[Congressional Record Volume 147, Number 177 (Wednesday, December 19, 2001)]
[House]
[Pages H10893-H10904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SMALL BUSINESS LIABILITY PROTECTION ACT
Mr. GILLMOR. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 2869) to provide certain relief for small businesses from
liability under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, and to amend such Act to promote the cleanup
and resuse of brownfields, to provide financial assistance for
brownfields revitalization, to enhance State response programs, and for
other purposes, as amended.
The Clerk read as follows:
H.R. 2869
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Small Business Liability
Relief and Brownfields Revitalization Act''.
TITLE I--SMALL BUSINESS LIABILITY PROTECTION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Small Business Liability
Protection Act''.
SEC. 102. SMALL BUSINESS LIABILITY RELIEF.
(a) Exemptions.--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 new subsections:
``(o) De Micromis Exemption.--
``(1) In general.--Except as provided in paragraph (2), a
person shall not be liable, with respect to response costs at
a facility on the National Priorities List, under this Act if
liability is based solely on paragraph (3) or (4) of
subsection (a), and the person, except as provided in
paragraph (4) of this subsection, can demonstrate that--
``(A) the total amount of the material containing hazardous
substances that the person arranged for disposal or treatment
of, arranged with a transporter for transport for disposal or
treatment of, or accepted for transport for disposal or
treatment, at the facility was less than 110 gallons of
liquid materials or less than 200 pounds of solid materials
(or such greater or lesser amounts as the Administrator may
determine by regulation); and
``(B) all or part of the disposal, treatment, or transport
concerned occurred before April 1, 2001.
``(2) Exceptions.--Paragraph (1) shall not apply in a case
in which--
``(A) the President determines that--
``(i) the materials containing hazardous substances
referred to in paragraph (1) have contributed significantly
or could contribute significantly, either individually or in
the aggregate, to the cost of the response action or natural
resource restoration with respect to the facility; or
``(ii) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this Act or has impeded or is impeding, through action
or inaction, the performance of a response action or natural
resource restoration with respect to the facility; or
``(B) a person has been convicted of a criminal violation
for the conduct to which the exemption would apply, and that
conviction has not been vitiated on appeal or otherwise.
``(3) No judicial review.--A determination by the President
under paragraph (2)(A) shall not be subject to judicial
review.
``(4) Nongovernmental third-party contribution actions.--In
the case of a contribution action, with respect to response
costs at a facility on the National Priorities List, brought
by a party, other than a Federal, State, or local government,
under this Act, the burden of proof shall be on the party
bringing the action to demonstrate that the conditions
described in paragraph (1)(A) and (B) of this subsection are
not met.
``(p) Municipal Solid Waste Exemption.--
``(1) In general.--Except as provided in paragraph (2) of
this subsection, a person shall not be liable, with respect
to response costs at a facility on the National Priorities
List, under paragraph (3) of subsection (a) for municipal
solid waste disposed of at a facility if the person, except
as provided in paragraph (5) of this subsection, can
demonstrate that the person is--
``(A) an owner, operator, or lessee of residential property
from which all of the person's municipal solid waste was
generated with respect to the facility;
``(B) a business entity (including a parent, subsidiary, or
affiliate of the entity) that, during its 3 taxable years
preceding the date of transmittal of written notification
from the President of its potential liability under this
section, employed on average not more than 100 full-time
individuals, or the equivalent thereof, and that is a small
business concern (within the meaning of the Small Business
Act (15 U.S.C. 631 et seq.)) from which was generated all of
the municipal solid waste attributable to the entity with
respect to the facility; or
``(C) an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code that, during its taxable year
preceding the date of transmittal of written notification
from the President of its potential liability under this
section, employed not more than 100 paid individuals at the
location from which was generated all of the municipal solid
waste attributable to the organization with respect to the
facility.
For purposes of this subsection, the term `affiliate' has the
meaning of that term provided in the definition of `small
business concern' in regulations promulgated by the Small
Business Administration in accordance with the Small Business
Act (15 U.S.C. 631 et seq.).
``(2) Exception.--Paragraph (1) shall not apply in a case
in which the President determines that--
``(A) the municipal solid waste referred to in paragraph
(1) has contributed significantly or could contribute
significantly, either individually or in the aggregate, to
the cost of the response action or natural resource
restoration with respect to the facility;
``(B) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this Act; or
``(C) the person has impeded or is impeding, through action
or inaction, the performance of a response action or natural
resource restoration with respect to the facility.
``(3) No judicial review.--A determination by the President
under paragraph (2) shall not be subject to judicial review.
``(4) Definition of municipal solid waste.--
``(A) In general.--For purposes of this subsection, the
term `municipal solid waste' means waste material--
``(i) generated by a household (including a single or
multifamily residence); and
``(ii) generated by a commercial, industrial, or
institutional entity, to the extent that the waste material--
``(I) is essentially the same as waste normally generated
by a household;
``(II) is collected and disposed of with other municipal
solid waste as part of normal municipal solid waste
collection services; and
``(III) contains a relative quantity of hazardous
substances no greater than the relative quantity of hazardous
substances contained in waste material generated by a typical
single-family household.
``(B) Examples.--Examples of municipal solid waste under
subparagraph (A) include food and yard waste, paper,
clothing, appliances, consumer product packaging, disposable
diapers, office supplies, cosmetics, glass and metal food
containers, elementary or secondary school science laboratory
waste, and household hazardous waste.
``(C) Exclusions.--The term `municipal solid waste' does
not include--
``(i) combustion ash generated by resource recovery
facilities or municipal incinerators; or
``(ii) waste material from manufacturing or processing
operations (including pollution control operations) that is
not essentially the same as waste normally generated by
households.
``(5) Burden of proof.--In the case of an action, with
respect to response costs at a facility on the National
Priorities List, brought under section 107 or 113 by--
``(A) a party, other than a Federal, State, or local
government, with respect to municipal solid waste disposed of
on or after April 1, 2001; or
``(B) any party with respect to municipal solid waste
disposed of before April 1, 2001, the burden of proof shall
be on the party bringing the action to demonstrate that the
conditions described in paragraphs (1) and (4) for exemption
for entities and organizations described in paragraph (1)(B)
and (C) are not met.
``(6) Certain actions not permitted.--No contribution
action may be brought by a party, other than a Federal,
State, or local government, under this Act with respect to
circumstances described in paragraph (1)(A).
``(7) Costs and fees.--A nongovernmental entity that
commences, after the date of the enactment of this
subsection, a contribution action under this Act shall be
liable to the defendant for all reasonable costs of defending
the action, including all reasonable attorney's fees and
expert witness fees, if the defendant is not liable for
contribution based on an exemption under this subsection or
subsection (o).''.
