[Senate Report 107-2]
[From the U.S. Government Publishing Office]
Calendar No. 19
107th Congress Report
SENATE
1st Session 107-2
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BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2001
_______
March 12, 2001.--Ordered to be printed.
Mr. Smith, of New Hampshire from the Committee on Environment and
Public Works, submitted the following
R E P O R T
[To accompany S. 350]
together with
additional and minority views
The Committee on Environment and Public Works, to which was
referred the bill (S. 350) to amend the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
to promote the cleanup and reuse of brownfields, to provide
financial assistance for brownfields revitalization, to enhance
State response programs, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
General Statement
As a nation, our industrial heritage has left us with
numerous contaminated ``brownfield'' sites that are abandoned
or underutilized. A brownfield site is a parcel of real
property at which expansion, redevelopment, or reuse may be
hindered by the presence, or potential presence, of hazardous
substances, pollutants, or contaminants. The U.S. Conference of
Mayors and others have estimated that there are more than
450,000 brownfield sites nationwide that blight our
communities, pose health and environmental hazards, erode our
cities' tax base, and contribute to urban sprawl and loss of
farmland. The cleanup and redevelopment of brownfield sites
presents the opportunity reduce the environmental and health
risks in our communities, particularly those which are
disproportionately affected by these sites, capitalize on
existing infrastructure, create a robust tax base for local
governments, attract new businesses and jobs, and reduce the
pressure to develop open spaces.
Many State and local governments have developed and
implemented innovative and effective brownfield programs. State
laws, however are unable to address Federal liability. More
importantly, absent a specific statutory exemption, the Federal
brownfields grant and loan program has been required to comply
with the regulatory provisions of the National Contingency
Plan, which is relieved under this legislation. By providing
Federal funding, eliminating Federal liability for developers
under Superfund, and reducing the regulatory burdens, State and
local governments will improve upon what they are already
doing.
Background
The nation's laws governing abandoned hazardous waste sites
date back to the late 1970's and the discovery of thousands of
barrels of toxic waste buried illegally outside of Buffalo, New
York. The U.S. Congress responded to Love Canal and other sites
by enacting the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, commonly
referred to as Superfund. CERCLA was intended to clean up the
nation's worst sites and identify responsible parties to bear
the cost of cleanups. Litigation over CERCLA's strict, joint
and several liability ensued. The fear of prolonged
entanglements in Superfund's liability scheme has been reported
by some to be an impediment to the cleanup of even lightly
contaminated sites, today known as brownfields.
Under CERCLA, parties can be held liable for the entire
cost of cleanup, even if they purchased the property after the
contamination occurred or were otherwise innocent parties. With
many brownfield sites, the extent of contamination is unknown,
and there is no entity available to assess the site conditions
or pay for cleanup. Therefore, at abandoned sites, even those
with little or no contamination, the fear that cleanup costs
could exceed the property value can reduce incentives for
redevelopment. The perceived risk associated with purchasing
and developing lightly contaminated properties can drive
parties away from these former industrial or commercial sites
and toward less risky green and open spaces.
In their report ``Recycling America's Land,'' the U.S.
Conference of Mayors cited high cost and fear of CERCLA
liability as the primary factors that prevent the successful
redevelopment of brownfield sites. Because brownfield sites are
generally abandoned industrial or commercial sites, the
responsible party may not be available to pay the costs of
cleanup. These sites may lay fallow indefinitely unless someone
is willing to take on the risk associated with purchasing
contaminated land and has the financial resources to pay for
site investigation and cleanup. The perceived risk of Superfund
liability is one of many factors that may influence a
developer's willingness to acquire a brownfield site. In
addition, even if there are parties willing to take the risk,
they are sometimes unable to bring the necessary resources to
the site because lenders may be unwilling to issue loans on
properties with unknown contamination, and which therefore
provide uncertain collateral for the loan.
During the past decade, Federal, State, and local actions
aimed at reclaiming the nation's abandoned contaminated
properties and putting them to productive use. No provision in
the current Superfund statute specifically authorizes the types
of activities that have come to be known as brownfield cleanup
and redevelopment. Other than annual line-item appropriations,
the only enacted brownfield provisions are tax incentives for
remediation created originally in the Taxpayer Relief Act of
1997 (Public Law 105-34). That law allows parties to expense
the costs of remediation at brownfield sites during the year in
which the expenses were incurred. This tax incentive will
expire on December 31, 2004.
The U.S. Environmental Protection Agency (EPA)
administratively created the existing brownfield grant program
in 1995 to provide additional incentives for brownfields
redevelopment. The purpose of these grants is to investigate
property for potential contamination to facilitate its reuse.
In 1997, EPA also began providing grants to State and local
governments to establish revolving loan funds to fund site
cleanup. Because EPA's brownfields program was created
administratively under Superfund, it has been legally required
to apply the provisions of the National Contingency Plan (NCP)
to the brownfields grants and loans programs. Because the NCP
is intended to address the nation's worst hazardous waste
sites, many of its requirements are not appropriate in the
context of funding for brownfields assessment and remediation.
Further, its application to the brownfield grant process has
proven cumbersome and has become a significant barrier to
greater participation in the program.
Notwithstanding concerns discussed above, States have taken
a lead role in the redevelopment of lightly contaminated sites.
Many States have developed programs, tailored to sites and
conditions specific to their State, which promote a voluntary
approach to site remediation. The need is clear. While less
than 1,500 sites have been listed on the National Priorities
List (NPL), there are estimated to be more than 450,000
brownfield sites nationwide. Successful State programs have
been so largely because of their ability to address larger
numbers of sites, and their ability to waive State liability if
a cleanup is performed in a manner acceptable to the State.
Despite protection from State liability as an incentive to
invest in these types of sites, testimony before the committee
confirmed that the fear of incurring Federal liability
sometimes drives developers and lenders toward open spaces. In
addition, some States do not have fully developed State
programs, and this legislation would provide funding and
assistance to help develop these programs.
To address these existing problems, the Brownfield
Revitalization and Environmental Restoration Act of 2001
(BRERA) was introduced on February 15, 2001 by Senators Chafee,
Bob Smith, Reid, Boxer, Warner, Baucus, Specter, Graham,
Campbell, Lieberman, Grassley, Carper, Clinton, Corzine, and
Wyden. BRERA seeks to revitalize communities through the
investigation, assessment, and remediation of brownfield sites
across the nation, making them suitable for redevelopment or
other beneficial reuse. The intent of the bill is to direct
more public and private resources toward restoring contaminated
properties that are not likely to be addressed by the Federal
Government.
Objectives of the Legislation
The bill authorizes $150 million for each of 5 years to
inventory, investigate, assess and clean up abandoned and
underutilized brownfield sites, which will address potential
human health and environmental threats and create jobs,
increase tax revenues, and preserve and create open space and
parks.
The bill provides legal protections for innocent parties
who meet specified conditions, such as contiguous property
owners, prospective purchasers, and innocent landowners.
The bill authorizes $50 million for each of 5 years for the
enhancement of State cleanup programs, and limits, where
appropriate, enforcement by the Federal Government at sites
cleaned up under a State response program. It provides a
balance of certainty for prospective purchasers, developers and
others while ensuring protection of the public health.
The bill provides for States to create public records of
brownfield sites, and enhances community involvement in site
cleanup and reuse of these sites.
The bill provides for deferral of listing sites on the
National Priorities List if the State is taking action at the
site.
Section-by-Section Summary
Section 1. Short Title; Table of Contents
This section designates the title of the bill as the
``Brownfields Revitalization and Environmental Restoration Act
of 2001'' and establishes a table of contents.
Title I Brownfields Revitalization Funding
Section 101. Brownfields Revitalization Funding
Summary
New Section 128 of CERCLA provides funding to identify,
investigate, assess, and clean up properties that are abandoned
or underutilized. A ``brownfield site'' is defined in general
as ``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.'' This is
consistent with EPA's current definition of a brownfield site.
For the purposes of funding under Title I, the term
``brownfield site'' excludes certain sites or facilities for
which the awarding of financial assistance would be
inappropriate.
This section authorizes EPA to establish a grant program
for brownfield site characterizations, assessments, and to
conduct planning. The maximum grant amount for site
characterization and assessment is $200,000 for any individual
brownfield site, except the Administrator may waive the
limitation to permit a brownfield site to receive a grant not
to exceed $350,000. Entities that are eligible to receive the
grants are State and local governments, quasi-governmental land
clearance authorities, regional councils, State-chartered
redevelopment agencies and Indian Tribes. A mechanism to permit
eligible entities to capitalize and administer revolving loan
funds (RLF) for brownfields remediation also is provided. Based
on certain considerations outlined in the bill, grants for
remediation may be made either directly from EPA or from the
RLF at the discretion of the eligible entity. The bill
authorizes $150 million per year for fiscal years 2002 through
2006 to carry out this section. The committee expects this
money to be funded through general revenues and to be in
addition to appropriate Superfund funding. It is the
expectation of the committee that funding of these programs
created under section 128 will fall under section 104, as does
the current program.
Discussion
The United States Conference of Mayors and many others have
identified the lack of funding as an obstacle to brownfields
redevelopment. Sites may qualify as brownfield sites simply due
to fear that contamination may be present at a site. Many of
the estimated 450,000 brownfield sites may be ripe for
redevelopment, and merely lack a site assessment that confirms
that a site is not contaminated. Often, funding is unavailable
to conduct these site assessments or site characterizations. If
the site assessment does confirm contamination at a brownfield
site, private funding is often unavailable, but a small amount
of Federal seed money can leverage other moneys that can be
used for remediation.
To address the funding needs at brownfield sites, the bill
creates new section 128, which codifies and builds on EPA's
brownfield program. The definition of the term ``brownfield
site'' in S. 350 is intended to foster reuse of abandoned or
idled sites that are contaminated to a lesser degree, if at
all, relative to those higher risk sites that are more
appropriately addressed by other State and Federal programs.
Federal brownfield expenditures are appropriately limited to
sites where, due to the threat of real or perceived
contamination, no reuse is likely and no federally directed or
funded cleanup is underway or imminent. The language ensures
that the limited resources available under this section are not
expended on sites that will be cleaned up under other
provisions of Federal law. Thus, the term ``brownfield site''
excludes any property:
where there is an ongoing Superfund removal
action (a site at which a removal action has occurred in the
past is clearly eligible as a brownfield site, if none of the
other exclusionary factors apply);
that has been listed, or proposed for listing on
the NPL;
where there is ongoing cleanup work prescribed by
an administrative or judicial order under CERCLA, the Resource
Conservation and Recovery Act (RCRA), the Federal Water
Pollution Control Act (FWPCA), the Toxic Substances Control Act
(TSCA) or the Safe Drinking Water Act (SDWA);
that is subject to corrective action under
3004(u) or 3008(h) of Solid Waste Disposal Act (SWDA) and to
which a corrective action permit or order has been issued or
modified to require the implementation of corrective measures;
that is a hazardous waste disposal unit for which
a closure notification has been submitted, and that has closure
requirements specified in a closure plan or permit;
that is federally owned or operated;
that is a portion of a facility where there has
been a release of polychlorinated biphenyls and that is subject
to remediation under TSCA; or
that has received assistance from the Leaking
Underground Storage Tank (LUST) Trust Fund.
The bill allows the President to make a site-specific
determination to authorize financial assistance under section
128 at certain excluded sites 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 of, parks,
greenways, undeveloped property, other recreational property,
or other property used for public, non-profit purposes. Sites
on the NPL or proposed NPL sites, facilities subject to an
order or consent decree under CERCLA, and Federal facilities
are ineligible for inclusion. The bill makes clear that former
drug labs and mine-scarred land are eligible for funding unless
they are otherwise excluded. The bill also recognizes that
excluded sites may nonetheless have significant redevelopment
potential. Accordingly, a savings clause in section 128(j)
provides that exclusion of a site from the definition of
``brownfield site'' under section 128 shall have no effect on
eligibility for assistance under any other provision of Federal
law.
Section 128(a) defines the term ``eligible entities'' to
mean State and local governments, quasi-governmental land
clearance authorities, regional councils, State-chartered
redevelopment agencies and Indian Tribes. Any entity not in
compliance with an administrative or judicial order issued
under CERCLA, the Resource Conservation and Recovery Act
(RCRA), the Clean Water Act (CWA), the Toxic Substances Control
Act (TSCA) or the Safe Drinking Water Act (SDWA) cannot be an
eligible entity.
Section 128(b) directs the Administrator to create a
brownfield site characterization and assessment grant program.
