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[Senate Report 115-148]
[From the U.S. Government Publishing Office]

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                                                     Calendar No. 213
115th Congress    }                           {               Report
                                 SENATE
 1st Session      }                           {               115-148
======================================================================

 
 BROWNFIELDS UTILIZATION, INVESTMENT, AND LOCAL  DEVELOPMENT ACT OF 2017

                                _______
                                

               September 7, 2017.--Ordered to be printed

                                _______
                                

   Mr. Barrasso, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 822]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works to which was 
referred the bill (S. 822) to amend the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
to modify provisions relating to grants, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill, as amended, do pass.

                   General Statements and Background

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA) (also known as the ``Superfund'' 
law) was enacted to provide broad Federal authority to respond 
to releases or threatened releases of hazardous substances that 
may endanger public health or the environment, including 
provisions to help clean up the nation's worst contaminated 
sites and require responsible parties to pay for the cleanups. 
Currently, more than 1,300 contaminated sites are on the U.S. 
Environmental Protection Agency's (EPA) Superfund program's 
National Priorities List. Brownfields are properties where the 
presence, or potential presence, of a hazardous substance 
complicates the expansion or redevelopment of the property. EPA 
estimates there are more than 450,000 brownfield sites across 
the country. Concern over CERCLA's strict joint and several 
liability provisions is one factor that inhibited cleanup at 
brownfield sites where the extent of contamination may have 
been unknown and where there was no viable party available to 
assess the site or pay for the cleanup. Many states and local 
governments operate voluntary programs to promote the cleanup 
and reuse of these properties. EPA administratively created its 
brownfields initiative in 1993. Congress began appropriating 
money specifically for the EPA brownfields grant program in 
fiscal year 1997. However, concerns remained about potential 
liability under CERCLA for brownfields cleanups.
    In 2001, the Senate passed S. 350 by a vote of 99-0 to 
amend CERCLA to establish the brownfields program, authorize up 
to $250 million in funding for grants, and provide relief from 
CERCLA liability for certain parties who meet specified 
conditions, such as contiguous property owners, prospective 
purchasers, and innocent landowners. S. 350 was incorporated 
into Title II of the ``Small Business Liability Relief and 
Brownfields Revitalization Act,'' which passed the House of 
Representatives by voice vote and the Senate by unanimous 
consent on December 20, 2001. President George W. Bush signed 
the bill into law (P.L. 107-118) on January 11, 2002.
    Section 104 of CERCLA was amended to authorize EPA to 
provide grants and technical assistance to State and local 
governmental entities, and other stakeholders to assess, safely 
clean up, and sustainably reuse brownfields. Cleaning up and 
reinvesting in these properties protects human health and the 
environment, reduces blight, increases local tax bases, 
facilitates job growth, and often utilizes existing 
infrastructure. Definitions for ``Brownfield site,'' ``Bona 
fide prospective purchaser'' and ``Eligible response site'' 
were also added to section 101 of CERCLA.
    S. 822, as amended, would reauthorize the EPA brownfields 
program at current funding levels through fiscal year 2020. The 
BUILD Act would improve the existing grant process by 
increasing the dollar limit for cleanup grants, authorizing EPA 
to make multi-purpose grants, expanding grant eligibility for 
certain publicly owned sites and non-profit organizations, 
authorizing grants for waterfront brownfields properties 
located adjacent to bodies of water or in floodplains and sites 
that can be used for clean energy development. The bill would 
also allow grant recipients to use a portion of grant funds for 
administrative costs, provide technical assistance grants to 
rural areas, small communities, and disadvantaged areas, and 
authorize up to $2 million per fiscal year in targeted funding 
grants to States. Finally, the bill would expand existing 
liability protections for states and local governments and 
lessees and add new liability protections for Alaska Native 
villages or Alaska Native Village Corporations that received 
contaminated property from the U.S. government under the Alaska 
Native Claims Settlement Act.

                       Purpose of the Legislation

    The bill authorizes the appropriation of $250 million 
annually through fiscal year 2020 for EPA to provide 
brownfields cleanup grants and programs, would amend section 
104(k) of CERCLA (42 U.S.C. 9604(k)) to improve the existing 
grant process by increasing the limit for cleanup grants, 
expanding grant eligibility, and prioritizing funding 
opportunities for certain brownfield sites, and would expand 
liability protections for certain owners and operators, among 
other purposes.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 provides that the Act may be cited as the 
``Brownfields Utilization, Investment, and Local Development 
Act of 2017'' or the ``BUILD Act.''

Section 2. Expanded eligibility for nonprofit organizations

    Section 2 expands the eligibility for Brownfields grants 
for nonprofit organizations to include certain nonprofit 
organizations, limited liability corporations, limited 
partnerships, and community development entities.

