of it. I cannot say more than that
John Chafee would be very proud of his son for the work he has done on
this committee.
As Senator Smith has indicated, this is an important piece of
legislation. It has now 69 cosponsors. It was reported out of committee
by a 15-3 vote. The staff has worked very hard to make sure the
problems people had with the legislation were resolved prior to it
coming to the floor--and most of those have been. That is the reason we
are working now on a specific time agreement. We are going to vote on
this matter around 2 o'clock this afternoon.
Members of the Environment and Public Works staff have worked hard.
Members of this committee worked hard to get the legislation to this
point. I have been extremely impressed with the new members of this
committee. Senator Corzine and Senator Clinton have worked extremely
hard, as has Senator Carper, to get us where we are. They are going to
come later today, as the unanimous consent agreement indicates, and
speak on their own behalf.
As I have said for 3 days, there are 500,000 sites from Kentucky to
Nevada, waiting to be cleaned up. About 600,000 people will be put to
work on these projects.
This will create local revenues of almost $2.5 billion.
This is an important bill. It provides critically needed money to
assess the cleanup of abandoned and underutilized brownfield sites. It
will create jobs. It will increase tax revenues and create parks and
open space. It will encourage cleanup and provide legal protection for
parties. It provides funding for enhancement of cleanup programs.
The managers' amendment before us today does several additional
things that were not in the reported bill. It further clarifies the
coordination between the States and the EPA. This was an issue raised
by Senator Voinovich. I told him before the full committee that we
would work to resolve his problems. We did that.
The managers' amendment provides clarification for cities and others
in purchasing insurance for brownfield sites. That is also an important
addition to this legislation.
It also provides for an additional $50 million per year for abandoned
sites which are contaminated by petroleum. There was some concern that
this may not have been covered in the original legislation. That has
been resolved.
Corner gas stations: A lot of times we find people simply stay away
from them. These corner gas stations are located at very essential
sites in downtown areas. We are trying to revitalize them. This
addition in the managers' amendment will do a great deal to resolve
that issue.
I am pleased we were able to work out the provisions so these
numerous sites can also be addressed.
There was a provision requested by Senators Inhofe and Crapo. They
felt very strongly about this. I am pleased we were able to agree on
that. It will be an important and critical part of this legislation.
This amendment also provides a provision for areas with a high
incidence of cancer and disease. It will give special consideration in
making grant decisions regarding children. This was pushed very
strongly by Senator Clinton. I am grateful for her input. These
provisions grew out of the amendment discussed in the markup of the
original bill sponsored by Senator Clinton.
I also want to add Senators Corzine and Boxer. But it is supported by
a broad bipartisan group of Members.
This amendment also increases citizen participation by adding
citizens' rights in requesting sites to be considered under State
programs. This is intended to ensure the beginning of the process so
that States can benefit from input from citizens who may be aware of
additional sites needing attention and who can help identify additional
reuse and redevelopment opportunities.
All of these changes have been carefully considered for providing
additional improvements to the bill. Moreover, they collectively
represent the same delicate balance as the underlying bill. It also
complements the needs of real estate communities, environmental areas,
mayors, and other local government officials, land and conservation
groups, and the communities that are most directly affected by these
sites.
This bill is balanced. It is unique. It is bipartisan. It sets an
example for the Senate in the months to come.
This brownfields legislation is not just an urban problem. It also is
very important to rural communities throughout America. For example,
brownfields money was granted to Mineral County to do a cleanup. It is
a very rural site. It was damaged by the largest ammunition dump during
the war. It is run now as an ammunition dump by the Army. But there
are lots of problems there. We have a 240-acre brownfield site set for
cleanup. After it is finished, we are confident that a golf course can
be created for this very rural community which will add recreational
activities.
An existing loan program in Las Vegas has already been used to fund
the cleanup of an old armory site, which will create jobs. It will now
be a home to a senior center, a small business incubator, a cultural
center, and retail stores.
I want to see many more examples of reclaiming these abandoned,
contaminated lands in Nevada and across the country. This bill provides
funds to accomplish it.
The Presiding Officer is a valuable member of the committee.
I have already spoken on a number of occasions about Senator
Voinovich's contribution to this legislation. It has been significant.
I reserve the remainder of my time for Senator Torricelli. I yield to
my friend from Rhode Island who has done such a magnificent job working
on this legislation.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. CHAFEE. Mr. President, today I rise in strong support of S. 350,
the Brownfields Revitalization and Environmental Restoration Act of
2001. This bill has won the support of the Bush administration, dozens
of organizations, and 68 co-sponsors in the Senate. Today, the Senate
has the opportunity to pass this bipartisan, pro-environment and pro-
economic development bill.
Brownfields are the legacy of our nation's industrial heritage. A
changing
[[Page S3891]]
industrialized economy, the migration of land use from urban to
suburban and rural areas, and our nation's strict liability
contamination laws have all contributed to the presence of abandoned
industrial sites. With more than 450,000 brownfield sites nationwide,
we must begin to reclaim those lands, clean up our communities, and
discontinue the practice of placing new industrial facilities on open,
green spaces.
As a former mayor, I understand the environmental, economic, and
social benefits that can be realized in our communities from
revitalizing brownfields. While the environmental and social benefits
can seem obvious, only a mayor understands the continuing fiscal
expense to our nation's municipalities of the hundreds of thousands of
pieces of prime real estate that have dropped from the tax rolls.
Enactment of this legislation 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; neighborhoods can be
invigorated; new homes can be built, and community character will be
restored.
S. 350 enjoys broad bipartisan support. Not only is it supported by
the Bush administration, the bill's predecessor was supported by the
Clinton administration last session. The bill is strongly supported by
the nation's mayors, state elected officials, the real estate industry,
open space advocates, business groups, and environmental organizations.
Rarely do we see these organizations come together on the same side of
an issue. This high level of support is testimony to the bipartisan
nature of the legislation. It demonstrates that we can forge sound
legislation, and balance the needs of the environment and the economy
if we come to the table with open minds and good intentions.
I would like to thank the distinguished chairman of the Environment
and Public Works Committee for his leadership on this issue, Senator
Smith. His tireless efforts over that time have certainly paved the way
for this legislation. I also would like to extend my appreciation to
Senator Reid of Nevada and Senator Boxer for their commitment to this
issue and the bipartisan process which has proven so successful. In
addition, let me thank the staff that has worked so hard on this bill:
David Conover, Chelsea Maxwell, and Marty Hall of Senator Smith's
staff, Lisa Haage of Senator Reid's staff, Sara Barth of Senator
Boxer's staff, and Ted Michaels of my staff.
The issue of brownfields has been discussed for nearly a decade.
While I was mayor of Warwick, my fax machine constantly fed me alerts
from the U.S. Conference of Mayors seeking my support for brownfields
reform. With this legislation today, we have the opportunity to protect
the environment, strengthen local economies, and revitalize our
communities. I urge each of my colleagues to vote in favor of S. 350
and give each mayor across the country the benefit of the full
potential of their real estate.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, if I could get the attention of the
Senator from Rhode Island for a moment, I thank the Senator so much for
his leadership on this issue. It has meant so much to us to have it and
that of Senator Smith. Senator Reid and I are most grateful. I think we
have a team that is very good for the environment. When we are
together, it is a real winner because we can reach out to colleagues on
both sides of the aisle from the entire spectrum. So I just want to say
thank you.
I say to the Senator, as much as I miss your father, whom I adored, I
must say that it is wonderful to have you here and following in his
``green'' footsteps.
Mr. CHAFEE. I thank the Senator very much.
Mrs. BOXER. Mr. President, I am here to say that this bill, S. 350,
the Brownfields Revitalization and Environmental Restoration Act, is a
tremendously important issue for this country and for my constituents.
I truly believe if we look around the country, it is an extremely
important issue to everyone. Why? Because we have so many acres of land
around the country that have been contaminated with low-level hazardous
waste. They do not fit the definition of a Superfund site, but they are
expensive to clean up, and local communities really do need our help.
I want to show you an example of a successful brownfields
restoration. This photograph is of a site in Emeryville, CA, that
hosted a steel manufacturing plant for over 100 years. In the early
1990s, it was shut down, the buildings were demolished, and the area
was left empty and desolate. You can see from the photograph what a
horrible eyesore it was to the community. And, by the way, this site is
along a major freeway, so everyone saw it. It gave the impression of a
community that was simply going downhill.
The next picture I will show you is what happened when the State got
together with the IKEA company and worked together to clean up the
site.
In 1997, the State came to this agreement with the original owners of
the site and with IKEA to restore and redevelop the area. Now the site
holds 280,000 square feet of commercial retail space. The project has
created 300 new, permanent jobs for the community. Now the site
generates roughly $70 million in annual sales.
There are not too many things in this Chamber that we can do that has
such clear-cut benefit. Clean up the environment and you make an area
much nicer to look at. And then you can develop it and bring jobs to
the site.
So if anyone questions the need for this brownfields legislation, I
would welcome them to, again, look at these before-and-after pictures.
Here it is after; here it is before. It is a pretty clear picture.
I am so proud of the bipartisan cooperation that occurred in getting
the bill through the Environment and Public Works Committee. The broad
support, from a variety of diverse interests, as well as the
cosponsorship of over 60 Senators, is a good indication that the time
has come to pass this brownfields legislation.
I understand that even our colleagues who have problems with the bill
are now supporting it. I think this is a tribute to them for being open
minded about it, and a tribute to our chairman, Chairman Smith, and our
ranking member, Harry Reid, for working with our colleagues.
I want to talk a little bit about the brownfields in my home State of
California, the largest State in the Union, with 34 million people. The
economy of my State would be considered the sixth largest economy in
the world. So it seems to me that whenever there are problems in the
country, of course, we have more of those problems in my State. And
when good things are happening, we have more of the good things.
This is one of the problems. So let's talk about it. There are
estimated to be hundreds, if not thousands, of brownfield sites in
California. We have heard nationwide estimates of 400,000 to 600,000
brownfield sites. We have thousands of sites in California because some
industries have left the State with a dangerous legacy of
contamination.
This bill will serve as a catalyst for cleanup because it provides
funding for grants and revolving loan funds to assist our States, our
local communities, and our tribal governments to do the assessments
first. In other words, what is the problem? What is going on? What is
it going to cost to clean it up? And how is the best way to clean it
up?
This bill fills a gap. As I said before, Superfund covers our
Nation's most hazardous sites. We really did not have a way to approach
the less hazardous sites.
I want to talk about how happy I am that this bill includes my
proposal to protect children. Under S. 350, funding will be prioritized
for brownfields that disproportionately impact the health of children,
pregnant women, or other vulnerable populations, such as the elderly.
This is very important.
Why do I say that? Because children are not small adults. I have said
this often. I am a small adult. But children are not small adults. They
are more sensitive than adults to the health
[[Page S3892]]
threats posed by hazardous waste, even the kinds we call low level.
Why? Because their bodies are changing, and they are developing.
Healthy adults can tolerate higher levels of pollutants than children.
In recognition of this, the bill ensures that children, and others
who are particularly vulnerable, will be given special priority for
funding under this bill. So we are going to look at these sites. If it
is a site where children play, where children go, where the elderly go,
where people who are vulnerable go, those sites will be priority sites.
The bill also gives priority to cleanups in low-income and minority
communities because, unfortunately, we have seen a lot of the
environmental injustice in this country where brownfield sites are
disproportionately located in low-income and minority communities,
certainly in places such as Oakland, Los Angeles, and Sacramento.
So we have a situation where the brownfields are most prevalent in
communities that are least able to deal with them. And the more
brownfield sites that are in a community, the lower the chance that the
community can improve its economic plight. It is a horrible cycle of
poverty.
Let's take this site shown in the photograph. This site was in a very
low-income community, and no one had the resources. And a company such
as IKEA, who eventually came to this site, did not want to go to this
site because there was no one to go to the store. You would have a
situation where the site could sit vacant for years and years and
years. It contributes to the cycle. You can never get out of the cycle.
So by saying this kind of a situation in a low-income community would
be a priority, we will give an economic stimulus to those communities.
I am very pleased about that.
The last issue that I believe very strongly about is the issue of
sites that were contaminated because there was illegal manufacturing of
a controlled substance there. This may sound very odd. So let me
explain what I mean.
In California, we have a terrible problem from the production of
methamphetamine. It turns out that this terribly dangerous drug is not
only illegal, not only does it destroy people--destroy people--but the
byproduct of methamphetamine production is a toxic stew of lye,
hydriodic acid, and red phosphorus. These elements threaten the
groundwater and agricultural lands of the Central Valley and elsewhere
in California where these secret methamphetamine labs are sited.
I show you a picture of one abandoned lab where you can see these
containers with all the chemicals that were left on the site.
This is another picture of an abandoned meth site. We can see what it
looks like, what a disaster it is when these criminals leave and then
suddenly the owners of the land who had no idea this was happening are
left with this horrible contamination. We were able to include relief
for these farmers. I will talk about that in a minute.
I will take a moment to talk more about these methamphetamine labs.
In California alone, there were 277 secret drug labs that were raided
in 1990. In 1998, there were over 1,000 of these clandestine drug labs.
The State is doing its best to address the problem as well as the
larger brownfields problem. They are trying to do it, but it is very
hard to do it alone. We have to have everyone helping. This bill will
provide invaluable assistance for the cleanup of meth sites and other
brownfields, which is another reason I am such a strong supporter of
the legislation.
This bill includes liability relief for innocent parties. These
innocent parties are people who are interested in cleaning up the
brownfield site, but they are afraid to get involved because they may
become liable for somebody else's mess. Our bill makes it clear that
innocent parties will not be held liable under Superfund for the work
they do on a brownfield site. This provision alone should help reduce
the fear of developers and real estate interests, and it should lead to
more cleanups. This provision is certainly a strong reason that a
variety of business and real estate interests are strong supporters of
the bill. They want to come in; they want to clean up the sites; but
they don't want to now become held liable for past problems and then be
hauled into court on a Superfund case.
However, I do believe very strongly that the polluter must pay. Our
bill does not protect people who are responsible for cleanup under
Superfund or any other statute. If you make a mess, if you despoil the
environment, you still will be held responsible for cleaning it up. We
maintain ``the polluter pays'' principle that underpins many of our
hazardous waste statutes.
The committee considered and rejected efforts to waive the
application of other statutes, such as RCRA and TSCA, to these
brownfield sites. It was too complicated to try to amend other
statutes, and I appreciate the fact that our foursome stuck together
during these amendments because it would have opened up a can of worms.
What we did was we kept this narrow. We kept it on the issue of
brownfields. We kept out extraneous issues. Again, I thank my
colleagues on both sides of the aisle for their cooperation on that.
Our bill encourages States to take the lead on brownfield sites. It
does set some limitations on EPA's enforcement authority under
Superfund for sites covered by this bill. We believe this is important
in gaining strong support. I am comfortable with this feature because
there are a number of safeguards that ensure that a secure Federal
safety net remains. These safeguards are an essential part of the
compromise that is the heart of the bill. They ensure that EPA can
apply its full Superfund enforcement authority under a variety of
circumstances.
Most important to me--and it was a tough debate that we had--was the
guarantee that EPA could intervene if a site threatens to cause
immediate and substantial endangerment to the public's health or
welfare or to the environment. I believe this language guarantees that
if a State's oversight of a cleanup fails to protect our citizens or
our environment, the Federal Government can intervene. We are clear
that we want the State to be responsible, but if there is a problem
which will result in an immediate threat to people's health, the EPA
can enter. It was a careful balance that went into crafting that
provision as well as the rest of the bill.
Together I believe we have produced a sensible and balanced bill that
will help encourage the recycling of brownfield sites that now sit
unused around the Nation.
In closing, one more time I will show our success story that happened
in Emeryville. First, let's show the before picture again. This is what
we are talking about, sites that look like this, sites that are
harmful. People don't want to go on them. People are afraid of them.
There is no economic development in the middle of our urban areas. Then
when we work together, we can bring business interests to the site and
we start to see people use the site again. The site will bring in
revenues.
I thank my colleagues for all their hard work, and I yield the floor.
The PRESIDING OFFICER (Mr. Voinovich). The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, for too many years comprehensive Superfund
reform has been blocked by partisan rhetoric and fear-mongering. Even
though the general public, government agencies, and federal bureaucrats
know that the Superfund program is broken, proposed changes were called
stealth attacks, roll-backs, and letting polluters off the hook. Those
characterizations were not accurate, but they were effective in
protecting one of the most troubled and inefficient programs in the
Federal Government from meaningful reform.
For more than 7 years we have been unable to reach agreement on
Superfund reauthorization so the Environment and Public Works Committee
decided to take a smaller, targeted approach. So today we are here
considering S. 350, the Brownfield Revitalization and Environmental
Restoration Act.
There is general agreement that we need to address the issue of
Brownfields. Across the country, brownfields are blights on the
landscape, but because of liability concerns, too often clean-up and
redevelopment opportunities are lost. The loss of clean-up and
redevelopment opportunities means the loss of jobs and tax revenues for
communities and means these sites are not cleaned up.
[[Page S3893]]
However, even though I will support this bill today, more needs to be
done.
Working with my friends and colleagues, specifically Senators Inhofe
and Crapo, we were able to reach an agreement with the managers of the
bill to include in the manager's amendment a provision which will
include petroleum only sites in the brownfields program. It is
estimated that petroleum only sites make up almost half the brownfield
sites in the country. How can we pass a brownfields bill that excludes
half the brownfield sites in the country? Fortunately, agreement was
reached on this issue.
I want to go on record that I still have concerns regarding liability
issues. In my opinion the legislation does not protect developers from
potential liability and administrative orders under the Toxic Substance
Control Act. I joined with Senators Inhofe and Crapo in offering an
amendment during the committee's consideration, but unfortunately it
was defeated. Opponents argued that EPA has not yet used TSCA or RCRA
to deal with hazardous materials covered under Superfund so therefore
it shouldn't be an issue. However, many believe that if the ``front
door'' of Superfund is closed, EPA will use TSCA or RCRA as a ``back
door'' to pursue legal action against a developer.