Eligible entities can apply to the Administrator for grants for
site characterization, assessment or to conduct planning. Site
characterizations can include a process to identify and
inventory potential brownfield sites. EPA can also use money to
directly perform targeted site assessments at brownfield sites
in a continuation of current practice. No individual site may
receive in excess of $200,000 under this subsection. The
Administrator may waive the limit to permit the site to receive
a grant not to exceed $350,000, based onsite-specific factors,
such as the level of contamination, the size of the facility,
or the status of ownership of the facility. Site assessments
funded by grants under this subsection shall be in accordance
with standards and practices, which the Administrator will
promulgate under 101(35)(B)(ii) or interim standards specified
under 101(35)(B)(iv), as amended.
Section 128(c) authorizes the President to provide grants
to: (1) eligible entities to capitalize remediation revolving
loan funds; and (2) eligible entities, or nonprofit
organizations under certain circumstances, to be used directly
for remediation of one or more brownfield sites. Eligible
entities may apply for RLF capitalization grants on a site-by-
site or community-wide basis, but may not receive more than $1
million. The Administrator may make additional grants to
eligible entities in subsequent years, after taking into
consideration: the number of sites and number of communities
that are addressed by the RLF; the demand for funding by
eligible entities that have not previously received funding
under this section; the demonstrated ability of the eligible
entity to enhance remediation and provide funds on a continuous
basis; and any other factors that the Administrator considers
appropriate. Eligible entities that establish RLFs may provide
one or more loans to other eligible entities, site owners, site
developers, or other persons. The bill does not limit the
amount of funding an eligible entity may provide to any one
site for remediation, but the ability to enhance remediation
and provide funds on a continuous basis is a factor that will
be considered if an eligible entity applies for supplemental
capitalization grants. No more than $200,000 per site may be
granted directly by the Administrator to an eligible entity or
nonprofit organization to carry out cleanup activities.
Under the current EPA brownfields program, funding for
remediation exists only in the form of loans. Brownfield sites
that will be cleaned up and maintained as recreational
property, open space, or other non-economic uses may not
generate the future revenue stream to repay a loan and
therefore, it has been difficult to arrange private or public
funding for cleanup of these areas. In addition, disadvantaged
communities often cannot repay a loan. While the loans are
generally preferred because repayment of the loans will extend
the life and expand the utility of Federal expenditures under
this program, this subsection allows EPA or eligible entities
to provide direct grants for remediation (to parties that are
not potentially liable) under certain circumstances. In
determining whether a grant for remediation is warranted under
128(c)(1)(B) or 128(c)(2)(B), the President or the eligible
entity shall take into consideration: 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 non-profit
purposes; 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 small population or low income of the community; the
extent to which a grant will facilitate the use or reuse of
existing infrastructure; the benefit of promoting the long-term
availability of funds from a revolving loan fund for brownfield
remediation; and other such factors as the Administrator
considers appropriate.
Section 128(d) prohibits any part of a grant or loan from
being used to pay for a penalty or fine, a Federal cost-share
requirement, an administrative cost, a response cost at a
brownfield site for which the recipient of the grant or loan is
potentially liable under section 107, or a cost of compliance
with any Federal laws that are not applicable to the cleanup.
For the purposes of this section, ``administrative costs'' do
not include the cost of investigation and identification of the
extent of contamination, design and performance of a response
action, or monitoring of a natural resource. Section 128(d)(3)
allows a local government that receives funding under this
section to use up to 10 percent of the grant funds to develop
and implement a brownfields program that may include monitoring
the health of populations exposed to hazardous substances and
monitoring and enforcement of any institutional controls used
to prevent human exposure to hazardous substances at a
brownfield site.
In addition, section 128(e) provides requirements for
applications by eligible entities for assistance under section
128(b). One of the major complaints of EPA's current
brownfields program is that under the law, funding applications
must be made in accordance with the National Contingency Plan
(NCP). Many witnesses before the committee, and others
interviewed by staff, have pointed out that since the NCP was
designed to address the nation's worst sites, applying the NCP
to brownfield sites is unnecessary and onerous in most cases.
The bill provides explicitly that the requirements of the NCP
shall not be included in any requirement for submission of an
application, unless the Administrator determines that a
particular NCP requirement is relevant and appropriate to the
program under this section. It is intended that this will
greatly simplify the application and assistance process.
EPA must issue guidance to assist eligible entities in
applying for grants under subsection (e). It is expected that
applications will be made to EPA regional offices. A single
application can, at the discretion of the applicant, include
grant requests for one or more brownfield sites. The
Administrator is directed to coordinate with other Federal
agencies so that applicants are made aware of assistance
available from other Federal agencies for related purposes. The
Administrator is directed to establish a system for ranking
grant applications that includes in the criteria 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 one or more brownfield sites are
located. The ranking criteria also must give preferential
recognition to applications for projects that:
stimulate economic development;
address or facilitate the identification and
reduction of threats to human health and the environment;
use or reuse existing infrastructure;
create additional park, greenway or recreational
acreage;
meet the needs of a community that has an
inability to draw on other sources of funding for environmental
remediation because of small population or low income;
the extent to which the applicant is eligible for
funding from other sources;
the grant will further the fair distribution of
funding between urban and non-urban areas; and
the grant provides for involvement of the local
community in the decisionmaking process.
The Administrator is directed to complete, at least
annually, a review of applications for grants received from
eligible entities and award grants to those eligible entities
that the Administrator determines have received the highest
rankings under the ranking criteria.
The eligible entity must provide 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 funding
sources, unless the Administrator determines that the matching
share would place an undue hardship on the eligible entity.
The bill allows the Administrator to provide, or fund
eligible entities or other nonprofit organizations to provide,
training, research, and technical assistance to individuals and
organizations to facilitate the inventory of brownfield sites,
site assessments, remediation of brownfield sites, community
involvement, or site preparation. The total Federal funds to be
expended by the Administrator for this purpose are limited to
15 percent or less of the total amount appropriated in any
given year.
The bill provides in section 128(g) that the Inspector
General of EPA shall periodically audit all grants and loans
established under this section in accordance with procedures
established by the Comptroller General. Since the funds
provided under this section are limited compared to the total
universe of brownfield sites that can be cleaned up, it is
intended that assistance received under this section will be
used as seed money to leverage other financial resources. To
this end, section 128(h) clarifies that eligible entities may
use grant funds received under this section in conjunction with
other sources of money.
Section 128(k) provides an authorization of $150 million
per year for fiscal years 2002 through 2006 to carry out this
section. The committee expects this money to be funded through
general revenues and to be in addition to appropriate Superfund
funding. It is the expectation of the committee that funding of
these programs created under this bill will fall under section
104, as does the current program.
In order to avoid disruption of EPA's existing program, the
provisions of section 128 apply to RLFs established prior to
the date of enactment of this section.
Title II Brownfields Liability Clarifications
Section 201. Contiguous Properties
Summary
Section 201 creates a new section 107(o) that provides
liability protection for landholders whose property may be
contaminated by a contiguous contaminated site if they did not
contribute to the contamination and meet other conditions.
These landowners must cooperate with the Federal or State
enforcement authority and provide facility access for site
cleanup activities.
Discussion
New section 107(o) is added to Superfund's liability
section to clarify that a person who owns real property
contaminated by a hazardous substance that has migrated from
another person's land that is contiguous or similarly situated
will not be considered to be a potentially liable owner or
operator under section 107 for that release, so long as they
meet certain conditions. The provision is similar to EPA
guidance on the topic entitled Final Policy Toward Owners of
Property Containing Contaminated Aquifers (OSWER Memorandum
dated May 24, 1995), which clarifies that EPA will not bring
enforcement actions against owners of property that has been
impacted by contaminated groundwater migrating from a
neighboring facility.
Section 107(o)(1)(A) establishes the conditions which a
person must demonstrate by a preponderance of the evidence for
the liability protection to apply:
the person cannot have caused, contributed to or
consented to the release or threat of release;
the person must not be potentially liable, or
affiliated through a familial relationship or any contractual,
corporate, or financial relationship (other than one created by
a contract for the sale of goods or services) with another
party that is or was potentially liable at the facility. In
addition, the person must not be an entity created through the
reorganization of a business entity that was potentially
liable;
the person must have taken reasonable steps to
stop any continuing release, prevent any threatened future
release, and prevent or limit human, environmental, or natural
resources exposure to any hazardous substance released on or
from property owned by that person;
the person must provide 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;
the person must be in compliance with any land
use restrictions and not impede the effectiveness or integrity
of any institutional control employed in connection with a
response action;
the person must be in compliance with any request
for information or administrative subpoena issued by the
President under this Act;
the person must provide all legally required
notices with respect to the discovery or release of any
hazardous substances found at the facility;
at the time at which the person acquired the
property, the person must have conducted all appropriate
inquiry within the meaning of 101(35)(B) and did not know or
have reason to know that the property was or could be
contaminated by a release or threatened release from a
contiguous property not owned or operated by the person.
With respect to contamination that exists due to subsurface
migration of hazardous substances in an aquifer, section
107(o)(1)(D) specifies that a person shall not be required to
conduct ground water investigations or to install ground water
remediation systems, except in accordance with the Final Policy
Toward Owners of Property Containing Contaminated Aquifers
(OSWER Memorandum dated May 24, 1995).
Section 107(o) protects parties that are essentially
victims of pollution incidents caused by their neighbor's
actions. It is not intended to require parties raising section
107(o) as an affirmative defense to alleged liability to
undertake full-scale response actions with respect to migrating
contaminated plumes passing through their property. It requires
that they take reasonable steps, which typically will include
actions such as notifying appropriate Federal, State and local
officials regarding the situation; erecting and maintaining
signs or fences to prevent public exposure; or maintaining any
existing barrier or other elements of a response action on
their property that address the contaminated plume. Except
under exceptional circumstances as outlined in EPA's May 24,
1995 contaminated aquifer policy, such as at a site where the
operation of a drinking water well could impact the migration
of a plume, these persons are not expected to conduct ground
water investigations or install remediation systems, or
undertake other response actions that would more properly be
paid for by the responsible parties who caused the
contamination.
Section 107(o)(3) provides the Administrator discretion to
issue assurances, known as ``comfort letters,'' that no
enforcement action will be initiated against a person meeting
the requirements of this section. EPA also may enter into
settlements that would insulate a person meeting the
requirements of the section from a cost recovery or
contribution action under CERCLA.
The section also clarifies that a person who may not
qualify under this section because the person had, or had
reason to have, knowledge that the property might be
contaminated, may still qualify as a bona fide prospective
purchaser under section 101(40) if the person meets the
requirements of section 101(40).
Section 202. Prospective Purchaser and Windfall Liens
Summary
Section 202 adds a new section 107(p) that provides
liability relief under section 107(a) for purchasers of
contaminated property who establish by a preponderance of the
evidence that they did not contribute to the contamination if
they do not impede the performance of a cleanup or restoration
at a site they acquire after enactment, exercise appropriate
care with respect to hazardous substances, provide cooperation
and access to persons authorized to clean up the site,
conducted appropriate inquiries prior to the purchase, and are
in compliance with institutional controls and requests for
information. This section authorizes the United States to place
liens on properties at which unrecovered response costs exist
and at which the fair market value of the property was enhanced
by the Federal cleanup.
Discussion
Two provisions are added to CERCLA to provide protection to
persons who wish to purchase contaminated property without
incurring Superfund liability. Fear of potential Superfund
liability is frequently cited as a barrier to redevelopment of
contaminated sites. EPA has attempted to address this problem
on a case-by-case basis with so-called prospective purchase
agreements. The process of negotiating these agreements,
however, is cumbersome and resource-intensive.
The new provisions add a definition of ``bona fide
prospective purchaser'' to CERCLA's definitions. Section 107
would be amended to exclude persons who qualify as bona fide
prospective purchasers from liability under CERCLA.
A bona fide prospective purchaser is a person, or tenant of
the person, who acquires property after the date of enactment
of the Brownfields Revitalization and Environmental Restoration
Act of 2001 and can establish each of the following conditions
by a preponderance of the evidence. First, for purposes of this
exemption, all disposal of hazardous materials must have
occurred at the facility before the person acquired the
property. Second, the person must have made all appropriate
inquiry into the previous ownership and uses of the facility
and the real property in accordance with generally accepted
commercial and customary standards and practices as set forth
in section 101(35)(B). Such inquiry should include reviews of
historical sources and documents, such as deeds, easements,
leases, covenants, and other title and restriction documents
which may indicate prior uses and site conditions. It should
also include searches for liens filed against the real
property. These standards and practices will be established by
a regulation issued by the Administrator within 2 years of
enactment of this section. Until the Administrator promulgates
the regulation, the interim standards and practices described
in 101(35)(B)(iv) shall apply. The section recognizes that
appropriate inquiry for residential property is appropriately
different from appropriate inquiry for commercial property. If
the purchaser of property for residential or a similar use is
not a governmental or commercial entity, a facility inspection
and title search that reveals no basis for further
investigation will generally satisfy this requirement. A
purchaser also must provide any required notices if there is a
discovery or release of any hazardous substance.