(b) Expedited Settlement.--Section 122(g) of such Act (42
U.S.C. 9622(g)) is amended by adding at the end the following
new paragraphs:
``(7) Reduction in settlement amount based on limited
ability to pay.--
``(A) In general.--The condition for settlement under this
paragraph is that the potentially responsible party is a
person who demonstrates to the President an inability or a
limited ability to pay response costs.
``(B) Considerations.--In determining whether or not a
demonstration is made under subparagraph (A) by a person, the
President shall take into consideration the ability of the
person to pay response costs
[[Page H10894]]
and still maintain its basic business operations, including
consideration of the overall financial condition of the
person and demonstrable constraints on the ability of the
person to raise revenues.
``(C) Information.--A person requesting settlement under
this paragraph shall promptly provide the President with all
relevant information needed to determine the ability of the
person to pay response costs.
``(D) Alternative payment methods.--If the President
determines that a person is unable to pay its total
settlement amount at the time of settlement, the President
shall consider such alternative payment methods as may be
necessary or appropriate.
``(8) Additional conditions for expedited settlements.--
``(A) Waiver of claims.--The President shall require, as a
condition for settlement under this subsection, that a
potentially responsible party waive all of the claims
(including a claim for contribution under this Act) that the
party may have against other potentially responsible parties
for response costs incurred with respect to the facility,
unless the President determines that requiring a waiver would
be unjust.
``(B) Failure to comply.--The President may decline to
offer a settlement to a potentially responsible party under
this subsection if the President determines that the
potentially responsible party has failed to comply with any
request for access or information or an administrative
subpoena issued by the President under this Act or has
impeded or is impeding, through action or inaction, the
performance of a response action with respect to the
facility.
``(C) Responsibility to provide information and access.--A
potentially responsible party that enters into a settlement
under this subsection shall not be relieved of the
responsibility to provide any information or access requested
in accordance with subsection (e)(3)(B) or section 104(e).
``(9) Basis of determination.--If the President determines
that a potentially responsible party is not eligible for
settlement under this subsection, the President shall provide
the reasons for the determination in writing to the
potentially responsible party that requested a settlement
under this subsection.
``(10) Notification.--As soon as practicable after receipt
of sufficient information to make a determination, the
President shall notify any person that the President
determines is eligible under paragraph (1) of the person's
eligibility for an expedited settlement.
``(11) No judicial review.--A determination by the
President under paragraph (7), (8), (9), or (10) shall not be
subject to judicial review.
``(12) Notice of settlement.--After a settlement under this
subsection becomes final with respect to a facility, the
President shall promptly notify potentially responsible
parties at the facility that have not resolved their
liability to the United States of the settlement.''.
SEC. 103. EFFECT ON CONCLUDED ACTIONS.
The amendments made by this title shall not apply to or in
any way affect any settlement lodged in, or judgment issued
by, a United States District Court, or any administrative
settlement or order entered into or issued by the United
States or any State, before the date of the enactment of this
Act.
TITLE II--BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``Brownfields Revitalization
and Environmental Restoration Act of 2001''.
Subtitle A--Brownfields Revitalization Funding
SEC. 211. 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.
``(C) Site-by-site determinations.--Notwithstanding
subparagraph (B) and on a site-by-site basis, the President
may authorize financial assistance under section 104(k) 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
104(k), 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.--Section 104 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9604) is amended by adding
at the end the following:
``(k) Brownfields Revitalization Funding.--
``(1) Definition of eligible entity.--In this subsection,
the term `eligible entity' means--
``(A) a general purpose unit of local government;
``(B) 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;
``(C) a government entity created by a State legislature;
``(D) a regional council or group of general purpose units
of local government;
``(E) a redevelopment agency that is chartered or otherwise
sanctioned by a State;
``(F) a State;
``(G) an Indian Tribe other than in Alaska, or
``(H) an Alaska Native Regional Corporation and an Alaska
Native Village Corporation as those terms are defined in the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 and
following) and the Metlakatla Indian community.
``(2) Brownfield site characterization and assessment grant
program.--
``(A) Establishment of program.--The Administrator shall
establish a program to--
``(i) provide grants to inventory, characterize, assess,
and conduct planning related to brownfield sites under
subparagraph (B); and
``(ii) perform targeted site assessments at brownfield
sites.
``(B) Assistance for site characterization and
assessment.--
``(i) 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.
``(ii) Site characterization and assessment.--A site
characterization and assessment carried out with the use of a
grant under clause (i) shall be performed in accordance with
section 101(35)(B).
``(3) Grants and loans for brownfield remediation.--
``(A) Grants provided by the president.--Subject to
paragraphs (4) and (5), the President shall establish a
program to provide grants to--
[[Page H10895]]
``(i) eligible entities, to be used for capitalization of
revolving loan funds; and
``(ii) eligible entities or nonprofit organizations, where
warranted, as determined by the President based on
considerations under subparagraph (C), 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.
``(B) Loans and grants provided by eligible entities.--An
eligible entity that receives a grant under subparagraph
(A)(i) shall use the grant funds to provide assistance for
the remediation of brownfield sites in the form of--
``(i) 1 or more loans to an eligible entity, a site owner,
a site developer, or another person; or
``(ii) 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 subparagraph (C), to remediate sites
owned by the eligible entity or nonprofit organization that
receives the grant.
``(C) Considerations.--In determining whether a grant under
subparagraph (A)(ii) or (B)(ii) is warranted, the President
or the eligible entity, as the case may be, shall take into
consideration--
``(i) 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;
``(ii) 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;
``(iii) the extent to which a grant will facilitate the use
or reuse of existing infrastructure;
``(iv) the benefit of promoting the long-term availability
of funds from a revolving loan fund for brownfield
remediation; and
``(v) such other similar factors as the Administrator
considers appropriate to consider for the purposes of this
subsection.
``(D) Transition.--Revolving loan funds that have been
established before the date of enactment of this subsection
may be used in accordance with this paragraph.
``(4) General provisions.--
``(A) Maximum grant amount.--
``(i) Brownfield site characterization and assessment.--
``(I) In general.--A grant under paragraph (2) may be
awarded to an eligible entity on a community-wide or site-by-
site basis, and 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 subclause (I) 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.
``(ii) Brownfield remediation.--A grant under paragraph
(3)(A)(i) 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. The Administrator may make an
additional grant to an eligible entity described in the
previous sentence 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 subsection;
``(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 subsection.
``(B) Prohibition.--
``(i) In general.--No part of a grant or loan under this
subsection 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.
``(ii) Exclusions.--For the purposes of clause (i)(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.
``(C) Assistance for development of local government site
remediation programs.--A local government that receives a
grant under this subsection may use not to exceed 10 percent
of the grant funds to develop and implement a brownfields
program that may include--
``(i) monitoring the health of populations exposed to 1 or
more hazardous substances from a brownfield site; and
``(ii) monitoring and enforcement of any institutional
control used to prevent human exposure to any hazardous
substance from a brownfield site.
``(D) Insurance.--A recipient of a grant or loan awarded
under paragraph (2) or (3) 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.
