[Congressional Record Volume 147, Number 178 (Thursday, December 20, 2001)]
[Senate]
[Pages S14063-S14064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SMALL BUSINESS LIABILITY RELIEF AND BROWNFIELDS REVITALIZATION ACT
Mr. REID. I ask unanimous consent the Senate proceed to H.R. 2869,
just received from the House, now at the desk.
The PRESIDENT pro tempore. The clerk will state the title of the
House bill.
The legislate clerk read as follows:
A bill (H.R. 2869) to provide certain relief for small
business from liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, and to
amend such Act to promote the cleanup and reuse of
brownfields, to provide financial assistance for brownfields
revitalization, and to enhance State response programs.
There being no objection, the Senate proceeded to consider the bill.
Mr. NICKLES. Mr. President, for the information of colleagues
regarding H.R. 2869, I ask unanimous consent the following letter be
printed in the Record:
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Environmental Protection Agency,
Washington, DC, December 20, 2001.
Memorandum
Subject: Davis Bacon Act Applicability Under Brownfields
Legislation.
From: Robert E. Fabricant, General Counsel.
To: Marianne Horinko, Assistant Administrator, Office of
Solid Waste and Emergency Response.
As you know, the House of Representatives has passed a
bill, H.R. 2869, which we are informed would amend CERCLA to
add a new section 104(k), ``Brownfields Revitalization
Funding.'' We have been asked whether CERCLA, if amended as
proposed in H.R. 2869, would require that the Davis-Bacon Act
apply to contracts under loans made from a Brownfields
Revolving Loan Fund (BRLF) entirely with non-federal funds.
We have concluded that H.R. 2869 does not change the legal
applicability of the Davis-Bacon Act to the Brownfields
program. We have also concluded that this bill neither
requires nor prohibits the application of the Davis-Bacon Act
to contracts under BRLF loans made entirely with non-grant
funds, e.g., principal and interest loan payments. CERCLA
would continue to require that the Davis-Bacon Act apply to
contracts under BRLF loans made in whole or in part with
federal grant funds. Finally, state cleanup programs that
operate independently and are not funded under this bill are
not affected by the bill, and will operate in accordance with
applicable state law.
The proposed legislation would add section 104(k) to
CERCLA. New sections 104(k)(3)(A) and (B) authorize the
President to make grants ``for capitalization of revolving
loan funds'' for ``the remediation of brownfield sites.''
Under section 104(k)(9)(B)(iii), each recipient of a
capitalization grant must provide a non-federal matching
share of at least 20 percent (unless the Administrator makes
a hardship determination). Section 104(k)(12), ``Funding,''
authorizes the appropriation of $200 million for each of
fiscal years 2002 through 2006 to carry out section 104(k).
Under the Davis-Bacon Act, 40 U.S.C. 276a et seq., most
public building or public works construction contracts
entered into by the United States must stipulate that the
wages paid to laborers and mechanics will be comparable to
the prevailing wages for similar work in the locality where
the contract is to be performed. The Davis-Bacon Act does not
apply by its own terms to contracts to which the United
States is not a party, including contracts awarded by
recipients of federal grants in performance of a grant
project.
The proposed legislation is silent regarding the
applicability of the Davis-Bacon Act to BRLFs. However, an
existing provision of CERCLA section 104(g), extends the
reach of the Davis-Bacon Act beyond direct federal
procurement. That section applies Davis-Bacon Act prevailing
wage rate requirements to contracts ``for construction,
repair or alteration work funded in whole or in part under
this section.'' Since the new BRLF provision would fall
within section 104, it would be subject to the Davis-Bacon
requirements of section 104(g). However, CERCLA does not
define the precise meaning or scope of the quoted from
section 104(g).