Section 3. Multipurpose brownfield grants

    Section 3 authorizes EPA to make multi-purpose grants up to 
$950,000, which provide greater certainty for long-term project 
financing. Limits all grants under this section to 15 percent 
of appropriations.

Section 4. Treatment of certain publicly owned brownfield sites

    Section 4 allows government entities that acquired 
brownfields property prior to January 11, 2002, that do not 
qualify as a bona fide prospective purchaser under section 
101(40) of CERCLA, to be eligible to receive grants so long as 
the government entity did not cause or contribute to a release 
or threatened release of a hazardous substance at the property.

Section 5. Increased funding for remediation grants

    Section 5 increases funding limit for each site from the 
current $200,000 to $500,000 for each site. This section also 
authorizes the EPA to waive that limit, up to $650,000 for a 
site, based on the anticipated level of contamination, size, or 
ownership status of the site.

Section 6. Allowing administrative costs for grant recipients

    Section 6 allows eligible entities to use up to 8 percent 
of their brownfield grant funding for administrative costs.

Section 7. Small or disadvantaged community technical assistance

    Section 7 directs EPA to give priority in providing 
technical assistance grants of up to $7,500 to eligible 
entities in small communities, Indian tribes, rural areas, and 
disadvantaged areas. This section defines a ``disadvantaged 
area'' as an area with an annual median household income that 
is less than 80 percent of the State-wide annual median 
household income, as determined by the latest available 
decennial census. This section also defines a ``small 
community'' as a community with a population of not more than 
15,000 individuals, as determined by the latest available 
decennial census. This section limits all grants under this 
section to $600,000.

Section 8. Waterfront brownfield grants

    Section 8 directs EPA in providing brownfield grants to 
give consideration to waterfront brownfield sites located 
adjacent to bodies of water or federally designated 
floodplains.

Section 9. Clean energy brownfield grants

    Section 9 requires EPA to establish a program to provide 
grants of up to $500,000 to eligible entities to locate clean 
energy projects at brownfield sites.

Section 10. Targeted funding for States

    Section 10 authorizes EPA to use up to $2 million each 
fiscal year to provide targeted grants to States.

Section 11. Clarification of owner or operator

    Section 11 provides additional protection from liability 
under CERCLA as follows:
    (a) Acquisition by State or Local Government as 
Sovereign.--Subsection (a) amends the exclusion from the 
definition of ``owner or operator'' that currently applies to 
involuntary acquisitions of property by states or local 
governments. The exclusion is expanded to include property 
voluntarily acquired in connection with law enforcement 
activity, through the exercise of eminent domain authority, and 
through other circumstances in which a state or local 
government acquires title, voluntarily or involuntarily, by 
virtue of its function as a sovereign. This subsection also 
makes conforming changes.
    (b) Alaska Native Village and Native Corporation Relief.--
Subsection (b) adds a new exclusion from the definition of 
``owner or operator'' for Alaska Native villages or Alaska 
Native Corporations or their successors that received a 
contaminated facility from the U.S. government under the Alaska 
Native Claims Settlement Act. The same conditions that apply to 
the current law state and local government exclusion are 
included in this new exclusion. Without this exclusion the 
villages and corporations could be held liable for 
contamination caused by the U.S. government and are not 
eligible for brownfields grants.
    (c) Prospective Purchasers and Lessees.--Subsection (c) 
extends the defense from liability for bona fide prospective 
purchasers (BFPPs) to lessees, whether or not the owner is 
BFPP, consistent with current EPA enforcement discretion 
guidance, and makes conforming changes.

Section 12. Authorization of appropriations

    Section 11 authorizes appropriations of $250 million 
annually through fiscal year 2020.

                          Legislative History

    Senators Inhofe, Markey, Rounds, Booker, and Crapo 
introduced S. 822, the ``Brownfields Utilization, Investment, 
and Local Development Act of 2017'' or the ``BUILD Act,'' on 
April 4, 2017. The bill was read twice and referred to the 
Senate Committee on Environment and Public Works. Senators 
King, Whitehouse, Carper, Gillibrand, Warren and [Sullivan] are 
additional co-sponsors. The Committee met on July 12, 2017, and 
ordered S. 822 favorably reported by voice vote with an 
amendment in the nature of a substitute.

                                Hearings

    On March 2, 2016, the Committee on Environment and Public 
Works held a legislative hearing on S. 1479, Brownfields 
Utilization, Investment, and Local Development Act of 2015, 
similar legislation that passed the Committee and the Senate in 
the 114th Congress.

                            Roll Call Votes

    The Committee on Environment and Public Works met to 
consider S. 822 on July 12, 2017. The bill was ordered reported 
favorably by voice vote with an amendment in the nature of a 
substitute. No roll call votes were taken.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that S. 822 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office has found, ``S. 822 contains no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would impose no costs on state, local, or 
tribal governments.''