``(5) Grant applications.--
``(A) Submission.--
``(i) 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 subsection for
1 or more brownfield sites (including information on the
criteria used by the Administrator to rank applications under
subparagraph (C), to the extent that the information is
available).
``(II) NCP requirements.--The Administrator may include in
any requirement for submission of an application under
subclause (I) a requirement of the National Contingency Plan
only to the extent that the requirement is relevant and
appropriate to the program under this subsection.
``(ii) Coordination.--The Administrator shall coordinate
with other Federal agencies to assist in making eligible
entities aware of other available Federal resources.
``(iii) Guidance.--The Administrator shall publish guidance
to assist eligible entities in applying for grants under this
subsection.
``(B) Approval.--The Administrator shall--
``(i) at least annually, complete a review of applications
for grants that are received from eligible entities under
this subsection; and
``(ii) award grants under this subsection to eligible
entities that the Administrator determines have the highest
rankings under the ranking criteria established under
subparagraph (C).
``(C) Ranking criteria.--The Administrator shall establish
a system for ranking grant applications received under this
paragraph that includes the following criteria:
``(i) 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.
``(ii) 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.
``(iii) 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.
``(iv) The extent to which a grant would facilitate the use
or reuse of existing infrastructure.
``(v) 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.
``(vi) 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.
``(vii) The extent to which the applicant is eligible for
funding from other sources.
``(viii) The extent to which a grant will further the fair
distribution of funding between urban and nonurban areas.
``(ix) 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.
``(x) 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.
``(6) Implementation of brownfields programs.--
``(A) 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.
``(B) Funding restrictions.--The total Federal funds to be
expended by the Administrator under this paragraph shall not
exceed 15 percent of the total amount appropriated to carry
out this subsection in any fiscal year.
``(7) Audits.--
``(A) In general.--The Inspector General of the
Environmental Protection Agency shall conduct such reviews or
audits of grants and loans under this subsection as the
Inspector General considers necessary to carry out this
subsection.
``(B) Procedure.--An audit under this subparagraph shall be
conducted in accordance with the auditing procedures of the
General Accounting Office, including chapter 75 of title 31,
United States Code.
``(C) Violations.--If the Administrator determines that a
person that receives a grant or loan under this subsection
has violated or is in violation of a condition of the grant,
[[Page H10896]]
loan, or applicable Federal law, the Administrator may--
``(i) terminate the grant or loan;
``(ii) require the person to repay any funds received; and
``(iii) seek any other legal remedies available to the
Administrator.
``(D) Report to congress.--Not later than 3 years after the
date of enactment of this subsection, 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 subsection).
``(8) Leveraging.--An eligible entity that receives a grant
under this subsection 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 paragraph (2) or (3).
``(9) Agreements.--Each grant or loan made under this
subsection shall--
``(A) include a requirement of the National Contingency
Plan only to the extent that the requirement is relevant and
appropriate to the program under this subsection, as
determined by the Administrator; and
``(B) be subject to an agreement that--
``(i) 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;
``(ii) requires that the recipient use the grant or loan
exclusively for purposes specified in paragraph (2) or (3),
as applicable;
``(iii) in the case of an application by an eligible entity
under paragraph (3)(A), 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
``(iv) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
subsection.
``(10) 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.
``(11) Effect on federal laws.--Nothing in this subsection
affects any liability or response authority under any Federal
law, including--
``(A) this Act (including the last sentence of section
101(14));
``(B) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(C) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(D) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(E) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
``(12) Funding.--
``(A) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $200,000,000
for each of fiscal years 2002 through 2006.
``(B) Use of certain funds.--Of the amount made available
under subparagraph (A), $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).''.
Subtitle B--Brownfields Liability Clarifications
SEC. 221. 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:
``(q) 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. 222. 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 211(a) of this Act) 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;
[[Page H10897]]
``(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
this Act) is further amended by adding at the end the
following:
``(r) 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. 223. 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.''.
Subtitle C--State Response Programs
SEC. 231. 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 this Act) is further
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,
[[Page H10898]]
on a site-by-site basis and after consultation with the
State, that limitations on enforcement under section 128 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.) is amended by adding at the end
the following:
``SEC. 128. 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 104(k)(3); 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
``(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)--
[[Page H10899]]
``(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. 232. 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.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Ohio (Mr. Gillmor) and the gentleman from New Jersey (Mr. Pallone) each
will control 20 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Gillmor).
general leave
Mr. GILLMOR. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on the bill now under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. GILLMOR. Mr. Speaker, I ask unanimous consent that I may be
permitted to yield one-half of my time to the gentleman from Tennessee
(Mr. Duncan).
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. GILLMOR. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the bill before us, H.R. 2869, is the most important
reform of the Federal superfund program in the past 15 years.
0430
In fact, it will be the most significant environmental reform
legislation to pass Congress in several sessions. I am happy to see the
strong bipartisan support for this bill.
I want to thank the cosponsors, the gentleman from Michigan (Mr.
Dingell), the ranking member of the Committee on Energy and Commerce;
the gentleman from Louisiana (Mr. Tauzin); my colleagues on the
Subcommittee on Environment and Hazardous Materials, the gentleman from
New Jersey (Mr. Pallone); and I also want to single out the gentleman
from Illinois (Mr. Shimkus) for the extraordinary work that he has done
on the part of this bill dealing with small business liability, not
only in this session but in the last session.
This legislation deals with Superfund, which is the Nation's major
program dealing with dangerous hazardous waste sites. As good as the
goals of Superfund have been, the actual way this program has worked
has unfortunately been an example of what too frequently is wrong with
government programs.
Some responsible observers have estimated that as much as half of all
the money spent for Superfund goes not for cleaning up anything, but
goes for attorney fees and regulatory costs.
The legislation before us today reforms two very important parts of
Superfund. It provides relief for small businesses from Superfund
liability in a number of cases, and it reforms the brownfields program.
Earlier this year, I introduced and the House passed by a margin of
419 to nothing the small business liability reform legislation. That
legislation has not moved in the Senate, nor has it had any hearings.
Also earlier this year the Senate passed by a 99 to nothing vote a
brownfields reform bill. We have held several hearings on this
legislation in the Subcommittee on Environment and Hazardous Materials.
What this legislation before us today does is combine those two bills
in one package with the hope that we can facilitate getting those bills
adopted by Congress as soon as possible and on to the President's desk.
There are approximately 500,000 brownfield locations in this country.
Brownfield reform is necessary both to protect the environment and to
protect public safety. Too often today, current law produces an outcome
that is very anti-environment.
Several witnesses testified before our committee that fear of
liability kept them from cleaning up brownfields, and when people are
afraid to use a brownfield because of the expense, because of the
aggravation involved, they go out and acquire green spaces or virgin
land for development instead of safely cleaning up and developing a
brownfield.
At a minimum, reform is required to stop the unnecessary plowing up
of green spaces in farmlands so they can be covered with asphalt and
concrete.