In addition, it is my opinion that the bill still gives too much
authority to the EPA over State programs. If we are going to give the
responsibility to the State, EPA must step back and let the States run
the programs and EPA must first work with the State before overstepping
and taking enforcement actions.
S. 350 is a step in the right direction. However, we must continue
our efforts to address the liability issues that still remain and we
must continue efforts to make the overall Superfund program more
reasonable and workable.
As we all know, the great environmental progress in this country has
been made with bi-partisan support, when honest concern for the
environment and the people outweighed political opportunism. I hope
that the progress made on brownfields will translate into positive
movement on the remaining issues.
Mr. LIEBERMAN. Mr. President, I am grateful for the opportunity today
to speak about an important piece of environmental legislation, the
Brownfields Revitalization and Environmental Restoration Act. This bill
enjoys the bipartisan support of 15 of the 18 members of the
Environment and Public Works Committee, and with the additions made in
the manager's amendment, I hope it will receive widespread support on
the floor.
This bill aims to return abandoned, contaminated lots that plague
nearly every city and town in this country to their past vitality. Once
upon a time, these 450,000 ``brownfields'' were home to our
neighborhood gas station, a flourishing textile mill, or a
manufacturing plant. They were central to the economic well being of
their communities. Unfortunately, now they lay idle and unproductive,
spoiling the quality of life in thousands of communities across the
country. Brownfields lower a community's tax base, encourage urban
sprawl and loss of open space, and worst of all, threaten to pollute
local streams and drinking water, endangering human health and
environmental quality.
While everyone wishes to see brownfields reintegrated into the
community, they often remain untouched urban eyesores. Developers fear
the potential liability risks involved in developing a site laden with
unknown chemicals. Communities lack the funds to initiate their own
clean up plans.
This bill could change all of that. First, it provides much-needed
funding for brownfields' restoration programs. Second, it offers
important legal protections that will give developers, private and
public, the confidence to cleanup these toxic sites. All across the
country, we see examples of communities successfully restoring
brownfields sites into vibrant and prosperous enterprises, including in
my home state of Connecticut.
With the help of small federal grants and loans, more than two dozen
cities and towns throughout Connecticut have been able to jump-start
their plans for environmental remediation and economic development of
brownfields sites.
Just last month, I joined in the Grand Opening of a new Harley
Davidson dealership on a former brownfields site in Stamford, one of
EPAs Brownfields Showcase Communities. Prior to cleanup, the area was a
chemical cesspool of abandoned lots contaminated with PCBs, lead,
arsenic and several other metals. During cleanup, close to 3,000 tons
of contaminated soil were removed from the site, reducing the risk of
groundwater contamination and exposure to neighborhood residents. Now
this enterprise brings new life, a cleaner environment, and new jobs to
the industrial South End of Stamford.
The promise of this approach may seem obvious, but the language in
this bill was not easily agreed. It is the product of over eight years
of negotiations, debate and finally compromise. So it is with pride
that I join more than two thirds of my colleagues, Democrat and
Republican, and dozens of organizations representing a wide range of
interests, including those of mayors, developers, realtors, insurance
companies and environmental groups, in supporting this legislation, I
believe we should all feel a sense of accomplishment and pride--this
was battle hard won.
This is a good day for America's communities, especially in the inner
cities which regrettably are home to many of these urban wastelands.
But it doesn't have to stay that way. This legislation is a shot in the
economic arm for towns like Stamford seeking to revitalize their
neighborhoods for future generations to enjoy. I strongly urge my
colleagues to support it.
Mrs. CARNAHAN. Mr. President, today I am pleased to support S. 350,
the Brownfields Revitalization and Environmental Restoration Act of
2001. This bill will help communities throughout the country identify
and clean up brownfields, sites where low level contamination has kept
the land from being developed.
This bill would help communities in several different ways. By
providing liability protection and economic incentives to clean up
contaminated and abandoned industrial sites, this legislation will make
our communities healthier and reduce environmental threats. By
returning these sites to productive use, we encourage redevelopment and
help curb sprawl. This legislation means both new jobs and a cleaner
environment for Missouri. It shows that a clean environment and a
strong economy are not in competition, they go hand in hand.
In Missouri, we have 11 brownfield projects financed in part with
federal funds, and another 29 projects that are State-financed.
One example of a successful brownfield project is Martin Luther King
Business Park in St. Louis, Missouri. The site, which is across the
street from two schools, was contaminated from a century of metal
plating and junkyards. Asbestos and high levels of lead were found
close to the surface. As a result of federally-funded assessments and
the State's Voluntary Cleanup and Brownfield Redevelopment Programs, a
developer stepped forward to purchase and cleanup the property. Due to
these cleanup efforts, a much-needed warehouse/light manufacturing
facility in the heart of St. Louis opened in 2000, bringing more than
60 jobs to the area. Construction of an even larger facility is
scheduled to begin this year after cleanup is complete. This
development will help to rejuvenate the entire surrounding area. This
progress was made possible by the federal brownfield grant which
allowed the City to perform initial environmental assessments. Without
those assessments, developers are reluctant to even consider such
properties.
We have made considerable progress toward making our urban centers
into places where people want to work and live. Yet we still have more
than 12,000 abandoned and tax-default properties in St. Louis alone.
Obviously our work is not done.
Brownfields are not just an urban problem. A century of lead mining
has left towns like Bonne Terre, Missouri with contamination from
mining waste. In Bonne Terre, developers are reluctant to purchase land
near the mine waste properties being addressed by Superfund because of
possible contamination. Using federal pilot funds, Bonne Terre is
working on cleaning up these sites and developing them into a
[[Page S3894]]
122-acre commercial zone and industrial park. The clean up and
development will bring more jobs to this rural community as well as
address environmental concerns.
I anticipate a strong vote in favor of the Brownfields Revitalization
and Environmental Restoration Act of 2001. I hope that this vote will
provide momentum for this legislation as it proceeds to the House of
Representatives and that it will eventually be signed into law by the
President.
Mr. BAUCUS. Mr. President, I rise today in support of S. 350, the
Brownfields Revitalization and Environmental Restoration Act of 2001. I
compliment the efforts of Senators Smith, Reid, Chafee, and Boxer. They
have done a great job in moving this legislation forward.
I was very disappointed that this bill was not enacted last year, it
represents a lot of hard work and compromise. I think this bill is a
win-win for the environment, for local communities and for local
economies. More hazardous waste sites will be cleaned up, and we'll
have more parks and open space, more economic redevelopment, and more
jobs. This bill will make cleaning up polluted sites easier by reducing
the many legal and regulatory barriers to brownfields redevelopment
while providing much needed cleanup funds.
The brownfields bill is important for rural areas, not just big
cities. In Montana, we have hundreds of sites that have been polluted
by mining, timber processing, railroad work, and other industrial
activities that were part of our economic development.
I worked hard on a very similar bill last year, together with many of
my colleagues. Last year, it was the first bipartisan brownfields bill
ever introduced in the Senate. I was thrilled to cosponsor the bill
again this year, under the leadership of Senator Smith and Senator
Reid. This bill has been endorsed by a wide range of groups, including
the National Association of Realtors, the Conference of Mayors, and the
Trust for Public Lands. It represents a hard-won, delicately balanced
compromise.
Superfund critics have long argued that the possibility that EPA
could second-guess state-approved cleanups has discouraged brownfields
remediation. At the same time, I and others have argued that we need to
preserve the federal government's ability to use Superfund authorities
to deal with dangerous situations at sites cleaned up under state
programs in the rare case in which the cleanup is inadequate and there
is a threat to human health or the environment.
The tension between these two views has been one of the major
obstacles to moving brownfields legislation in the past. This bill
forges a new compromise on this issue, and it is a good compromise.
Both sides came to the table and made some important concessions. The
bill is not perfect, it is not everything I wanted. It is not
everything some of my colleagues across the aisle wanted, either. But,
as I have often said, let us not let the perfect be the enemy of the
good. And this is a good bill that will do good things for the
environment, for communities, for businesses and for the Nation. These
sites need to be cleaned up, for the health and well-being of our
citizens and our environment, and doing nothing is no longer an option.
Hopefully, two other bills will come to the floor that would expand
the abilities of the Economic Development Administration and the
Department of Housing and Urban Development to help local communities
physically develop and restore brownfields sites to productive use.
Taken together, S. 350 and these two bills would make up a complete
brownfields redevelopment package. They will provide critical economic
and technical assistance to communities during all stages of
brownfields redevelopment--from an initial site assessment to putting
the finishing touches on a new apartment building or city park.
I am happy to hear that the administration has expressed its support
for S. 350. The brownfields bill is an outstanding example of a
bipartisan effort to help communities across the nation. I hope we can
all work together to make sure it is signed into law this year.
Mr. LEVIN. Mr. President, I am pleased that the Senate is taking up
and will pass S. 350, the Brownfields Revitalization and Environmental
Restoration Act of 2001. I am a strong supporter and advocate of this
legislation. I commend Senators Smith of New Hampshire, Reid, Chafee
and Boxer for their tremendous effort to craft strong bi-partisan
legislation to help our nation's communities. Brownfields are
abandoned, idled, or under-used commercial or industrial properties
where development or expansion is hindered by real or perceived
environmental contamination. Businesses located on brownfields were
once the economic foundations of communities. Today, brownfields lie
abandoned--the legacy of our industrial past. These properties taint
our urban landscape. Contamination, or the perception of contamination,
impedes brownfields redevelopment, stifles community development and
threatens the health of our citizens and the environment. Redeveloped,
brownfields can be engines for economic development. They represent new
opportunities in our cities, older suburbs and rural areas for housing,
jobs and recreation.
As Co-Chair of the Senate Smart Growth Task Force, I believe
brownfields redevelopment is one of the most important ways to
revitalize cities and implement growth management. The redevelopment of
brownfields, is a fiscally-sound way to bring investment back to
neglected neighborhoods, cleanup the environment, use infrastructure
that is already paid for and relieve development pressure on our urban
fringe and farmlands.
The State of Michigan is a leader in brownfields redevelopment,
offering technical assistance and grant and loan programs to help
communities redevelop brownfields. This legislation will compliment
state and local efforts to successfully redevelop brownfields. The bill
provides much needed funding to state and local jurisdictions for the
assessment, characterization, and remediation of brownfield sites.
Importantly, the bill removes the threat of lawsuits for contiguous
landowners, prospective purchasers, and innocent landowners.
Communities must often overcome serious financial and environmental
barriers to redevelop brownfields. Greenfields availability, liability
concerns, the time and cost of cleanup, and a reluctance to invest in
older urban areas deters private investment. This bill will help
communities address these barriers to redevelopment. Finally, the bill
provides greater certainty to developers and parties conducting the
cleanup, ensuring that decisions under state programs will not be
second-guessed. Public investment and greater governmental certainty
combined with private investment can provide incentives for
redeveloping brownfield properties and level the economic playing field
between greenfields and brownfields.
I believe the Brownfields Revitalization and Environmental
Restoration Act of 2001 will do much to encourage commercial,
residential and recreational development in our nation's communities
where existing infrastructure, access to public transit, and close
proximity to cultural facilities currently exist. America's emerging
markets and future potential for economic growth lies in our cities and
older suburbs. This potential is reflected in locally unmet consumer
demand, underutilized labor resources and developable land that is rich
in infrastructure. In Detroit, the Department of Housing and Urban
Development estimates that there is a $1.4 billion retail gap, the
purchasing power of residents minus retail sales. In Flint, HUD
estimates the retail gap to be $186 million and in East Lansing, $160
million. The redevelopment of brownfields will help communities realize
the development potential of our urban communities. It is a critical
tool for metropolitan areas to grow smarter allowing us to recycle our
Nation's land to promote continued economic growth while curtailing
urban sprawl and cleaning up our environment.
Mr. SMITH of New Hampshire. Mr. President, on March 12, 2001, the
Committee on Environment and Public Works filed Senate Report 107-2, to
accompany S. 350, the Brownfields Revitalization and Environmental
Restoration Act of 2001. When the report was filed, the cost estimate
from the Congressional Budget Office was not available. Therefore, I
ask unanimous consent that the cost estimate be printed
[[Page S3895]]
in the Record to comply with Section 403 of the Congressional Budget
and Impoundment Act.
There being no objection, the material was ordered to be printed in
the Record as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 20, 2001.
Hon. Bob Smith,
Chairman, Committee on Environment and Public Works, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 350, the
Brownfields Revitalization and Environmental Restoration Act
of 2001. If you wish further details on this estimate, we
will be pleased to provide them. The CBO staff contacts are
Kathleen Gramp (for Federal costs), who can be reached at
226-2860; Victoria Heid Hall (for the State and local
impact), who can be reached at 225-3220; and Lauren Marks
(for the private-sector impact), who can be reached at 226-
2940.
Sincerely,
Dan L. Crippen.
____
Congressional Budget Office Cost Estimate
S. 350 Brownfields Revitalization and Environmental Restoration Act of
2001, as reported by the Senate Committee on Environment and Public
Works on March 12, 2001
SUMMARY
S. 350 would expand and modify certain programs governed by
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA, commonly known as the
Superfund Act). The bill would provide a statutory framework
for Environmental Protection Agency (EPA) policies and
programs related to brownfield sites and the liability of
certain entities under CERCLA. (Brownfields are properties
where the presence, or potential presence, of a hazardous
substance complicates the expansion or redevelopment of the
property.) The bill would authorize the appropriation of $750
million over the next 5 years for grants to States and other
governmental entities for various brownfield initiatives.
Another $250 million would be authorized over the same period
for grants to States and Indian tribes for implementing
voluntary cleanup programs. Finally, the bill would exempt
some property owners from liability under CERCLA under
certain terms and conditions.
Assuming appropriation of the authorized amounts, CBO
estimates that implementing S. 350 would cost $680 million
over the 2002-2006 period. CBO estimates that provisions
affecting the liability of certain property owners would
reduce net offsetting receipts (a form of direct spending) by
$2 million a year beginning in 2002, or a total of $20
million over the next 10 years. In addition, the Joint
Committee on Taxation (JCT) estimates that enacting this bill
would reduce revenues by a total of $24 million over the
2002-2006 period and by $110 million over the 2002-2011
period. Because S. 350 would affect direct spending and
receipts, pay-as-you-go procedures would apply.
S. 350 would impose no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act
(UMRA).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of S. 350 is shown in the
following table. The costs of this legislation fall within
budget function 300 (natural resources and the environment).
[By fiscal year, in millions of dollars]
------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006
------------------------------------------------------------------------
SPENDING SUBJECT TO
APPROPRIATION
Brownfields Spending Under
Current Law:
Budget Authority \1\........ 92 0 0 0 0 0
Estimated Outlays........... 89 87 41 14 5 0
Proposed Changes:
Authorization Level......... 0 200 200 200 200 200
Estimated Outlays........... 0 10 110 170 190 200
Brownfields Spending Under S.
350:
Authorization Level \1\..... 92 200 200 200 200 200
Estimated Outlays........... 89 97 151 184 195 200
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.... 0 2 2 2 2 2
Estimated Outlays............. 0 2 2 2 2 2
CHANGES IN REVENUES
Estimated Revenues \2\........ 0 0 1 4 8 11
------------------------------------------------------------------------
\1\ The 2001 level is the amount appropriated for that year for EPA
grants for brownfields initiatives, including grants to States for
voluntary programs.
\2\ Source: Joint Committee on Taxation.
BASIS OF ESTIMATE
For purposes of this estimate, CBO assumes that S. 350 will
be enacted by the end of fiscal year 2001, and that all funds
authorized by the bill will be appropriated. Estimated
outlays are based on the historical spending patterns for
similar activities in the Superfund program.
Spending subject to appropriation
S. 350 would authorize the appropriation of $1 billion over
the next 5 years for two grant programs: for brownfield
revitalization and for enhancing State programs related to
brownfields and other voluntary initiatives. In recent years,
the Congress has allocated some of the money appropriated for
EPA's Superfund program for such grants; this legislation
would provide an explicit statutory authorization for these
activities and would authorize specific amounts for fiscal
years 2002 through 2006. Provisions limiting the liability of
certain property owners could increase the use of
appropriated funds to clean up Superfund sites, but CBO
estimates that any change in discretionary spending would not
be significant in the next 5 years.
Grant Programs. Title I would authorize the appropriation
of $150 million annually for grants to States and other
governmental entities to characterize, assess, or cleanup
brownfield sites. Remediation grants could be used to
capitalize revolving funds or to pay for cleaning up sites
owned by public or nonprofit entities. Grants used for
remediation would be subject to a matching requirement and
could be used to leverage funding from other sources. In
addition, title III would authorize $50 million a year for
grants to States and Indian tribes to develop or enhance
programs pertaining to brownfields or voluntary response
programs. These funds also could be used to capitalize
revolving funds for brownfield remediation activities.
Cleanup Costs. Under CERCLA, property owners may be
responsible for cleanup activities, even if they did not
contribute to the contamination of a Superfund site. Title II
would amend CERCLA to limit the liability of certain
prospective purchasers of contaminated property after the
date of enactment. By reducing the pool of potentially
responsible parties, the ``prospective purchaser'' provisions
in section 202 could reduce the number of Superfund sites
that can be cleaned up in a timely fashion by private
entities. This could, in turn, increase the number of sites
needing full or partial Federal funding for cleanup
activities.
For this estimate, CBO assumes that the bill's prospective
purchaser provisions would not affect discretionary spending
for several years because only properties purchased after the
date of enactment would be exempt from liability. The cost
eventually could be significant, however, because cleanup
costs average $20 million per site.
Direct spending
CBO estimates that provisions limiting the liability of
certain property owners would reduce net offsetting receipts
by about $2 million a year. EPA currently negotiates
liability settlements with 20 to 25 prospective purchasers of
contaminated property. As part of these agreements,
purchasers make both monetary and in-kind payments in
consideration of the government's covenant not to sue. While
the cash payments vary significantly among properties, the
agency typically collects an average of $100,000 per
settlement. EPA would forgo such payments under S. 350,
because prospective purchasers would no longer need these
agreements to be relieved of liability for cleaning up a
site.