In the case of a property at which hazardous substances are
found, any bona fide prospective purchaser must exercise
appropriate care by taking reasonable steps to stop any
continuing releases, prevent any threatened release, and
prevent or limit human, environmental, or natural resource
exposure to any previously released hazardous substance. Like
the contiguous landowner, a bona fide prospective purchaser
must provide full cooperation, assistance and site access in
the course of any necessary response action (including site
assessment and investigation activities). In addition, the
prospective purchaser must comply with any land use
restrictions at the site and must not impede the effectiveness
or integrity of any institutional control employed at the
facility (such as damaging a cap, removing signs or fences, or
otherwise failing to maintain an institutional control, etc.).
In order to satisfy the definition, a person also must comply
with any request for information or administrative subpoena
issued under this Act. Finally, a bona fide prospective
purchaser must not be potentially liable, or affiliated through
a familial relationship or any contractual, corporate, or
financial relationship (other than one created by a contract
for the sale of goods or services) with another party that is
or was potentially liable at the facility. Also, the person
must not be an entity created through the reorganization of a
business entity that was potentially liable.
The liability limitation for a bona fide prospective
purchaser is created in new section 107(p)(1). A bona fide
prospective purchaser shall not be liable under CERCLA section
107(a) if the person establishes by a preponderance of the
evidence that liability is based solely on the party's status
as an owner or operator of a facility by reason of the
purchase, provided that the purchaser does not impede the
performance of a response action or natural resource
restoration.
While bona fide prospective purchasers are protected from
liability, new section 107(p)(2) prevents these parties from
reaping a windfall due to the increase in a property's value as
a result of the Federal Government's cleanup efforts. If the
Federal Government incurs response costs at a facility, this
section creates a Federal windfall lien on the property. The
amount of the lien would be equal to the lower of the Federal
Government's unrecovered response costs or the increase in the
fair market value of the property due to the government's
cleanup efforts. In the event that the Federal Government
recoups part of its unrecovered response costs, such that the
value of the lien exceeds the unrecovered costs, the
government's lien will be reduced to the amount of unrecovered
costs. The windfall lien provision recognizes that the cost of
cleanup may exceed the fair market value of the property (which
may be valueless unless it is cleaned up). The windfall lien
would be satisfied from the proceeds when the bona fide
prospective purchaser resells or otherwise disposes of the
property.
Section 203. Innocent Landowners
Summary
Section 203 amends section 101(35)(B) to clarify the
obligations of any party who seeks to use the innocent
landowner defense currently in section 107(b)(3). The bill
provides that the appropriate inquiry requirement is satisfied
by conducting an environmental site assessment that meets
specific standards to be promulgated by the Administrator
within 2 years of enactment or as provided in interim standards
outlined in the bill.
Discussion
CERCLA provides an affirmative defense for innocent
purchasers of real property who prior to the date of purchase
had no reason to know of any release or threatened release of a
hazardous substance that was disposed of on, in, or at the
facility. This section amends CERCLA section 101(35) to clarify
the obligations of parties that seek to use this defense.
First, a party using this defense must provide full access,
assistance and cooperation in the conduct of any response
actions at the facility. In addition, the landowner must not
impede the effectiveness or integrity of any institutional
controls at the facility. A landowner seeking to use the
defense also must demonstrate that he or she had no reason to
know of the contamination. This is intended to mean that at, or
prior to, the date the property was acquired, the landowner
undertook all appropriate inquiry into the previous ownership
and uses of the facility and the associated real property in
accordance with standards and practices established by
regulation by the Administrator within 2 years of enactment of
this section, or prior to promulgation of the regulations in
accordance with this section. A defendant must establish it
took reasonable steps regarding the release as provided in
(B)(i)(II). These requirements are in addition to the due care
requirement of section 107(b)(3).
In order to increase certainty and provide clarity, this
section provides specific criteria that the Administrator shall
include in regulations that establish standards and practices.
One such criteria is the review of historical sources. The
provision lists examples to demonstrate types of historical
sources which may be relied upon, but does not contain an
exhaustive list of such sources. In satisfying all appropriate
inquiry, it is not intended that a person specifically produce
each historical source listed. If the property was purchased
before May 31, 1997, a court shall take into account 1) a
defendant's specialized knowledge or experience, 2) the
relationship of the purchase price to the value of the
property, if the property was not contaminated, 3) commonly
known or reasonably ascertainable information about the
property, 4) the obviousness of the presence or likely presence
of contamination, and 5) the ability of the defendant to detect
the contamination by appropriate inspection. For property
purchased after May 31, 1997, and before the regulations are
promulgated, the procedures published by the American Society
for Testing and Materials, including the document known as
`Standard E1527-97', entitled Standard Practice for
Environmental Site Assessments: Phase I Environmental Site
Assessment Process can satisfy the all appropriate inquiries
requirement. This section recognizes that all appropriate
inquiry for residential property is different than for
commercial property. If the property is for residential use or
other similar use and the purchaser is not a governmental or
commercial entity, a facility inspection and title search that
reveals no basis for further investigation satisfies the all
appropriate inquiries requirement.
A landowner also must demonstrate the exercise of
appropriate care, defined at new section 101(40)(D). This is
the same standard that applies to owners or operators who
qualify for the bona fide prospective purchaser exemption under
section 107(p).
Title III State Response Programs
Section 301. State Response Programs
Summary
Section 301 adds a new CERCLA section 129, authorizing EPA
to provide funding to States and Indian tribes to establish and
enhance State programs when the State's or tribe's program
meets certain elements, they are making reasonable progress
toward meeting the elements, or they have entered into a
Memorandum of Agreement with EPA. The bill authorizes
$50,000,000 to be appropriated for each of fiscal years 2002-
2006 to carry out these provisions.
This section also provides additional deference for
cleanups conducted under a State program by precluding
subsequent Federal enforcement by the President under sections
106(a) or recover response costs under section 107(a) except:
(1) at the State's request; (2) in connection with migration
across a State line or onto Federal property; (3) if the
Administrator determines that an imminent and substantial
endangerment to public health or welfare or the environment
exists, after considering the response actions already taken at
the site, and determines that additional response actions are
likely to be necessary; or (4) if the Administrator determines
new information as to the site conditions or contamination is
discovered and the contamination and conditions of the site
present a threat requiring further remediation to protect
public health, welfare, or the environment. States are required
to maintain and update at least annually a public record of
sites, in order for sites cleaned up under a State program to
be eligible for funding or for the bar on enforcement.
Discussion
The vast majority of contaminated sites across the Nation
will not be cleaned up by the Superfund program. Instead, most
sites will be cleaned up under State authority. For example,
while there are an estimated 450,000 brownfield sites, there
are fewer than 1,300 NPL sites. In recognition of this fact,
and the need to create and improve State cleanup capacity, new
section 129(a) provides financial assistance to States and
Indian tribes to establish or enhance voluntary response
programs. It is the expectation of the committee that funding
of these programs created under this bill will fall under
section 104, as does the current brownfields program. In
addition, the State or tribe may use part or all of a grant
under this subsection to capitalize a revolving loan fund
established under section 128(c) or develop a risk sharing
pool, an indemnity pool, or insurance mechanism to provide
financing for response actions under a State response program.
In order for a State or Indian tribe to qualify to receive a
grant under this section for an existing or new program, it
must demonstrate that the program includes the elements listed
in section 129(a)(2) or that it is taking reasonable steps to
include each of the elements in section 129(a)(2). This
provision regarding State programs where the State is ``taking
reasonable steps to include'' the elements is meant to
encourage States that are in the midst of revising their
programs in a timely fashion to meet the elements specified in
the bill and not to penalize them in the annual funding
discussion with EPA if they have not completed their program.
It is not intended to be an open ended provision, however, and
the committee would not expect the Administrator to continue
funding States in a subsequent year without showing additional
substantial progress toward meeting the elements.
The State program elements include oversight and
enforcement authorities to ensure protection of human health
and the environment, meaningful opportunities for public
participation, a survey and inventory of brownfield sites in
the State, and mechanisms for approval of cleanup plans and a
requirement for verification that the response action has been
completed. A State is automatically eligible for funding under
this subsection if it is a party to a memorandum of agreement
(MOA) with the Administrator for voluntary response programs.
MOAs have helped to foster more effective and efficient working
relations between EPA and the States that have entered into
them, and the bill will encourage their use by providing
automatic eligibility for funding to States with MOAs.
The bill clarifies the role of the Federal Government under
Superfund at sites cleaned up under State response programs.
Similar to title I, title III focuses on relatively low risk
sites, and excludes sites which are more appropriately
addressed under Superfund or other Federal environment laws.
However there are a few significant differences between the
universe of sites covered in title I (``brownfield sites'') and
those addressed in title III (``eligible response sites'').
Sites eligible for funding under title I but excluded from
liability relief under title III include sites which might be
eligible for inclusion on the NPL based on their ``pre-score''
(i.e., their preliminary score in the current EPA computer
model, or its successor, to assess sites for possible inclusion
on the NPL), but have not been proposed for listing and may not
yet have had an HRS package prepared, unless the President
determines that no further Federal action will be taken. The
enforcement bar can be applied to a site excluded from coverage
under title III at the discretion of the President, after
consultation with the State in which the site is located. Where
the President exercises discretion to add a site that would
otherwise be excluded due to coverage under other laws, the
responsible party is not relieved of any obligation under those
laws.
The universe of sites to which this title applies is
further limited by the effective date, which provides that the
liability relief ``applies only to response actions conducted
after February 15, 2001'' (the date of introduction of BRERA).
The word ``conducted'' is used rather than ``commenced'' in
order not to arbitrarily exclude a site at which a minor
portion of the work is conducted prior to February 15, 2001. It
is not the intent of the committee for the enforcement bar to
apply to response actions which were commenced in order to
qualify for the bar.
Section 129(b)(1) limits the authority of EPA at eligible
response sites that have been or are being cleaned up in
compliance with a State response program. The State program
must be one that specifically governs response actions for the
protection of public health and the environment. Section
129(b)(1) provides that EPA may not bring a cost recovery
action under section 107(a) or take an administrative or
judicial enforcement action under section 106(a) against a
person that is conducting or has completed a response action,
with respect to the specific release addressed by the response
action (there may be separate releases at the same facility
that are addressed separately, especially if they occur at
different times, or have different parties responsible for
them). Where more than one media is contaminated by a hazardous
substance (e.g. soil and groundwater), these are to be
considered separate releases for purposes of this bill. The
limit on EPA's authority applies only to actions by EPA against
the person conducting the cleanup. In addition, this title does
not limit in any way the authority of EPA to itself take action
under section 104 or other authority. In addition, there is no
intent to limit EPA's authority to issue so-called
``participate and cooperate'' orders. That is, where some
responsible parties at a site are conducting a cleanup, EPA's
authority is not limited with respect to other responsible
parties. They may be compelled to cooperate with the
responsible parties that are conducting the cleanup.
There are four exceptions to the liability limitations:
(1) The State requests assistance in performance of a
response action.
(2) The Administrator determines that contamination has
migrated or will migrate across a State line, necessitating
further response action, 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.
The phrase ``authorized purposes'' is intended to be read
broadly to include management responsibilities or statutory
trust obligations of the department, agency or instrumentality.
It is not limited to current uses of property where the
property is intended to be used for multiple purposes.
(3) The Administrator determines, after taking into
consideration response activities already taken, that a release
or threatened release may present an imminent and substantial
endangerment to public health or welfare or the environment,
and that additional response actions are likely to be necessary
to address the release or threatened release.
The current threshold for EPA to initiate an action under
section 107 to recover response costs incurred at a site is ``a
release or threatened release . . . of a hazardous substance.''
In order for EPA to issue a unilateral administrative order
under section 106, the President must determine that ``a
release or threatened release may present an imminent and
substantial endangerment to human health or welfare or the
environment.''
The bill specifically uses phrases already contained in
CERCLA, for many of which there already exist definitions, and
for which there is a well-established body of CERCLA case law
(for example, the term ``imminent and substantial
endangerment''). This was done with the express intent of
incorporating this case law, and to avoid, as far as possible,
new litigation. However, the bill contains two phrases that do
not currently appear in CERCLA. First, it expressly states that
EPA's determination on an imminent and substantial endangerment
must be made ``after taking into consideration response
activities already taken.'' The purpose of this phrase is to
make clear that EPA's imminent and substantial endangerment
determination at a site addressed under a State cleanup program
should be based on current conditions at the site, as of the
time EPA is considering taking action, as contrasted with
conditions as they existed before cleanup activities had began.