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report, if available. That statement follows:

                                                   August 17, 2017.
Hon. John Barrasso,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 822, the Brownfields 
Utilization, Investment, and Local Development Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 822--Brownfields Utilization, Investment, and Local Development Act 
        of 2017

    S. 822 would authorize the appropriation of $250 million 
annually over the 2018-2020 period for the Environmental 
Protection Agency (EPA) to provide grants to clean up 
brownfields and to support state brownfield programs. 
(Brownfields are properties where the presence, or potential 
presence, of a hazardous substance complicates the use or 
redevelopment of the property.) Assuming appropriation of the 
authorized amounts, CBO estimates that implementing S. 822 
would cost $702 million over the 2018-2022 period; the 
remainder would be spent in years after 2022.
    Enacting S. 822 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 822 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 822 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 822 is shown in the following table. The 
costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                By fiscal year, in millions of dollars--
                                                      ----------------------------------------------------------
                                                        2017    2018    2019    2020    2021    2022   2017-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Cleanup Grants:
    Authorization Level..............................       0     200     200     200       0       0       600
    Estimated Outlays................................       0      68     142     172     118      52       552
State Response Program Grants:
    Authorization Level..............................       0      50      50      50       0       0       150
    Estimated Outlays................................       0       3      43      50      48       8       150
    Total Changes:
        Authorization Level..........................       0     250     250     250       0       0       750
        Estimated Outlays............................       0      71     185     222     166      60       702
----------------------------------------------------------------------------------------------------------------
Note: Components do not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that S. 
822 will be enacted near the end of fiscal year 2017, that the 
specified amounts will be appropriated in each year starting in 
2018, and that outlays will follow historical spending patterns 
for the brownfields program. The Congress provided $126 million 
for brownfields grant programs in 2017.
    Pay-As-You-Go considerations: None.
    Increase in long-term deficit and direct spending: CBO 
estimates that enacting S. 822 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    Intergovernmental and private-sector impact: S. 822 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would benefit state, local, and tribal 
governments by authorizing federal grants to support brownfield 
cleanup activities and programs. Any costs those governments 
might incur, including matching contributions, would result 
from participating in a voluntary federal program.
    Previous CBO estimate: On August 4, 2017, CBO transmitted a 
cost estimate for H.R. 1758, the Brownfields Reauthorization 
Act of 2017, as ordered reported by the House Committee on 
Transportation and Infrastructure on July 27, 2017. H.R. 1758 
is similar to S. 822. However, CBO's estimated costs for S. 822 
are lower because S. 822 would authorize appropriations through 
2020, whereas H.R. 1758 would authorize appropriations through 
2022.
    Estimate prepared by: Federal costs: Jon Sperl; Impact on 
state, local, and tribal governments: Jon Sperl; Impact on the 
private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Assistant Director for 
Budget Analysis.