The other limitations on liability in title II also could
affect EPA's ability to recover costs that the agency incurs
at cleanup projects that are the responsibility of private
parties. Liability for cleanup is retroactive, strict, and
joint and several, so changing the liability of one party
generally has the effect of shifting liability among the
other private parties. On the other hand, there may be some
circumstances in which this legislation would exempt the only
party likely to pay cleanup costs. We estimate that the loss
of offsetting receipts from these changes is likely to be
insignificant, however, because most of the provisions are
similar to current EPA practice.
Revenues
This bill would affect revenues by authorizing States and
local governments to use Federal grants for brownfields
remediation to capitalize revolving funds. JCT expects that
the ability to leverage these revolving funds would result in
an increase in the issuance of tax-exempt bonds by State and
local governments. JCT estimates that the Federal Government
would forgo tax revenues of $110 million over the 2002-2011
period as a result of these provisions.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts. The net changes in outlays and
governmental receipts that are subject to pay-as-you-go
procedures are shown in the following table. For the purposes
of enforcing pay-as-you-go procedures, only the effects in
the current year, the budget year, and the succeeding 4 years
are counted.
[By fiscal year, in millions of dollars]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays............................... 0 2 2 2 2 2 2 2 2 2 2
Changes in receipts.............................. 0 0 1 4 8 11 15 17 18 18 18
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page S3896]]
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
S. 350 would impose no mandates on State, local, or tribal
governments. The bill would authorize $200 million annually
from 2002 through 2006 for grants to State and local
governments for inventorying, characterizing, assessing and
remediating brownfield sites and for establishing or
enhancing response programs. Implementing S. 350 would
benefit State, local, and tribal governments if the Congress
appropriates funds for the grants and loans authorized in the
bill. Any costs incurred to participate in those grants and
loan programs would be voluntary.
S. 350 would make several changes to current law concerning
liabilities under CERCLA of certain property owners, which
may include State, local, or tribal governments. These
changes in liability, while not preemptions of State law,
could make it more difficult for any States that currently
rely on CERCLA to recover costs and damages under their own
cleanup programs from parties whose liability now would be
eliminated or limited by the bill. On the other hand, these
changes could benefit State, local, and tribal governments as
landowners if their liability would be reduced or eliminated.
Enacting S. 350 could also benefit State and local
governments with contaminated sites in their jurisdictions by
clarifying the liability for certain property owners under
Federal law and thereby encouraging remediation and
redevelopment of those sites.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
This bill contains no new private-sector mandates as
defined in UMRA.
Estimate Prepared by: Federal Costs: Kathleen Gramp (226-
2860); Impact on State, Local, and Tribal Governments:
Victoria Heid Hall (225-3220); Impact on the Private Sector:
Lauren Marks (226-2940); Revenues: Thomas Holtmann (226-
7575).
Estimate Approved by: Peter H. Fontaine Deputy Assistant
Director for Budget Analysis.
Mr. SMITH of New Hamsphire. Mr. President, I also ask to have printed
in the Record a letter dated April 12, 2001 to Mr. Dan Crippen of the
Congressional Budget Office signed by myself, Senator Reid, Senator
Chafee, and Senator Boxer. The letter illustrates areas in CBO's cost
estimate that the authors of S. 350 believe to be inaccurate or
misleading. It is our intent, and our belief, that S. 350 will bring
increased private resources to brownfield sites, which will in turn
limit future expenditure of public resources.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Committee on Environment and Public Works, U.S. Senate,
Washington, DC, April 12, 2001.
Mr. Dan L. Crippen,
Director, Congressional Budget Office, Ford House Office
Building, Washington, DC.
Dear Mr. Crippen: We are writing with regard to the
Congressional Budget Office's cost estimate for S. 350, the
Brownfields Revitalization and Environmental Restoration Act
of 2001. It is important that the cost estimate prepared by
your office accurately reflect the provisions of the bill. As
the lead authors of the legislation, we are concerned that
the cost estimate for S. 350 is inaccurate in several
respects and is unintentionally misleading with regard to the
intent and application of the legislation.
The cost estimate indicates that section 202 of S. 350
would ``reduce the number of Superfund sites that can be
cleaned up in a timely fashion by private entities.'' We
disagree with this assumption because the effect of section
202 will be to encourage private entities to perform
cleanups. Although the bill may limit future potential
liability of parties not currently liable under the Superfund
statute, it does not affect the liability of parties who are
already liable under the statute at sites already underway.
For even those new prospective purchasers receiving
protection under section 202, the bill provides for a
``windfall lien,'' which would further reduce any need for
Federal funding at these sites. Moreover, the ``prospective
purchaser'' exemption is designed to, and should result in, a
significant increase in cleanups by private parties,
particularly at non-National Priorities List sites. The net
effect of these factors would be an increase in the
availability of private cleanup funds. The overall number of
sites at which Federal response authority applies under the
Superfund statute, and which will be cleaned up by private
entities, will increase as a result of enactment of the
``prospective purchaser'' provisions.
In addition, the cost estimate asserts that the eventual
cost of the bill will be significant because cleanup costs
average $20 million per site. In fact, although cleanup costs
at National Priorities List sites may average approximately
$20 million per site, the cleanup costs at a brownfield site
averages approximately $500,000 per site. Indeed, since this
section applies to both NPL and non-NPL sites, and there are
many more brownfield sites addressed annually than there are
NPL sites, the average cost of the sites covered by this
provision would be dramatically less than that indicated.
Therefore, as currently drafted, the estimate would lead one
to believe that S. 350 could shift responsibility to the
Federal Government for as much as $20 million in cleanup
costs per site. This simply is not the case.
While we do not dispute the numbers provided by the cost
estimate, it is equally important that the narrative section
of the cost estimate accurately track the provisions of the
legislation as closely as possible. We respectfully request
that the Congressional Budget Office reissue the cost
estimate for S. 350 to address the types of concerns we have
raised. Please do not hesitate to contact us to discuss these
issues further.
Sincerely,
Bob Smith,
Lincoln Chafee,
Harry Reid,
Barbara Boxer,
U.S. Senators.
Amendment No. 352
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent to
call up the managers' amendment to S. 350 which is at the desk.
The PRESIDING OFFICER. Without objection, the clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Hampshire [Mr. Smith], for himself,
Mr. Reid, Mr. Chafee, and Mrs. Boxer, proposes an amendment
numbered 352.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Beginning on page 57, strike line 24 and all that follows
through page 58, line 3, and insert the following:
``(ii)(I) is contaminated by a controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
``(II)(aa) is contaminated by petroleum or a petroleum
product excluded from the definition of `hazardous substance'
under section 101; and
``(bb) is a site determined by the Administrator or the
State, as appropriate, to be--
``(AA) of relatively low risk, as compared with other
petroleum-only sites in the State; and
``(BB) a site for which there is no viable responsible
party and which will be assessed, investigated, or cleaned up
by a person that is not potentially liable for cleaning up
the site; and
``(cc) is not subject to any order issued under section
9003(h) of the Solid Waste Disposal Act (42 U.S.C. 6991b(h));
or
``(III) is mine-scarred land.''.
On page 65, between lines 11 and 12, insert the following:
``(4) Insurance.--A recipient of a grant or loan awarded
under subsection (b) or (c) that performs a characterization,
assessment, or remediation of a brownfield site may use a
portion of the grant or loan to purchase insurance for the
characterization, assessment, or remediation of that site.
On page 67, line 16, before the period, insert the
following: ``, including threats in areas in which there is a
greater-than-normal incidence of diseases or conditions
(including cancer, asthma, or birth defects) that may be
associated with exposure to hazardous substances, pollutants,
or contaminants''.
On page 68, between lines 16 and 17, insert the following:
``(J) The extent to which a grant would address or
facilitate the identification and reduction of threats to the
health or welfare of children, pregnant women, minority or
low-income communities, or other sensitive populations.
On page 70, between lines 2 and 3, insert the following:
``(4) Report to congress.--Not later than 3 years after the
date of enactment of this section, the Inspector General of
the Environmental Protection Agency shall submit to Congress
a report that provides a description of the management of the
program (including a description of the allocation of funds
under this section).
On page 71, strike lines 15 through 17 and insert the
following:
``(k) Effect on Federal Laws.--Nothing in this section
affects any liability or response authority under any Federal
law, including--
``(1) this Act (including the last sentence of section
101(14));
``(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
``(l) Funding.--
``(1) Authorization of appropriations.--There is authorized
to be appropriated to carry out this section $200,000,000 for
each of fiscal years 2002 through 2006.
``(2) Use of certain funds.--Of the amount made available
under paragraph (1), $50,000,000, or, if the amount made
available is less than $200,000,000, 25 percent of the amount
made available, shall be used for site characterization,
assessment, and remediation of facilities described in
section 101(39)(D)(ii)(II).''.
On page 93, line 4, before ``develop'', insert ``purchase
insurance or''.
On page 94, line 11, strike ``and''.
On page 94, line 14, strike the period at the end and
insert ``; and''.
[[Page S3897]]
On page 94, between lines 14 and 15, insert the following:
``(iii) a mechanism by which--
``(I) a person that is or may be affected by a release or
threatened release of a hazardous substance, pollutant, or
contaminant at a brownfield site located in the community in
which the person works or resides may request the conduct of
a site assessment; and
``(II) an appropriate State official shall consider and
appropriately respond to a request under subclause (I).
On page 97, line 7, after ``Administrator'', insert ``,
after consultation with the State,''.
On page 97, line 18, after the period, insert the
following: ``Consultation with the State shall not limit the
ability of the Administrator to make this determination.''.
The PRESIDING OFFICER. The Senator from Idaho has 15 minutes.
Mr. CRAPO. Mr. President, I appreciate the opportunity to speak today
on S. 350, the Senate's Superfund brownfields legislation.
As most of those working on this issue know, I have been working on
comprehensive Superfund reform essentially ever since I was elected to
Congress, about 8\1/2\ years ago. This was a very difficult issue.
In my opinion, we would have been best served if we had comprehensive
Superfund reform of the entire Superfund statute, but given the
political dynamics we face in the country and the Congress today, it
was evident that we would not be able to achieve a comprehensive bill
at this point in time, and the decision was made to move ahead with
brownfields legislation this year. That was a decision I fought against
last year but agreed to support this year, to see if we couldn't move
ahead and achieve some of the objectives that have already been so well
explained with regard to this legislation.
Brownfields legislation is badly needed in this country, as we try to
reform and clean up some of the areas that have been discussed by other
Senators. One of the concerns many of us had, however, was that if we
do a brownfields bill, we need to do one that truly works and not
simply create another approach to the issue that runs into the same
problems we have dealt with under the Superfund statute for so many
years. In other words, we need to craft it so the effort to reclaim
these areas and make them green again is not a failure and we don't
simply pass legislation that creates another set of difficult,
burdensome approaches to the issue.
To effectively encourage more brownfields redevelopment programs, we
have to provide the necessary resources, give the States the management
and oversight responsibility within their borders, and ensure that
developers are confident that their involvement will be truly welcomed
and they will not simply pick up the liabilities already facing those
who own the brownfields and work on the properties.
All this has to be done in conjunction with the assurance that public
health and the environment are being adequately protected. In that
context, as the Senate Environment and Public Works Committee handled
this issue, a number of us had concerns that we hadn't yet achieved
those objectives as well as we could. I commend the managers of this
bill for working so well with us to address those issues in the interim
since the bill was sent out of committee and is now being considered in
the Senate. We have a managers' amendment that addresses a number of
those concerns and that makes it possible for those of us who had
problems with the way the bill was originally drafted to work with and
support the bill at this point.
The Senate has held many hearings on this legislation. A number of us
have worked on this measure for many years. I will discuss some of the
elements of progress that have been made since the bill was sent out of
committee and as we now move forward with the managers' amendment. I am
very pleased that we were successful in making these improvements.
The first issue relates to State finality. For those who are not
concerned with the issue, what we are talking about is a policy
decision that says that State governments should be the ones that
handle the management of the brownfields legislation. Instead of having
a national, federally led and, many of us believe, dictate-driven
decisionmaking process, we wanted to put together a system in which
each individual State had the ability to interpret and implement the
brownfields legislation with decisions going on in their own States.
Many of us felt that State management and control would result in
much better decisionmaking, as we would see it at the State and local
level, than we would have if the decisionmaking were driven from the
Federal level. It is a case of the State and local people having a much
better understanding of the needs in their communities than those who
are distant decisionmakers, not having the ability and understanding to
truly address the issues as best they could.
We needed to achieve that by still making sure the environmental
objectives were in place. I believe the managers' amendment gives us an
important stride forward in this effort.
As the Senator from California, who just spoke, indicated, one of the
protections built into this bill was the provision that if, as the
State moves forward, an imminent and substantial endangerment is found
to the environment or public health, then the Federal Government,
through the EPA, can step in and take some remedial actions. Short of
that imminent and substantial endangerment, it is the State's
responsibility for action.
One of the concerns that was debated in committee was whether we had
adequately clarified it enough to make it clear that the EPA or the
Federal administrators could not simply use any excuse they wanted in
order to claim an imminent and substantial endangerment, and had to
truly work with the States and step in at the Federal level only in
those extreme cases in which it was clear that the State either did not
have the resources or was not willing to implement the law.
I believe that is where we have reached the compromise. The language
included in the bill says imminent and substantial endangerment must be
found by the Federal Government before it can step in and supersede a
State's actions, which is the intent of all of us who have worked on
this legislation. That gives the States truly an opportunity to have
finality to their decisions about how to implement this law.
Second, I am pleased that our efforts working with the managers of
the bill were successful in nearly doubling the number of eligible
brownfield sites under the program by expanding the bill's coverage.
This improvement alone will help make this program a reality for many
more communities around the country.
In appreciation for the managers' efforts to improve the original
bill, I intend to support the amendment today, and the bill with the
amendment in place. I know there is still a lot of debate about whether
we have made enough improvement in the legislation or whether we have
made the bill good enough. The other body is going to be working on its
proposals, and there will still be an effort to work with the
administration, as the President, the House, and the Senate all work
together to craft a brownfields bill that will ultimately be signed
into law.
I look forward to working with all of them to make sure that even
further improvements and changes to the legislation can be made as we
move through the legislative process.
This effort today is a very strong effort, and I think a very good
effort, to move forward on meaningful brownfields legislation. With the
managers' amendment, as I said, enough improvements have been made that
those of us who had concerns at the committee level, I think most, if
not all of us, will be able to support the bill today. We will continue
to work with the House and the President and with the managers of the
bill in the Senate to see that we can make even additional improvements
to the legislation as it moves forward in the legislative process. I
think it is an important first step we are taking today, but it should
be recognized as such--as an important but first step.
With that, I conclude my remarks and yield back my remaining time.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
[[Page S3898]]
The PRESIDING OFFICER (Mr. Reid). Without objection, it is so
ordered.
Mr. VOINOVICH. Mr. President, I rise today in support of S. 350, the
Brownfields Revitalization and Restoration Act.
The PRESIDING OFFICER. It is my understanding that the Senator from
Ohio is using the time of Senator Bond; is that true?
Mr. VOINOVICH. Yes, it is.
The PRESIDING OFFICER. The Senator may proceed.
Mr. VOINOVICH. Mr. President, this legislation will provide
incentives to clean up abandoned industrial sites, or brownfields,
across the country and put them back into productive use and preserve
our green spaces.
I want to congratulate the chairman of the committee, Senator Smith,
the ranking member of the committee, Senator Reid, the subcommittee
chairman, Senator Chafee, and all the other members of the committee
who have worked to put this piece of legislation together.
Revitalizing our urban areas has been an issue I have been passionate
about for many years. As former mayor of Cleveland, I experienced
first-hand the difficulties that cities face in redeveloping these
sites.
I have been working on brownfields issues at the national level since
I became Governor of Ohio in 1990 and through my involvement with the
National Governors' Association and the Republican Governors'
Association. For more than a decade, I have worked closely with
congressional leaders, such as Mike Oxley of Ohio and the late Senator
John Chafee, to develop legislation that would do many of the same
things this bill does.
When the Environment and Public Works Committee considered this
legislation in March, I voted to report the bill out of committee after
getting a commitment from the Presiding Officer today, Senator Reid,
that he would be willing to work with me on some concerns I had
regarding specific bill language.
During the committee markup of S. 350, I offered an amendment seeking
to strengthen the State finality provisions in the legislation. Based
on the commitment I received from Senator Reid, I ultimately withdrew
my amendment.
In my view, we need 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.
Last Congress, I introduced legislation supported by the National
Governors' Association and the National Council of State Legislatures
which would create more certainty by allowing States to release parties
that cleaned up sites under State laws and programs from Federal
liability.
I believe it is important that we 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 substantially improve the environment.
What we do not 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. One company, TRW, completed a cleanup at its site in
Minerva, OH, under Ohio's enforcement program in 1986. Despite these
cleanup efforts, the U.S. EPA placed the site on the NPL list in 1989.
However, after listing the site, the EPA took no aggressive steps for
additional cleanup, and it has remained untouched for years.
To enhance and encourage further cleanup efforts, my State has
implemented a private-sector-based program to clean up brownfield
sites. When I was Governor, the Ohio EPA, Republicans and Democrats in
the General Assembly 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 our economy, recycling acres and acres of
wasteland, particularly in our urban areas.
In almost 20 years under the Federal Superfund Program, the U.S. EPA
has only cleaned up 18 sites in Ohio. In contrast, 78 sites have been
cleaned up under Ohio's voluntary program in the last 6 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, OH--was estimated to cost $2 million and to take
3 to 5 years to complete if it had been cleaned up 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
they are good for the economy.
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 all over the United States of
America at any given time.
I am pleased the bill we are considering today does not require the
U.S. Environmental Protection Agency to pre-approve State laws and
programs. State brownfield programs address sites that are not on the
national priorities list and where the Federal Government has played
little or no role.
Ohio and other States have very successful programs that clean up
sites more efficiently and cost effectively. I worked closely with
Senator Smith and Senator Reid and other Members to protect these
State's programs. The managers' amendment is a result of that hard
work.
While I would still like to see more protection and certainty for
State programs, I do not believe we should delay the improvements to
the current programs that are in this bill. What our States are doing
is helping to recycle our urban wastelands, prevent urban sprawl, and
preserve our farmland and green spaces. So often people forget about
the fact we have these acres of wastelands in many urban, and even
rural, areas around the nation. Unless these sites are cleaned up, they
will force a greater loss of green space in our respective States.