Although this generally reflects EPA's current practice in
connection with brownfield sites, it is important to confirm
that EPA's determination under this provision be made in light
of the site conditions as affected by prior response activities
by a party under a State program. This provision is not
intended to impose a requirement on EPA to conduct a historical
search of response activities conducted in the past, but rather
to ensure that determinations are made based on conditions at a
site at the time the order is issued under section 106(a) or at
the time of incurrence of response costs for which EPA seeks
recovery under section 107.
Second, in addition to determining that there may be an
imminent and substantial endangerment, EPA must determine that
additional response actions are likely to be necessary to
address the release or threatened release. This reflects EPA's
current practice at brownfield sites addressed under State
programs and ensures that EPA's actions in the future will be
appropriate. This current practice has resulted in EPA never
having taken an enforcement action at a brownfield site being
addressed under a State cleanup program without a request from
the State.
(4) The Administrator determines that information that was
not previously known by the State has been discovered, and that
further remediation is necessary to protect human health or
welfare or the environment.
This reopener would apply in situations where the
Administrator determines that new information concerning site
conditions or contamination reveals that more cleanup is
needed. If information was not contemplated by the State at the
time of approval or completion of the cleanup, then it cannot
be assumed that the cleanup addressed such conditions or
contamination, and EPA should not be precluded from requiring
any further response action in connection with that new
information, or from recovering its response costs. By defining
``new'' information as that which the State did not know at a
defined time, as reflected in cleanup documents, we intend to
eliminate potentially lengthy disputes as to who knew what
when, and provide more objective criteria and certainty for the
determination.
This bill does not make the limitations on EPA authority
contingent on EPA's prior review and approval of the State's
response program. The circumstances of brownfields cleanups
under State laws are unique in several significant respects.
First, the sites are cleaned up under programs established
solely under State law, and are not the result of authorization
or delegation from the Federal Government, as in the Clean
Water Act or the Resource Conservation and Recovery Act, or
other environmental laws. The absence of a Federal nexus
distinguishes these purely State programs from programs
implementing Federal environmental laws. And, as discussed
above, this title applies to a limited universe of relatively
low risk sites that generally are considered to be not of
``Federal interest''. In addition, the bill provides other
safeguards to ensure that EPA's authority is not
inappropriately limited. These include the exceptions--or
``reopeners''--to the limitations, discussed above, and the
condition on funding that State programs meet or take steps to
meet threshold requirements. By conditioning funding on a State
having met or taking reasonable steps to meet the specified
elements, or being party to a MOA, the bill will promote State
programs that contain these basic elements.
In addition, the limitations on EPA's authority apply only
in States that maintain a public record of sites at which
response actions have been conducted and are planned for the
coming year, including whether they will be suitable for
unrestricted use and what, if any, institutional controls are
relied on. A number of stakeholders have indicated that it
would be most useful for this information to be made available
electronically. While the bill requires that the State update
their records at least annually, more frequent updates would be
appropriate in States that address many sites each year. The
public record can put communities on notice of cleanup
activity, allowing them to inquire further, and it can serve as
a tool for developers and others seeking to do business in the
State.
New section 129(b)(1)(D) establishes a notification
requirement whenever EPA intends to take an administrative or
judicial enforcement action that may be barred. This permits
the State governments to notify EPA of any State action at the
site. The section requires EPA to notify a State of its intent
to undertake an administrative or judicial enforcement action
at a facility that may be covered by the bar and where there is
a release or threatened release of a hazardous substance, prior
to taking such action. The State has 48 hours to respond to the
notice and inform EPA if the site is currently, or has been,
subject to a State remedial action. Unless one of the reopeners
under section 129(b)(1)(B) applies, the enforcement bar applies
if the site is being addressed under a State program. This is
simply a notice requirement and has no effect on the Federal-
State relationship at the facility, but it is intended to help
encourage communication and coordination between the Federal
Government and the States. In the situation where the
Administrator determines that one of the exceptions to the
enforcement bar applies, the Administrator can take any
appropriate action immediately. The Administrator still must
give notice to the State, but there is no requirement to await
State acknowledgment. If the Administrator does take an
enforcement action under any of the reopeners (other than the
State request for Federal intervention), the President shall
submit to Congress, within 90 days after the initiation of an
enforcement action, a report describing the basis for the
enforcement action, including specific references to the facts
demonstrating that enforcement action is permitted under a
particular reopener.
Section 129(b)(2) provides a savings provision that allows
the President to recover costs incurred prior to the date of
enactment of BRERA or during a period in which the enforcement
bar in section 129(b)(1)(A) was not applicable. In addition,
the bill clarifies that nothing in section 129 modifies or
otherwise affects a memorandum of agreement, memorandum of
understanding, or any similar agreement between a State agency
or an Indian tribe and the Administrator that is in effect on
or before the date of enactment of BRERA. Similarly, nothing
limits the discretionary authority of the President to enter
into or modify an agreement with a State, Indian tribe, or
other person relating to the implementation by the President of
statutory authorities. Fifteen States have signed memoranda of
agreement (MOA) with EPA. MOAs are valuable tools in
establishing Federal and State priorities and dividing the
workload and providing greater certainty that EPA will not
bring enforcement actions at specified sites. They have proven
effective at avoiding duplication of effort at sites. The
committee expects that States and EPA will continue to develop
and implement MOAs.
Section 129(c) confirms that nothing in section 129 affects
liability or response authority under CERCLA (except as
provided in subsection (b)), or any other Federal law.
Section 302. Additions to National Priorities List
Summary
Section 302 creates a new section 105(h) that provides for
the President to defer listing an eligible response site on the
NPL at the request of a State, if the President determines that
the State or other party is cleaning up a site under a State
program or if the State is pursuing a cleanup agreement. The
President may list a deferred site on the National Priorities
List (NPL), after 1 year from proposed listing, if the State is
not making reasonable progress toward completing the response
action or a cleanup agreement has not been reached.
Discussion
This section amends section 105 of CERCLA to add a new
subsection (h) to address when the listing of a facility on the
NPL should be deferred. Under new subsection (h)(1), the
President is expected to defer listing a facility if a State,
or another party under an agreement with or an order from the
State, is conducting a response action at an eligible response
site in compliance with a State program.
The President also is expected to defer final listing of a
facility if a State is attempting to obtain an agreement from
parties to perform a remedial action that will provide long-
term protection of human health and the environment. The
committee believes that this provision will create a strong
incentive for parties to agree to work with State authorities
to clean up a site. If, after 1 year from the deferral of
listing a site on the NPL, an agreement has not been reached
with the State, the President may defer the listing for an
additional 180 days if the President determines deferring the
listing would be appropriate based on the complexity of the
site, the substantial progress made in negotiations, and other
appropriate factors. This is intended to allow time for
completion of ongoing negotiations which are nearing
completion. In addition, the President may decline to defer, or
elect to discontinue a deferral of, a listing 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; the criteria under the National Contingency
Plan for issuance of a health advisory have been met; or the
conditions upon which the original deferral was based are no
longer being met.
Hearings
On February 27, 2001, the Subcommittee on Superfund, Waste
Control, and Risk Assessment met to consider S. 350, a bill to
amend the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 to promote the cleanup and reuse of
brownfields, to provide financial assistance for brownfields
revitalization, and to enhance State response programs, and for
other purposes, receiving testimony from Hon. Christine Todd
Whitman, Administrator, Environmental Protection Agency; Mayor
J. Christian Bollwage, Elizabeth, NJ, on behalf of the United
States Conference of Mayors; Mayor Myrtle Walker, East Palo
Alto, CA, on behalf of the National Association of Local
Government Environmental Professionals; Philip J. O'Brien, New
Hampshire Department of Environmental Services, Concord, NH;
Mike Ford, Mike Ford Agency, Clark, NJ, on behalf of the
National Association of Realtors; Alan Front, The Trust for
Public Land; John G. Arlington, American Insurance Association;
Grant Cope, United States Public Interest Research Group;
Robert D. Fox, Manko, Gold and Katcher, Bala Cynwyd, PA; and
Deeohn Ferris, Global Environmental Resources, Inc.,
Finesville, NJ.
Legislative History
On February 15, 2001, Senators Chafee, Smith, Reid, Boxer,
Warner, Baucus, Specter, Graham, Campbell, Lieberman, Grassley,
Carper, Clinton, Corzine, and Wyden introduced S. 350, a bill
to amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 to promote the cleanup
and resuse of brownfields, to provide financial assistance for
brownfields revitalization, to enhance State response programs,
and for other purposes. The Subcommittee on Superfund, Waste
Control, and Risk Assessment conducted a hearing on the bill on
S. 350 on February 27, 2001.
S. 350, as amended, was reported by the Committee on
Environment and Public Works on March 8, 2001.
Rollcall Votes
On March 8, 2001, the Committee on Environment and Public
Works met to consider S. 350, the Brownfields Revitalization
and Environmental Restoration Act of 2001. A manager's
amendment offered by Senators Smith of New Hampshire, Reid,
Chafee, and Boxer was agreed to by voice vote.
An amendment offered by Senator Inhofe to extend
enforcement authority exemptions from the Toxic Substances
Control Act failed to pass by a rollcall vote of 5 ayes to 13
nays. Voting in favor were Senators Bond, Crapo, Inhofe,
Specter, and Voinovich. Voting against were Senators Baucus,
Boxer, Campbell, Carper, Chafee, Clinton, Corzine, Graham,
Lieberman, Reid, Smith of New Hampshire, Warner, and Wyden.
An amendment offered by Senator Inhofe to extend
enforcement authority exemptions from the Resource Conservation
and Recovery Act failed to pass by a rollcall vote of 5 ayes to
13 nays. Voting in favor were Senators Bond, Crapo, Inhofe,
Specter, and Voinovich. Voting against were Senators Baucus,
Boxer, Campbell, Carper, Chafee, Clinton, Corzine, Graham,
Lieberman, Reid, Smith of New Hampshire, Warner, and Wyden.
An amendment offered by Senator Inhofe to extend
enforcement authority exemptions from section 9003(h) of the
Resource Conservation and Recovery Act failed to pass by a
rollcall vote of 5 ayes to 13 nays. Voting in favor were
Senators Bond, Crapo, Inhofe, Specter, and Voinovich. Voting
against were Senators Baucus, Boxer, Campbell, Carper, Chafee,
Clinton, Corzine, Graham, Lieberman, Reid, Smith of New
Hampshire, Warner, and Wyden.
An amendment offered by Senator Inhofe to limit the
expenditure of funds for EPA's administrative costs failed to
pass by a rollcall vote of 4 ayes to 14 nays. Voting in favor
were Senators Bond, Crapo, Inhofe, and Warner. Voting against
were Senators Baucus, Boxer, Campbell, Carper, Chafee, Clinton,
Corzine, Graham, Lieberman, Reid, Smith of New Hampshire,
Specter, Voinovich, and Wyden.
A motion to report the bill as amended was agreed to by
rollcall vote of 15 ayes and 3 nays. Voting in favor were
Senators Baucus, Boxer, Campbell, Carper, Chafee, Clinton,
Corzine, Graham, Lieberman, Reid, Smith of New Hampshire,
Specter, Voinovich, Warner, and Wyden. Voting against were
Senators Bond, Crapo, and Inhofe.
Evaluation of Regulatory Impact
Section 11(b) of rule XXVI of the Standing Rules of the
Senate requires publication of the report of the committee's
estimate of the regulatory impact made by the bill as reported.
No regulatory impact is expected by the passage of S. 350. The
bill will not affect the personal privacy of others.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(P.L. 104-4), the committee finds that this bill would impose
no Federal intergovernmental unfunded mandates on State, local,
or tribal governments. All of its governmental directives are
imposed on Federal agencies. The bill does not directly impose
any private sector mandates.
Cost of Legislation
Section 403 of the Congressional Budget and Impoundment Act
requires each report to contain a statement of the cost of a
reported bill prepared by the Congressional Budget Office.
Senate Rule XXVI paragraph 11(a)(3) allows the report to
include a statement of the reasons why compliance by the
committee is impracticable. The committee is unable to include
a statement of the cost at this time because the Congressional
Budget Office has not finished an analysis of the bill.
Additional Views of Senator Voinovich
Our States have a vested interest in cleaning up waste
sites on their own and in many instances, they are doing so
more efficiently and more cost-effectively than the Federal
Government. The result is healthier downtowns and an emphasis
on preventing urban sprawl and preserving farmland and
greenspaces. State programs are cleaning-up industrial eyesores
in our urban centers, making them more desirable places to
live. By their actions, States are putting abandoned sites back
into productive use; they are the key to creating jobs in areas
that have traditionally been hit-hard by unemployment.