                        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

           *       *       *       *       *       *       *

  Sec. 101. For purpose of this title--
          (1) * * *

           *       *       *       *       *       *       *

          (20)(A) The term ``owner or operator'' means (i) in 
        the case of a vessel, any person owning, operating, or 
        chartering by demise, such vessel, (ii) in the case of 
        an onshore facility or an offshore facility, any person 
        owning or operating such facility, and (iii) in the 
        case of any facility, title or control of which was 
        conveyed [due to bankruptcy, foreclosure, tax 
        delinquency, abandonment, or similar means to a unit of 
        State or local government,] to a unit of State or local 
        government through seizure or otherwise in connection 
        with law enforcement activity; through bankruptcy, tax 
        delinquency, abandonment, or escheat; through any other 
        involuntary transfer or acquisition; through the 
        exercise of eminent domain authority by purchase or 
        condemnation; or through other circumstances in which 
        the unit of State or local government acquires title by 
        virtue of its function as a sovereign, any person who 
        owned, operated, or otherwise controlled activities at 
        such facility immediately beforehand. Such term does 
        not include a person, who, without participating in the 
        management of a vessel or facility, holds indicia of 
        ownership primarily to protect his security interest in 
        the vessel or facility.
                  (B) In the case of a hazardous substance 
                which has been accepted for transportation by a 
                common or contract carrier and except as 
                provided in section 107(a) (3) or (4) of this 
                Act, (i) the term ``owner or operator'' shall 
                mean such common carrier or other bona fide for 
                hire carrier acting as an independent 
                contractor during such transportation, (ii) the 
                shipper of such hazardous substance shall not 
                be considered to have caused or contributed to 
                any release during such transportation which 
                resulted solely from circumstances or 
                conditions beyond his control.
                  (C) In the case of a hazardous substance 
                which has been delivered by a common or 
                contract carrier to a disposal or treatment 
                facility and except as provided in [section 
                107(a) (3) or (4)] paragraph (3) or (4) of 
                section 107(a), (i) the term ``owner or 
                operator'' shall not include such common or 
                contract carrier, and (ii) such common or 
                contract carrier shall not be considered to 
                have caused or contributed to any release at 
                such disposal or treatment facility resulting 
                from circumstances or conditions beyond its 
                control.
                  (D) The term ``owner or operator'' does not 
                include a unit of State or local government 
                [which acquired ownership or control 
                involuntarilyrough seizure or otherwise in 
                connection with law enforcement activity 
                through bankruptcy, tax delinquency, 
                abandonment, or other circumstances in which 
                the government involuntarily acquires title by 
                virtue] that acquired ownership or control 
                through seizure or otherwise in connection with 
                law enforcement activity; through bankruptcy, 
                tax delinquency, abandonment, or escheat; 
                through any other involuntary transfer or 
                acquisition; through the exercise of eminent 
                domain authority by purchase or condemnation; 
                or through other circumstances in which the 
                government acquires title by virtue of its 
                function as sovereign. The exclusion provided 
                under this paragraph shall not apply to any 
                State or local government which has caused or 
                contributed to the release or threatened 
                release of a hazardous substance from the 
                facility, and such a State or local government 
                shall be subject to the provisions of this Act 
                in the same manner and to the same extent, both 
                procedurally and substantively, as any 
                nongovernmental entity, including liability 
                under section 107.
                  (E) Exclusion of certain alaska native 
                villages and native corporations.--
                          (i) In general.--The term `owner or 
                        operator' does not include--
                                  (I) a Native village or 
                                Native Corporation (as those 
                                terms are defined in section 3 
                                of the Alaska Native Claims 
                                Settlement Act (43 U.S.C. 
                                1602)) that received a 
                                contaminated facility from the 
                                United States Government under 
                                that Act (43 U.S.C. 1601 et 
                                seq.); or
                                  (II) a successor in interest 
                                to a contaminated facility 
                                referred to in subclause (I) 
                                that was conveyed to the 
                                successor in interest under 
                                section 14(c) of that Act (43 
                                U.S.C. 1613(c)).
                          (ii) Applicability.--Clause (i) does 
                        not apply to any Native village, Native 
                        Corporation, or successor in interest 
                        that has caused or contributed to the 
                        release or threatened release of a 
                        hazardous substance from a contaminated 
                        facility referred to in that clause.
                          (iii) Liability.--Any Native village, 
                        Native Corporation, or successor in 
                        interest that causes or contributes to 
                        the release or threatened release of a 
                        hazardous substance from a contaminated 
                        facility referred to in clause (i) 
                        shall be subject to the provisions of 
                        this Act in the same manner and to the 
                        same extent, procedurally and 
                        substantively, as any nongovernmental 
                        entity, including liability under 
                        section 107.
                  [(E)] (F)5Exclusion of lenders not 
                participants in management.--
                          (i) Indicia of ownership to protect 
                        security.--The term ``owner or 
                        operator'' does not include a person 
                        that is a lender that, without 
                        participating in the management of a 
                        vessel or facility, holds indicia of 
                        ownership primarily to protect the 
                        security interest of the person in the 
                        vessel or facility.
                          (ii) Foreclosure.--The term ``owner 
                        or operator'' does not include a person 
                        that is a lender that did not 
                        participate in management of a vessel 
                        or facility prior to foreclosure, 
                        notwithstanding that the person--
                                  (I) forecloses on the vessel 
                                or facility; and
                                  (II) after foreclosure, 
                                sells, re-leases (in the case 
                                of a lease finance 
                                transaction), or liquidates the 
                                vessel or facility, maintains 
                                business activities, winds up 
                                operations, undertakes a 
                                response action under section 
                                107(d)(1) or under the 
                                direction of an on-scene 
                                coordinator appointed under the 
                                National Contingency Plan, with 
                                respect to the vessel or 
                                facility, or takes any other 
                                measure to preserve, protect, 
                                or prepare the vessel or 
                                facility prior to sale or 
                                disposition,
                        if the person seeks to sell, re-lease 
                        (in the case of a lease finance 
                        transaction), or otherwise divest the 
                        person of the vessel or facility at the 
                        earliest practicable, commercially 
                        reasonable time, on commercially 
                        reasonable terms, taking into account 
                        market conditions and legal and 
                        regulatory requirements.
                  [(F)] (G) Participation in management.--For 
                purposes of [subparagraph (E)] subparagraph 
                (F)--
                          (i) the term ``participate in 
                        management''--
                                  (I) * * *