These programs are cleaning up industrial eyesores in our cities and
making them more desirable places to live and work. That is another
aspect of this legislation to which the Senator from California,
Senator Boxer, eloquently spoke.
Because these programs are putting abandoned sites back into
productive use, they are a key element in providing economic rebirth to
many urban areas and good paying jobs to local residents. That is
another side we do not think about. We have all sorts of assistance
programs, training programs, and so forth, helping people become self-
sufficient and productive citizens. In far too many cases in the United
States, because we have not recycled urban industrial sites, businesses
and jobs are developed in the outlying areas where many urban residents
simply cannot get to, and are, therefore, unable to take advantage of
those jobs.
Mr. President, this is a wonderful bill in so many respects. It makes
sense for our environment and it makes sense for our economy.
Therefore, I am pleased the Senate is considering this bill today and I
urge the House and Senate to come to a prompt agreement on a final
version of this legislation so we can provide a cleaner environment for
cities across America.
I thank the Chair. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. CLINTON. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Voinovich). Without objection, it is so
ordered.
Mrs. CLINTON. Mr. President, I am pleased to support this important
legislation to provide States and local communities with the tools and
the resources they need to clean up and reuse polluted industrial
properties, turning them from eyesores into opportunities and
leveraging literally billions of dollars in economic benefits.
The legislation we are voting on today, S. 350, the Brownfields
Revitalization and Environmental Restoration
[[Page S3899]]
Act of 2001, represents the ultimate form of recycling. It is the
recycling of one of our most precious and scarce natural resources;
namely, our land. Our environmental resources, as our financial
resources, are not limitless. The cleanup and reuse of brownfield sites
allows businesses and developers to use existing infrastructure so we
can reduce sprawl and preserve our precious green space and farmland
and, at the same time, it provides an opportunity to energize local
economies and create new jobs.
I am pleased to be an original cosponsor of S. 350, the Brownfields
Revitalization and Environmental Restoration Act of 2001, an act which,
as the President knows so well, enjoys broad bipartisan support of a
majority of the Senate, as well as of the administration, a diversity
of State and local government organizations, business interests, and
environmental advocacy groups.
This bill, S. 350, is an important step in building on the proven
success of existing brownfields efforts. The bill authorizes the
establishment of a flexible program to provide grants and loans to
State, tribal, and local governments and nonprofit organizations to
assess, safely clean up, and reuse brownfields. It includes important
provisions that promote assistance for small, low-income communities,
as well as supporting efforts to create or preserve open space and
furthering participation by the public in cleanup decisions.
The bill provides appropriate liability relief for innocent parties
who want to clean up and reuse brownfield sites, while maintaining the
necessary Federal safety net to address serious cleanup issues.
Last week, I was delighted to learn that the EPA was making grants
for additional brownfields funding for Utica, NY. I remember the first
time I visited downtown Utica and saw all of the old mill and factory
buildings, which already were tied in with existing utilities,
providing an excellent opportunity for remediation that could be then
followed by immediate redevelopment, only to be told because they were
built on old industrial sites, because the manufacturing processes that
occurred in the 19th and 20th centuries involved dangerous chemicals
and other contaminants, these brownfield sites in the middle of
downtown Utica were too expensive for private developers and the local
community to clean up. I am delighted that Utica and other such places
around New York, including Albany and Chautauqua Counties and a village
of Haverstram in Rockland County also received brownfields funding.
We have seen the benefits of brownfields cleanup and revitalization
throughout New York, from Buffalo to Glen Cove, and all the places in
between. I stood on the shore at Glen Cove, one of the most beautiful
communities on the north shore of Long Island, and could see the
effects of the cleanup of brownfields that are going to turn what had
been a contaminated waste area into a place that can be part of
waterfront redevelopment.
To date, over 20 communities across New York have received assistance
through EPA's existing brownfields program. It is my hope and belief
that there will be many more when we finish this legislation, which
will more than double the resources currently available for brownfields
cleanup across our country.
This bill strikes a delicate balance. There are compromises and
tradeoffs. I appreciate the hard work of the committee in a bipartisan
fashion to move this legislation forward. I take this opportunity to
thank the leadership of the Environment and Public Works Committee on
which I am honored to serve, particularly our chairman, Senator Smith,
and our ranking member, Senator Reid, and the two Senators who pushed
this legislation forward because of their respective chairing and
ranking positions on a subcommittee; namely, Senators Chafee and Boxer.
I also thank the staffs, including my staff, the committee staff, and
the individual staffs of the Senators who worked so quickly and
diligently to move this legislation to the floor today.
The managers' amendment includes a number of significant provisions.
Again, I applaud and thank everyone who was part of this process. I am
grateful; two of the managers' amendments I personally sponsored will
be part of this legislation. One provision will help focus the delivery
of brownfields assistance to communities that experience a higher than
normal incidence of diseases such as cancer, asthma, or birth defects.
Two weeks ago, I was very fortunate and honored to go with my friend,
the Senator from Nevada, Harry Reid, to Fallon, NV, where we held a
hearing on a cancer cluster. It is a lovely community, 50, 60 miles
from Reno. It is a small community, maybe 30,000 people at most, in a
sparsely populated county. They have had 12 cases of leukemia among
children in the last 2 years. Clearly, it is a cancer cluster. We don't
know what is causing it. Many believe, and much of the testimony we
heard certainly suggests, this rate of cancer in this kind of a cluster
could be linked with exposure to hazardous substances.
The important provision we have added to the bill will offer
assistance to communities already burdened with severe health programs,
to help them clean up the polluted sites that may contribute to these
problems. We will have to do a lot more, and I will be working with
Senator Reid under his leadership to think about what else we can do to
address environmental health issues.
We certainly have more than our share in New York. I am hoping that
in the future we will have a hearing in New York, perhaps on Long
Island, to talk about the cancer clusters. We have asthma clusters; we
have diabetes clusters. We need to figure out what we are doing or what
we could stop doing or how we can clean up whatever might be
associated.
Under S. 350, States that receive brownfields funding must survey and
inventory sites in the State. I was concerned there might be sites that
would be overlooked in communities that are small or sparsely populated
such as Fallon, or low-income or minority such as those in New York
City.
I am pleased that with this provision in the managers' amendment we
will be able to include public participation so individuals can request
a nearby brownfield site be assessed under a State program. States
would maintain discretion and flexibility to set up this process
however they best see fit, but concerned citizens would not be shut out
of the process. They could participate and ask their particular
brownfield site be given some attention and perhaps even expedited
cleanup because of the impact on their local community.
In every corner of our country there are abandoned, blighted areas
that used to be the engines of the industrial economy or served in our
national defense. We were privileged to hear testimony from the admiral
who runs the naval airbase that trains the top gun pilots outside of
Fallon. They use a lot of jet fuel. They have to occasionally burn it.
They sometimes have to drop it in their flight. They were very willing
to come forward and talk about what the defense industry can do to help
in this area.
Many of the places suffering from brownfields were in the forefront
of creating the strong economy and the strong national defense system
we enjoy today. I think we have to pay attention to the needs of these
communities.
I thank all who have made it possible for us to consider this bill
today. I urge my colleagues to join in passing this important piece of
environmental and economic and health care legislation. I hope our
colleagues in the House will work to move their own brownfields bill so
we can finally get about the business of revitalizing these sites so
they can realize their economic potential and preserve our country's
beautiful, open spaces, and revitalize our downtown areas.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, before the Senator from New York leaves the
floor, I want to publicly express my appreciation for her traveling to
Nevada as part of a committee to deal with a most serious problem. As
the Senator indicated, we do not know what the problem is in Churchill
County. Is it problems with the base? It could be from fuel. We
understand there have been alleged large leakages of fuel. Is it from
the dumping of the fuel, as she indicated? There is a theory by some
academics out of England that maybe it is
[[Page S3900]]
a virus caused by the huge influx of people coming to the base from
various parts of the world to this previously very stable community.
Maybe it is from the agricultural activity. The first Bureau of
Reclamation project in the history of this country took place there,
the Newlands project. For years they have been dumping hundreds of tons
of pesticides and herbicides on those crops. Could that be the cause?
Could it be the arsenic in the water there, which is 100 parts per
billion? We are trying to lower it to 10 parts per billion. We simply
do not know the cause.
With the Senator from New York coming there--I do not mean to
embarrass her, but with her national following, she focused attention
on Fallon, NV, that would have never been accomplished had she not
shown up there.
I indicated to the Senator earlier today I am going to send to her
the series of positive editorials that were written about her coming to
the State of Nevada, trying to help us with this most difficult
problem.
Finally, I want to say, as I have already said earlier, outside her
presence but on this floor, what a valuable member of this committee is
the Senator from New York. For the not quite 100 days we have been
functioning as this new Congress, she has been a member of this
committee and she has been very valuable. She attends the meetings,
stays through the meetings, and, as I indicated, she has been of
valuable assistance making this legislation better. I am happy to have
her as a member of the committee and of the Senate. The people from New
York should feel very good about the person they brought to Washington
as a Senator representing that State.
Mrs. CLINTON. I thank my friend from Nevada.
Mr. REID. I yield to the Senator from New Jersey the time that is
left over from my having spoken. I believe there may be some other time
in there. I think the only speakers we have still to come are Senator
Corzine and Senator Carper--I think that is all who wish to speak. We
are going to 2 o'clock, so I yield whatever time up to 10 or 12 minutes
to the Senator from New Jersey.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. TORRICELLI. I thank the Senator from Nevada for yielding the
time. Before I begin my own remarks on brownfields, I want to join him
in commenting that Hillary Rodham Clinton had potentially one of the
most difficult transformations ever, maybe, becoming a Member of the
Senate. It is also fair to say after only 100 days she has probably had
one of the most remarkably successful transformations ever made to the
Senate.
Rarely has someone come to the Senate and devoted themselves so
diligently to the details of their work, meeting their responsibilities
to their State with such bipartisan acclaim by her colleagues.
I think the people of New York should be very proud, under difficult
circumstances and the changing of public responsibilities, of how well
she accomplished the feat and now how proudly she represents the State
of New York.
Since the fortunes of New Jersey are so closely tied to those of our
modest neighbor across the river, we are grateful that New York is so
well represented. I congratulate her on her introduction to the Senate.
As my friend and colleague from New York, I wish to address my
colleagues on the question of the brownfields legislation. We have now
completed an unprecedented decade of extraordinary national prosperity.
But it is a cruel irony that many of those communities which, a
generation ago, laid the foundation for America's industrial might and
the prosperity of our generation have not participated in every aspect
of this new prosperity.
Critical to the goal of ensuring that all communities do, indeed,
benefit from this prosperity is creating sound economic development in
these traditional economic centers. Although often more graphic in
central cities because of their limited space, brownfields
redevelopment is not just an issue of these old centers. It has also
become a question of small towns. The problem is, whether it is these
older industrial centers upon which our Nation built its future or it
is small towns or rural areas, the Senate now in considering again
changes to brownfields legislation must deal with the reality that
brownfields redevelopment projects must overcome several difficult but
critical barriers. These barriers historically have included: No. 1, a
lack of process certainty; No. 2, liability concerns; No. 3, added
expenses of environmental cleanup and the lack of redevelopment
financing.
S. 350 is a bipartisan effort to address these very issues and to
make our brownfields program of the last few years everything that it
can, should, and must be.
Since 1993, when the Brownfields Pilot Program was implemented,
hundreds of communities across the Nation have been successful in their
efforts to assess, clean up, and redevelop vacant or underused
contaminated sites. In my State of New Jersey, brownfields
revitalization represents the potential rebirth of many distressed
cities. Indeed, in many respects brownfields and HOPE VI grants have
entirely changed the landscape of some of the most distressed urban
areas in the State of New Jersey.
In Trenton, an old steel plant has been transformed to a minor league
baseball field. Now a center of recreation, attention, and life of the
city of Trenton, only years ago it was abandoned, contaminated
property.
A railroad yard on the Camden waterfront in front of a enormously
wonderful view of the city of Philadelphia, what should have been some
of the most productive land in the Nation, was abandoned. It has now
become a major entertainment center for the bistate area.
The city of Elizabeth is taking a former landfill and constructing a
shopping mall.
For all of these reasons, brownfields legislation is critical,
irreplaceable, in the economic revitalization of the cities of New
Jersey. It is not a theory. It is not a potential. It has been proven.
It is real in every one of these communities. But it does need to be
improved. I support the enhancements contained in S. 350 because, No.
1, they reduce the legal and regulatory barriers that prevent
brownfields redevelopment and provide funds to States for cleanup
programs. No. 2, they address the needs to address potential
liabilities faced by prospective purchasers and adjoining landowners.
Finally, they provide funds to assess and clean up abandoned and
underutilized brownfields sites. This has not been the province of
private funding sources.
This bill goes a long way to remove many of the uncertainties that
have made the financing of a brownfield project such a formidable task.
While this legislation is a major step in the right direction, there is
more that must be done to enhance the public-private partnerships to
complete the picture of brownfields revitalization. The strengthening
of the public-private partnership utilizes tax incentives to help
attract affordable private investment.
In August of 1997, this body approved a potentially significant
brownfields tax incentive. This tax incentive, referred to as the
``expensing provision,'' allowed new owners of these contaminated sites
to write cleanup costs off their taxes in the year they were deducted.
This allows for increased cashflow for redevelopment projects.
Surprisingly, despite the potential advantage of this expensing
provision, there have been relatively few takers.
A GAO study reported in December of 2000 that in New Jersey there had
been only three development projects which had even applied for this
tax benefit. Developers told me they are discouraged from using the
provision because of the provision's indefinite future and the
exclusion of brownfield sites containing petroleum. There is simply no
incentive for real estate developers to complete projects and market
them quickly if the tax benefit they have derived is going to be taxed
as ordinary income at 39.6 percent rather than capital gains at 20
percent.
The financial impact of that reality is very significant.
I intend to propose legislation which I believe is a very positive
enhancement.
My legislation will tax this ``recapture'' or reclaiming of this
previously earned benefit as capital gain at a rate of 20 percent
rather than as ordinary income.
[[Page S3901]]
Using tax incentives to overcome capital shortages, in the market
place, to achieve greater public benefits, is a proven formula for
success.
This is exactly what I intend to do. This can be done to reverse
negative trends and start new, constructive initiatives.
In 1962, the Regional Plan Association of New Jersey-New York-
Connecticut in its publication ``Spread City'' stated that the region
was drifting into a costly spread-out pattern of suburban development
versus dormant central cities.
This publication noted that this pattern would produce suburbs with
``neither the benefits of the city nor the pleasures of the
countryside.''
Four decades later this vision of ``Spread City'' has, in fact,
materialized.
Today, brownfields redevelopment should be viewed as a method of
controlling urban sprawl and ultimately preserving greenfields.
A recent study of nine New Jersey cities posed conservative estimates
that redevelopment of identified sites across the state could house
nearly a quarter of 225,000 new residents expected by 2005.
It is, therefore, good economic policy. It is good social policy. It
is good housing and job creation policy.
Finally, it is good environmental land use policy to enact
brownfields legislation, and to enhance it and improve it with the
necessary tax incentives to stimulate growth based on this exciting
concept.
I strongly identify myself with this initiative hoping the Senate
will consider my changes when indeed it is time to vote on brownfields.
I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
that Senator Wellstone be added as a cosponsor to S. 350.
The PRESIDING OFFICER (Mr. Torricelli). Without objection, it is so
ordered.
Mr. SMITH of New Hampshire. I point out, Mr. President, that with the
addition of Senator Wellstone, that makes 70 cosponsors to this
legislation. That runs the entire political spectrum, from Helms to
Wellstone. I think it is a great tribute to the type of legislation it
is that we could forge this kind of bipartisanship.
As I mentioned earlier in my remarks, there are a number of
stakeholders who have written to express their support for S. 350. I
did enter those letters in the Record and obviously will not read them
all, but I would like to highlight just three or four.
One of those letters was from the U.S. Conference of Mayors. The
quote from that letter is:
The mayors believe that this legislation can dramatically
improve the nation's efforts to recycle abandoned or other
underutilized brownfields sites, providing new incentives and
statutory reforms to speed the assessment, cleanup and
redevelopment of these properties.
I think that is a very dramatic statement. As the Presiding Officer
knows, the mayors are a bipartisan group from both political parties
all across the country and are across the political spectrum as well.
Another letter we received was from the Trust for Public Land. One
paragraph of that letter states:
Brownfields afford some of the most promising
revitalization opportunities from our cities to more
rural locales. This legislation will serve to help meet
the pronounced needs in under-served communities to
reclaim abandoned sites and create open spaces. .
.reclamation of brownfields properties brings new life to
local economies and to the spirit of neighborhoods.
Also from the National Conference of State Legislatures:
I . . . commend you for your continued commitment to the
issue of brownfields revitalization. Without the necessary
reforms to CERCLA, [the Superfund law] clean up and
redevelopment opportunities are lost, as well as new jobs,
new tax revenues, and the opportunity to manage growth . . .
NCSL has made this a top priority and we applaud the
committee's leadership. . . .
Finally, from the Building Owners & Managers Association,
International:
Thanks to the efforts of a dedicated collection of
Senators, the Senate now has a bipartisan piece of
legislation that would generate improved liability
protections, enhanced State involvement and increased federal
cleanup funding. Adoption of S. 350 would have an immediate
and dramatic impact on reducing the 400,000 brownfields sites
across America.
Mr. President, as I have stated many times indeed--and the
distinguished Presiding Officer also mentioned some of this in his
remarks--this bill is going to encourage redevelopment and
revitalization all across our country.
I would like to highlight one particular redevelopment option that
would benefit from this bill. It is called ECO industrial development.
It is similar to that of the Londonderry, NH, industrial park.
By reducing the waste and pollution from industry, industrial land
users become better neighbors in residential areas. Developers and
communities can target the kind of development they want rather than
being at odds with each other.
I think that is the beauty of this legislation.
Eco-industrial development helps break down the notion that enhanced
environmental management can only be done at a greater cost to
businesses. It is not true. The two go hand in hand. You can have an
enhanced environment, and you can enhance industry. That is why this
concept is so appropriate.