Unfortunately, under current Federal law, disincentives to
cleaning-up brownfields sites remain. It is important that we
alleviate this problem by providing a waiver of Federal
Superfund liability to parties that clean-up sites under State
voluntary cleanup and enforcement programs. While S. 350
provides some relief from Federal liability to developers who
clean-up these sites under State programs, I believe that
States should be given the ``opportunity to cure'' before EPA
initiates an enforcement action. The National Governor's
Association (NGA) and the National Conference of State
Legislatures both agree that States must be given adequate
opportunity to respond before the Federal Government steps in.
Last summer, the NGA wrote to members of the Committee to
express their strong support for provisions ``that relieve the
fear of Federal Superfund liability from prospective
purchasers, innocent landowners, and contiguous property
owners.'' The NGA has stated that they also strongly support
significantly improved language that would provide ``some
degree of certainty that States can assure landowners who
participate in State voluntary cleanup programs that they will
not be engulfed in the Federal liability scheme.''
As S. 350 moves forward, I look forward to working out a
more workable process for State authority. It is important that
this issue is addressed so we can return old industrial sites
to productive use.
Additional Views of Senators Boxer, Baucus, Lieberman, Clinton, and
Corzine
Introduction
We are pleased to see that this committee was able to come
together around the important issue of Brownfields legislation.
We think that this bill generally makes important strides in
addressing these sites. We think the bill could have been
strengthened by the amendments we offered, as discussed below.
Directing Assistance to Vulnerable Populations
The U.S. Conference of Mayors and many others have noted
that brownfields create problems that afflict communities
around the country. There was widespread agreement among the
witnesses testifying before the committee that the status quo
with regards to brownfields is unacceptable. We concur. While
EPA's efforts have met with significant successes, this bill is
needed to ensure that the Brownfields Initiative is able to
expand to more effectively address the hundreds of thousands of
contaminated sites around the country.
It is important that a brownfields bill maximize the
assistance provided to communities that have been
disproportionately impacted by brownfields; in particular, low-
income minority communities that are least able to address the
problems on their own. As Deeohn Ferris, President of Global
Environmental Resources Incorporated testified, ``Compared to
their numbers in the general population, many of these
properties are in minority and low-income neighborhoods. Thus,
equity, race and class discrimination, the diminished tax base
in municipalities, and suburban sprawl are inseparable from the
blight and marginalized communities that accompany
brownfields.''
Children, pregnant women, and the elderly have been found
to be particularly vulnerable to some of the contamination
common to brownfields sites. As such, any brownfields bill
should also give special attention to the unique needs of these
vulnerable populations. Amendments filed by Senators Boxer,
Clinton, and Corzine would have directed EPA to give priority
to these communities and would have improved the bill as it
applies to these communities. Unfortunately, the bill fails to
adequately address either the specific health concerns of
pregnant women, children, and the elderly or the needs of low-
income, minority communities that have been disproportionately
impacted by brownfields.
The bill could also go further in targeting resources to
those communities faced with a higher-than-normal incidence of
disease (including cancer, asthma, or birth defects). Many in
the scientific and public health communities believe that
diseases such as these may be linked to exposure to hazardous
substances found in brownfields sites. Unfortunately, there are
still significant gaps in our understanding about how exposure
to these substances may impact human health, and particularly
the health of children, the elderly, and other vulnerable
subpopulations. Focusing much needed resources on the cleanup
of sites in communities with a higher-than-normal incidence of
disease would help to fill in the gaps in our understanding,
while at the same time minimizing additional human health risks
in these communities that are already plagued by illness.
Again, the bill fails to take such measures; we would strongly
support changes to the bill that would provide for this.
Open Space
Brownfields remediation efforts have often focused on the
need to clean up sites for future economic redevelopment. The
benefits to be gained from the revitalization and re-use of
these sites can not be overstated. Areas of blight can be
restored so that they bring jobs and tax revenue back to local
communities. However, many brownfields sites also have the
potential to serve as parks, greenways, or areas of open space.
Unlike past brownfields bills, this bill includes important
language that gives priority to sites that will be cleaned-up
in order to be used for outdoor recreational purposes.
As communities around the country face rapid, and often
overwhelming, development pressures, we anticipate that the use
of brownfields sites for open space purposes will become
increasingly important. Deeohn Ferris testified, ``In view of
efforts of communities to preserve already limited green spaces
within, in particular, the urban environment, it's encouraging
that the bill favors grants that facilitate, among other
activities, creation and preservation of parkland. While
economic development in certain areas is highly desirable,
quality of life is greatly enhanced by neighborhood
beautification and amenities.'' Alan Front, Senior Vice
President of the Trust for Public Land echoed this sentiment in
his testimony about the bill's provision which encourages
grants for parks and greenways. ``This provision, which
recognizes the importance of improving quality of life in
brownfields-affected neighborhoods, places open-space and
community recreation appropriately in the equation alongside
revenue-producing economic redevelopment.''
We strongly support the bill's provisions to give added
emphasis to sites that will be used for open space and
parkland.
No Effect on Other Federal Laws
The bill is designed to provide funding for and liability
relief to brownfields sites addressed under CERCLA. As outlined
in the discussion of eligible sites, the bill specifies that
only sites with low levels of contamination be considered under
this bill. The bill limits the bar on EPA's enforcement to
actions taken under Sections 106 and 107 of CERCLA and only
under the circumstances set forth in the bill. This provision
is purposefully narrow even though some brownfields sites may
be regulated by EPA or a State under these other statutes. The
committee considered and rejected efforts to address liability
under these other statutes; this has been critical to our
support and that of many outside groups. Environmentalists and
communities who have a very strong interest in cleaning up
brownfields sites are also very concerned that we not
compromise protections under these other statutes. Moreover,
many members indicated a strong unwillingness to make changes
in other laws without full hearings and other opportunities to
fully appreciate how changes made in this bill might impact the
other laws and their enforcement schemes. Given the sensitive
nature of the liability relief and the enforcement bar that the
bill creates under CERCLA, and the potential for inadvertent
effects on other environmental laws, the committee was
unwilling to make similar changes for other statutes without
thorough consideration of the implications.
Numerous witnesses testified that modifications to other
statutes were not necessary for this bill to have positive
benefits for developers, real estate interests, and others in
encouraging brownfields cleanup. Indeed, Administrator Whitman
testified, ``The Administration believes that brownfields
legislation is important enough to be considered independently
from other statutory reform efforts, such as Superfund. . . I
would urge that Superfund reform issues not hold up passage of
S. 350.'' Mike Ford testified on behalf of the National
Association of Realtors that ``A shortage of cleanup funds and
liability concerns continue to impede brownfields
redevelopment. S. 350 effectively addresses these issues.''
Eligibility for Only Low Level Sites
The bill includes important provisions specifying that only
sites with low level contamination are eligible for inclusion
under this bill. Ineligible sites include those that are listed
on the National Priorities List or sites that have undergone a
preliminary assessment and site investigation and have received
a ``pre-score'' under EPA's site evaluation process that would
indicate that the site could qualify for inclusion on the
National Priorities List. This distinction between high-level
and low-level contamination is vital to ensure that liability
relief and limitations on EPA enforcement are in no way granted
to ``Superfund-caliber'' sites. These higher-risk sites should
remain under the stringent strict liability provisions found in
CERCLA to ensure that they are dealt with in a way that meets
the health and safety needs of the public. This provision was
critical to our support for the bill, and to others supporting
the bill.
Maintaining the Federal Safety Net
The bill allows only lightly contaminated sites to be
eligible for limitations on Federal enforcement of CERCLA.
Nevertheless, there may be situations where Federal
intervention is necessary to ensure adequate cleanup occurs or
to guarantee that the appropriate parties are held responsible.
Accordingly, the bill is careful to maintain a strong Federal
safety net that allows EPA to apply fully its enforcement
options under CERCLA in the following circumstances: the State
requests assistance; contamination has migrated or will migrate
across a State line; contamination has migrated or is likely to
migrate onto property that is subject to the jurisdiction,
custody, or control of the United States and may impact the
authorized purposes of the Federal property; a release or
threatened release may present an imminent and substantial
endangerment to public health or welfare or the environment; or
new information becomes available to suggest that the
contamination or conditions of the facility present a threat
requiring further remediation to protect public health or
welfare, or the environment.
These exceptions were carefully designed to ensure that in
these important instances, EPA can intervene under its normal
CERCLA authority. One of the most important of these
``reopener'' provisions deals with circumstances in which a
site may present an imminent and substantial endangerment to
public health or welfare or the environment. This provision is
purposefully based on an identical ``imminent and substantial
endangerment'' standard found in CERCLA. This standard has been
used, and its meaning litigated for over 20 years and its
meaning is well understood by all the parties involved in
brownfields efforts. The committee considered and rejected the
use of an alternative standard in part out of concern that it
would lead to massive amounts of new litigation. This, in turn,
would provide less certainty to developers and others about
EPA's enforcement role.
In determining whether a situation may present an imminent
and substantial threat, the bill also requires the
Administrator to give consideration to response activities
already being taken and whether additional response actions are
likely to be necessary. We are aware that some outside
community and environmental organizations are very
uncomfortable with making these additions, particularly in
light of the fact that EPA has never overfiled in a single
brownfields cases.
These additions, however, are not intended to change the
meaning of the imminent and substantial standard. In fact,
these changes were intended to adopt that standard to avoid
unnecessary litigation and just address when this standard
would be applied. The standard for imminent and substantial
endangerment has been used in a number of other environmental
statutes (e.g. Solid Waste Disposal Act, Clean Air Act, Clean
Water Act); it is used in a number of State statutes relating
to brownfields cleanup; and it is used in a number of MOA's
between individual States and EPA governing the State's
voluntary brownfields cleanup program. More importantly, the
imminent and substantial standard has an established meaning
under the case law and courts have upheld its use. The courts
have held that endangerment need not be actual harm, but rather
potential or threatened harm. Additionally, they have found
that the harm itself need not be imminent for the standard to
apply; the risk of such harm is sufficient. Nothing in this
bill is intended to deviate from that interpretation.
The bill also purposefully includes language to ensure that
EPA is not barred from taking enforcement action at sites where
cleanup has been conducted before February 15, 2001. Sites
where cleanup has been undertaken (prior to February 15, 2001),
is well underway, or has been completed and are now being
maintained or monitored should not be eligible for liability
relief or the enforcement bar. This is because the argument in
favor of the bar has been that potential liability discourages
development and removing this potential liability will spur
development. Clearly, if work has already commenced at a site
there is no justification for a bar on Federal action.
History suggests that EPA will not apply a heavy hand in
implementing this safety net. EPA Administrator Whitman
testified that the agency has yet to ever overfile under CERCLA
at a brownfields site. Nonetheless, it is vital that this
option be maintained so that all enforcement tools can be
employed if any of the aforementioned circumstances develop.
Furthermore, the knowledge that EPA can intervene if a State or
private party fails to adequately clean up a site may serve as
an incentive to get the cleanups done right the first time. As
Grant Cope of the U.S. Public Interest Research Group
testified, ``State cleanup officials rely on EPA's order
authority to force intransigent parties to negotiate in good
faith, or risk involvement by Federal authorities.''
Maintenance of a strong Federal safety net is particularly
important because the bill lacks sufficient provisions for
Federal review of State programs. Democratic bills in the past
have, without exception, required EPA review and approval of
State programs, to ensure citizens are truly protected from
threats to their health and environment. With one exception
relating to the maintenance of a public record, the bill does
not require States to demonstrate that they are in compliance
with a set of Federal criteria before their program is eligible
for the enforcement bar. This means that there is little
opportunity for quality control on cleanups except for EPA's
ability to come in at a particular site when the site
conditions warrant it. Any weakening whatsoever of this
provision would tip the balance of the bill away from ensuring
protection of human health and the environment. Concerns with
this provision are exacerbated by the fact that State programs
vary widely. Even States with strong programs have, in the
past, had a variety of problems (e.g. running out of funding,
State statutes that have sunsetted). It is only by maintaining
a Federal backup for State programs that we can ensure that our
constituents are protected.
Amendments by Senators Boxer, Clinton and Corzine would
have strengthened the Federal safety net even further by
allowing EPA to exert its full CERCLA enforcement authority at
sites that would have placed children, pregnant women, or low
income minority communities or communities with a higher
proportion than normal incidence of disease at disproportionate
risk.
Many witnesses testified in favor of maintaining a strong
and clear Federal safety net. EPA Administrator Whitman, for
instance, testified that ``Brownfields legislation should
direct EPA to work with States to ensure that they employ high,
yet flexible cleanup standards, and allow EPA to step in to
enforce those standards where that is necessary.''