I have been a Member of Congress for six terms, and throughout that
time I have heard from Members of both parties, of the public, of three
administrations talk about reforming Superfund, and it has yet to
happen. Hopefully, today's action will result in a piece of that
reform.
Among other things, the brownfields portion of the bill provides
money and incentives for State clean-ups, includes limits on Federal
enforcement, and protects contiguous property owners, prospective
buyers, and innocent landowners. It also creates more liability in the
brownfields program. The Senate passed a good bill. It is not perfect,
but the perfect should not be the enemy of the good.
The small business liability relief part of this legislation, which
passed earlier as H.R. 1831, that bill also enjoyed bipartisan support,
and it seeks to end 20 years' worth of anguish and anxiety for
individuals, for families, and for small business owners across our
country.
[[Page H10900]]
It seeks to address the problems of people like Barbara Williams of
Gettysburg, Pennsylvania, who has come before our committee in the past
to tell how her former restaurant, the Sunny Ray, became enmeshed in
the financial quagmire of Superfund liability because she threw chicken
bones and other ordinary trash in the local dump. That outcome is not
right, and it is not an isolated story.
Specifically, the bill before us provides relief to businesses of 100
people or less who should never have been brought into Superfund and
its resultant litigation. This legislation protects small businesses
which disposed of very small amounts of waste or ordinary garbage, and
it shelters small businesses from serious financial hardship by
offering the affected businesses expedited settlements. It does not
save any business from Superfund liability if their waste stream caused
serious environmental harm.
The bill provides an appropriate helping hand, while keeping the onus
on all businesses to be responsible stewards of our environment.
This legislation is supported by the Bush administration, the
National Federation of Independent Businesses, the Building and
Construction Trade Unions, the U.S. Conference of Mayors, the National
Association of Manufacturers, the Real Estate Round Table, including
the National Association of Realtors and many other groups.
I would urge all of my colleagues in the House to support the
legislation before us, which incorporates both brownfields reform and
small business liability reform.
Mr. Speaker, I reserve the balance of my time.
Mr. PALLONE. Mr. Speaker, I ask unanimous consent to yield 10 minutes
to the gentleman from Oregon (Mr. DeFazio), and that he may be
permitted to yield time, as well.
The SPEAKER pro tempore (Mr. Shimkus). Is there objection to the
request of the gentleman from New Jersey?
There was no objection.
Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I am pleased tonight that we are finally considering,
after much delay, H.R. 2869, the Small Business Liability Relief and
Brownfields Liability Act. The bill is actually a compilation of two
popular pieces of legislation.
The first half of the bill is verbatim the provisions of H.R. 1381,
the Small Business Protection ACt. This bill, which gives Superfund
liability exemptions for those small businesses that discarded ordinary
household waste, was favorably reported from our committee and passed
the House by a vote of 419 to zero on May 22 of this year.
The second half of the bill contains the provisions of S. 350, the
Brownfields Revitalization Act, which passed the Senate on April 25
this year by a vote of 99 to 0.
Brownfields are a relatively recent complex and dynamic area of
public policy. Government at all levels, local, State, and Federal, is
grappling with liability, environmental and cost issues caused by
brownfields reclamation, and is taking steps to resolve them.
Despite the popular image of brownfields as an urban problem they are
found in suburbs and rural areas, too. In my home State of New Jersey,
which is heavily affected probably with more brown field sites than any
State in the Nation, but New Jersey, for that reason, has taken a
leadership role in developing regulatory and funding tools for cleaning
up brownfields.
The ability to reuse brownfields is important in implementing a smart
growth agenda because it blunts pressures to develop untouched green
spaces, and therefore helps contain sprawl.
However, brownfields redevelopment is also important because of the
public policy perspective, which is essentially a tricky one. It is
clear there is no such thing as a typical brownfields site, nor is
there one problem common to all sites. They vary greatly in the size,
location, origin, marketability, and degree of contamination.
For the most part, none of the sites have been inventoried or
assessed. Those two facts make it nearly impossible to prescribe a
single solution which provides redevelopment incentives for the wide
variety of brownfields sites that currently exist.
With these in mind, I believe the role for the Federal Government is
to strike a balance between the desire to provide redevelopment
incentives that will work for a variety of sites, while at the same
time maintaining the assurance to affected citizens that these sites
will no longer threaten the health of the community. This is
essentially the basis for our legislation.
The bill provides critically needed funds to assess and clean up
abandoned and underutilized brownfield sites which will create jobs,
increase tax revenues, preserve and create open space and parks. In
addition, it provides legal protections for innocent parties such as
contiguous property owners, prospective purchasers, and innocent
landowners. I expect or I hope that this legislation will not only pass
the House tonight and then the Senate quickly, and then be sent on to
the President for his approval.
I have to say, Mr. Speaker, this is really a bill that provides a
win-win situation. The gentleman from (Mr. Gillmor) talked about all
the different groups that support it. It is kind of interesting to see
environmental groups and the building trades and all the different
business organizations all supporting the same bill, but it really,
truly is supported by all of them because it is a win-win situation.
By cleaning up these brownfields sites, we provide an opportunity for
more jobs while at the same time cleaning up the environment,
protecting public health, and curbing suburban sprawl.
I just wanted to say before I conclude, in my home State of New
Jersey, as I said, there are so many brownfield sites. Just last week I
visited a site in my district called Edison Crossroads. It is a perfect
example of the opportunities afforded our communities when this bill
becomes law.
This once-abandoned eyesore of a former steel tubing and floor tile
manufacturing facility. With the opportunity to recover 75 percent of
its remedial costs and receive liability protection by performing a
State-approved clean-up, the development company Arc Properties was
encouraged to move forward with purchasing this site and conducting a
massive clean-up and reuse project, including the excavation of more
than 600 tons of tainted soil, nine underground storage tanks, and
removal of several buildings filled with asbestos.
Today, and I was there, as I said, last week, the site has attracted
a Home Depot, Edwards, World Carpet, and many other large companies,
resulting in a positive source of economic growth for the local and
regional communities.
We have a lot of those success stories like this in New jersey: the
New Jersey Performing Arts Center in Newark, the Jersey Gardens Mall in
Elizabeth. This brownfield redevelopment, because of what my State is
doing, is having a huge impact on the New Jersey landscape.
I am very pleased our subcommittee was able to move this important
piece of bipartisan legislation. It is truly bipartisan, as the
gentleman from Ohio (Mr. Gillmor) mentioned.
I want to thank the gentleman from Ohio (Mr. Gillmor) and the
chairman of our full committee, the gentleman from Louisiana (Mr.
Tauzin), the gentleman from Michigan (Mr. Dingell), and of course, the
staffers that have been working so hard on this bill, as well as the
members of the Committee on Transportation and Infrastructure, and the
gentleman from Oregon (Mr. DeFazio).
