```

[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

    A SMARTER PARTNERSHIP: REMOVING BARRIERS TO BROWNFIELDS CLEANUPS

=======================================================================

                                HEARING

                               before the

          SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 7, 2001

                               __________

                           Serial No. 107-017

                               __________

      Printed for the use of the Committee on Energy and Commerce

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
71-487CC                    WASHINGTON : 2001
_______________________________________________________________________
 For sale by the Superintendent of Documents, U.S. Government Printing 
                                 Office
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               Mail: Stop SSOP, Washington, DC 20402-0001

                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                    HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio                RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania     EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia                 SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma              BART GORDON, Tennessee
RICHARD BURR, North Carolina         PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa                    ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia             BART STUPAK, Michigan
BARBARA CUBIN, Wyoming               ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois               TOM SAWYER, Ohio
HEATHER WILSON, New Mexico           ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona             GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING,          KAREN McCARTHY, Missouri
Mississippi                          TED STRICKLAND, Ohio
VITO FOSSELLA, New York              DIANA DeGETTE, Colorado
ROY BLUNT, Missouri                  THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia                  BILL LUTHER, Minnesota
ED BRYANT, Tennessee                 LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland     MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana                 CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California        JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska

                  David V. Marventano, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Environment and Hazardous Materials

                    PAUL E. GILLMOR, Ohio, Chairman

JAMES C. GREENWOOD, Pennsylvania     FRANK PALLONE, Jr., New Jersey
STEVE LARGENT, Oklahoma              EDOLPHUS TOWNS, New York
GREG GANSKE, Iowa                    SHERROD BROWN, Ohio
JOHN SHIMKUS, Illinois               GENE GREEN, Texas
  (Vice Chairman)                    KAREN McCARTHY, Missouri
HEATHER WILSON, New Mexico           THOMAS M. BARRETT, Wisconsin
VITO FOSSELLA, New York              BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland     LOIS CAPPS, California
STEVE BUYER, Indiana                 MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California        JANE HARMAN, California
CHARLES F. BASS, New Hampshire       HENRY A. WAXMAN, California
JOSEPH R. PITTS, Pennsylvania        EDWARD J. MARKEY, Massachusetts
MARY BONO, California                JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon                    (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)

                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Cope, Grant, Staff Attorney, U.S. Public Interest Research 
      Group......................................................    46
    Meyer, George E., President, Environmental Council of the 
      States, Special Assistant to the Secretary, Wisconsin 
      Department of Natural Resources............................    38
    Minner, Hon. Ruth Ann, Governor, State of Delaware, on Behalf 
      of National Governors' Association.........................    19
    Shinn, Hon. Robert C., Jr., Commissioner, Department of 
      Environmental Protection for New Jersey....................    34
    Whitman, Hon. Christine Todd, Administrator, Environmental 
      Protection Agency..........................................    67
Material submitted for the record by:
    American Institute of Architects, prepared statement of......    93
    American Water Works Association, prepared statement of......    88

                                 (iii)

  

 
    A SMARTER PARTNERSHIP: REMOVING BARRIERS TO BROWNFIELDS CLEANUPS

                              ----------                              

                        WEDNESDAY, MARCH 7, 2001

              House of Representatives,    
              Committee on Energy and Commerce,    
                            Subcommittee on Environment    
                                   and Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2123, Rayburn House Office Building, Hon. Paul Gillmor 
(chairman) presiding.
    Members present: Representatives Gillmor, Greenwood, 
Largent, Ganske, Shimkus, Fossella, Ehrlich, Buyer, Bono, 
Walden, Terry, Tauzin (ex officio), Pallone, Towns, Brown, 
Green, McCarthy, Barrett, Luther, Capps, and Doyle.
    Staff present: Amit Sachdev, majority counsel; Nandan 
Kenkeremath, majority counsel; Mark Washko, majority counsel; 
Jerry Couri, policy coordinator; Peter Kielty, legislative 
clerk; Allison Taylor, minority counsel; and Dick Frandsen, 
minority counsel.
    Mr. Gillmor. The subcommittee will come to order, and we 
will begin with opening statements. Then we will have three 
panels. The Governor of Delaware will be the first panel and 
then a second panel. Administrator Whitman was originally going 
to be here on the morning session but because of her schedule 
will not be able to do that. So we are going to reconvene after 
we do the first two panels at 2 o'clock this afternoon to hear 
from Administrator Whitman.