I am hopeful this legislation will, in fact, encourage responsible
redevelopment and revitalization similar to the Londonderry eco-
Industrial park.
Let me talk about eco-industrial development for just a second. It
creates efficiencies in the use of materials and energy through
planned, voluntary networks among businesses and their industrial-
manufacturing processes. This increased efficiency not only drives down
pollution and waste generated by these industrial processes, but it
increases the profitability and competitiveness of the businesses at
the same time. With these reinforcing benefits, eco-industrial
development is a market-based, incentive-driven means for preventing
pollution rather than relying on the fragmented, end-of-the-pipe
regulations we have done for so many years.
So our current measures of productivity are based almost entirely on
measuring industrial output per unit of labor. But a handful of
companies--Dow Chemical, Monsanto, 3M, Ford Motor, and others--have
been focusing on ways to increase or maintain their current level of
output while using fewer resources. This resource productivity can
increase a company's return on its assets significantly. And overall,
an industrial and manufacturing sector in the U.S. that uses materials
and energy more efficiently will become more productive, more
profitable, and will remain competitive in global markets.
I think the moral of the story is that when you take an abandoned
site that has been polluted and you convert it into whatever--either a
green space or a true park or playground, or a baseball field, as the
Presiding Officer mentioned, in Trenton--whatever you do with it, if
you turn it into something productive, you have, No. 1, created jobs in
doing so, and, No. 2, you have taken all the pressure off additional
green space--a lot of pressure off additional green space--that now
will not be developed because this will be redeveloped, and also you
help to beautify your community.
I think it is also important to point out it is not just the large
cities such as Trenton, NJ, or Manchester, NH, or any other large
city--it is not just large cities--there are many small towns all
across America where some 400,000 to 500,000 of these sites lie. A lot
of them are on the eastern seaboard in the early developed areas of our
country, along the rivers and railroad tracks, and these are the areas
that need help.
For so many years, under the current Superfund law, they have not
been able to develop these sites because industry and contractors
simply would not take the risk, knowing the possible liability. So that
is why this legislation is so exciting. It is also why we have 70
cosponsors and why we probably will have a close to unanimous, if not
unanimous, vote in the Senate. And we look
[[Page S3902]]
forward to seeing this bill move forward to the House, and to get it
out of the House or out of conference, whatever the case may be, and
get it to the President's desk.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORZINE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORZINE. Mr. President, I rise in strong support of S. 350, the
Brownfields Revitalization and Environmental Restoration Act of 2001. I
am proud to be a cosponsor of this important legislation.
This bill proves that environmental protection and economic
development can go hand in hand, that we can take depressed, blighted
areas, such as those in New Jersey with which we have worked, and make
them vibrant and productive, and that we can do so in a cooperative,
bipartisan manner.
Hundreds of thousands of contaminated industrial sites lie
underutilized or even abandoned across the country, largely because of
the potential risk and expense of cleaning them up. New Jersey has more
than 8,000 of these brownfields.
When developers now look at these sites, they see a hornet's nest of
problems. But when I look at them, I see opportunities. Many of these
brownfields are located in economically depressed urban areas. Cleaning
them up can spur economic development, create jobs, and bring in
additional tax revenue.
Of course, cleaning up brownfields does more than help the economy.
It also protects the public health. In addition, by cleaning up sites
in our urban areas, we redirect development away from our remaining
open space and reduce many of the problems associated with sprawl.
Unfortunately, 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 always 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 and across the
State of New Jersey.
This legislation also represents an important compromise of Federal
and State interests. It provides funding for grants to States to help
them enhance and develop their own brownfields programs. It recognizes
the important lead role that States play in dealing with brownfields,
but it also retains the right of the Federal Government to intervene
under certain circumstances to address serious threats that may arise.
In general, I see this as a sound balance.
We should be proud that we have been able to work this in a way that
leads to a positive long-term result.
I do point out, however, that this bill merely provides an
authorization for funding in the future. It doesn't provide the funding
itself. Often we talk about authorizations and take victory laps, but
the appropriations process is important. That will be up to those in
the appropriations process later on, and we'll all have to work hard to
make sure that we can find real dollars to be placed against this real
need.
Along these lines, I was very disappointed that the Bush budget
included only $98 million for brownfields redevelopment. That's far
short of the $250 million authorized in this bill for fiscal year 2002.
The Bush administration has said that it would support the bill, but
their budget doesn't have the money to show this support. Congress will
have to do better.
Finally, I acknowledge the leadership of my predecessor, Senator
Frank Lautenberg, who took the lead in the last Congress to develop
this legislation. Senator Lautenberg for years has been a strong
advocate of addressing brownfields. I am pleased that his efforts--and
the efforts of staffer Lisa Haage, who now works for the Environment
Committee--soon should bear fruit.
I also want to thank Senators Smith, Reid, Chafee, and Boxer for
their leadership and hard work in crafting and advancing this
bipartisan legislation this year. This bill proves that bipartisanship
can and will lead to positive results, particularly with regard to
environmental legislation. I am hopeful that that spirit of cooperation
will operate here in the Chamber.
With that, I conclude my remarks and again urge my colleagues to
support this legislation.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. CARPER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Mr. President, I want to take a few minutes this
afternoon to express my support for S. 350, the Brownfields
Revitalization and Restoration Act. It is a bill which I hope we will
vote to pass today and, hopefully, it will be enacted in the House as
well. The bill before us this afternoon represents years of discussion,
countless hearings and a genuine compromise. Some people in this
Chamber have been part of those discussions and have worked hard to
achieve this compromise.
We have heard from others today who talked about the balance this
bill represents and some of the compromises it contains. I want to
focus in my remarks on what this bill means to our States, including
the State I am privileged to represent, Delaware, where this
legislation can make and will make a real and significant impact.
This morning, I came to work by train, as I do most mornings. I
caught the train in Wilmington and headed down to Washington. I looked
out, as I often do, the left side of the train as we pulled out of the
Amtrak station in Wilmington, and I looked over to an area that during
World War II was a prime area for building ships, along the magnificent
Christina River. Between roughly 1941 and 1945, some 10,000 men and
women worked along the banks of the Christina River in Wilmington. They
built all kinds of ships, destroyer escorts, troop landing ships,
Liberty ships, and other vessels that really helped to win World War
II.
When the war was over in 1945, not surprisingly, all of those people
were no longer needed. Eventually, within a few years after the end of
the war, that vibrant shipbuilding community along the Christina folded
up and all of those jobs, for the most part, went away. What had been a
vibrant area with manufacturing vitality began to go to seed, and over
the years it eventually turned into an abandoned wasteland.
To be honest, as Delaware's Congressman during the late 1980s, as I
rode that same Amtrak train to work, I looked out that window and said
to myself, boy, this looks awful. And it did. Today it doesn't. Today,
we have a river walk, we have a beautiful park, we have buildings that
have been restored or are being restored, we have museums, restaurants,
and places to shop. We have a stadium where one of the greatest minor
league baseball teams in America plays, the Wilmington Blue Rocks.
A couple years ago, as Delaware's Governor, I signed legislation that
enabled us to go in and turn that industrial wasteland into the
riverfront jewel that it is becoming today for the State of Delaware.
We returned to productive use some land that had been forgotten and
that in a way, served as a buffer to keep people away from the river.
I want to thank several people, certainly our subcommittee chairman,
the ranking Democrat, and Senator Chafee, who headed the subcommittee
to develop this bill and nurtured it over the years. I thank Senator
Smith, chairman of the committee, for his good work, and Senator Reid
of Nevada, who has spent a fair amount of time in these vineyards in
the last couple of years.
As a freshman Senator who joined this important debate a little late,
they were kind enough to work with me and teach me a thing or two about
these issues and listen to my concerns and to reflect some of them in
the final bill. I don't see my friend from Ohio on the floor, but I
want to say a word about Senator Voinovich, who chaired
[[Page S3903]]
the National Governors' Association during the time when I was its
vice-chairman, and who has worked on this bill with me. We had the
opportunity to work a little together on this legislation and he was
instrumental in making a good bill even better. I am pleased to say to
colleagues today and fellow Governors across the country that included
in this bill is a provision that will go some distance toward ensuring
that State certification of brownfields cleanup will actually result in
the revitalization of thousands of underutilized sites in States across
the country.
I thank Senator Voinovich for his work on this, as well as the other
members of our committee who have worked very hard and patiently over
the last several months and years, and who didn't pass up the
opportunity this year to make this bill the best it could be. I believe
what we have today is a brownfields bill that moves EPA's existing
program a significant step forward.
This bill protects our environment and encourages businesses to reuse
these sites. In my opinion, it just makes good sense. I urge my
colleagues to vote in support of this bill.
Before I yield, I want to say, in reflecting on my first roughly 3
months here as a Senator, I have had the opportunity to work in a
bipartisan manner in the Chamber on a couple of major initiatives, such
as bankruptcy reform, along with the Presiding Officer, who was
instrumental in it; but the bill passed with 85 votes, with broad
bipartisan support. There was also campaign finance reform, which
enjoyed a lot of Democratic and Republican support as well. We had the
budget resolution, which ended up enjoying a fair amount of Democratic
support as well as Republican support, and today we have the
brownfields legislation, which I believe will pass this Chamber with
broad bipartisan support. I am encouraged at this degree of bipartisan
support we have seen on these issues. Maybe we will somehow set the
stage today for debate which is to begin maybe tomorrow or next week,
and that is to bring up the education issues, to try to redefine the
Federal role regarding the education of our children.
Thank you, Mr. President. I surrender my time and I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. SMITH of New Hampshire. Mr. President, I want to take a couple of
minutes to explain to my colleagues the managers' amendment, which will
be part of the entire vote. We did expand the bill. At the end of the
markup in committee, there were a number of concerns raised by Senators
on both sides, which we attempted to address and finally were able to
address. I wanted to highlight three or four of them on both sides of
the aisle.
Senator Inhofe raised a concern, and Senator Bond as well, about
innocent parties cleaning up relatively low-risk brownfield sites
contaminated by petroleum or a petroleum product. We were able to allow
for the application for brownfields revitalization funding for those
purposes as requested by Senators Inhofe and Bond.
Also, in authorizing $200 million annually for the brownfields
revitalization program, we added another $50 million, or 25 percent of
the total for the cleanup of petroleum sites. This was included in the
managers' amendment. We have unanimous committee support for it today.
Those are two contributions to the overall legislation by Senators
Inhofe and Bond.
In addition, Senator Chafee asked for a clarification that a grant or
loan recipient may use a portion of that grant or loan to purchase
insurance for the characterization assessment or remediation of the
prospective brownfields site. We were able to take care of that.
Senator Clinton asked for conditions to the rank and criteria used to
award moneys under this bill to address sites with a disproportionate
impact on the health of children, minorities, and other sensitive
subpopulations in communities with a higher than average incidence of
cancer and other diseases and conditions. We were able to include that.
Another concern of Senator Clinton was an element to a State response
program whereby a citizen can request a State official to conduct a
site assessment and the State official considers and responds
appropriately to that request. Those issues of concern were added to
the managers' amendment.
In addition, Senator Voinovich asked for a requirement that the
Administrator consult with States in determining when new information
regarding a facility presents a threat to human health or the
environment, while preserving EPA's authority to take appropriate
action.
Mr. President, I also received a moment ago a statement from the
administration. I will quote from part of it:
The administration supports Senate passage of S. 350 which
would authorize appropriations to assess and clean up certain
abandoned industrial sites known as brownfields and provide
protection from liability for certain landowners. By removing
barriers to brownfield cleanup and redevelopment, S. 350
would allow communities to reduce environmental and health
risks, capitalize on existing infrastructure, attract new
businesses and jobs, and improve their tax base.
We are pleased to have that statement of support.
Before I yield to Senator Reid for final remarks before the vote, I
thank Senator Reid again and all of the members of the committee,
Senator Chafee, Senator Boxer, and all those who worked with me to
bring this to closure. It has been a pleasure. I have enjoyed it. It
was a long ride, but we finally got to the end. We are glad we did. The
country will be the beneficiary of our actions.
It is nice to know that a piece of legislation, once it passes, will
have immediate results for almost any community in America. There are
so many sites. There are probably very few communities that do not have
a brownfield site, which is an abandoned industrial site.
I will be pleased when the bill is signed and when the dollars start
to flow, not just from the few dollars we have in the Federal process
but from the investments that will be made by the private sector
because these folks will now be able to go onsite and clean them up.
I am excited about the bill. I am glad we are at the end. I am happy
to hand it over to the House now and wait for them, and hopefully, if
there is a conference, it will be an easy one.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I want to take a minute to express my
appreciation to the Senator from Delaware for being a member of the
committee. Senator Carper and I came to Washington together, along with
the Presiding Officer, in 1982. When he was elected to the Senate, I
was very happy. He was a great Member of the House of Representatives
and a tremendous Governor.
I was happy to visit the State of Delaware on a number of occasions
and work with the Governor of Delaware. The people of Delaware are very
fortunate to have someone of the caliber of Tom Carper representing
them in the Senate. He is a great addition to Joe Biden. They are good
Senators. I do not know how you can do better than the two Senators
from the State of Delaware.
Senator Carper's work on the committee and on this bill has been
exemplary. He reached out on a bipartisan basis to Senators Crapo and
Voinovich. He and Senator Voinovich were fellow Governors. As a result
of his advocacy, he worked very hard with Senator Voinovich to satisfy
the problems he had with this bill. I express my appreciation to the
Senator from Delaware.
I was very happy to hear from Senator Smith that we do now have a
statement from the administration on this legislation. This is, in
effect, icing on the cake. This legislation has been long in coming.
The prior administration tried very hard to get it before the Congress.
For various procedural reasons, we were unable to do so for 2 years. On
a bipartisan basis, the committee was able to report this important
legislation for consideration by the Senate.
This legislation is representative of how we should operate in the
Senate. It is a bill we recognize was controversial. It is a bill about
which we recognize there were disparate views in the committee, and we
also realize the Senate was divided 50/50, just as the Environment and
Public Works Committee was divided 50/50. Republicans reached
[[Page S3904]]
Democrats, Democrats reached Republicans, and we came up with this
legislation.
This is very good legislation; 500,000 sites in America will benefit
from this legislation. Billions of dollars will go to local
communities. Hundreds of thousands of jobs, in fact 600,000 jobs, will
be required to clean up these sites. This is important because, as we
indicated earlier this morning, there are corner service stations in
urban areas upon which nothing can be built. People will not touch them
because they are an old service station and there may be Superfund
liability. This legislation takes care of that.
Corner service stations all over America will be cleaned up and
something built which will contribute to the local community.
There are dry cleaning establishments all over America. We do not
have big dry cleaners. They are all small. All over America we have old
dry cleaning establishments. New businesses will not touch them because
of possible Superfund liability. This legislation takes care of all
that.
This is what the American people want in sending us an equally
divided Senate. This is what the people deserve. This legislation will
go a long way toward making people feel good about Government.
It has been a pleasure working with the Senator from New Hampshire,
as I have already stated. This is a joint effort. I commend and applaud
the chairman of the subcommittee, Senator Chafee, and the ranking
member of the subcommittee, Senator Boxer, for their outstanding work.
Mr. President, have the yeas and nays been ordered on this matter?
The PRESIDING OFFICER. They have not.
Mr. REID. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Under the previous order, amendment No. 352 is
agreed to.
The amendment (No. 352) was agreed to.
The PRESIDING OFFICER. The committee amendment in the nature of a
substitute, as amended, is agreed to.
regarding consultation with the states on new information
Mr. VOINOVICH. Mr. President, I would like to take this opportunity
to clarify some issues related to the Brownfields Revitalization and
Environmental Restoration Act. Is it the Chairman's understanding that
the exception under which the President may bring an enforcement action
following new information becoming available is to occur after the
Administrator has consulted with the State?
Mr. SMITH of New Hampshire. My colleague from Ohio is correct. The
managers' amendment clarifies the role of the State when new
information has become available. Specifically, the Administrator must
consult with the State before an enforcement action can be taken.
Additionally, the State's records must be consulted to determine
whether the new information was known by the State as defined in the
legislation.
Mr. VOINOVICH. Is it also correct that this provision does not limit
the Administrator of the EPA from making a determination, based on new
information, that the conditions at the facility present a threat that
requires further remediation?
Mrs. BOXER. Yes, The managers' amendment states that consultation
with the State shall not limit the ability of the Administrator in
making a determination, as the result of new information, that
contamination or conditions at a facility present a threat requiring
further remediation to protect public health or welfare or the
environment. Consultation with the State is important and is addressed
in this section and other portions of the bill. It is not intended,
however, to be an open-ended process. Consultation should not delay or
prohibit the Administrator's ability to determine that a site presents
a threat that requires further remediation.
Mr. REID. I am very pleased that we were able to resolve the concerns
raised by my colleague Mr. Voinovich at the Committee markup, and wish
to thank him for working with us to reach this resolution.
Mr. VOINOVICH. I thank my colleagues for clarifying the role of the
States in making these determinations.
Regarding Petroleum Sites
Mr. INHOFE. Mr. President, I would like to ask the chairman and
ranking member if they agree with my interpretation of the Inhofe
amendment adopted as part of the managers' package.
This amendment ensures that certain sites that have been contaminated
by petroleum or petroleum products, ``petroleum contaminated'', will be
eligible for funding under title I of this bill, by expressly adding
these sites to the definition of ``brownfield sites,'' and specifically
authorizing funding for the characterization, assessment and
remediation of these sites. These petroleum-contaminated sites must
meet several conditions to be eligible for funding under this new
provision.
First, the site must be relatively low risk, as compared with other
petroleum-only sites in the State. This provision does not presuppose
that each State has conducted a ranking of its petroleum sites, or
require that it do so. Rather, we are aware that most States already
have experience in making determinations as to which petroleum
contaminated sites pose the greatest risk, under section 9003(h)(3) of
the Solid Waste Disposal Act (SWDA), States are directed to prioritize
sites for corrective action based on ``which pose the greatest threat
to human health and the environment.'' The Committee contemplates that
States will be able to use similar approaches to those used under
section 9003(h)(3) to identify sites that are appropriately covered by
this provision, those that are relatively low risk.