[[Page S14064]]
If a statute does not address the precise question at
issue, an agency may adopt an interpretation that is
reasonable and consistent with the statute and legislative
history. Since CERCLA does not address the precise question
at issue here, EPA may adopt a reasonable interpretation,
which would be entitled to deference. Chevron, USA v. NRDC,
467 U.S. 837 (1984). If H.R. 2869 is enacted, one reasonable
interpretation of CERCLA, as amended, would be that contracts
under every loan made from a BRLF that received a
capitalization grant pursuant to section 104(k) would be
subject to Davis-Bacon. Under this interpretation, Davis-
Bacon would apply to loans made entirely from payments of
principal and interest. The phrase in section 104(g),
``funded in whole or in part under this section'' could be
construed to encompass every contract indirectly supported by
federal grant funds. This arguably would include all
contracts awarded by a BRLF, which might not exist but for
the EPA capitalization grant(s).
However, it would be at least equally reasonable to
interpret CERCLA, as amended by H.R. 2869, to require that
only contracts under BRLF loans made with the federal grant
funds and the associated 20 percent matching funds are
subject to Davis-Bacon. The phrase ``funded in whole or in
part under this section'' may reasonably be construed to mean
``receiving funds authorized under this section.'' The funds
authorized under section 104 for BRLFs are the $200 million
authorized under section 104(k)(12). The phrase would also
include the 20 percent matching funds because when a grant
statute requires a non-federal match every expenditure of
grant funds includes the federal and non-federal share.
Under H.R. 2869, as passed by the House, the Agency would
have the discretion to decide whether to apply Davis-Bacon to
contracts under BRLF loans that are made solely with funds
other than the federal grant and match amount. However, any
loan that includes both grant funds and loan payments would
be subject to Davis-Bacon, because it would be funded in part
with funds authorized under section 104(k). See 40 CFR
31.21(f).
If you have any questions about this matter, please contact
me or John Valeri of this office.
Mr. JEFFORDS. Mr. President, today, we take a historic step toward
bolstering economic development. The Small Business Liability Relief
and Brownfields Revitalization Act, H.R. 2869, will protect our small
businesses. This bill will revitalize once abandoned factory sites.
This bill will give new life to our aging industrial sites. This bill
will provide hope and prosperity to locations long ago forgotten.
Earlier this year, the U.S. Senate declared a mandate in the form of
a 99-0 vote endorsing the Brownfields Revitalization and Environmental
Restoration Act, S. 350. Unanimously, the Senate pledged its commitment
to the redevelopment of potentially contaminated industrial sites. As
Chairman of the Senate Environment and Public Works Committee, I have
taken that mandate seriously. I am pleased that, today, the House
followed suit.
The Brownfields Revitalization and Environmental Restoration Act
authorizes $250 million a year over the next five years for assessment
and cleanup grants, including petroleum sites, and State program
enhancement. The bill would provide liability relief for three groups:
contiguous property owners, prospective purchasers, and innocent
landowners. Lastly, the bill outlines the parameters by which EPA may
re-enter a site to protect human health and the environment.
We also have fulfilled another mandate today. Earlier this year, the
Small Business Liability Protection Act passed the House of
Representatives 419-0; today, the Senate followed suit. This
legislation is a victory for small businesses, on which the foundation
of our nation's economy stands. The Small Business Liability Protection
Act provides Superfund liability relief for small businesses and others
who disposed of, or arranged disposal of, small amounts of hazardous
waste. The legislation also allows expedited settlements for a lesser
amount if a business can show financial hardship.
There are many who share in this victory. It was truly a bipartisan
and bicameral effort. In particular, I would like to recognize the
efforts of Senators Smith, Chafee, Baucus and Boxer. I also thank all
the Leadership offices, on both sides and in both Chambers, for their
dedication to the passage of H.R. 2869.
I am very proud of this legislation. I am pleased to have played an
integral role in these efforts to encourage development of our urban
cores, reduce development demands in greenfields, and promote our
economic base by supporting our small businesses. This new year's
resolution has been many years in the making. I am gratified that our
communities will reap the rewards of further tools to redevelop
brownfields and sustain small businesses in 2002 and beyond.
Mr. REID. Mr. President, I ask unanimous consent the bill be read the
third time and passed, the motion to reconsider be laid upon the table,
and any statements relating thereto be printed in the Record with no
intervening action or debate.
The PRESIDENT pro tempore. Without objection, it is so ordered. The
several requests are granted.
The bill (H.R. 2869) was read the third time and passed.
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