    The Chair recognizes himself for the purpose of an opening 
statement. And today our subcommittee starts the House's 
official efforts to develop legislation to foster brownfield 
cleanups efforts. And while this is my maiden voyage as 
Chairman, the issue of Superfunds and brownfields is no 
stranger to this panel. I hope that our efforts from here 
forward will be open and constructive in nature and that we 
will ultimately have those efforts result in legislation that 
the White House can sign into law.
    I want to welcome the support of the full committee 
chairman, Chairman Tauzin, for these efforts. And I appreciate 
his leadership in this area.
    As we begin this effort, there are certain facts and 
principles I think we should recognize. First is a paramount 
interest is the protection of public health and safety.
    Second, to unnecessarily leave thousands of brownfield 
areas lie unused while development goes forward is one of the 
most anti-environment acts which can occur. The alternative for 
those who are going to develop property is to develop green 
spaces and farmland.
    Certainly in my State and I think many others farmland 
preservation is a major goal. Not having an effective as 
possible brownfields program simply means it will have concrete 
poured over thousands of acres of farms and green spaces.
    Today we begin the journey to a legislative solution by 
taking a small initial step at this hearing. Brownfield 
reclamation efforts were popular among all groups that 
otherwise have concerns about reforming other parts of the 
Superfund law.
    Brownfields are lands that because of either real or 
perceived environmental contamination discourage redevelopment 
efforts. Brownfield cleanups help people in urban areas who 
fear the loss of high manufacturing areas. It aids those in 
rural areas where there is concern that farmland will be 
destroyed to make way for urban sprawl. Further, while 
brownfields efforts are well-liked, there are minor 
disagreements about the way to go about it.
    It might compare to the feeling people have about the all-
American dessert: apple pie. Everybody likes apple pie, but 
some people want it with cinnamon, some like ice cream, and 
some like cheese on top. While each slice is different, they do 
make the eater feel satisfied in the end.
    So this morning and later this afternoon I hope that our 
witnesses will help us highlight the problems that States and 
Federal Governments have faced in their suggestions as to how 
to remedy those brownfield problems. If our nation is to enjoy 
a partnership of economic protection coupled with economic 
growth, I believe it is important that we find ways to get 
these sites cleaned up and back into economic activity.
    Economic growth and environmental protection are not 
mutually exclusive goals. I believe that not addressing the 
serious problems of liability at these sites is primarily anti-
environment because the result is zero environmental 
rehabilitation in addition to taking the undeveloped or rural 
lands.
    I am also personally supportive of giving States, 
especially those that have programs that mirror the Federal 
one, more flexibility in regard to voluntary cleanup and 
finality provisions that food developers and property owners 
use an expedited State-approved process for cleaning up the 
waste sites.
    The uncertainty regarding Federal regs, extra broad 
Superfund liability, and needless bureaucracy have stifled 
brownfield cleanups for years. Some States' efforts to provide 
assurances on future liability and speed up remediation efforts 
to ensure future health and environmental security have been 
stymied. We need the environment of the States because the 
Federal Government simply doesn't have the resources to do the 
job alone. And while certain numbers have been thrown around to 
show how many brownfields our nation has, the truth is nobody 
knows for sure how many of these toxic sites dot our country.
    But it will not be enough for all of us to say that we 
support brownfields cleanup and then do nothing more. We must 
be able to improve their effectiveness and their efficiency. 
And to achieve that goal, we have to remember the need to keep 
the goal of our efforts on this committee in clear view.
    Now I want to commend the ranking member of the 
subcommittee, Mr. Pallone, for his cooperation and his help in 
putting together this hearing. And I also want to pledge my 
support for working together in maintaining an open line of 
communications between our members and our staffs. A smarter 
partnership in brownfields will result when we all join 
together to make it so.
    And the Chair is now pleased to recognize the ranking 
member of our subcommittee, the gentleman from New Jersey, Mr. 
Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. I want to thank you 
for holding this oversight hearing today on what I believe will 
be one of the most important issues our new subcommittee would 
tackle this year, and that is the brownfields redevelopment.
    I also wanted to take this opportunity, as you mentioned, 
to thank you for the cooperation we have received so far 
between our staffs and you and me personally. We have talked 
about an agenda for this subcommittee. One of the important 
issues we have mentioned is safe drinking water and funding 
issues related to that, which I know we are going to take up in 
the future.
    I just wanted to say that I look forward to working with 
you, and I think this is going to be the first of a number of 
successful hearings on this and other topics that we have 
discussed.
    Brownfields, as we know, is a relatively recent, complex, 
and dynamic area of public policy. Government at all levels, 
local, State, and Federal, is grappling with liability, 
environmental, and cost issues posed by brownfields reclamation 
and is taking steps to resolve these issues.