Section 9003(h)(3) of the Solid Waste Disposal Act directs states,
who are authorized under section 9003(h)(7), to prioritize underground
storage tank, ``UST'', sites. Under 9003(h)(3), a priority for
remediation is given to UST sites which pose the greatest threat to
human health and the environment, as determined by those States. The
new section 128(a)(D)(ii)(II) of S. 350 addresses sites that meet all
of the following conditions: there are no viable responsible parties,
otherwise known as abandoned sites; the petroleum site is not subject
to an order under section 9003(h) of SWDA; and the petroleum
contamination is relatively low risk. Relatively low risk should be
determined by comparing the relative risk of a given site to UST and
other petroleum contaminated sites in that State. The determination as
to whether a particular site meets the ``relatively low risk''
criterion will be made by the entity that is awarding the grant or loan
to the person doing the work.
Funds authorized under the new section 128(l)(2) shall be used for
site remediation, characterization, or assessment. If a site uses funds
authorized by section 128(l)(2) to assess a site, and it is later
determined (after the assessment) that the site is eligible for other
applicable Federal and State funding, funds from those other applicable
Federal or State programs shall be used first. This will preserve funds
authorized under this bill for sites that do not have access to another
source of funding.
Neither this nor any other provision of S. 350, in any way, alters
the exclusion of petroleum or petroleum products from the definition of
``hazardous substance'' under section 101 of CERCLA.
Mr. CRAPO. I commend the Senator from Oklahoma for this amendment and
am also interested in knowing if this interpretation is consistent with
the intent of the chairman and the ranking member of the Environment
and Public Works Committee.
Mr. SMITH. The Senator from Oklahoma's interpretation of the
amendment is consistent with my interpretation of the provisions and I
am pleased we were able to include it in the manager's amendment.
Mr. REID. I agree with the chairman. I hope that this section will
provide an additional tool for addressing abandoned petroleum sites.
The bill includes mechanisms to allow us to evaluate how this and other
provisions of the bill are working, and whether the funding levels are
sufficient.
Mr. BOND. I'd like to thank the chairman and ranking member for
[[Page S3905]]
their cooperation on this amendment and commend the Senator from
Oklahoma for his leadership on this important initiative, which will
provide a vital tool for brownfields cleanups.
regarding ``contract carriage'' and ``spur track'' issues
Mr. INHOFE. Mr. President, as we have discussed here today, I hope
there will be additional opportunities for the committee to consider
needed legislative changes to sections of Superfund that are not
related to brownfields.
There are two such changes which clarify liability for common
carriers and rail spur track owners I would like to bring to your
attention which this committee has favorably considered in past
Superfund bills.
The first provision would conform the existing law to the industry's
current practice of using contract carriage agreements by clarifying
that a railroad would not be liable for the transportation of hazardous
substances under the terms of a contract with a shipper who later
mishandles the commodity. This is a technical amendment which is
necessary to reflect the fact that most rail shipments today move under
the terms of transportation contracts, not tariffs, as was the case
when CERCLA was first enacted in 1980.
The second issue addresses contamination on or around spur tracks,
which run to and through shipper facilities. The current law states
that railroads can be potentially liable as landowners for such
contamination even when it is caused by a shipper. This change would
hold the railroad liable only if the railroad caused or contributed to
the release of the hazardous substance.
Both these issues recognize that a railroad, as a common carrier,
should not be liable when it cannot control its customer's handling of
hazardous substances, and the customer's actions result in the release
of a hazardous substance that creates CERCLA liability.
These noncontroversial changes are simple and needed reforms to the
Superfund law, and I would hope you could support including these
provisions in later Superfund legislation or even, if the opportunity
presents itself as part of this brownfields bill.
Mr. SMITH of New Hampshire. I would say to my good friend that I
agree with these provisions and have, in fact, supported them in the
past. I will continue to support them, but as we have discussed it will
be difficult to include them in the brownfields bill. I would certainly
support the inclusion of these provisions in any Superfund legislation
that the committee acts on later this year.
Mr. INHOFE. I thank the chairman for his support on these two
provisions.
regarding environmental insurance
Mr. REID. Mr. President, I appreciate the work of the subcommittee
chairman and ranking minority member and the Environment and Public
Works Committee chairman in helping craft this brownfields bill. I
would like to clarify one matter in the managers' amendment regarding
the use of funding under this bill to purchase certain environmental
insurance at brownfield sites.
S. 350 clarifies that a person who receives federal funds for
characterization, assessment and cleanup of a brownfield site, and is
performing that work, will be able to use a portion of that money to
purchase insurance for the characterization, assessment or remediation
of that site. While I believe this can be a valuable tool, I would like
to ensure that the limited brownfield funding is maximized to
facilitate cleanup and reuse of as many sites as possible.
I would like to confirm with the chairman of the Subcommittee on
Superfund, Waste Control, and Risk Assessment that the language is
limited to the purchase of environmental insurance by persons
performing the actions, that the purchase of environmental insurance is
intended to be a relatively minor percentage of the overall costs at a
site, and that its primary purpose is to insure against costs of
assessment, characterization and cleanup being higher than anticipated.
Mr. CHAFEE. Mr. President, the Senator from Nevada is correct. This
provision is intended only to clarify that a person performing the
characterization, assessment, or cleanup can use federal assistance to
purchase environmental insurance such as cost-cap insurance, which is
one of the most frequently used policies at brownfield sites. Such a
policy would cover the costs of cleanup if the actual costs exceeded
estimated costs. It is my understanding that this clarifies EPA's
current practice. This protection can give a developer the necessary
comfort to invest in a site. In addition, the purchase of such
environmental insurance with federal assistance is not intended to be a
significant portion of the overall assessment, characterization, or
cleanup costs at a site. The Senator from Nevada also is correct
regarding the purpose of these policies: no portion of the funding
under this bill would be available for other types of insurance.
Mr. REID. Mr. President, I appreciate the chairman's clarification of
this matter.
Regarding a Mechanism for Citizens to Request State Officials to Assess
a Potential Brownfields Site
Mrs. CLINTON. Mr. President, I thank Chairmen Smith and Chafee and
Senators Reid and Boxer for agreeing to further enhance opportunities
for public participation in state brownfields programs under S. 350.
Specifically, the bill as amended would provide an opportunity for
individuals to request that a nearby brownfields site be assessed under
a state program, and for such requests to be considered and responded
to in an appropriate manner by the State. Although states complying
with the other state program elements in the bill must survey and
inventory sites in the state, there may be rare instances when sites
are inadvertently overlooked. I am particularly concerned about this
happening in communities that may be small or sparsely populated, low-
income, minority, or otherwise socially or politically disenfranchised.
This new provision will help to ensure that in those rare
circumstances that a site is overlooked in a State's survey process,
someone who lives or works in the community can bring a potential
brownfields site to the attention of the State and request that the
site be assessed under the state's brownfields program. The intent is
to provide states with the flexibility to set up this element of their
state brownfields program as they best see fit, and the provision does
not create an appeals process. Is that your understanding of the
provision?
Mr. SMITH of New Hampshire. Yes, that is my understanding of the
provision.
Mr. REID. That is my understanding as well.
Mr. VOINOVICH. I agree that it is important for States to be
responsive to the concerns of their citizens. As a former Governor of
Ohio, I have the unique first-hand experience of dealing with such
issues and the role of the state. In fact, Ohio law already requires
the state to respond to environmental complaints.
The Ohio Environmental Protection Agency, OEPA, responds under the
verified complaint procedure required under State law. Under this
statute, the Director of OEPA must take action by expeditiously
investigating claims and following up within a specified period of
time. If enforcement action is warranted, then the Director must
contact the State Attorney General to initiate proper proceedings.
Mr. SMITH of New Hampshire. It is important for a State to be
responsive to concerns brought up by its citizens. For example, under
the New Hampshire program, if a citizen contacts the Department of
Environmental Services, DES, regarding a site, the first and foremost
consideration is to carefully assess the potential risk to human health
and the environment. Both written and telephone communications are
assigned to DES's Special Investigations Section in the Waste
Management Division. There are four individuals who are involved in
this work and provide round-the-clock coverage.
DES first checks the data base to verify that the inquiry is indeed a
new matter and decides, based upon the information offered, the level
of risk and hence the immediacy of response required. Departmental
protocol governs this practice. An essential element of this approach
is based upon the intuitive, knowledgeable sense of the staff person
receiving the call. An attempt is made to identify matters that require
immediate response from others of a less immediate nature. In the event
of a grave emergency, DES or the
[[Page S3906]]
on-scene commander, may request assistance from EPA's emergency
responders.
In the case where a site warrants an emergency response, the citizen
inquirer would be given information as soon as the site was in control
and the responders or other Division staff could be made available to
provide details. If the case is determined to be a new site, the
citizen would be responded to when an initial site drive by or on the
ground investigation had been made. In this case an inquirer would be
told what to expect for a response time, if a response were necessary.
An inquiry related to a known site which was not an emergency
situation would be addressed by the assigned Project Manager, who could
comment on planned or on-going work at the site and the nature or
degree of risk. DES also would seek to determine whether the inquirer
had new information that might be relevant. Most often, DES would make
an initial response to an individual within 2-3 days.
As you can see, Senator Clinton, the State of New Hampshire has a
very responsive brownfields program that takes seriously all requests
and inquires made by its citizens.
Mrs. CLINTON. Thank you, Senator Smith and Senator Voinovich. I think
everyone would agree with you that it is important for states to be
responsive to citizens' concerns, and that many states are doing just
that.
regarding information
Mr. INHOFE. Mr. President, the ``information'' referred to in new
section 129(b)(1)(B)(iv) of S. 350 pertains to information that
indicates that a site presents a threat requiring further remediation
to protect public health or welfare or the environment. The committee
expects that the Administrator shall use her discretion in determining
whether this information is both credible and relevant to the site.
``Information'' consists of information not known by the State on the
earlier of the date on which cleanup was either approved or completed.
The ``information'' need not be specific to this site; however, it must
be relevant to the site in question. After careful consideration of the
quality, objectivity and weight of the ``information'' regarding the
site, the Administrator shall decide whether this information is
adequate to determine there is a threat to public health or welfare or
the environment.
This ``information'' triggers this section only if the Administrator
determines that it indicates that such contamination or conditions at
the facility present a threat requiring further remediation to protect
public health or welfare or the environment. Do the chairman and
ranking member agree with this interpretation of ``information?''
Mr. REID. Yes, that is correct. This provision is intended to ensure
that the public health and the environment are protected from such
threats.
Mr. SMITH of New Hampshire. I share my colleagues' interpretation of
this provision.
regarding cattle dipping vats
Mr. GRAHAM. Mr. President, I would like to confirm with the chairman
and ranking Democratic member of the Environment and Public Works
Committee that certain sites in my State would be eligible for the
benefits of this important brownfields legislation. In several States,
including my State of Florida, there are a number of sites that were
contaminated in the early to mid-1900's by chemicals used for tick-
prevention measures required by the United States Department of
Agriculture. So-called cattle dipping vats were used to eliminate ticks
that threatened our Nation's cattle. It is my understanding that these
sites would be eligible for the benefits of this important brownfields
legislation. Is that your understanding?
Mr. REID. I agree with the Senator from Florida that sites
contaminated by the historic practice of dipping cattle to eliminate
ticks are eligible for benefits under this bill, so long as any
particular site meets the definitions and conditions in the bill.
Under the bill funding is available for assessment and cleanup of
``brownfield sites,'' which are ``real property, the expansion,
redevelopment, or reuse of which may be complicated by the presence or
potential presence of a hazardous substance, pollutant, or
contaminant.'' It is my understanding that the sites the Senator
describes would meet this portion of the definition of eligible
brownfield sites under the bill.
The bill goes on to exclude certain categories of sites, such as
those that are listed or proposed for listing on the Superfund National
Priorities List, and those that are subject to orders or cleanup
requirements under other Federal environmental laws. So long as the
sites the Senator refers to are not within any of the exclusions they
would be eligible.
Mr. SMITH of New Hampshire. I can appreciate the concerns raised by
the Senator from Florida. I agree with Senator Reid that sites
contaminated as a result of former cattle dipping practices and which
meet the definitions and conditions for sites to obtain funding and
liability relief under this bill will be eligible for the benefits of
this bill.
Mr. GRAHAM. I thank the chairman and ranking Democratic member for
that clarification. I believe that since the federal government
required these dipping vats to be constructed, the individuals who
complied with that federal requirement should be excluded from all
liability under Superfund. However, I also believe that the brownfields
legislation we are considering today is a critical step forward in our
ability to clean-up sites around the country. I look forward to working
with both of you and our colleagues on the Environment and Public Works
Committee to take additional steps forward in the months to come.
alaska native corporations eligibility
Mr. STEVENS. Mr. President, I congratulate the Chairman and Ranking
Member of the Environment and Public Works Committee for developing a
bill that has secured enormous bipartisan support in this Congress.
This is an important program for many states.
I have considered cosponsoring the measure. However I withhold
sponsorship at this time because there is a problem relative to which
native entities in Alaska are eligible for such funding.
Alaska native corporations have no government powers but manage, as
private landowners, twelve percent of our state.
The federal government has recognized 229 tribes in Alaska most of
which do not have governmental power over land.
The bill is ambiguous as to whether Alaska native corporations, are
eligible entities as ``Indian Tribes.''
I have not raised this with the committee, but do request assurance
that the conference will address this matter.
Mr. SMITH of New Hampshire. I would like to work with the Senator on
that issue.
EDA and HUD developmental funding
Mr. LEVIN. Mr. President, I would like to engage my colleagues,
Senators Jeffords, Reid, and Smith from New Hampshire in a colloquy on
the Brownfields Revitalization and Environmental Restoration Act of
2001, S. 350. I am a co-sponsor and strong supporter of this
brownfields revitalization bill. I commend Senators Smith, Reid, Chafee
and Boxer for their hard work on crafting bipartisan brownfields
legislation which will help communities return these former commercial
and industrial properties back to productive use. The financial
incentives and statutory reforms provided in S. 350 will dramatically
improve our communities' efforts to redevelop brownfields.
As cochairmen of the Senate Smart Growth Task Force, Senator Jeffords
and I will introduce bills to complement S. 350 by providing
communities with economic resources to redevelop brownfield sites. Our
first proposal would expand efforts of the Department of Commerce's
Economic Development Administration, or EDA, to assist distressed
communities. The bill will provide EDA with a dedicated source of
funding for brownfields redevelopment and increased funding flexibility
to help States, local communities and nonprofit organizations restore
these sites to productive use. Our second proposal would permit the
Department of Housing and Urban Development to make brownfields
economic development initiative grants independent of economic
development loan guarantees, and set-aside a portion of the funding for
smaller communities. I hope that Senators Smith and Reid will work with
us to get our proposed legislation enacted.
[[Page S3907]]
These proposals would be very complementary to S. 350. Economic
development funding through EDA and HUD along with the financial
resources and liability clarifications contained in S. 350 would
provide communities with the help they need to return brownfields to
productive uses. Together, our proposals and S. 350, would provide
communities with the financial assistance needed to leverage private
investment in brownfields and accelerate reuse.
A number of national economic development organizations support this
proposal, including the US Conference of Mayors, National League of
Cities, National Association of Counties, National Association of
Development Organizations, National Association of Regional Councils,
National Association of Towns and Townships, Enterprise Foundation,
National Congress for Community Economic Development, Smart Growth
America, Council for Urban Economic Development, National Association
of Installation Developers, and the National Business Incubator
Association.
Mr. JEFFORDS. Mr. President I join my colleague, Mr. Levin, in
commending Senators Smith of New Hampshire, Chafee, Reid, and Boxer for
their efforts to promote brownfield revitalization. I am a co-sponsor
and strong supporter of S. 350, and believe this legislation is long
overdue.
Senator Levin and I have been working on complementary legislation.
The proposal would provide the Economic Development Administration
(EDA) with a formal channel of funding to help communities turn
brownfields environmental liabilities into economic assets. This
legislation would provide targeted assistance to projects that
redevelop brownfields. EDA funding for brownfields will help
communities get the financial assistance needed to leverage private
investment in brownfields. With over 450,000 brownfields sites
nationwide, it is imperative that the federal government assist local
cleanup efforts that in turn will stimulate economic revitalization.
The second legislative proposal addresses requirements on the
Department of Housing and Urban Development's (HUD) Brownfields
Economic Development Initiative (BEDI) grant program that are hampering
small city brownfields revitalization efforts. BEDI's required link to
Section 108 serves as a deterrent to many small towns in Vermont and
throughout the nation, who do not have the resources to commit to
brownfields. Our bill would permit HUD to make grants available
independent of economic development loan guarantees.
I am very hopeful that the Chairman and Ranking Member of Committee
on Environment and Public Works will work with us to advance this
important legislative initiatives.
Mr. REID. Mr. President, I would like to thank my colleague from
Michigan, Mr. Levin, and my colleague from Vermont, Mr. Jeffords, for
their strong support of S. 350 and commend them for their efforts to
provide communities with economic development resources to redevelop
brownfields. I commit to my colleagues, Mr. Levin and Mr. Jeffords,
that I will work with Senator Smith to have a hearing on their Economic
Development Administration brownfield proposal. I look forward to
working with them to explore options to further address the reuse of
brownfields and look forward to working with them to protect our
communities.
Mr. SMITH of New Hampshire. I thank Mr. Jeffords and Mr. Levin for
their support and co-sponsorship of S. 350. I appreciate their efforts
to craft legislation complementary to S. 350. As such, I will look
closely at their proposals and work with them to further advance the
issue of brownfield redevelopment.
Indian Tribes
Mr. BINGAMAN. Will the Senator from Nevada yield for a question?
Mr. REID. I yield.
Mr. BINGAMAN. I thank the Senator. Mr. President, I believe that this
is a good piece of legislation that will promote the cleanup and reuse
of business and industrial sites that now stand essentially abandoned.
I would just like to clarify one point. I note that throughout much of
the Bill any reference to `States' is accompanied by a reference to
`Indian Tribes'. However, this is not the case in section
129(b)(1)(B)(ii), as added by section 301 of the Bill, regarding
federal enforcement actions in the event of contamination migrating
across a State line. Could the Senator confirm that it is the intention
of the legislation that references in that section to `States' should
extend to `Indian Tribes'?