           *       *       *       *       *       *       *

                  [(G)] (H) Other terms.--As used in this Act:
                          (i) Extension of credit.--The term 
                        ``extension of credit'' includes a 
                        lease finance transaction--
                                  (I) in which the lessor does 
                                not initially select the leased 
                                vessel or facility and does not 
                                during the lease term control 
                                the daily operations or 
                                maintenance of the vessel or 
                                facility; or
                                  (II) that conforms with 
                                regulations issued by the 
                                appropriate Federal banking 
                                agency or the appropriate State 
                                bank supervisor (as those terms 
                                are defined in section 3 of the 
                                Federal Deposit Insurance Act 
                                (12 U.S.C. [1813)] 1813)) with 
                                regulations issued by the 
                                National Credit Union 
                                Administration Board, as 
                                appropriate.
                          (ii) Financial or administrative 
                        function.--The term ``financial or 
                        administrative function'' includes a 
                        function such as that of a credit 
                        manager, accounts payable officer, 
                        accounts receivable officer, personnel 
                        manager, comptroller, or chief 
                        financial officer, or a similar 
                        function.

           *       *       *       *       *       *       *

          (35)(A) The term ``contractual relationship'', for 
        the purpose of section 107(b)(3) includes, but is not 
        limited to, land contracts, 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)] clause (i) or (ii) 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)] (ii) The defendant acquired the 
                facility by inheritance or bequest.
        In addition to establishing the foregoing, the 
        defendant must establish that 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.

           *       *       *       *       *       *       *

          [(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 the 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]
          (40) Bona fide prospective purchaser.--
                  (A) In general.--The term `bona fide 
                prospective purchaser' means--
                          (i) a person that--
                                  (I) after January 11, 2002, 
                                acquires ownership of a 
                                facility; and
                                  (II) establishes by a 
                                preponderance of the evidence 
                                each of the criteria described 
                                in clauses (i) through (viii) 
                                of subparagraph (B);
                          (ii) a tenant of a person described 
                        in clause (i);
                          (iii) a tenant of a person that--
                                  (I) formerly met the criteria 
                                described in clause (i) but no 
                                longer meets that criteria due 
                                to a factor unrelated to any 
                                action of the tenant; and
                                  (II) establishes by a 
                                preponderance of the evidence 
                                each of the criteria described 
                                in clauses (i), (iii), (iv), 
                                (v), (vi), (vii), and (viii) of 
                                subparagraph (B); and
                          (iv) a person that--
                                  (I) holds a leasehold 
                                interest in a facility; and
                                  (II) establishes by a 
                                preponderance of the evidence 
                                each of the criteria described 
                                in clauses (i) through (viii) 
                                of subparagraph (B).
                  (B) Criteria.--The criteria described in this 
                subparagraph are as follows:
                          (i) Disposal prior to acquisition.--
                        All disposal of hazardous substances at 
                        the facility occurred before the person 
                        acquired the facility.
                  (C) Special rule.--With respect to a 
                facility, in any case in which the ownership or 
                operational control held by a person is 
                established by a tenancy or lease, the person 
                shall be considered to be a bona fide 
                prospective purchaser only if the person 
                establishes by a preponderance of the evidence 
                that the tenancy or lease is not designed to 
                avoid liability under this Act by any person 
                that--
                          (i) does not meet the criteria 
                        applicable to that person under 
                        subparagraph (B); or
                          (ii) is liable under paragraph (3) or 
                        (4) of section 107(a).
                  [(B)]
                          (ii) Inquiries.--
                          [(i)]
                                  (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)] 
                                subclauses (II) and (III).
                          [(ii)]
                                  (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] clause.
                          [(iii)]
                                  (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] clause.
                  [(C)]
                          (iii)Notices.--The person provides 
                        all legally required notices with 
                        respect to the discovery or release of 
                        any hazardous substances at the 
                        facility.
                  [(D)]
                          (iv)Care.--The person exercises 
                        appropriate care with respect to 
                        hazardous substances found at the 
                        facility by taking reasonable steps 
                        to--
                          [(i)]
                                  (I) stop any continuing 
                                release;
                          [(ii)]
                                  (II) prevent any threatened 
                                future release; and
                          [(iii)]
                                  (III) prevent or limit human, 
                                environmental, or natural 
                                resource exposure to any 
                                previously released hazardous 
                                substance.
                  [(E)]
                          (v)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)]
                          (vi)Institutional control.--The 
                        person--
                          [(i)]
                                  (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)]
                                  (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)]
                          (vii)Requests; subpoenas.--The person 
                        complies with any request for 
                        information or administrative subpoena 
                        issued by the President under this Act.
                  [(H)]
                          (viii)No affiliation.--The person is 
                        not--
                          [(i)]
                                  (I) potentially liable, or 
                                affiliated with any other 
                                person that is potentially 
                                liable, for response costs at a 
                                facility through--
                                  [(I)]
                                          (aa) any direct or 
                                        indirect familial 
                                        relationship; or
                                  [(II)]
                                          (bb) 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, by a tenancy, 
                                        by the instruments by 
                                        which a leasehold 
                                        interest in the 
                                        facility is created, or 
                                        by a contract for the 
                                        sale of goods or 
                                        services); or
                          [(ii)]
                                  (II) the result of a 
                                reorganization of a business 
                                entity that was potentially 
                                liable.