Pre-Approval of State Programs
As several witnesses testified, the quality of State
brownfields programs varies dramatically from State to State.
The bill requires that a State or tribal program include
certain elements, or be taking reasonable steps to include
these elements, before they are eligible for funding under the
bill. These elements are vital components that reflect the
minimum of a credible State or tribal voluntary cleanup
program. These elements include: timely survey and inventory of
brownfields sites; oversight and enforcement authorities;
resources to ensure that adequate response actions will protect
human health and the environment and comply with applicable
Federal and State law; resources to ensure that if the person
conducting the response fails, there is a mechanism for the
necessary response activities to be completed; mechanisms for
the public to participate in a meaningful way; and mechanisms
for approval of a cleanup plan and a requirement for
verification and certification.
Some States lack programs that contain some or all of these
elements. The bill allows them to receive funding while they
develop, or enhance, their programs. The bill allows States to
receive funding as long as they show that they are taking
``reasonable steps'' to develop the program elements outlined
in the bill. This is intended to encourage State programs which
lag behind to make improvements, but is meant to clearly
require that they make demonstrable progress in their program.
If States fail to make marked improvements in their program,
additional State money would not be available to them.
We expect that the Administrator would evaluate annually
the progress that States are making, assess whether they are
indeed taking reasonable steps, and deny funding to those
States that fail to make progress. Otherwise, this provision
could serve as a loophole that would allow States to avoid
incorporating the program elements into their program. Such
behavior would constitute an abuse of the intent of this bill.
In previous versions of brownfields legislation, and in
many other environmental statutes, Federal approval of State
programs is required before funding or liability relief are
provided. Indeed, other statutes allow for State implementation
only on the condition that EPA give prior approval certifying
that the State has met minimum criteria. This bill would have
benefited from similar provisions, and Sen. Baucus filed an
amendment to this bill which would have done just that.
Specifically, the bill should have explicitly required that the
elements described in the bill be in an approved State program
before there were any restraints on EPA's actions, and should
have established explicit steps that EPA would take to review
and assess a State program. Alternatively, it should at least
have clarified that there was a distinct period of time (e.g.
within 2 years of enactment of the bill) during which the State
could get its program in place and approved.
Clearly, this bill includes an inherent tradeoff between
requiring State program elements and a strong Federal safety
net. The bill just barely meets this balance. Any changes to
the Federal safety net would compromise the integrity of the
bill and provide too much deference to the States.
Improving Opportunities for Public Participation
Providing adequate opportunities for public participation
has proven to be an effective tool in ensuring that clean ups
are conducted in an efficient and cost-effective manner. By
allowing local communities to participate directly in the
decisionmaking process, concerns can be addressed early,
thereby helping to avoid unnecessary complications and delays.
S. 350 takes a number of important steps to ensure adequate
opportunities for public participation and involvement. The
bill requires the inclusion of local community involvement as a
grant application ranking criteria. It also includes mechanisms
and resources for providing public participation opportunities
as an element of State programs eligible for Federal funding.
In addition, S. 350 links the bar on Federal enforcement to
sites in States that maintain, update, and make available to
the public a record of brownfields sites at which response
actions have or will be taken.
In her testimony, Deeohn Ferris pointed out how S. 350
prioritizes public participation in the decisionmaking process:
``Community involvement and public participation assurances in
the bill. . . . elevate the significance of meeting community
needs and inclusion in the decision process.'' She also
emphasized the importance of linking the increased flexibility
that S. 350 confers upon the States with an increase in the
opportunities for community and public involvement.
While we strongly support the public participation
provisions that have been included in S. 350, we believe that
they can be strengthened even further. We are particularly
concerned that although States complying with the program
elements already included in S. 350 must survey and inventory
sites in the State, there may be sites in certain communities
that are overlooked--particularly those communities that may be
small or sparsely populated, low-income, minority, or otherwise
socially or politically disenfranchised.
We believe that such situations could be avoided by
allowing individuals that may be affected by a nearby
brownfields site to have the ability to request that the site
be assessed under a State program. Such a provision could have
been included in S. 350 while still allowing States complete
discretion and flexibility with regard to how such a request
mechanism would be established.
Minority Views of Senators Inhofe, Crapo, and Bond
Over the last several years, the Senate Committee on
Environment and Public Works (the ``committee'') has worked
very hard on Superfund reform. With S. 350, the committee has
decided, for now, to address only brownfields a single portion
of the old comprehensive Superfund reform bills. However
because of the overwhelming evidence that the statute is not
working as intended, the committee must work on additional
reforms to Superfund, including, small business and used oil
recyclers liability relief as well as remedy and natural
resource damages reforms--at a minimum.
If Congress is only going to do a small portion of the
Superfund reform for now, Congress should do it right. S. 350
contains provisions, which would be a positive first step
toward revitalizing brownfields in this country. However, there
are issues that--if addressed--would make a real difference in
our nation's ability to address brownfields and could be
addressed in a bipartisan manner. Specifically, the issues are
(1) the legislation's site cleanup finality provisions; (2) the
scope of the legislation's cleanup finality provisions; and (3)
an administrative cap on the bill.
First, Section 129 (b)(1)(B) (the exceptions provisions)
are of great concern. Advocates of S. 350 State that the bill's
purpose is to provide assurances to parties, who clean up
brownfields under State plans, that the Federal EPA will not
come back and force further Federal cleanups. S. 350 only
provides developers with moderate assurances for Superfund-
forced cleanups. Many developers and business groups (the
parties who have to fund brownfields redevelopment) argue that
the bill does nothing to this end.
Section 129 (b)(1)(B)(iv) of S. 350 is of particular
concern. This provision would allow almost any new information
to be used to allow EPA to re-enter a site. The mere existence
of any information such that the contamination or conditions
present any ``threat'' is a standard without boundaries. At a
minimum, the committee should make it clear in legislative
terms that the information must be ``clear and compelling.''
The States also need to be provided a greater role in the
process by clarifying the State's role. The States should have
the primary role to select a remedy, which should be protective
of public health and the environment. Rather, it is more
appropriate for the State to be expected to continue its
responsibility at cleaning up the site before the Federal
Government must expend time and cost at the site.
Secondly, the scope of the cleanup finality provision is of
concern. If the power of EPA to force cleanups under Superfund
is taken away, then the Federal EPA can simply side-step the
bill by using the Resource Conservation and Recovery Act (RCRA)
or the Toxic Substances and Control Act (TSCA) to force parties
to cleanup sites--even after a cleanup has been performed under
a State program. Assurances need to be provided that if clean
up has been performed under a State program which is protective
of public health and the environment, EPA does not utilize RCRA
or TSCA to force additional requirements.
According to EPA's figures, there are 200,000 sites
contaminated primarily from petroleum. This is roughly half of
the approximately 450,000 brownfields in the U.S. By not
addressing petroleum liabilities under RCRA in S. 350, Congress
is preventing almost half of the brownfields in this country
from being cleaned up and developed. Congress must address this
issue. It is not right to allow so many brownfields to remain
contaminated under this program.
Serious concerns remain that businesses will not feel
adequately protected and, therefore, brownfields will not get
cleaned up. It is true that EPA has never overfiled a State-
approved brownfields cleanup under any statute. However, it is
the perceived threat that makes businesses shy away from
revitalizing brownfields. In the end, developers and businesses
are the parties that will determine whether there is adequate
protection for developers. These are the parties, which will
decide whether it is financially viable to revitalize a
brownfield. Remember this is not about whether a polluter pays.
This is about providing a safety net for parties, who want to
do something positive for the environment and, therefore, the
community. If a business does not feel adequately protected
from liability and, therefore, is not inclined to remediate a
site, we have done nothing. Brownfields will remain abandoned
and contaminated and communities, mayors, developers,
environmental groups--and in fact, everyone,--loses.
Finally, we would like to work with the members of the
committee and the Administration to place a cap on
administrative costs set aside by the Federal EPA. A cost cap
would ensure the States and parties, seeking to clean up and
redevelop brownfields, are getting a vast majority of the funds
for their brownfields programs and cleanups. EPA informed us
that they current use approximately 16 percent of brownfields
funds appropriated on administrative costs. This amount is
unacceptable. Congress must place a cap on administrative
costs. S. 350 was drafted to revitalize brownfields in
communities all over this nation not fund a bureaucracy.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980
``SUPERFUND''
[As Amended Through P.L. 106-308, October 13, 2000]
* * * * * * *
Sec. 101. For purpose of this title--
(1) * * *
* * * * * * *
(35)(A) The term ``contractual relationship'', for
the purpose of section 107(b)(3) includes, but is not
limited to, land contracts, [deeds or] deeds,
easements, leases, or other instruments transferring
title or possession, unless the real property on which
the facility concerned is located was acquired by the
defendant after the disposal or placement of the
hazardous substance on, in, or at the facility, and one
or more of the circumstances described in clause (i),
(ii), or (iii) is also established by the defendant by
a preponderance of the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had no
reason to know that any hazardous substance
which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent
domain authority by purchase or condemnation.
(iii) The defendant acquired the facility
by inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that [he] the defendant has
satisfied the requirements of section 107(b)(3) (a) and
(b)[.], 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.
[(B) To establish that the defendant had no reason
to know, as provided in clause (i) of subparagraph (A)
of this paragraph, the defendant must have undertaken,
at the time of acquisition, all appropriate inquiry
into the previous ownership and uses of the property
consistent with good commercial or customary practice
in an effort to minimize liability. For purposes of the
preceding sentence the court shall take into account
any specialized knowledge or experience on the part of
the defendant, the relationship of the purchase price
to the value of the property if uncontaminated,
commonly known or reasonably ascertainable information
about the property, the obviousness of the presence or
likely presence of contamination at the property, and
the ability to detect such contamination by appropriate
inspection.]
(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.
* * * * * * *
(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 128 to an
eligible entity at a site included in clause
(i), (iv), (v), (vi), (viii), or (ix) of
subparagraph (B) if the President finds that
financial assistance will protect human health
and the environment, and either promote
economic development or enable the creation of,
preservation of, or addition to parks,
greenways, undeveloped property, other
recreational property, or other property used
for nonprofit purposes.
(D) Additional areas.--For the purposes of
section 128, the term ``brownfield site''
includes a site that--
(i) meets the definition of
``brownfield site'' under subparagraphs
(A) through (C); and
(ii)(I) is contaminated by a
controlled substance (as defined in
section 102 of the Controlled
Substances Act (21 U.S.C. 802)); or
(II) is mine-scarred land.
(40) Bona fide prospective purchaser.--The term
``bona fide prospective purchaser'' means a person (or
a tenant of a person) that acquires ownership of a
facility after the date of enactment of this paragraph
and that establishes each of the following by a
preponderance of the evidence:
(A) Disposal prior to acquisition.--All
disposal of hazardous substances at the
facility occurred before the person acquired
the facility.
(B) Inquiries.--
(i) In general.--The person made
all appropriate inquiries into the
previous ownership and uses of the
facility in accordance with generally
accepted good commercial and customary
standards and practices in accordance
with clauses (ii) and (iii).
(ii) Standards and practices.--The
standards and practices referred to in
clauses (ii) and (iv) of paragraph
(35)(B) shall be considered to satisfy
the requirements of this subparagraph.
(iii) Residential use.--In the case
of property in residential or other
similar use at the time of purchase by
a nongovernmental or noncommercial
entity, a facility inspection and title
search that reveal no basis for further
investigation shall be considered to
satisfy the requirements of this
subparagraph.
(C) Notices.--The person provides all
legally required notices with respect to the
discovery or release of any hazardous
substances at the facility.
(D) Care.--The person exercises appropriate
care with respect to hazardous substances found
at the facility by taking reasonable steps to--
(i) stop any continuing release;
(ii) prevent any threatened future
release; and
(iii) prevent or limit human,
environmental, or natural resource
exposure to any previously released
hazardous substance.
(E) Cooperation, assistance, and access.--
The person provides full cooperation,
assistance, and access to persons that are
authorized to conduct response actions or
natural resource restoration at a vessel or
facility (including the cooperation and access
necessary for the installation, integrity,
operation, and maintenance of any complete or
partial response actions or natural resource
restoration at the vessel or facility).
(F) Institutional control.--The person--
(i) is in compliance with any land
use restrictions established or relied
on in connection with the response
action at a vessel or facility; and
(ii) does not impede the
effectiveness or integrity of any
institutional control employed at the
vessel or facility in connection with a
response action.
(G) Requests; subpoenas.--The person
complies with any request for information or
administrative subpoena issued by the President
under this Act.