Mr. REID. Yes Senator, that is the intention.
Mr. BINGAMAN. I thank the Senator.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for the third reading and was
read the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill, as amended, pass? The yeas and nays have
been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Arkansas (Mr.
Hutchinson) is necessarily absent.
The PRESIDING OFFICER (Mrs. Carnahan). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
[Rollcall Vote No. 87 Leg.]
YEAS--99
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
NOT VOTING--1
Hutchinson
The bill (S. 350), as amended, was passed, as follows:
S. 350
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 and Environmental Restoration
Act of 2001''.
(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 FUNDING
Sec. 101. Brownfields revitalization funding.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
Sec. 201. Contiguous properties.
Sec. 202. Prospective purchasers and windfall liens.
Sec. 203. Innocent landowners.
TITLE III--STATE RESPONSE PROGRAMS
Sec. 301. State response programs.
Sec. 302. Additions to National Priorities List.
TITLE I--BROWNFIELDS REVITALIZATION FUNDING
SEC. 101. BROWNFIELDS REVITALIZATION FUNDING.
(a) Definition of Brownfield Site.--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) Brownfield site.--
``(A) In general.--The term `brownfield site' means real
property, the expansion, redevelopment, or reuse of which may
be complicated by the presence or potential presence of a
hazardous substance, pollutant, or contaminant.
``(B) Exclusions.--The term `brownfield site' does not
include--
``(i) a facility that is the subject of a planned or
ongoing removal action under this title;
``(ii) a facility that is listed on the National Priorities
List or is proposed for listing;
``(iii) a facility that is the subject of a unilateral
administrative order, a court order, an administrative order
on consent or judicial consent decree that has been issued to
or entered into by the parties under this Act;
``(iv) a facility that is the subject of a unilateral
administrative order, a court order,
[[Page S3908]]
an administrative order on consent or judicial consent decree
that has been issued to or entered into by the parties, or a
facility to which a permit has been issued by the United
States or an authorized State under the Solid Waste Disposal
Act (42 U.S.C. 6901 et seq.), 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.);
``(v) a facility that--
``(I) is subject to corrective action under section 3004(u)
or 3008(h) of the Solid Waste Disposal Act (42 U.S.C.
6924(u), 6928(h)); and
``(II) to which a corrective action permit or order has
been issued or modified to require the implementation of
corrective measures;
``(vi) 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;
``(vii) a facility that is subject to the jurisdiction,
custody, or control of a department, agency, or
instrumentality of the United States, except for land held in
trust by the United States for an Indian tribe;
``(viii) a portion of a facility--
``(I) at which there has been a release of polychlorinated
biphenyls; and
``(II) that is subject to remediation under the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.); or
``(ix) 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) Site-by-site determinations.--Notwithstanding
subparagraph (B) and on a site-by-site basis, the President
may authorize financial assistance under section 128 to an
eligible entity at a site included in clause (i), (iv), (v),
(vi), (viii), or (ix) of subparagraph (B) if the President
finds that financial assistance will protect human health and
the environment, and either promote economic development or
enable the creation of, preservation of, or addition to
parks, greenways, undeveloped property, other recreational
property, or other property used for nonprofit purposes.
``(D) Additional areas.--For the purposes of section 128,
the term `brownfield site' includes a site that--
``(i) meets the definition of `brownfield site' under
subparagraphs (A) through (C); and
``(ii)(I) is contaminated by a controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
``(II)(aa) is contaminated by petroleum or a petroleum
product excluded from the definition of `hazardous substance'
under section 101; and
``(bb) is a site determined by the Administrator or the
State, as appropriate, to be--
``(AA) of relatively low risk, as compared with other
petroleum-only sites in the State; and
``(BB) a site for which there is no viable responsible
party and which will be assessed, investigated, or cleaned up
by a person that is not potentially liable for cleaning up
the site; and
``(cc) is not subject to any order issued under section
9003(h) of the Solid Waste Disposal Act (42 U.S.C. 6991b(h));
or
``(III) is mine-scarred land.''.
(b) Brownfields Revitalization Funding.--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. 128. BROWNFIELDS REVITALIZATION FUNDING.
``(a) Definition of Eligible Entity.--In this section, the
term `eligible entity' means--
``(1) a general purpose unit of local government;
``(2) 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;
``(3) a government entity created by a State legislature;
``(4) a regional council or group of general purpose units
of local government;
``(5) a redevelopment agency that is chartered or otherwise
sanctioned by a State;
``(6) a State; or
``(7) an Indian Tribe.
``(b) Brownfield Site Characterization and Assessment Grant
Program.--
``(1) Establishment of program.--The Administrator shall
establish a program to--
``(A) provide grants to inventory, characterize, assess,
and conduct planning related to brownfield sites under
paragraph (2); and
``(B) perform targeted site assessments at brownfield
sites.
``(2) Assistance for site characterization and
assessment.--
``(A) In general.--On approval of an application made by an
eligible entity, the Administrator may make a grant to the
eligible entity to be used for programs to inventory,
characterize, assess, and conduct planning related to 1 or
more brownfield sites.
``(B) Site characterization and assessment.--A site
characterization and assessment carried out with the use of a
grant under subparagraph (A) shall be performed in accordance
with section 101(35)(B).
``(c) Grants and Loans for Brownfield Remediation.--
``(1) Grants provided by the president.--Subject to
subsections (d) and (e), the President shall establish a
program to provide grants to--
``(A) eligible entities, to be used for capitalization of
revolving loan funds; and
``(B) eligible entities or nonprofit organizations, where
warranted, as determined by the President based on
considerations under paragraph (3), to be used directly for
remediation of 1 or more brownfield sites owned by the entity
or organization that receives the grant and in amounts not to
exceed $200,000 for each site to be remediated.
``(2) Loans and grants provided by eligible entities.--An
eligible entity that receives a grant under paragraph (1)(A)
shall use the grant funds to provide assistance for the
remediation of brownfield sites in the form of--
``(A) 1 or more loans to an eligible entity, a site owner,
a site developer, or another person; or
``(B) 1 or more grants to an eligible entity or other
nonprofit organization, where warranted, as determined by the
eligible entity that is providing the assistance, based on
considerations under paragraph (3), to remediate sites owned
by the eligible entity or nonprofit organization that
receives the grant.
``(3) Considerations.--In determining whether a grant under
paragraph (1)(B) or (2)(B) is warranted, the President or the
eligible entity, as the case may be, shall take into
consideration--
``(A) the extent to which a grant will facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes;
``(B) 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 site is
located because of the small population or low income of the
community;
``(C) the extent to which a grant will facilitate the use
or reuse of existing infrastructure;
``(D) the benefit of promoting the long-term availability
of funds from a revolving loan fund for brownfield
remediation; and
``(E) such other similar factors as the Administrator
considers appropriate to consider for the purposes of this
section.
``(4) Transition.--Revolving loan funds that have been
established before the date of enactment of this section may
be used in accordance with this subsection.
``(d) General Provisions.--
``(1) Maximum grant amount.--
``(A) Brownfield site characterization and assessment.--
``(i) In general.--A grant under subsection (b)--
``(I) may be awarded to an eligible entity on a community-
wide or site-by-site basis; and
``(II) shall not exceed, for any individual brownfield site
covered by the grant, $200,000.
``(ii) Waiver.--The Administrator may waive the $200,000
limitation under clause (i)(II) to permit the brownfield site
to receive a grant of not to exceed $350,000, based on the
anticipated level of contamination, size, or status of
ownership of the site.
``(B) Brownfield remediation.--
``(i) Grant amount.--A grant under subsection (c)(1)(A) may
be awarded to an eligible entity on a community-wide or site-
by-site basis, not to exceed $1,000,000 per eligible entity.
``(ii) Additional grant amount.--The Administrator may make
an additional grant to an eligible entity described in clause
(i) for any year after the year for which the initial grant
is made, taking into consideration--
``(I) the number of sites and number of communities that
are addressed by the revolving loan fund;
``(II) the demand for funding by eligible entities that
have not previously received a grant under this section;
``(III) the demonstrated ability of the eligible entity to
use the revolving loan fund to enhance remediation and
provide funds on a continuing basis; and
``(IV) such other similar factors as the Administrator
considers appropriate to carry out this section.
``(2) Prohibition.--
``(A) In general.--No part of a grant or loan under this
section may be used for the payment of--
``(i) a penalty or fine;
``(ii) a Federal cost-share requirement;
``(iii) an administrative cost;
``(iv) a response cost at a brownfield site for which the
recipient of the grant or loan is potentially liable under
section 107; or
``(v) a cost of compliance with any Federal law (including
a Federal law specified in section 101(39)(B)), excluding the
cost of compliance with laws applicable to the cleanup.
``(B) Exclusions.--For the purposes of subparagraph
(A)(iii), 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 a natural resource.
``(3) Assistance for development of local government site
remediation programs.--A local government that receives a
[[Page S3909]]
grant under this section may use not to exceed 10 percent of
the grant funds to develop and implement a brownfields
program that may include--
``(A) monitoring the health of populations exposed to 1 or
more hazardous substances from a brownfield site; and
``(B) monitoring and enforcement of any institutional
control used to prevent human exposure to any hazardous
substance from a brownfield site.
``(4) Insurance.--A recipient of a grant or loan awarded
under subsection (b) or (c) that performs a characterization,
assessment, or remediation of a brownfield site may use a
portion of the grant or loan to purchase insurance for the
characterization, assessment, or remediation of that site.
``(e) Grant Applications.--
``(1) Submission.--
``(A) In general.--
``(i) Application.--An eligible entity may submit to the
Administrator, through a regional office of the Environmental
Protection Agency and in such form as the Administrator may
require, an application for a grant under this section for 1
or more brownfield sites (including information on the
criteria used by the Administrator to rank applications under
paragraph (3), to the extent that the information is
available).
``(ii) NCP requirements.--The Administrator may include in
any requirement for submission of an application under clause
(i) a requirement of the National Contingency Plan only to
the extent that the requirement is relevant and appropriate
to the program under this section.
``(B) Coordination.--The Administrator shall coordinate
with other Federal agencies to assist in making eligible
entities aware of other available Federal resources.
``(C) Guidance.--The Administrator shall publish guidance
to assist eligible entities in applying for grants under this
section.
``(2) Approval.--The Administrator shall--
``(A) at least annually, complete a review of applications
for grants that are received from eligible entities under
this section; and
``(B) award grants under this section to eligible entities
that the Administrator determines have the highest rankings
under the ranking criteria established under paragraph (3).
``(3) Ranking criteria.--The Administrator shall establish
a system for ranking grant applications received under this
subsection that includes the following criteria:
``(A) The extent to which a grant will stimulate the
availability of other funds for environmental assessment or
remediation, and subsequent reuse, of an area in which 1 or
more brownfield sites are located.
``(B) The potential of the proposed project or the
development plan for an area in which 1 or more brownfield
sites are located to stimulate economic development of the
area on completion of the cleanup.
``(C) The extent to which a grant would address or
facilitate the identification and reduction of threats to
human health and the environment, including threats in areas
in which there is a greater-than-normal incidence of diseases
or conditions (including cancer, asthma, or birth defects)
that may be associated with exposure to hazardous substances,
pollutants, or contaminants.
``(D) The extent to which a grant would facilitate the use
or reuse of existing infrastructure.
``(E) The extent to which a grant would facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
``(F) The extent to which a grant would 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 site is
located because of the small population or low income of the
community.
``(G) The extent to which the applicant is eligible for
funding from other sources.
``(H) The extent to which a grant will further the fair
distribution of funding between urban and nonurban areas.
``(I) The extent to which the grant provides for
involvement of the local community in the process of making
decisions relating to cleanup and future use of a brownfield
site.
``(J) The extent to which a grant would address or
facilitate the identification and reduction of threats to the
health or welfare of children, pregnant women, minority or
low-income communities, or other sensitive populations.
``(f) Implementation of Brownfields Programs.--
``(1) Establishment of program.--The Administrator may
provide, or fund eligible entities or nonprofit organizations
to provide, training, research, and technical assistance to
individuals and organizations, as appropriate, to facilitate
the inventory of brownfield sites, site assessments,
remediation of brownfield sites, community involvement, or
site preparation.
``(2) Funding restrictions.--The total Federal funds to be
expended by the Administrator under this subsection shall not
exceed 15 percent of the total amount appropriated to carry
out this section in any fiscal year.
``(g) Audits.--
``(1) In general.--The Inspector General of the
Environmental Protection Agency shall conduct such reviews or
audits of grants and loans under this section as the
Inspector General considers necessary to carry out this
section.
``(2) Procedure.--An audit under this paragraph shall be
conducted in accordance with the auditing procedures of the
General Accounting Office, including chapter 75 of title 31,
United States Code.
``(3) Violations.--If the Administrator determines that a
person that receives a grant or loan under this section has
violated or is in violation of a condition of the grant,
loan, or applicable Federal law, the Administrator may--
``(A) terminate the grant or loan;
``(B) require the person to repay any funds received; and
``(C) seek any other legal remedies available to the
Administrator.
``(4) Report to congress.--Not later than 3 years after the
date of enactment of this section, the Inspector General of
the Environmental Protection Agency shall submit to Congress
a report that provides a description of the management of the
program (including a description of the allocation of funds
under this section).
``(h) Leveraging.--An eligible entity that receives a grant
under this section may use the grant funds for a portion of a
project at a brownfield site for which funding is received
from other sources if the grant funds are used only for the
purposes described in subsection (b) or (c).
``(i) Agreements.--Each grant or loan made under this
section shall--
``(1) include a requirement of the National Contingency
Plan only to the extent that the requirement is relevant and
appropriate to the program under this section, as determined
by the Administrator; and
``(2) be subject to an agreement that--
``(A) requires the recipient to--
``(i) comply with all applicable Federal and State laws;
and
``(ii) ensure that the cleanup protects human health and
the environment;
``(B) requires that the recipient use the grant or loan
exclusively for purposes specified in subsection (b) or (c),
as applicable;
``(C) in the case of an application by an eligible entity
under subsection (c)(1), requires the eligible entity to pay
a matching share (which may be in the form of a contribution
of labor, material, or services) of at least 20 percent, from
non-Federal sources of funding, unless the Administrator
determines that the matching share would place an undue
hardship on the eligible entity; and
``(D) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
section.
``(j) Facility Other Than Brownfield Site.--The fact that a
facility may not be a brownfield site within the meaning of
section 101(39)(A) has no effect on the eligibility of the
facility for assistance under any other provision of Federal
law.
``(k) Effect on Federal Laws.--Nothing in this section
affects any liability or response authority under any Federal
law, including--
``(1) this Act (including the last sentence of section
101(14));
``(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
``(l) Funding.--
``(1) Authorization of appropriations.--There is authorized
to be appropriated to carry out this section $200,000,000 for
each of fiscal years 2002 through 2006.
``(2) Use of certain funds.--Of the amount made available
under paragraph (1), $50,000,000, or, if the amount made
available is less than $200,000,000, 25 percent of the amount
made available, shall be used for site characterization,
assessment, and remediation of facilities described in
section 101(39)(D)(ii)(II).''.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
SEC. 201. CONTIGUOUS PROPERTIES.
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 real property that is
contiguous to or otherwise similarly situated with respect
to, and that is or may be contaminated by a release or
threatened release of a hazardous substance from, real
property that is not owned by that person 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--
``(I) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through any direct or indirect familial relationship
or any contractual, corporate, or financial relationship
(other than a contractual, corporate, or financial
relationship that is created by a contract for the sale of
goods or services); or
``(II) the result of a reorganization of a business entity
that was potentially liable;
``(iii) the person takes reasonable steps to--
``(I) stop any continuing release;
``(II) prevent any threatened future release; and
[[Page S3910]]
``(III) prevent or limit human, environmental, or natural
resource exposure to any hazardous substance released on or
from property owned by that person;
``(iv) the person provides full cooperation, assistance,
and access to persons that are authorized to conduct response
actions or natural resource restoration at the vessel or
facility from which there has been a release or threatened
release (including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of
any complete or partial response action or natural resource
restoration at the vessel or facility);
``(v) the person--
``(I) is in compliance with any land use restrictions
established or relied on in connection with the response
action at the facility; and
``(II) does not impede the effectiveness or integrity of
any institutional control employed in connection with a
response action;
``(vi) the person is in compliance with any request for
information or administrative subpoena issued by the
President under this Act;
``(vii) the person provides all legally required notices
with respect to the discovery or release of any hazardous
substances at the facility; and
``(viii) at the time at which the person acquired the
property, the person--
``(I) conducted all appropriate inquiry within the meaning
of section 101(35)(B) with respect to the property; and
``(II) did not know or have reason to know that the
property was or could be contaminated by a release or
threatened release of 1 or more hazardous substances from
other real property not owned or operated by the person.
``(B) Demonstration.--To qualify as a person described in
subparagraph (A), a person must establish by a preponderance
of the evidence that the conditions in clauses (i) through
(viii) of subparagraph (A) have been met.
``(C) Bona fide prospective purchaser.--Any person that
does not qualify as a person described in this paragraph
because the person had, or had reason to have, knowledge
specified in subparagraph (A)(viii) at the time of
acquisition of the real property may qualify as a bona fide
prospective purchaser under section 101(40) if the person is
otherwise described in that section.
``(D) Ground water.--With respect to a hazardous substance
from 1 or more sources that are not on the property of a
person that is a contiguous property owner that enters ground
water beneath the property of the person solely as a result
of subsurface migration in an aquifer, subparagraph (A)(iii)
shall not require the person to conduct ground water
investigations or to install ground water remediation
systems, except in accordance with the policy of the
Environmental Protection Agency concerning owners of property
containing contaminated aquifers, dated May 24, 1995.
``(2) Effect of law.--With respect to a person described in
this subsection, nothing in this subsection--
``(A) limits any defense to liability that may be available
to the person under any other provision of law; or
``(B) imposes liability on the person that is not otherwise
imposed by subsection (a).
``(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).''.
SEC. 202. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.