           *       *       *       *       *       *       *

  Sec. 104. (a)(1) * * *

           *       *       *       *       *       *       *

  (k) Brownfields Revitalization Funding.--
          (1) Definition of eligible entity.--In this 
        subsection, the term ``eligible entity'' means--
                  (A) a general purpose unit of local 
                government;
                  (B) a land clearance authority or other 
                quasi-governmental entity that operates under 
                the supervision and control of or as an agent 
                of a general purpose unit of local government;
                  (C) a government entity created by a State 
                legislature;
                  (D) a regional council or group of general 
                purpose units of local government;
                  (E) a redevelopment agency that is chartered 
                or otherwise sanctioned by a State;
                  (F) a State;
                  (G) an Indian Tribe other than in Alaska; 
                [or]
                  (H) an Alaska Native Regional Corporation and 
                an Alaska Native Village Corporation as those 
                terms are defined in the Alaska Native Claims 
                Settlement Act (43 U.S.C. 1601 and following) 
                and the Metlakatla Indian community[.] ;
                  (I) an organization described in section 
                501(c)(3) of the Internal Revenue Code of 1986 
                and exempt from taxation under section 501(a) 
                of that Code;
                  (J) a limited liability corporation in which 
                all managing members are organizations 
                described in subparagraph (I) or limited 
                liability corporations whose sole members are 
                organizations described in subparagraph (I);
                  (K) a limited partnership in which all 
                general partners are organizations described in 
                subparagraph (I) or limited liability 
                corporations whose sole members are 
                organizations described in subparagraph (I); or
                  (L) a qualified community development entity 
                (as defined in section 45D(c)(1) of the 
                Internal Revenue Code of 1986).
          (2) Brownfield site characterization and assessment 
        grant program.--
                  (A) Establishment of program.--The 
                Administrator shall establish a program to--
                          (i) * * *

           *       *       *       *       *       *       *

                  (C) Exemption for certain publicly owned 
                brownfield sites.--Notwithstanding any other 
                provision of law, an eligible entity that is a 
                governmental entity may receive a grant under 
                this paragraph for property acquired by that 
                governmental entity prior to January 11, 2002, 
                even if the governmental entity does not 
                qualify as a bona fide prospective purchaser 
                (as that term is defined in section 101(40)), 
                so long as the eligible entity has not caused 
                or contributed to a release or threatened 
                release of a hazardous substance at the 
                property.
          (3) Grants and loans for brownfield remediation.--
                  (A) Grants provided by the president.--
                [Subject to paragraphs (4) and (5)] subject to 
                paragraphs (5) and (6), the President shall 
                establish a program to provide grants to--
                          (i) eligible entities, to be used for 
                        capitalization of revolving loan funds; 
                        and
                          (ii) eligible entities or nonprofit 
                        organizations, where warranted, as 
                        determined by the President based on 
                        considerations under subparagraph (C), 
                        to be used directly for remediation of 
                        one 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] $500,000 for each site to 
                        be remediated, which limit may be 
                        waived by the Administrator, but not to 
                        exceed a total of $650,000 for each 
                        site, based on the anticipated level of 
                        contamination, size, or ownership 
                        status of the site.
          (4) Multipurpose brownfields grants.--
                  (A) In general.--Subject to subparagraph (D) 
                and paragraphs (5) and (6), the Administrator 
                shall establish a program to provide 
                multipurpose grants to an eligible entity based 
                on the considerations under paragraph (3)(C), 
                to carry out inventory, characterization, 
                assessment, planning, or remediation activities 
                at 1 or more brownfield sites in a proposed 
                area.
                  (B) Grant amounts.--
                          (i) Individual grant amounts.--Each 
                        grant awarded under this paragraph 
                        shall not exceed $950,000.
                          (ii) Cumulative grant amounts.--The 
                        total amount of grants awarded for each 
                        fiscal year under this paragraph shall 
                        not exceed 15 percent of the funds made 
                        available for the fiscal year to carry 
                        out this subsection.
                  (C) Criteria.--In awarding a grant under this 
                paragraph, the Administrator shall consider the 
                extent to which an eligible entity is able--
                          (i) to provide an overall plan for 
                        revitalization of the 1 or more 
                        brownfield sites in the proposed area 
                        in which the multipurpose grant will be 
                        used;
                          (ii) to demonstrate a capacity to 
                        conduct the range of eligible 
                        activities that will be funded by the 
                        multipurpose grant; and
                          (iii) to demonstrate that a 
                        multipurpose grant will meet the needs 
                        of the 1 or more brownfield sites in 
                        the proposed area.
                  (D) Condition.--As a condition of receiving a 
                grant under this paragraph, each eligible 
                entity shall expend the full amount of the 
                grant not later than the date that is 3 years 
                after the date on which the grant is awarded to 
                the eligible entity unless the Administrator, 
                in the discretion of the Administrator, 
                provides an extension.
          [(4)] (5) General provisions.--
                  (A) Maximum grant amount.--
                          (i) Brownfield site characterization 
                        and assessment.--
                                  (I) In general.--* * *

