[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.

                          ____________________