I think we are on the threshold of this becoming law. We have been
working with it on the Democratic side for at lest 4 years, so I am
really glad to say that the day has finally come when it is going to
come to pass.
Mr. Speaker, I reserve the balance of my time.
Mr. DUNCAN. Mr. Speaker, I yield myself such time as I may consume.
(Mr. DUNCAN asked and was given permission to revise and extend his
remarks.)
Mr. DUNCAN. Mr. Speaker, H.R. 2869 combines the text of H.R. 1831,
the Small Business Liability Protection Act, with the text of S. 350,
the Brownfields Revitalization and Environmental Restoration Act of
2001.
I strongly support title I of H.R. 2869. As the gentleman from Ohio
(Chairman Gillmor) mentioned, Title I earlier passed the House 419 to
0. Title I will
[[Page H10901]]
protect small businesses from Superfund liability. It prevents lawsuits
against people and businesses who should not be held liable for the
costs of cleaning up a Superfund site, either because they send only a
very small amount of waste to a site, or because their waste was
ordinary trash.
I am very proud of this legislation, and was pleased to have
sponsored this, along with the gentleman from Ohio (Chairman Gillmor)
and others.
Title II of this legislation is intended to encourage brownfields
redevelopment. Brownfields redevelopment is very important, as previous
speakers have mentioned. Our economy is changing. We have lost
manufacturing jobs. Communities across America have lost thousands of
jobs.
I held a subcommittee hearing on this issue of brownfields
redevelopment earlier this year, and I agree that we should be doing
everything we can to encourage the redevelopment of these brownfields
sites. Unfortunately, the brownfields title of this bill is not drafted
as clearly as I would like, but let me make clear the intent of title
II is to encourage brownfields redevelopment, and it needs to be read
with that goal in mind.
Nothing in this bill should be read to narrow the scope of properties
eligible for assistance under the bill. All brownfields sites are
eligible, including properties contaminated by petroleum releases,
asbestos, or lead paint. Nothing in this bill should be read to make it
easier to bring lawsuits against innocent landowners.
The gentleman from Ohio (Chairman Gillmor) mentioned earlier that
some estimates have been as high as half of the amount of the Superfund
money that has been spent on lawyers and consultants and so forth. I
have seen estimates much higher even than that.
The intent of this bill is to increase liability protections for
people who own property that is next to a contaminated site, and people
who buy property after all disposal activities have taken place.
Nothing in this bill should be read to encourage Federal intervention
when brownfields sites are being cleaned up under State programs.
The intent of the bill is to prevent unnecessary Federal involvement.
As with most legislation, its successes or failures will depend on how
it is implemented. As chairman of the Subcommittee on Water Resources
and Environment, I will be keeping a careful watch on the EPA. I expect
the EPA to use the discretion given to it under this legislation to
remove red tape from brownfields sites.
To date, the EPA has never brought a lawsuit to second-guess a State
clean-up decision. I do not expect this deference to States to change
after passage of this legislation.
Since 1995, the EPA has viewed the Superfund national priorities list
as a last resort for managing contaminated property. In fact, since
income taxes, the EPA has had a formal policy of seeking the
concurrence of a State government before listing a site on the
Superfund list. I do not expect these policies to change after passage
of this legislation.
Let me say to the EPA, it should not look at this bill as an excuse
or an opportunity to build its bureaucracy or expand its mission.
{time} 0445
The funding in this bill is intended to go into communities around
the country to encourage and achieve brownfields redevelopment, not
simply to expand the Federal bureaucracy or add to Federal red tape.
Finally, I would like to express concern over the applicable to Davis
Bacon prevailing wage rates to brownfields projects under this bill.
Davis Bacon wage rates can add unnecessarily to clean up costs. Our
goal is to get as many sites as possible cleaned up and returned to
productive use. The higher the cost, the fewer the number of sites that
can be addressed and actually cleaned up.
There are mixed feelings about this bill from a number of groups, the
National Federation of Independent Businesses strongly supports the
small business liability relief but does not support the expansion of
Davis Bacon. The National Association of Home Builders and the U.S.
Chamber of Commerce call the bill the first step for addressing the
brownfields but the Chamber expresses serious concerns over David Bacon
liability.
Other groups, like the National Association of Realtors, the National
Association of Industrial and Office Properties and at least 7 other
real estate groups strongly support the election. After weighing the
matter carefully, I believe that this litigation, if implemented
properly, could go a long way towards protecting small businesses from
Superfund liability and is a significant first step towards encouraging
the redevelopment of brownfields.
For these reasons, I support H.R. 2869 and encourage all of my
colleagues to do likewise.
Mr. Speaker, I reserve the balance of my time.
Mr. DeFAZIO. Mr. Speaker, I yield myself such time as I may consume.
(Mr. DeFAZIO asked and was given permission to revise and extend his
remarks, and include extraneous material.)
Mr. DeFAZIO. Mr. Speaker, I am pleased at this very late early hour,
however anyone wants to look at it, that we are finally doing some real
work on the floor of the House having spent the rest of the morning
engaged in an extended fantasy partisan one-upmanship from the other
side of the aisle where they jammed through a bill that will not do
anything to stimulate the economy. It will never become law.
But this will become law and this is necessary legislation. It should
be part of a comprehensive Superfund reform. Unfortunately, we have
been unable to move that legislation through this body. But that said,
we do have here one key part of Superfund reform, and I just want to
emphasize one point.
Legislation will provide needed Federal funding for site assessments
to determine whether or not those brownfields are, in fact,
contaminated as well as provide funding for the remediation of
contaminated property. The technical changes to the Senate bill which I
referred to earlier in my prepared statement, involved integrating
these funding operations as an amendments to section 104 of CERCLA,
change that has been agreed to by all parties involved in negotiations
on this bill. By amending section 104 of CERCLA we are hoping to
expedite the implementation of this new program by modeling it after
one already in operation by the Environmental Protection Agency in
order that funds authorized by this legislation get to the cities and
the communities that need them as expeditiously as possible and we move
ahead with the necessary cleanup.
Mr. Speaker, I yield back the balance of my time.
Mr. GILLMOR. How much time remains, Mr. Speaker?
The SPEAKER pro tempore (Mr. Shimkus). The gentleman from Ohio (Mr.
Gillmor) has 3\1/2\ minutes remaining. The gentleman from New Jersey
(Mr. Pallone) has 4 minutes remaining. The gentleman from Tennessee
(Mr. Duncan) has 4\1/2\ minutes remaining.
Mr. GILLMOR. Mr. Speaker, I yield as much time as he may consume to
the gentleman from Ohio (Mr. Ney).
Mr. NEY. Mr. Speaker, I rise this morning in strong support of this
legislation. This much needed bill will help bring confidence to the
many developer and contractors who fear lawsuits and intense Federal
oversight of the clean up effort.
As a lifelong supporter of Davis Bacon, I also want to thank the
gentleman from Louisiana (Mr. Tauzin) and the gentleman from Ohio (Mr.