           *       *       *       *       *       *       *

                  (B) Prohibition.--
                          (i) In general.--No part of a grant 
                        or loan under this subsection may be 
                        used for the payment of--
                                  (I) a penalty or fine;
                                  (II) a Federal cost-share 
                                requirement;
                                  [(III) an administrative 
                                cost;]
                                  [(IV)] (III) a response cost 
                                at a brownfield site for which 
                                the recipient of the grant or 
                                loan is potentially liable 
                                under section 107; or
                                  [(V)] (IV) a cost of 
                                compliance with any Federal law 
                                (including a Federal law 
                                specified in section 
                                101(39)(B)), excluding the cost 
                                of compliance with laws 
                                applicable to the cleanup.
                          [(ii) Exclusions.--For the purposes 
                        of clause (i)(III), the term 
                        ``administrative cost'' does not 
                        include the cost of--
                                  [(I) investigation and 
                                identification of the extent of 
                                contamination;
                                  [(II) design and performance 
                                of a response action; or
                                  [(III) monitoring of a 
                                natural resource.]
                          [(iii)] (ii) Exception.--
                        [Notwithstanding clause (i)(IV)] 
                        Notwithstanding clause (i)(III), the 
                        Administrator may use up to 25 percent 
                        of the funds made available to carry 
                        out this subsection to make a grant or 
                        loan under this subsection to eligible 
                        entities that satisfy all of the 
                        elements set forth in section 101(40) 
                        to qualify as a bona fide prospective 
                        purchaser, except that the date of 
                        acquisition of the property was on or 
                        before January 11, 2002.
                  (C) Assistance for development of local 
                government site remediation programs.--A local 
                government that receives a grant under this 
                subsection may use not to exceed 10 percent of 
                the grant funds to develop and implement a 
                brownfields program that may include--
                          (i) monitoring the health of 
                        populations exposed to one or more 
                        hazardous substances from a brownfield 
                        site; and
                          (ii) monitoring and enforcement of 
                        any institutional control used to 
                        prevent human exposure to any hazardous 
                        substance from a brownfield site.
                  (D) Insurance.--A recipient of a grant or 
                loan awarded under paragraph (2) or (3) that 
                performs a characterization, assessment, or 
                remediation of a brownfield site may use a 
                portion of the grant or loan to purchase 
                insurance for the characterization, assessment, 
                or remediation of that site.
                  (E) Administrative costs.--
                          (i) In general.--An eligible entity 
                        may use up to 8 percent of the amounts 
                        made available under a grant or loan 
                        under this subsection for 
                        administrative costs.
                          (ii) Restriction.--For purposes of 
                        clause (i), the term `administrative 
                        costs' does not include--
                                  (I) investigation and 
                                identification of the extent of 
                                contamination;
                                  (II) design and performance 
                                of a response action; or
                                  (III) monitoring of a natural 
                                resource.
          [(5)] (6) Grant applications.--
                  (A) Submission.--
                          (i) In general.-- * * *

           *       *       *       *       *       *       *

          [(6)] (7) Implementation of brownfields programs.--
                  (A) Establishment of program.--[The 
                Administrator may provide,]
                          (i) Definitions.--In this 
                        subparagraph:
                                  (I) Disadvantaged area.--The 
                                term `disadvantaged area' means 
                                an area with an annual median 
                                household income that is less 
                                than 80 percent of the 
                                statewide annual median 
                                household income, as determined 
                                by the latest available 
                                decennial census.
                                  (II) Small community.--The 
                                term `small community' means a 
                                community with a population of 
                                not more than 15,000 
                                individuals, as determined by 
                                the latest available decennial 
                                census.
                          (ii) Establishment of program.--The 
                        Administrator shall establish a program 
                        to provide grants that 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.
                          (iii) Small or disadvantaged 
                        community recipients.--
                                  (I) In general.--Subject to 
                                subclause (II), in carrying out 
                                the program under clause (ii), 
                                the Administrator shall use not 
                                more than $600,000 of the 
                                amounts made available to carry 
                                out this paragraph to provide 
                                grants to States that receive 
                                amounts under section 128(a) to 
                                assist small communities, 
                                Indian tribes, rural areas, or 
                                disadvantaged areas in 
                                achieving the purposes 
                                described in clause (ii).
                                  (II) Limitation.--Each grant 
                                awarded under subclause (I) 
                                shall be not more than $7,500.
                  (B) Funding restrictions.--The total Federal 
                funds to be expended by the Administrator under 
                this paragraph shall not exceed 15 percent of 
                the total amount appropriated to carry out this 
                subsection in any fiscal year.
          [(7)] (8) Audits.--
                  (A) In general.--* * *