(a) Definition of Bona Fide Prospective Purchaser.--Section
101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601) (as
amended by section 101(a)) is amended by adding at the end
the following:
``(40) Bona fide prospective purchaser.--The term `bona
fide prospective purchaser' means a person (or a tenant of a
person) that acquires ownership of a facility after the date
of enactment of this paragraph and that establishes each of
the following by a preponderance of the evidence:
``(A) Disposal prior to acquisition.--All disposal 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 in accordance with generally accepted good
commercial and customary standards and practices in
accordance with clauses (ii) and (iii).
``(ii) Standards and practices.--The standards and
practices referred to in clauses (ii) and (iv) of paragraph
(35)(B) shall be considered to satisfy the requirements of
this subparagraph.
``(iii) Residential use.--In the case of property in
residential or other similar use at the time of purchase 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 provides all legally required
notices with respect to the discovery or release of any
hazardous substances at the facility.
``(D) Care.--The person exercises appropriate care with
respect to hazardous substances found at the facility by
taking reasonable steps to--
``(i) stop any continuing release;
``(ii) prevent any threatened future release; and
``(iii) prevent or limit human, environmental, or natural
resource exposure to any previously released hazardous
substance.
``(E) Cooperation, assistance, and access.--The person
provides full cooperation, assistance, and access to persons
that are authorized to conduct response actions or natural
resource restoration at a vessel or facility (including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete or
partial response actions or natural resource restoration at
the vessel or facility).
``(F) Institutional control.--The person--
``(i) is in compliance with any land use restrictions
established or relied on in connection with the response
action at a vessel or facility; and
``(ii) does not impede the effectiveness or integrity of
any institutional control employed at the vessel or facility
in connection with a response action.
``(G) Requests; subpoenas.--The person complies with any
request for information or administrative subpoena issued by
the President under this Act.
``(H) No affiliation.--The person is not--
``(i) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through--
``(I) any direct or indirect familial relationship; or
``(II) any contractual, corporate, or financial
relationship (other than a contractual, corporate, or
financial relationship that is created by the instruments by
which title to the facility is conveyed or financed or by a
contract for the sale of goods or services); or
``(ii) the result of a reorganization of a business entity
that was potentially liable.''.
(b) Prospective Purchaser and Windfall Lien.--Section 107
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607) (as amended by
section 201) is amended by adding at the end the following:
``(p) Prospective Purchaser and Windfall Lien.--
``(1) Limitation on liability.--Notwithstanding subsection
(a)(1), a bona fide prospective purchaser whose potential
liability for a release or threatened release is based solely
on the purchaser's being considered to be an owner or
operator of a facility shall not be liable as long as the
bona fide prospective purchaser does not impede the
performance of a response action or natural resource
restoration.
``(2) Lien.--If there are unrecovered response costs
incurred by the United States at a facility for which an
owner of the facility is not liable by reason of paragraph
(1), and if each of the conditions described in paragraph (3)
is met, the United States shall have a lien on the facility,
or may by agreement with the owner, obtain from the owner a
lien on any other property or other assurance of payment
satisfactory to the Administrator, for the unrecovered
response costs.
``(3) Conditions.--The conditions referred to in paragraph
(2) are the following:
``(A) Response action.--A response action for which there
are unrecovered costs of the United States is carried out at
the facility.
``(B) Fair market value.--The response action increases the
fair market value of the facility above the fair market value
of the facility that existed before the response action was
initiated.
``(4) Amount; duration.--A lien under paragraph (2)--
``(A) shall be in an amount not to exceed the increase in
fair market value of the property attributable to the
response action at the time of a sale or other disposition of
the property;
``(B) shall arise at the time at which costs are first
incurred by the United States with respect to a response
action at the facility;
``(C) shall be subject to the requirements of subsection
(l)(3); and
``(D) shall continue until the earlier of--
``(i) satisfaction of the lien by sale or other means; or
``(ii) notwithstanding any statute of limitations under
section 113, recovery of all response costs incurred at the
facility.''.
SEC. 203. INNOCENT LANDOWNERS.
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 first sentence, in the matter preceding clause
(i), by striking ``deeds or'' and inserting ``deeds,
easements, leases, or''; and
(B) in the second sentence--
(i) by striking ``he'' and inserting ``the defendant''; and
(ii) by striking the period at the end and inserting ``,
provides full cooperation, assistance, and facility access to
the persons that are authorized to conduct 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), is in compliance with any land use restrictions
established or relied on in connection with the response
action at a facility, and does not impede the effectiveness
or integrity of any institutional control employed at the
facility in connection with a response action.''; and
(2) by striking subparagraph (B) and inserting the
following:
[[Page S3911]]
``(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 demonstrate to a
court that--
``(I) on or before the date on which the defendant acquired
the facility, the defendant carried out all appropriate
inquiries, as provided in clauses (ii) and (iv), 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 took reasonable steps to--
``(aa) stop any continuing release;
``(bb) prevent any threatened future release; and
``(cc) prevent or limit any human, environmental, or
natural resource exposure to any previously released
hazardous substance.
``(ii) Standards and practices.--Not later than 2 years
after the date of enactment of the Brownfields Revitalization
and Environmental Restoration Act of 2001, the Administrator
shall by regulation establish standards and practices for the
purpose of satisfying the requirement to carry out all
appropriate inquiries under clause (i).
``(iii) Criteria.--In promulgating regulations that
establish the standards and practices referred to in clause
(ii), the Administrator shall include each of the following:
``(I) The results of an inquiry by an environmental
professional.
``(II) Interviews with past and present owners, operators,
and occupants of the facility for the purpose of gathering
information regarding the potential for contamination at the
facility.
``(III) 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.
``(IV) Searches for recorded environmental cleanup liens
against the facility that are filed under Federal, State, or
local law.
``(V) Reviews of Federal, State, and local government
records, waste disposal records, underground storage tank
records, and hazardous waste handling, generation, treatment,
disposal, and spill records, concerning contamination at or
near the facility.
``(VI) Visual inspections of the facility and of adjoining
properties.
``(VII) Specialized knowledge or experience on the part of
the defendant.
``(VIII) The relationship of the purchase price to the
value of the property, if the property was not contaminated.
``(IX) Commonly known or reasonably ascertainable
information about the property.
``(X) The degree of obviousness of the presence or likely
presence of contamination at the property, and the ability to
detect the contamination by appropriate investigation.
``(iv) Interim standards and practices.--
``(I) Property purchased before may 31, 1997.--With respect
to property purchased before May 31, 1997, in making a
determination with respect to a defendant described of clause
(i), a court shall take into account--
``(aa) any specialized knowledge or experience on the part
of the defendant;
``(bb) the relationship of the purchase price to the value
of the property, if the property was not contaminated;
``(cc) commonly known or reasonably ascertainable
information about the property;
``(dd) the obviousness of the presence or likely presence
of contamination at the property; and
``(ee) the ability of the defendant to detect the
contamination by appropriate inspection.
``(II) Property purchased on or after may 31, 1997.--With
respect to property purchased on or after May 31, 1997, and
until the Administrator promulgates the regulations described
in clause (ii), the procedures of the American Society for
Testing and Materials, including the document known as
`Standard E1527-97', entitled `Standard Practice for
Environmental Site Assessment: Phase 1 Environmental Site
Assessment Process', shall satisfy the requirements in clause
(i).
``(v) 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.''.
TITLE III--STATE RESPONSE PROGRAMS
SEC. 301. STATE RESPONSE PROGRAMS.
(a) Definitions.--Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601) (as amended by section 202) is amended
by adding at the end the following:
``(41) Eligible response site.--
``(A) In general.--The term `eligible response site' means
a site that meets the definition of a brownfield site in
subparagraphs (A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
``(B) Inclusions.--The term `eligible response site'
includes--
``(i) notwithstanding paragraph (39)(B)(ix), 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; or
``(ii) a site for which, notwithstanding the exclusions
provided in subparagraph (C) or paragraph (39)(B), the
President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement
under section 129 at sites specified in clause (iv), (v),
(vi) or (viii) of paragraph (39)(B) would be appropriate and
will--
``(I) protect human health and the environment; and
``(II) promote economic development or facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
``(C) Exclusions.--The term `eligible response site' does
not include--
``(i) a facility for which the President--
``(I) conducts or has conducted a preliminary assessment or
site inspection; and
``(II) after consultation with the State, determines or has
determined that the site obtains a preliminary score
sufficient for possible listing on the National Priorities
List, or that the site otherwise qualifies for listing on the
National Priorities List;
unless the President has made a determination that no further
Federal action will be taken; or
``(ii) facilities that the President determines warrant
particular consideration as identified by regulation, such as
sites posing a threat to a sole-source drinking water aquifer
or a sensitive ecosystem.''.
(b) 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(b))
is amended by adding at the end the following:
``SEC. 129. STATE RESPONSE PROGRAMS.
``(a) Assistance to States.--
``(1) In general.--
``(A) States.--The Administrator may award a grant to a
State or Indian tribe that--
``(i) has a response program that includes each of the
elements, or is taking reasonable steps to include each of
the elements, listed in paragraph (2); or
``(ii) is a party to a memorandum of agreement with the
Administrator for voluntary response programs.
``(B) Use of grants by states.--
``(i) In general.--A State or Indian tribe may use a grant
under this subsection to establish or enhance the response
program of the State or Indian tribe.
``(ii) Additional uses.--In addition to the uses under
clause (i), a State or Indian tribe may use a grant under
this subsection to--
``(I) capitalize a revolving loan fund for brownfield
remediation under section 128(c); or
``(II) purchase insurance or develop a risk sharing pool,
an indemnity pool, or insurance mechanism to provide
financing for response actions under a State response
program.
``(2) Elements.--The elements of a State or Indian tribe
response program referred to in paragraph (1)(A)(i) are the
following:
``(A) Timely survey and inventory of brownfield sites in
the State.
``(B) Oversight and enforcement authorities or other
mechanisms, and resources, that are adequate to ensure that--
``(i) a response action will--
``(I) protect human health and the environment; and
``(II) be conducted in accordance with applicable Federal
and State law; and
``(ii) if the person conducting the response action fails
to complete the necessary response activities, including
operation and maintenance or long-term monitoring activities,
the necessary response activities are completed.
``(C) Mechanisms and resources to provide meaningful
opportunities for public participation, including--
``(i) public access to documents that the State, Indian
tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site
activities;
``(ii) prior notice and opportunity for comment on proposed
cleanup plans and site activities; and
``(iii) a mechanism by which--
``(I) a person that is or may be affected by a release or
threatened release of a hazardous substance, pollutant, or
contaminant at a brownfield site located in the community in
which the person works or resides may request the conduct of
a site assessment; and
``(II) an appropriate State official shall consider and
appropriately respond to a request under subclause (I).
``(D) Mechanisms for approval of a cleanup plan, and a
requirement for verification by and certification or similar
documentation from the State, an Indian tribe, or a licensed
site professional to the person conducting a response action
indicating that the response is complete.
``(3) Funding.--There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of fiscal
years 2002 through 2006.
``(b) Enforcement in Cases of a Release Subject to State
Program.--
``(1) Enforcement.--
``(A) In general.-- Except as provided in subparagraph (B)
and subject to subparagraph (C), in the case of an eligible
response site at which--
``(i) there is a release or threatened release of a
hazardous substance, pollutant, or contaminant; and
[[Page S3912]]
``(ii) a person is conducting or has completed a response
action regarding the specific release that is addressed by
the response action that is in compliance with the State
program that specifically governs response actions for the
protection of public health and the environment;
the President may not use authority under this Act to take an
administrative or judicial enforcement action under section
106(a) or to take a judicial enforcement action to recover
response costs under section 107(a) against the person
regarding the specific release that is addressed by the
response action.
``(B) Exceptions.--The President may bring an
administrative or judicial enforcement action under this Act
during or after completion of a response action described in
subparagraph (A) with respect to a release or threatened
release at an eligible response site described in that
subparagraph if--
``(i) the State requests that the President provide
assistance in the performance of a response action;
``(ii) the Administrator determines that contamination has
migrated or will migrate across a State line, resulting in
the need for further response action to protect human health
or the environment, or the President determines that
contamination has migrated or is likely to migrate onto
property subject to the jurisdiction, custody, or control of
a department, agency, or instrumentality of the United States
and may impact the authorized purposes of the Federal
property;
``(iii) after taking into consideration the response
activities already taken, the Administrator determines that--
``(I) a release or threatened release may present an
imminent and substantial endangerment to public health or
welfare or the environment; and
``(II) additional response actions are likely to be
necessary to address, prevent, limit, or mitigate the release
or threatened release; or
``(iv) the Administrator, after consultation with the
State, determines that information, that on the earlier of
the date on which cleanup was approved or completed, was not
known by the State, as recorded in documents prepared or
relied on in selecting or conducting the cleanup, has been
discovered regarding the contamination or conditions at a
facility such that the contamination or conditions at the
facility present a threat requiring further remediation to
protect public health or welfare or the environment.
Consultation with the State shall not limit the ability of
the Administrator to make this determination.
``(C) Public record.--The limitations on the authority of
the President under subparagraph (A) apply only at sites in
States that maintain, update not less than annually, and make
available to the public a record of sites, by name and
location, at which response actions have been completed in
the previous year and are planned to be addressed under the
State program that specifically governs response actions for
the protection of public health and the environment in the
upcoming year. The public record shall identify whether or
not the site, on completion of the response action, will be
suitable for unrestricted use and, if not, shall identify the
institutional controls relied on in the remedy. Each State
and tribe receiving financial assistance under subsection (a)
shall maintain and make available to the public a record of
sites as provided in this paragraph.
``(D) EPA notification.--
``(i) In general.--In the case of an eligible response site
at which there is a release or threatened release of a
hazardous substance, pollutant, or contaminant and for which
the Administrator intends to carry out an action that may be
barred under subparagraph (A), the Administrator shall--
``(I) notify the State of the action the Administrator
intends to take; and
``(II)(aa) wait 48 hours for a reply from the State under
clause (ii); or
``(bb) if the State fails to reply to the notification or
if the Administrator makes a determination under clause
(iii), take immediate action under that clause.
``(ii) State reply.--Not later than 48 hours after a State
receives notice from the Administrator under clause (i), the
State shall notify the Administrator if--
``(I) the release at the eligible response site is or has
been subject to a cleanup conducted under a State program;
and
``(II) the State is planning to abate the release or
threatened release, any actions that are planned.
``(iii) Immediate federal action.--The Administrator may
take action immediately after giving notification under
clause (i) without waiting for a State reply under clause
(ii) if the Administrator determines that 1 or more
exceptions under subparagraph (B) are met.
``(E) Report to congress.--Not later than 90 days after the
date of initiation of any enforcement action by the President
under clause (ii), (iii), or (iv) of subparagraph (B), the
President shall submit to Congress a report describing the
basis for the enforcement action, including specific
references to the facts demonstrating that enforcement action
is permitted under subparagraph (B).
``(2) Savings provision.--
``(A) Costs incurred prior to limitations.--Nothing in
paragraph (1) precludes the President from seeking to recover
costs incurred prior to the date of enactment of this section
or during a period in which the limitations of paragraph
(1)(A) were not applicable.
``(B) Effect on agreements between states and epa.--Nothing
in paragraph (1)--
``(i) modifies or otherwise affects a memorandum of
agreement, memorandum of understanding, or any similar
agreement relating to this Act between a State agency or an
Indian tribe and the Administrator that is in effect on or
before the date of enactment of this section (which agreement
shall remain in effect, subject to the terms of the
agreement); or
``(ii) limits the discretionary authority of the President
to enter into or modify an agreement with a State, an Indian
tribe, or any other person relating to the implementation by
the President of statutory authorities.
``(3) Effective date.--This subsection applies only to
response actions conducted after February 15, 2001.
``(c) Effect on Federal Laws.--Nothing in this section
affects any liability or response authority under any Federal
law, including--
``(1) this Act, except as provided in subsection (b);
``(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(5) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).''.
SEC. 302. ADDITIONS TO NATIONAL PRIORITIES LIST.
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605) is
amended by adding at the end the following:
``(h) NPL Deferral.--
``(1) Deferral to state voluntary cleanups.--At the request
of a State and subject to paragraphs (2) and (3), the
President generally shall defer final listing of an eligible
response site on the National Priorities List if the
President determines that--
``(A) the State, or another party under an agreement with
or order from the State, is conducting a response action at
the eligible response site--
``(i) in compliance with a State program that specifically
governs response actions for the protection of public health
and the environment; and
``(ii) that will provide long-term protection of human
health and the environment; or
``(B) the State is actively pursuing an agreement to
perform a response action described in subparagraph (A) at
the site with a person that the State has reason to believe
is capable of conducting a response action that meets the
requirements of subparagraph (A).
``(2) Progress toward cleanup.--If, after the last day of
the 1-year period beginning on the date on which the
President proposes to list an eligible response site on the
National Priorities List, the President determines that the
State or other party is not making reasonable progress toward
completing a response action at the eligible response site,
the President may list the eligible response site on the
National Priorities List.
``(3) Cleanup agreements.--With respect to an eligible
response site under paragraph (1)(B), if, after the last day
of the 1-year period beginning on the date on which the
President proposes to list the eligible response site on the
National Priorities List, an agreement described in paragraph
(1)(B) has not been reached, the President may defer the
listing of the eligible response site on the National
Priorities List for an additional period of not to exceed 180
days if the President determines deferring the listing would
be appropriate based on--
``(A) the complexity of the site;
``(B) substantial progress made in negotiations; and
``(C) other appropriate factors, as determined by the
President.
``(4) Exceptions.--The President may decline to defer, or
elect to discontinue a deferral of, a listing of an eligible
response site on the National Priorities List if the
President determines that--
``(A) deferral would not be appropriate because the State,
as an owner or operator or a significant contributor of
hazardous substances to the facility, is a potentially
responsible party;
``(B) the criteria under the National Contingency Plan for
issuance of a health advisory have been met; or
``(C) the conditions in paragraphs (1) through (3), as
applicable, are no longer being met.''.
Mr. SMITH of New Hampshire. Madam President, I move to reconsider the
vote, and I move to lay that motion on the table.
The motion to lay on the table was agreed to.
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