(H) No affiliation.--The person is not--
(i) potentially liable, or
affiliated with any other person that
is potentially liable, for response
costs at a facility through--
(I) any direct or indirect
familial relationship; or
(II) any contractual,
corporate, or financial
relationship (other than a
contractual, corporate, or
financial relationship that is
created by the instruments by
which title to the facility is
conveyed or financed or by a
contract for the sale of goods
or services); or
(ii) the result of a reorganization
of a business entity that was
potentially liable.
(41) Eligible response site.--
(A) In general.--The term ``eligible
response site'' means a site that meets the
definition of a brownfield site in
subparagraphs (A) and (B) of paragraph (39), as
modified by subparagraphs (B) and (C) of this
paragraph.
(B) Inclusions.--The term ``eligible
response site'' includes--
(i) notwithstanding paragraph
(39)(B)(ix), a portion of a facility,
for which portion assistance for
response activity has been obtained
under subtitle I of the Solid Waste
Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under
section 9508 of the Internal Revenue
Code of 1986; or
(ii) a site for which,
notwithstanding the exclusions provided
in subparagraph (C) or paragraph
(39)(B), the President determines, on a
site-by-site basis and after
consultation with the State, that
limitations on enforcement under
section 129 at sites specified in
clause (iv), (v), (vi) or (viii) of
paragraph (39)(B) would be appropriate
and will--
(I) protect human health
and the environment; and
(II) promote economic
development or facilitate the
creation of, preservation of,
or addition to a park, a
greenway, undeveloped property,
recreational property, or other
property used for nonprofit
purposes.
(C) Exclusions.--The term ``eligible
response site'' does not include--
(i) a facility for which the
President--
(I) conducts or has
conducted a preliminary
assessment or site inspection;
and
(II) after consultation
with the State, determines or
has determined that the site
obtains a preliminary score
sufficient for possible listing
on the National Priorities
List, or that the site
otherwise qualifies for listing
on the National Priorities
List;
unless the President has made a
determination that no further Federal
action will be taken; or
(ii) facilities that the President
determines warrant particular
consideration as identified by
regulation, such as sites posing a
threat to a sole-source drinking water
aquifer or a sensitive ecosystem.
* * * * * * *
Sec. 105. (a) Revision and Republication.-- * * *
* * * * * * *
(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.
* * * * * * *
Sec. 107. (a) Notwithstanding any other provision or rule
of law, and subject only to the defenses set forth in
subsection (b) of this section--
* * * * * * *
(o) Contiguous Properties.--
(1) Not considered to be an owner or operator.--
(A) In general.--A person that owns real
property that is contiguous to or otherwise
similarly situated with respect to, and that is
or may be contaminated by a release or
threatened release of a hazardous substance
from, real property that is not owned by that
person shall not be considered to be an owner
or operator of a vessel or facility under
paragraph (1) or (2) of subsection (a) solely
by reason of the contamination if--
(i) the person did not cause,
contribute, or consent to the release
or threatened release;
(ii) the person is not--
(I) potentially liable, or
affiliated with any other
person that is potentially
liable, for response costs at a
facility through any direct or
indirect familial relationship
or any contractual, corporate,
or financial relationship
(other than a contractual,
corporate, or financial
relationship that is created by
a contract for the sale of
goods or services); or
(II) the result of a
reorganization of a business
entity that was potentially
liable;
(iii) the person takes reasonable
steps to--
(I) stop any continuing
release;
(II) prevent any threatened
future release; and
(III) prevent or limit
human, environmental, or
natural resource exposure to
any hazardous substance
released on or from property
owned by that person;
(iv) the person provides full
cooperation, assistance, and access to
persons that are authorized to conduct
response actions or natural resource
restoration at the vessel or facility
from which there has been a release or
threatened release (including the
cooperation and access necessary for
the installation, integrity, operation,
and maintenance of any complete or
partial response action or natural
resource restoration at the vessel or
facility);
(v) the person--
(I) is in compliance with
any land use restrictions
established or relied on in
connection with the response
action at the facility; and
(II) does not impede the
effectiveness or integrity of
any institutional control
employed in connection with a
response action;
(vi) the person is in compliance
with any request for information or
administrative subpoena issued by the
President under this Act;
(vii) the person provides all
legally required notices with respect
to the discovery or release of any
hazardous substances at the facility;
and
(viii) at the time at which the
person acquired the property, the
person--
(I) conducted all
appropriate inquiry within the
meaning of section 101(35)(B)
with respect to the property;
and
(II) did not know or have
reason to know that the
property was or could be
contaminated by a release or
threatened release of 1 or more
hazardous substances from other
real property not owned or
operated by the person.
(B) Demonstration.--To qualify as a person
described in subparagraph (A), a person must
establish by a preponderance of the evidence
that the conditions in clauses (i) through
(viii) of subparagraph (A) have been met.
(C) Bona fide prospective purchaser.--Any
person that does not qualify as a person
described in this paragraph because the person
had, or had reason to have, knowledge specified
in subparagraph (A)(viii) at the time of
acquisition of the real property may qualify as
a bona fide prospective purchaser under section
101(40) if the person is otherwise described in
that section.
(D) Ground water.--With respect to a
hazardous substance from 1 or more sources that
are not on the property of a person that is a
contiguous property owner that enters ground
water beneath the property of the person solely
as a result of subsurface migration in an
aquifer, subparagraph (A)(iii) shall not
require the person to conduct ground water
investigations or to install ground water
remediation systems, except in accordance with
the policy of the Environmental Protection
Agency concerning owners of property containing
contaminated aquifers, dated May 24, 1995.
(2) Effect of law.--With respect to a person
described in this subsection, nothing in this
subsection--
(A) limits any defense to liability that
may be available to the person under any other
provision of law; or
(B) imposes liability on the person that is
not otherwise imposed by subsection (a).
(3) Assurances.--The Administrator may--
(A) issue an assurance that no enforcement
action under this Act will be initiated against
a person described in paragraph (1); and
(B) grant a person described in paragraph
(1) protection against a cost recovery or
contribution action under section 113(f).
(p) Prospective Purchaser and Windfall Lien.--
(1) Limitation on liability.--Notwithstanding
subsection (a)(1), a bona fide prospective purchaser
whose potential liability for a release or threatened
release is based solely on the purchaser's being
considered to be an owner or operator of a facility
shall not be liable as long as the bona fide
prospective purchaser does not impede the performance
of a response action or natural resource restoration.
(2) Lien.--If there are unrecovered response costs
incurred by the United States at a facility for which
an owner of the facility is not liable by reason of
paragraph (1), and if each of the conditions described
in paragraph (3) is met, the United States shall have a
lien on the facility, or may by agreement with the
owner, obtain from the owner a lien on any other
property or other assurance of payment satisfactory to
the Administrator, for the unrecovered response costs.
(3) Conditions.--The conditions referred to in
paragraph (2) are the following:
(A) Response action.--A response action for
which there are unrecovered costs of the United
States is carried out at the facility.
(B) Fair market value.--The response action
increases the fair market value of the facility
above the fair market value of the facility
that existed before the response action was
initiated.
(4) Amount; duration.--A lien under paragraph (2)--
(A) shall be in an amount not to exceed the
increase in fair market value of the property
attributable to the response action at the time
of a sale or other disposition of the property;
(B) shall arise at the time at which costs
are first incurred by the United States with
respect to a response action at the facility;
(C) shall be subject to the requirements of
subsection (l)(3); and
(D) shall continue until the earlier of--
(i) satisfaction of the lien by
sale or other means; or
(ii) notwithstanding any statute of
limitations under section 113, recovery
of all response costs incurred at the
facility.
* * * * * * *
SEC. 128. BROWNFIELDS REVITALIZATION FUNDING.
(a) Definition of Eligible Entity.--In this section, the
term ``eligible entity'' means--
(1) a general purpose unit of local government;
(2) a land clearance authority or other quasi-
governmental entity that operates under the supervision
and control of or as an agent of a general purpose unit
of local government;
(3) a government entity created by a State
legislature;
(4) a regional council or group of general purpose
units of local government;
(5) a redevelopment agency that is chartered or
otherwise sanctioned by a State;
(6) a State; or
(7) an Indian Tribe.
(b) Brownfield Site Characterization and Assessment Grant
Program.--
(1) Establishment of program.--The Administrator
shall establish a program to--
(A) provide grants to inventory,
characterize, assess, and conduct planning
related to brownfield sites under paragraph
(2); and
(B) perform targeted site assessments at
brownfield sites.
(2) Assistance for site characterization and
assessment.--
(A) In general.--On approval of an
application made by an eligible entity, the
Administrator may make a grant to the eligible
entity to be used for programs to inventory,
characterize, assess, and conduct planning
related to 1 or more brownfield sites.
(B) Site characterization and assessment.--
A site characterization and assessment carried
out with the use of a grant under subparagraph
(A) shall be performed in accordance with
section 101(35)(B).
(c) Grants and Loans for Brownfield Remediation.--
(1) Grants provided by the president.--Subject to
subsections (d) and (e), the President shall establish
a program to provide grants to--
(A) eligible entities, to be used for
capitalization of revolving loan funds; and
(B) eligible entities or nonprofit
organizations, where warranted, as determined
by the President based on considerations under
paragraph (3), to be used directly for
remediation of 1 or more brownfield sites owned
by the entity or organization that receives the
grant and in amounts not to exceed $200,000 for
each site to be remediated.
(2) Loans and grants provided by eligible
entities.--An eligible entity that receives a grant
under paragraph (1)(A) shall use the grant funds to
provide assistance for the remediation of brownfield
sites in the form of--
(A) 1 or more loans to an eligible entity,
a site owner, a site developer, or another
person; or
(B) 1 or more grants to an eligible entity
or other nonprofit organization, where
warranted, as determined by the eligible entity
that is providing the assistance, based on
considerations under paragraph (3), to
remediate sites owned by the eligible entity or
nonprofit organization that receives the grant.
(3) Considerations.--In determining whether a grant
under paragraph (1)(B) or (2)(B) is warranted, the
President or the eligible entity, as the case may be,
shall take into consideration--
(A) the extent to which a grant will
facilitate the creation of, preservation of, or
addition to a park, a greenway, undeveloped
property, recreational property, or other
property used for nonprofit purposes;
(B) the extent to which a grant will meet
the needs of a community that has an inability
to draw on other sources of funding for
environmental remediation and subsequent
redevelopment of the area in which a brownfield
site is located because of the small population
or low income of the community;
(C) the extent to which a grant will
facilitate the use or reuse of existing
infrastructure;
(D) the benefit of promoting the long-term
availability of funds from a revolving loan
fund for brownfield remediation; and
(E) such other similar factors as the
Administrator considers appropriate to consider
for the purposes of this section.
(4) Transition.--Revolving loan funds that have
been established before the date of enactment of this
section may be used in accordance with this subsection.
(d) General Provisions.--
(1) Maximum grant amount.--
(A) Brownfield site characterization and
assessment.--
(i) In general.--A grant under
subsection (b)--
(I) may be awarded to an
eligible entity on a community-
wide or site-by-site basis; and
(II) shall not exceed, for
any individual brownfield site
covered by the grant, $200,000.
(ii) Waiver.--The Administrator may
waive the $200,000 limitation under
clause (i)(II) to permit the brownfield
site to receive a grant of not to
exceed $350,000, based on the
anticipated level of contamination,
size, or status of ownership of the
site.
(B) Brownfield remediation.--
(i) Grant amount.--A grant under
subsection (c)(1)(A) may be awarded to
an eligible entity on a community-wide
or site-by-site basis, not to exceed
$1,000,000 per eligible entity.
(ii) Additional grant amount.--The
Administrator may make an additional
grant to an eligible entity described
in clause (i) for any year after the
year for which the initial grant is
made, taking into consideration--
(I) the number of sites and
number of communities that are
addressed by the revolving loan
fund;
(II) the demand for funding
by eligible entities that have
not previously received a grant
under this section;
(III) the demonstrated
ability of the eligible entity
to use the revolving loan fund
to enhance remediation and
provide funds on a continuing
basis; and
(IV) such other similar
factors as the Administrator
considers appropriate to carry
out this section.
(2) Prohibition.--
(A) In general.--No part of a grant or loan
under this section may be used for the payment
of--
(i) a penalty or fine;
(ii) a Federal cost-share
requirement;
(iii) an administrative cost;
(iv) a response cost at a
brownfield site for which the recipient
of the grant or loan is potentially
liable under section 107; or
(v) a cost of compliance with any
Federal law (including a Federal law
specified in section 101(39)(B)),
excluding the cost of compliance with
laws applicable to the cleanup.