           *       *       *       *       *       *       *

          [(8)] (9) Leveraging.--An eligible entity that 
        receives a grant under this subsection may use the 
        grant funds for a portion of a project at a brownfield 
        site for which funding is received from other sources 
        if the grant funds are used only for the purposes 
        described in paragraph (2) or (3).
          [(9)] (10) Agreements.--Each grant or loan made under 
        this subsection shall--
                  (A) * * *

           *       *       *       *       *       *       *

          (11) Waterfront brownfield sites.--
                  (A) Definition of waterfront brownfield 
                site.--In this paragraph, the term `waterfront 
                brownfield site' means a brownfield site that 
                is adjacent to a body of water or a federally 
                designated floodplain.
                  (B) Requirements.--In providing grants under 
                this subsection, the Administrator shall--
                          (i) take into consideration whether 
                        the brownfield site to be served by the 
                        grant is a waterfront brownfield site; 
                        and
                          (ii) give consideration to waterfront 
                        brownfield sites.
          (12) Clean energy projects at brownfield sites.--
                  (A) Definition of clean energy project.--In 
                this paragraph, the term `clean energy project' 
                means--
                          (i) a facility that generates 
                        renewable electricity from wind, solar, 
                        or geothermal energy; and
                          (ii) any energy efficiency 
                        improvement project at a facility, 
                        including combined heat and power and 
                        district energy.
                  (B) Establishment.--The Administrator shall 
                establish a program to provide grants--
                          (i) to eligible entities to carry out 
                        inventory, characterization, 
                        assessment, planning, feasibility 
                        analysis, design, or remediation 
                        activities to locate a clean energy 
                        project at 1 or more brownfield sites; 
                        and
                          (ii) to capitalize a revolving loan 
                        fund for the purposes described in 
                        clause (i).
                  (C) Maximum amount.--A grant under this 
                paragraph shall not exceed $500,000.
          [(10)] (13) Facility other than brownfield site.--The 
        fact that a facility may not be a brownfield site 
        within the meaning of section 101(39)(A) has no effect 
        on the eligibility of the facility for assistance under 
        any other provision of Federal law.
          [(11)] (14) Effect on federal laws.--Nothing in this 
        subsection affects any liability or response authority 
        under any Federal law, including--
                  (A) this Act (including the last sentence of 
                section 101(14));
                  (B) the Solid Waste Disposal Act (42 U.S.C. 
                6901 et seq.);
                  (C) the Federal Water Pollution Control Act 
                (33 U.S.C. 1251 et seq.);
                  (D) the Toxic Substances Control Act (15 
                U.S.C. 2601 et seq.); and
                  (E) the Safe Drinking Water Act (42 U.S.C. 
                300f et seq.).
          [(12)] (15) Funding.--
                  (A) Authorization of appropriations.--There 
                is authorized to be appropriated to carry out 
                this subsection 200,000,000 for each of fiscal 
                years 2002 through [2006] 2020.
                  (B) Use of certain funds.--Of the amount made 
                available under subparagraph (A), $50,000,000, 
                or, if the amount made available is less than 
                $200,000,000, 25 percent of the amount made 
                available, shall be used for site 
                characterization, assessment, and remediation 
                of facilities described in section 
                101(39)(D)(ii)(II).
                  (C) Targeted funding.--Of the amounts made 
                available under subparagraph (A) for a fiscal 
                year, the Administrator may use not more than 
                $2,000,000 to provide grants to States for 
                purposes authorized under section 128(a), 
                subject to the condition that each State that 
                receives a grant under this subparagraph shall 
                have used at least 50 percent of the amounts 
                made available to that State in the previous 
                fiscal year to carry out assessment and 
                remediation activities under section 128(a).

           *       *       *       *       *       *       *

  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--
          (1)* * *

           *       *       *       *       *       *       *

  (r) Prospective Purchaser and Windfall Lien.--
          (1) Limitation on liability.--Notwithstanding 
        subsection (a)(1), a bona fide prospective purchaser 
        whose potential liability for a release or threatened 
        release is based solely on the [purchaser's] bona fide 
        prospective purchaser 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.

           *       *       *       *       *       *       *

SEC. 128. STATE RESPONSE PROGRAMS.

  (a) Assistance to States.--
          (1) In general.--
                  (A) States.--* * *

           *       *       *       *       *       *       *

          (3) Funding.--There is authorized to be appropriated 
        to carry out this subsection $50,000,000 for each of 
        fiscal years 2002 through [2006] 2020.

                                 [all]
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