69–010 

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 conVerDate Sep 11 2014 22:49 Sep 08, 2017 Jkt 069010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX SR148
2 

tamination 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 multipurpose 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 

3 

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 Statewide 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. 

4 

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 ComVerDate Sep 11 2014 22:49 Sep 08, 2017 Jkt 069010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX SR148
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mittee 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 

6 

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 onbudget 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 

7 

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 øblack 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 ødue 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. 

8 

(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 øsection 

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 øwhich acquired ownership or 

control involuntarily rough 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 

9 

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. 

ø(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. 

ø(F)¿ (G) PARTICIPATION IN MANAGEMENT.—For purposes 

of øsubparagraph (E)¿ subparagraph (F)— (i) the term ‘‘participate in management’’— 

(I) * * * 

* * * * * * * 

ø(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. ø1813)¿ 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 

10 

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 ø(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. 

ø(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.¿ 

ø(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. 

* * * * * * * 

ø(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— 

11 

(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). 

ø(B)¿ 

(ii) INQUIRIES.— 

ø(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 øclauses (ii) 

and (iii)¿ subclauses (II) and (III). ø(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 øsubparagraph¿ clause. ø(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 

øsubparagraph¿ clause. ø(C)¿ 

(iii)NOTICES.—The person provides all legally required notices with respect to the discovery or release 

of any hazardous substances at the facility. 

ø(D)¿ 

12 

(iv)CARE.—The person exercises appropriate care 

with respect to hazardous substances found at the facility by taking reasonable steps to— 

ø(i)¿ 

(I) stop any continuing release; 

ø(ii)¿ 

(II) prevent any threatened future release; and 

ø(iii)¿ 

(III) prevent or limit human, environmental, or 

natural resource exposure to any previously released hazardous substance. 

ø(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). 

ø(F)¿ 

(vi)INSTITUTIONAL CONTROL.—The person— 

ø(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 

ø(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. 

ø(G)¿ 

(vii)REQUESTS; SUBPOENAS.—The person complies 

with any request for information or administrative 

subpoena issued by the President under this Act. 

ø(H)¿ 

(viii)NO AFFILIATION.—The person is not— 

ø(i)¿ 

(I) potentially liable, or affiliated with any other 

person that is potentially liable, for response costs 

at a facility through— 

ø(I)¿ 

(aa) any direct or indirect familial relationship; or 

ø(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 

ø(ii)¿ 

13 

(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; øor¿ 

(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 communityø.¿ ; 

(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 

14 

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.—øSubject 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 ø$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. 

ø(4)¿ (5) GENERAL PROVISIONS.— 

15 

(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; 

ø(III) an administrative cost;¿ 

ø(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 

ø(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. 

ø(ii) EXCLUSIONS.—For the purposes of clause 

(i)(III), the term ‘‘administrative cost’’ does not include 

the cost of— 

ø(I) investigation and identification of the extent of contamination; 

ø(II) design and performance of a response action; or 

ø(III) monitoring of a natural resource.¿ 

ø(iii)¿ (ii) EXCEPTION.—øNotwithstanding 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.— 

16 

(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. 

ø(5)¿ (6) GRANT APPLICATIONS.— 

(A) SUBMISSION.— 

(i) IN GENERAL.— * * * 

* * * * * * * 

ø(6)¿ (7) IMPLEMENTATION OF BROWNFIELDS PROGRAMS.— 

(A) ESTABLISHMENT OF PROGRAM.—øThe 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. 

ø(7)¿ (8) AUDITS.— 

17 

(A) IN GENERAL.—* * * 

* * * * * * * 

ø(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). 

ø(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. 

ø(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. 

ø(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.); 

18 

(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.). 

ø(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 ø2006¿ 

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 

øpurchaser’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 ø2006¿ 2020. 

Æ