Gillmor) for keeping this fundamentally fair provision in the bill.
The Davis Bacon Act provides working men and women with critical
worker protections. Davis Bacon is one of few Federal laws that truly
prevents further erosion of living standards for millions of working
families and that is so important during these times. At a time of
economic uncertainty, brownfields legislation will help to stimulate
development in communities across the country. This bill will clean up
the environment, maintain the living standards of working families and
create jobs. I urge our colleagues to vote yes.
Mr. DUNCAN. Mr. Speaker, I yield such time as he may consume to the
gentleman from Illinois (Mr. Shimkus).
Mr. SHIMKUS asked and was given permission to revise and extend his
remarks.)
Mr. SHIMKUS. Mr. Speaker, first I rise to thank everyone who has
worked
[[Page H10902]]
so hard on both the brownfields and Superfund business liability relief
provisions.
Today we have an opportunity to pass landmark legislation which has a
very real chance of becoming law. The first portion of this bill deals
with Superfund small business liability relief. This issue first came
to my attention when a landfill in Quincy, Illinois was declared a
Superfund site. Quincy is a small community of 42,000 people located in
my district of the banks of the Mississippi River.
The residents of this town have experienced firsthand the unfairness
of the Superfund law to innocent small businesses punishing them for
legally disposing their trash. Greg Shiering, a franchisee of two
McDonalds was asked by the EPA to pay $47,000 for disposing of
hamburgers and french fries into the town dump. Mike Nobis, part owner
of a 30-year owned family business, JK Creative Printers was asked to
pay $42,000 for legally sending trash to the dump in the 70's and 80's.
One hundred fifty nine small businesses in the community were offered
settlements with the EPA totaling $3 million.
The EPA based these payments purely on volume of waste, not on
whether there was hazardous material in the waste. If the business did
not settle, they would be open to lawsuits from six large companies.
Court costs alone could bankrupt some of these small mom and pop shops
that were targeted.
Today we have the opportunity to make sure what happened in Quincy
does not happen in other communities. Any many times in my statements
in debate of this bill, I just warn my colleagues that this scourge
would visit their congressional districts some time sooner or later. I
encouraged them to join me to make sure that this does not happen and I
am pleased to say that we are almost there. We are almost there. So
other members will not have to go through this problem of what has
affected their small businesses.
I would also like to commend my colleagues' work on brownfields
reform. This legislation is an important first step in addressing
problems with the brownfields program. However, I do look forward to
the opportunity to address this program again. I am really excited and
concerned about the finality provisions and I think they could be made
a little bit stronger. We will address that sometime in the future.
Tighter finality will encourage this business to clean up brownfields
in order for the program to be as successful as possible.
I also support the fact that we have not increased but we have just
certified current law as far as the Davis Bacon provisions. It has been
successful and it has brought together this great bipartisan agreement
to move this legislation forward and I think everyone benefits from it.
At this late hour I am pleased to be here to speak on support of this
bill in the floor and thank the chairman of the full committee, the
gentleman from Louisiana (Mr. Tauzin), the ranking member, the
gentleman from Michigan (Mr. Dingell) and then the subcommittee
chairman, the gentleman from Ohio (Mr. Gillmor). I thank them for their
help. The gentleman from New Jersey (Mr. Pallone), I appreciate your
diligent efforts on this behalf.
Mr. PALLONE. Mr. Speaker, I have no further speakers, and I yield
back the balance of my time.
Mr. GILLMOR. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to, in closing, just touch very briefly on this
Davis Bacon question which a few groups have risen. There is no
expansion of Davis Bacon in this bill.
Brownfields grants are now done under section 104 of the CERCLA Act.
Those are covered by Davis Bacon. All this bill does is increase the
funding from about 100 million to 200 million and Davis Bacon applies
the same as it did before.
Increasing funding for a program that is already covered is not an
expansion. I think most of the Members of this Chamber vote for the
education bill last week. They voted for all the appropriations bills.
All those appropriations bills increase funding for various programs to
which Davis Bacon applies. And we do not consider that an expansion. So
for those who say it is an expansion in this bill, it is not logical
but then it is Congress.
Let me just conclude by saying this is very important legislation,
reforming brownfields, reforming small bills liability. I very much
appreciate the broad support of bipartisan support in this Chamber,
broad support outside of this Chamber this legislation has received and
I urge all of my colleagues to vote for it.
Mr. Speaker, I yield back the remainder of my time.
Mr. DUNCAN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would simply close by saying I view the main
intentions of this legislation to be, number one, to make sure that no
small businesses are unfairly driven out of existence by unintended and
unfair liability under Superfund. And, secondly, and very importantly,
to see that more brownfields sites across this Nation are cleaned up
and put back into productive use in this country. I simply want to say
that I commend all of the Members and the staff that were involved in
bringing this very important legislation to the floor of this House.
Mr. DOOLEY of California. Mr. Speaker, while I appreciate that H.R.
2869 is a first step towards addressing the clean up of brownfields, it
is unfortunate that this bill does not provide the adequate incentives
and protection to those willing to take the risk associated with
brownfields remediation. Specifically, this bill does not address the
entire universe of brownfields sites in this country. H.R. 2869 only
includes a prospective purchaser liability exemption for sites
contaminated with a ``hazardous substance'' as defined under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA). Petroleum is not considered a hazardous substance under
CERCLA and is regulated specifically under the Resource Conservation
and Recovery Act (RCRA) statute.
The Environmental Protection Agency (EPA) estimates that
approximately one half of the 500,000 brownfields sites in this country
are contaminated with petroleum. By excluding RCRA liability protection
for petroleum sites, I am concerned that half of the sites in the
country may remain contaminated, undeveloped and devoid of any
productive use. Without the prospective purchaser liability protections
for petroleum sites, developers will likely avoid remediating these
sites. I am disappointed that we have not addressed this issue in this
pending legislation and I encourage this House to address this issue as
soon as possible.
Mr. OBERSTAR. Mr. Speaker, I rise in support of H.R. 2869, the Small
Business Liability Relief and Brownfields Revitalization Act. This
important bipartisan, bicameral brownfields redevelopment legislation,
a long time in coming, will help significantly in the redevelopment of
many abandoned and long-forgotten properties dotting our nation's city
and community centers.
Mr. Speaker, back in the early 1990's, several members of the
Democratic caucus began talking about the problems faced in many of our
urban centers. Many of our members had spoken with their mayors and
other interested constituents about the great number of former
commercial and industrial sites left underutilized or abandoned--with
no real prospects of redevelopment. These ``brownfields'', which once
housed the machinery and the manpower that helped this country grow
throughout the last century, were vacant--generating little tax revenue
for the cities, and serving as breeding grounds for crime, vandalism,
and a poor quality-of-life for neighboring communities. In 1992,
members of the Democratic caucus proposed the idea of using the power
of the Federal government to help rejuvenate these brownfields
properties--cleaning up the legacy of the industrial age, and returning
these forgotten properties to productive use. Unfortunately, these
efforts were blocked for a variety of reasons--both substantive and
political. Now, almost a decade later, I am pleased that we finally
have reached agreement on a package that will achieve those original
goals.