(B) Exclusions.--For the purposes of
subparagraph (A)(iii), the term
``administrative cost'' does not include the
cost of--
(i) investigation and
identification of the extent of
contamination;
(ii) design and performance of a
response action; or
(iii) monitoring of a natural
resource.
(3) Assistance for development of local government
site remediation programs.--A local government that
receives a grant under this section may use not to
exceed 10 percent of the grant funds to develop and
implement a brownfields program that may include--
(A) monitoring the health of populations
exposed to 1 or more hazardous substances from
a brownfield site; and
(B) monitoring and enforcement of any
institutional control used to prevent human
exposure to any hazardous substance from a
brownfield site.
(e) Grant Applications.--
(1) Submission.--
(A) In general.--
(i) Application.--An eligible
entity may submit to the Administrator,
through a regional office of the
Environmental Protection Agency and in
such form as the Administrator may
require, an application for a grant
under this section for 1 or more
brownfield sites (including information
on the criteria used by the
Administrator to rank applications
under paragraph (3), to the extent that
the information is available).
(ii) NCP requirements.--The
Administrator may include in any
requirement for submission of an
application under clause (i) a
requirement of the National Contingency
Plan only to the extent that the
requirement is relevant and appropriate
to the program under this section.
(B) Coordination.--The Administrator shall
coordinate with other Federal agencies to
assist in making eligible entities aware of
other available Federal resources.
(C) Guidance.--The Administrator shall
publish guidance to assist eligible entities in
applying for grants under this section.
(2) Approval.--The Administrator shall--
(A) at least annually, complete a review of
applications for grants that are received from
eligible entities under this section; and
(B) award grants under this section to
eligible entities that the Administrator
determines have the highest rankings under the
ranking criteria established under paragraph
(3).
(3) Ranking criteria.--The Administrator shall
establish a system for ranking grant applications
received under this subsection that includes the
following criteria:
(A) The extent to which a grant will
stimulate the availability of other funds for
environmental assessment or remediation, and
subsequent reuse, of an area in which 1 or more
brownfield sites are located.
(B) The potential of the proposed project
or the development plan for an area in which 1
or more brownfield sites are located to
stimulate economic development of the area on
completion of the cleanup.
(C) The extent to which a grant would
address or facilitate the identification and
reduction of threats to human health and the
environment.
(D) The extent to which a grant would
facilitate the use or reuse of existing
infrastructure.
(E) The extent to which a grant would
facilitate the creation of, preservation of, or
addition to a park, a greenway, undeveloped
property, recreational property, or other
property used for nonprofit purposes.
(F) The extent to which a grant would meet
the needs of a community that has an inability
to draw on other sources of funding for
environmental remediation and subsequent
redevelopment of the area in which a brownfield
site is located because of the small population
or low income of the community.
(G) The extent to which the applicant is
eligible for funding from other sources.
(H) The extent to which a grant will
further the fair distribution of funding
between urban and nonurban areas.
(I) The extent to which the grant provides
for involvement of the local community in the
process of making decisions relating to cleanup
and future use of a brownfield site.
(f) Implementation of Brownfields Programs.--
(1) Establishment of program.--The Administrator
may provide, or fund eligible entities or nonprofit
organizations to provide, training, research, and
technical assistance to individuals and organizations,
as appropriate, to facilitate the inventory of
brownfield sites, site assessments, remediation of
brownfield sites, community involvement, or site
preparation.
(2) Funding restrictions.--The total Federal funds
to be expended by the Administrator under this
subsection shall not exceed 15 percent of the total
amount appropriated to carry out this section in any
fiscal year.
(g) Audits.--
(1) In general.--The Inspector General of the
Environmental Protection Agency shall conduct such
reviews or audits of grants and loans under this
section as the Inspector General considers necessary to
carry out this section.
(2) Procedure.--An audit under this paragraph shall
be conducted in accordance with the auditing procedures
of the General Accounting Office, including chapter 75
of title 31, United States Code.
(3) Violations.--If the Administrator determines
that a person that receives a grant or loan under this
section has violated or is in violation of a condition
of the grant, loan, or applicable Federal law, the
Administrator may--
(A) terminate the grant or loan;
(B) require the person to repay any funds
received; and
(C) seek any other legal remedies available
to the Administrator.
(h) Leveraging.--An eligible entity that receives a grant
under this section may use the grant funds for a portion of a
project at a brownfield site for which funding is received from
other sources if the grant funds are used only for the purposes
described in subsection (b) or (c).
(i) Agreements.--Each grant or loan made under this section
shall--
(1) include a requirement of the National
Contingency Plan only to the extent that the
requirement is relevant and appropriate to the program
under this section, as determined by the Administrator;
and
(2) be subject to an agreement that--
(A) requires the recipient to--
(i) comply with all applicable
Federal and State laws; and
(ii) ensure that the cleanup
protects human health and the
environment;
(B) requires that the recipient use the
grant or loan exclusively for purposes
specified in subsection (b) or (c), as
applicable;
(C) in the case of an application by an
eligible entity under subsection (c)(1),
requires the eligible entity to pay a matching
share (which may be in the form of a
contribution of labor, material, or services)
of at least 20 percent, from non-Federal
sources of funding, unless the Administrator
determines that the matching share would place
an undue hardship on the eligible entity; and
(D) contains such other terms and
conditions as the Administrator determines to
be necessary to carry out this section.
(j) Facility Other Than Brownfield Site.--The fact that a
facility may not be a brownfield site within the meaning of
section 101(39)(A) has no effect on the eligibility of the
facility for assistance under any other provision of Federal
law.
(k) Funding.--There is authorized to be appropriated to
carry out this section $150,000,000 for each of fiscal years
2002 through 2006.
SEC. 129. STATE RESPONSE PROGRAMS.
(a) Assistance to States.--
(1) In general.--
(A) States.--The Administrator may award a
grant to a State or Indian tribe that--
(i) has a response program that
includes each of the elements, or is
taking reasonable steps to include each
of the elements, listed in paragraph
(2); or
(ii) is a party to a memorandum of
agreement with the Administrator for
voluntary response programs.
(B) Use of grants by states.--
(i) In general.--A State or Indian
tribe may use a grant under this
subsection to establish or enhance the
response program of the State or Indian
tribe.
(ii) Additional uses.--In addition
to the uses under clause (i), a State
or Indian tribe may use a grant under
this subsection to--
(I) capitalize a revolving
loan fund for brownfield
remediation under section
128(c); or
(II) develop a risk sharing
pool, an indemnity pool, or
insurance mechanism to provide
financing for response actions
under a State response program.
(2) Elements.--The elements of a State or Indian
tribe response program referred to in paragraph
(1)(A)(i) are the following:
(A) Timely survey and inventory of
brownfield sites in the State.
(B) Oversight and enforcement authorities
or other mechanisms, and resources, that are
adequate to ensure that--
(i) a response action will--
(I) protect human health
and the environment; and
(II) be conducted in
accordance with applicable
Federal and State law; and
(ii) if the person conducting the
response action fails to complete the
necessary response activities,
including operation and maintenance or
long-term monitoring activities, the
necessary response activities are
completed.
(C) Mechanisms and resources to provide
meaningful opportunities for public
participation, including--
(i) public access to documents that
the State, Indian tribe, or party
conducting the cleanup is relying on or
developing in making cleanup decisions
or conducting site activities; and
(ii) prior notice and opportunity
for comment on proposed cleanup plans
and site activities.
(D) Mechanisms for approval of a cleanup
plan, and a requirement for verification by and
certification or similar documentation from the
State, an Indian tribe, or a licensed site
professional to the person conducting a
response action indicating that the response is
complete.
(3) Funding.--There is authorized to be
appropriated to carry out this subsection $50,000,000
for each of fiscal years 2002 through 2006.
(b) Enforcement in Cases of a Release Subject to State
Program.--
(1) Enforcement.--
(A) In general.-- Except as provided in
subparagraph (B) and subject to subparagraph
(C), in the case of an eligible response site
at which--
(i) there is a release or
threatened release of a hazardous
substance, pollutant, or contaminant;
and
(ii) a person is conducting or has
completed a response action regarding
the specific release that is addressed
by the response action that is in
compliance with the State program that
specifically governs response actions
for the protection of public health and
the environment;
the President may not use authority under this
Act to take an administrative or judicial
enforcement action under section 106(a) or to
take a judicial enforcement action to recover
response costs under section 107(a) against the
person regarding the specific release that is
addressed by the response action.
(B) Exceptions.--The President may bring an
administrative or judicial enforcement action
under this Act during or after completion of a
response action described in subparagraph (A)
with respect to a release or threatened release
at an eligible response site described in that
subparagraph if--
(i) the State requests that the
President provide assistance in the
performance of a response action;
(ii) the Administrator determines
that contamination has migrated or will
migrate across a State line, resulting
in the need for further response action
to protect human health or the
environment, or the President
determines that contamination has
migrated or is likely to migrate onto
property subject to the jurisdiction,
custody, or control of a department,
agency, or instrumentality of the
United States and may impact the
authorized purposes of the Federal
property;
(iii) after taking into
consideration the response activities
already taken, the Administrator
determines that--
(I) a release or threatened
release may present an imminent
and substantial endangerment to
public health or welfare or the
environment; and
(II) additional response
actions are likely to be
necessary to address, prevent,
limit, or mitigate the release
or threatened release; or
(iv) the Administrator determines
that information, that on the earlier
of the date on which cleanup was
approved or completed, was not known by
the State, as recorded in documents
prepared or relied on in selecting or
conducting the cleanup, has been
discovered regarding the contamination
or conditions at a facility such that
the contamination or conditions at the
facility present a threat requiring
further remediation to protect public
health or welfare or the environment.
(C) Public record.--The limitations on the
authority of the President under subparagraph
(A) apply only at sites in States that
maintain, update not less than annually, and
make available to the public a record of sites,
by name and location, at which response actions
have been completed in the previous year and
are planned to be addressed under the State
program that specifically governs response
actions for the protection of public health and
the environment in the upcoming year. The
public record shall identify whether or not the
site, on completion of the response action,
will be suitable for unrestricted use and, if
not, shall identify the institutional controls
relied on in the remedy. Each State and tribe
receiving financial assistance under subsection
(a) shall maintain and make available to the
public a record of sites as provided in this
paragraph.
(D) EPA notification.--
(i) In general.--In the case of an
eligible response site at which there
is a release or threatened release of a
hazardous substance, pollutant, or
contaminant and for which the
Administrator intends to carry out an
action that may be barred under
subparagraph (A), the Administrator
shall--
(I) notify the State of the
action the Administrator
intends to take; and
(II)(aa) wait 48 hours for
a reply from the State under
clause (ii); or
(bb) if the State fails to
reply to the notification or if
the Administrator makes a
determination under clause
(iii), take immediate action
under that clause.
(ii) State reply.--Not later than
48 hours after a State receives notice
from the Administrator under clause
(i), the State shall notify the
Administrator if--
(I) the release at the
eligible response site is or
has been subject to a cleanup
conducted under a State
program; and
(II) the State is planning
to abate the release or
threatened release, any actions
that are planned.
(iii) Immediate federal action.--
The Administrator may take action
immediately after giving notification
under clause (i) without waiting for a
State reply under clause (ii) if the
Administrator determines that 1 or more
exceptions under subparagraph (B) are
met.
(E) Report to congress.--Not later than 90
days after the date of initiation of any
enforcement action by the President under
clause (ii), (iii), or (iv) of subparagraph
(B), the President shall submit to Congress a
report describing the basis for the enforcement
action, including specific references to the
facts demonstrating that enforcement action is
permitted under subparagraph (B).
(2) Savings provision.--
(A) Costs incurred prior to limitations.--
Nothing in paragraph (1) precludes the
President from seeking to recover costs
incurred prior to the date of enactment of this
section or during a period in which the
limitations of paragraph (1)(A) were not
applicable.
(B) Effect on agreements between states and
epa.--Nothing in paragraph (1)--
(i) modifies or otherwise affects a
memorandum of agreement, memorandum of
understanding, or any similar agreement
relating to this Act between a State
agency or an Indian tribe and the
Administrator that is in effect on or
before the date of enactment of this
section (which agreement shall remain
in effect, subject to the terms of the
agreement); or
(ii) limits the discretionary
authority of the President to enter
into or modify an agreement with a
State, an Indian tribe, or any other
person relating to the implementation
by the President of statutory
authorities.
(3) Effective date.--This subsection applies only
to response actions conducted after February 15, 2001.
(c) Effect on Federal Laws.--Nothing in this section
affects any liability or response authority under any Federal
law, including--
(1) this Act, except as provided in subsection (b);
(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
(3) the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.);
(4) the Toxic Substances Control Act (15 U.S.C.
2601 et seq.); and
(5) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).