Mr. Speaker, this is not, in my opinion, the best bill that we could
offer. In fact, few here today can say that they support everything in
this legislation. This bill represents a compromise in the constructive
sense of that word--almost exactly the same as one that achieved a vote
of 99-0 in the other body, and one that will proceed expeditiously to
the President's desk for his signature.
Very briefly, this legislation is divided into two titles. The first
title contains the text of the Small Business Liability Protection Act
that passed the House back in May by a vote of 419-0. This bipartisan
legislation seeks to protect small businesses from being sued by
overzealous polluters at Superfund sites, as well as protects
homeowners and charitable organizations that simply put out the trash.
The second title contains, almost verbatim, the text of S. 350, the
Senate brownfields legislation that passed the other body last April.
[[Page H10903]]
This proposal carves out limited Superfund liability exemptions for
innocent landowners, prospective purchasers of contaminated properties,
and contiguous property owners--the individuals who should never be
subject to Superfund liability for these properties. The bill also
preserves the vital federal safety net that allows the Environmental
Protection Agency to require additional cleanup of properties when
there is a threat to human health or the environment following a
cleanup under a state program. This provision will ensure that local
residents will be protected should a cleanup plan fail to protect human
health or the environment.
Finally, this legislation will provide much needed funding for
brownfields site assessment and cleanup to move brownfields properties
into productive reuse as quickly as possible. The bill will make
Federal monies available for brownfields site assessment and
remediation by amending section 104 of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA)--the only change in
legislative text from S. 350. By placing the legislative funding
authority directly in section 104 of CERCLA, this legislation aims to
take advantage of Environmental Protection Agency's experiences gained
through its current brownfields program, and attempts to build upon
these successes through explicit legislative brownfields authority,
increased authorizations, and greater flexibility in the case of
Federal dollars. Accordingly, we expect EPA to closely model its
implementation of this legislation on the Agency's existing brownfields
program, and to get these desperately needed funds out the door and
directly to the cities and communities as soon as possible.
Mr. Speaker, as I said earlier, I am pleased to support this
important brownfields revitalization legislation. While it has been a
long time coming, I believe that this legislation will greatly assist
in the redevelopment of brownfields properties that have troubled our
nation for too long. I urge my colleagues to support the bill.
Mr. GARY G. MILLER of California. Mr. Speaker, although H.R. 2869
represents a step forward in addressing brownfields reform, I am
concerned that the legislation before us does not encourage the clean
up and redevelopment of all brownfields sites. Specifically, although
H.R. 2869 includes prospective purchaser federal liability protection
for ``hazardous substances'' defined under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), it
does not include prospective purchaser liability exemption for
petroleum based contaminants under the Resource Conservation and
Recovery Act (RCRA). This is a critical issue that is being overlooked
in this legislation.
It is my understanding that the EPA has estimated that there are
approximately 200,000 petroleum-based brownfields sites in this nation.
If Congress is to address this important environmental issue, it is
critical that we pass meaningful reform. I am disappointed that we have
chosen not to do so with this legislation. I have to imagine that each
one of us has an abandoned gas station in our district that could be
cleaned up and redeveloped were it not for liability uncertainty. The
reality is that without prospective purchaser liability protections for
petroleum sites, developers--who did not cause the contamination--will
not be willing to take the risk of cleaning up these sites and
legislation will fail to meet its goal. I encourage the House to
address this oversight as soon as possible.
Mr. CANTOR. Mr. Speaker, While I am pleased that Congress has chosen
to address the important issue of brownfields reform, I am concerned
that the House has not chosen to fully address liability protection for
all brownfields sites.
While H.R. 2869 is a first step in addressing brownfields reform, the
legislation lacks a critical component that will prevent the clean up
and redevelopment of brownfields on a meaningful scale. H.R. 2869 does
not include federal liability protections for the clean up of
petroleum-contaminated sites under the Resource Conservation and
Recovery Act.
By not addressing petroleum liability, half of the brownfields sites
in this country have the potential to remain undeveloped under H.R.
2869. EPA has estimated that 200,000 of the 500,000 brownfields sites
in the country are petroleum based. It is probably safe to say that
almost every congressional district has an abandoned gas station that
could be remediated and redeveloped. However, developers will not
likely tackle these projects.
Redevelopment of brownfields presents an opportunity to combine Smart
Growth principals with economic development. many brownfields,
especially petroleum-based sites, are located in urban areas, like my
district, or close-in suburbs where whole communities stand to be
revitalized through new building and the economic activity it will
stimulate. Further, petroleum-contaminated sites are obvious targets
for redevelopment because of the well-known and cost-effective
remediation technologies currently available for petroleum
contamination.
Without liability protections developers will not be willing to take
the risk of cleaning up these sites and legislation will fail to meet
its goal. Congress needs to address liability protections for
petroleum-based sites if we are to achieve meaningful, effective
brownfields reform.
Mr. BOEHLERT. Mr. Speaker, I rise in support of H.R. 2869, a
comprehensive brownfields and targeted Superfund small business
liability relief bill. This is a bipartisan, bicameral compromise that
will help protect the environment, restore brownfields, revitalize
local economies, and return a little bit of basic fairness to
Superfund's liability regime. Unfortunately, the bill does not include
a reauthorization of Superfund's corporate environmental income tax and
more comprehensive reform of the Superfund statute; and so my
enthusiasm today is tempered by feelings of ``missed opportunities''
and growing concerns about the future of the Superfund Program.
Nonetheless, today's bill is a feat in itself and I want to thank and
congratulate all of those who helped over the years and recent months.
The nation's mayors and their constituencies see the tremendous
opportunities for economic development and environmental protection
embodied in brownfields revitalization and they are rallying behind
this legislation, just as they did when they began their initiative to
``recycle America's land.'' The leadership of the House and Senate, the
Chairs and ranking members of the authorizing committees and
subcommittees, and the administration should all be commended for
making today's action possible. Special thanks should go to the
committee staff, such as Susan Bodine and Jim Barnette, who have
endured the torturous legislative process for years.
It has taken far too long to get to this point. I myself have quite a
few ``scars'' from the many battles that began in the early 90's and
culminated in the 105th and 106th Congresses, when I chaired the
Committee on Transportation and Infrastructure's Subcommittee on Water
Resources and Environment. We moved my comprehensive bill (H.R. 1300)
through the committee on an unprecedented, bipartisan vote of 69 to 2.
It brought people together because it provided broad-based reform,
brownfields revitalization, and called for a responsible
reauthorization of Superfund taxes to help maintain the ``polluter
pays'' principle.
I continue to believe such an approach is the right one and that is
why I reintroduced the bill as H.R. 324. However, given the
complications of moving a more comprehensive bill, I support moving
forward today with this more targeted compromise, as long as we also
continue to work on other important components of reforming and
financing Superfund. H.R. 2869 should be viewed as the first of several
steps in securing the fairness, effectiveness, and funding for
improving the Nation's approach to hazardous and abandoned waste sites.
Title I of H.R. 2869 responds to the need for Superfund liability
reform relating to small businesses. It includes the text of the House-
passed bill, H.R. 1831. It provides a ``de-micromis'' exemption for
those who were contributors of truly tiny amounts of waste. It also
exempts those who contributed nonhazardous garbage (``municipal solid
waste''). Finally, it encourages faster and fairer settlements through
``ability to pay'' procedures.
Mr. Speaker, the inequities and inefficiencies of the current
liability regime continue. One recent example, involving a local
newspaper in my district, illustrates the need for limited exemptions
and fair share allocations of responsibility. The Rome Sentinel, which
disposed of waste at a landfill many decades ago, was notified that it
was a potentially responsibility party. Under the current strict,
joint, and several liability system, there are not many incentives for
a fair and efficient allocation process. Instead, the Government may
focus on ``deep pockets'' who then sue everyone else, large and small,
culpable and not-so-culpable, to recover their costs. Even though the
newspaper may have contributed only minor amounts of waste (and did so
lawfully at the time of the disposal), it faced the prospects of being
dragged into a tremendously costly and protracted legal battle in third
party lawsuits.
H.R. 2869 will make some modest improvements to the current liability
system. More comprehensive reform is needed, however.
Title II includes brownfields legislation that passed the Senate
earlier this year by a vote of 99 to 0. It is not perfect legislation,
but it is legislation we can and should support. Like the brownfields
provisions from my bill last Congress (H.R. 1300), it not only removes
barriers to cleanup and redevelopment but it retains a ``safety net''
for environmental protection and governmental enforcement. It also
allows for the application of Davis-Bacon labor protections.
Where should we go from here? Congress and the administration should
honor the polluter pays principle. It should heed the findings
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and conclusions of the July 2001 report by Resources for the Future,
``Superfund's Future, What Will it Cost,'' that a ``ramp-down'' of the
Superfund program is not imminent and that the total estimated cost to
EPA of implementing the Superfund program from FY 2000 through FY 2009
ranges from $14 billion to $16.4 billion.
Therefore, to meet the goals of the cleanup program, to remain true
to the polluter pays principle, and to finance the needed liability
reforms, Congress should reauthorize the corporate environmental income
tax, which expired on December 31, 1995. This broad-based tax of .12%
of all corporate income above $2 million could generate needed funds in
a fair and responsible manner. Contrary to what some might believe, the
oil industry would not pay a disproportionate amount. For example, in
1995 oil companies paid $37.7 million in corporate environmental income
taxes, only 5.3 percent of the total amount collected in that year.
In response to my request, the Joint Committee on Taxation estimated
on September 24, 2001 that a re-imposed corporate environmental income
tax would generate over $3 billion over a 5-year period. This is
exactly the type of revenue needed for a program that continues to
deliver public health, environmental, and economic development
benefits.
Mr. Speaker, I urge my colleagues not only to support passage of H.R.
2869 today but to work towards enactment of broader Superfund reform,
including reauthorization of the expired corporate environmental income
tax.
Mrs. WILSON of New Mexico. Mr. Speaker, I rise today to express my
concern about legislation that the House passed by voice vote early
this morning H.R. 2869, the ``Small Business Liability Relief and
Brownfields Revitalization Act.''
Brownfields redevelopment effectively marries the principles of
economic development and environmental protection by slowing the
developing of open space by presenting property owners and developers
with access to brownfields sites located in desirable locations, with
existing infrastructure and affordable pricing. While I am a strong
supporters and advocate of brownfields clean up, I am dishearten that
H.R. 2869 did not go further to address the entire brownfields problem
in this country.
The Environmental Protection Agency (EPA) estimates that
approximately one half of the 450,000 brownfields sites in this country
are contaminated with some type of petroleum pollution. Unfortunately,
H.R. 2869 ignored petroleum-contaminated sites by only including a
liability exemption for brownfields sites contaminated with a
``hazardous substance'' as defined under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA).
Petroleum contamination, which is not considered a ``hazardous
substance'' under CERCLA, is regulated under the Resource Conservation
and Recovery Act (RCRA). While H.R. 2869 does include federal grant
money for a very specific set of petroleum contaminated sites, I fear
that these grants alone will not be an incentive to spur the clean up
of petroleum brownfields sites. Without a RCRA liability exemption for
petroleum contaminated sites, only half of the brownfields sites in
this country have the potential to be redeveloped.
It is my sincere hope that H.R. 2869 only represents a beginning of
our intent to address brownfields redevelopment. I hope this Congress
will address liability protection for petroleum-contaminated
brownfields sites next year so we can truly address the entire
brownfields problem in this country. I look forward to working with the
leadership and the committees to make comprehensive brownfields
redevelopment a reality.
Mr. DINGELL. Mr. Speaker, I am an original co-sponsor of H.R. 2869.
This bill combines the brownfields provisions of S. 350 that
unanimously passed the Senate on April 25, 2001, and the small business
liability protection provisions of H.R. 1831 that unanimously passed
the House on May 22, 2001. This bill is a good piece of legislation. It
deserves the support of all members.
In the past two Congresses, members on this side of the aisle have
put forward, and strongly supported, stand-alone brownfields
legislation and targeted relief for small business. Those policies are
contained in this bill. The passage of this legislation will help
revitalize and redevelop our communities. Using the provisions of this
bill, local governments will be able to obtain increased funding and
remove urban eyesores and create new jobs. At the same time, risks to
the public health from petroleum and hazardous substances contamination
will also be addressed at these lesser-contaminated brownfield sites.
In the Detroit metropolitan area alone, which has been home to our
country's industrial strength for over 100 years, brownfields cover
tens of thousands of acres of lands once occupied by mighty
manufacturing facilities and thriving communities. Brownfields
development is occurring in Michigan communities like Taylor and
Monroe, as local governments, developers, and citizens are finding
creative ways to rebuild our communities.
This bill maintains the policies of EPA's current and very successful
brownfields program. Adoption of this brownfields legislation is a top
priority for our Nation's mayors, who have testified that it meets all
of their fundamental needs.
I congratulate Subcommittee Chairman Gillmor, Ranking Member Pallone,
and our former Ranking Member from New York, Mr. Towns, for their hard
work over several years on this important legislation.
I strongly urge adoption of H.R. 2869 as amended.
Mr. DUNCAN. Mr. Speaker, I have no further requests for time, and I
yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Ohio (Mr. Gillmor) that the House suspend the rules and
pass the bill, H.R. 2869, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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