    Despite the popular image of brownfields as an urban 
problem, they are found in suburbs and rural areas, too. My 
State of New Jersey, is a relatively small State, although I 
see we have Governor Minner. So maybe we are not as small as 
you, but we are small. We have a number of aging industrial 
sites, and we are obviously heavily affected by hazardous 
waste. Accordingly, New Jersey has taken a leadership role in 
developing regulatory and funding tools for cleaning up 
brownfields.
    The ability to reuse brownfields is important to 
implementing New Jersey's smart growth agenda because it blunts 
pressures to develop untouched greenfield land and, therefore, 
helps contain sprawl. However, brownfields redevelopment is 
also important because of the public policy perspective, which 
is a tricky one, I have to say.
    It is clear that there is no such thing as a typical 
brownfield site nor is there one problem common to all sites. 
They vary greatly in size, location, origin, marketability, and 
degree of contamination. For the most part, none of the sites 
have been inventoried or assessed. These two facts make it 
nearly impossible to prescribe a single solution, which 
provides redevelopment incentives for the wide variety of 
brownfield sites that currently exit.
    With these concerns in mind, I believe the role for the 
subcommittee is to strike a balance between the desire to 
provide redevelopment incentives that will work for such a 
variety of sites while at the same time maintaining the 
assurance to affected citizens that these sites will no longer 
threaten the health of the community.
    Four years ago the Democrats in the House introduced H.R. 
1120, the first stand-alone brownfields bill. That was in the 
105th Congress. In the 106th Congress, every Democratic member 
on this committee cosponsored H.R. 1750, a stand-alone 
brownfields bill that had received the endorsement of the EPA. 
In the near future, Mr. Chairman, I along with Mr. Towns and 
Mr. DeFazio and other Democratic colleagues will be 
reintroducing similar brownfields legislation.
    I was pleased to hear that in her testimony last week 
before the Senate Environment and Public Works Committee, my 
former Governor, now the EPA administrator, Christie Whitman, 
and the Bush administration endorsed the stand-alone 
brownfields approach. That means addressing brownfields 
separate from any Superfund reform. If we are to be successful 
in enacting brownfields legislation, it must be targeted to the 
traditional brownfields issues discussed in Mrs. Whitman's 
testimony.
    There are many different types of voluntary cleanup 
programs in the country. A report from the GAO found that the 
State programs vary significantly in their approaches to public 
participation, direct State oversight, and monitoring after an 
action has taken place. In Illinois, for an example, a new 
developer may decide to clean up just one of several chemicals 
at a site and receive a certification for that chemical alone. 
In my home State of New Jersey, the liable party responsible 
for creating the contamination is not eligible for any 
liability protection under our State brownfields program. In 
other States, the person or company who polluted the site is 
eligible for liability protection. There are obviously 
differences.
    Recently there have been reports that voluntary cleanups 
under one State program are being performed with no public 
participation, minimal direct State oversight, and with a heavy 
emphasis on deed restrictions, fences, caps, or landscaping, 
rather than permanently cleaning up or removing contamination. 
In other State brownfields programs, deed restrictions are 
apparently not an allowable cleanup method. So we really have a 
great variation here.
    With the wide array in voluntary cleanup programs, we 
should be very careful in placing restrictions on Federal 
enforcement authorities. And we must maintain a strong and 
effective Federal safety net. If a site may present an imminent 
and substantial endangerment to human health or the environment 
after a voluntary cleanup, it is vital that the affected 
citizens and communities can rely on both Federal and State 
authorities to protect their health and neighborhoods. There is 
a significant number of memorandum agreements entered into by 
States and the EPA concerning voluntary cleanups that follow 
this very practical approach and have been successful in 
facilitating brownfields cleanups.
    I just want to thank you again, Mr. Chairman. I know we 
have some very good witnesses today, and I look forward to 
hearing them, starting with the Governor.
    [The prepared statement of Hon. Frank Pallone, Jr. 
follows:]
  Prepared Statement of Hon. Frank Pallone, Jr., a Representative in 
                 Congress from the State of New Jersey
    Thank you, Mr. Chairman, for holding this oversight hearing today 
on what I believe will be one of the most important issues our new 
Subcommittee tackles this year--Brownfield Redevelopment. I also wanted 
to take this opportunity--as this is our Subcommittees first hearing--
to express my interest in this issue as well as important funding 
issues under the Safe Drinking Water Act in the future. I look forward 
to working with you, Mr. Chairman, and I believe this will be the first 
of a number of successful hearings.
    Brownfields are a relatively recent, complex and dynamic area of 
public policy. Government at all levels--local, State, and federal--is 
grappling with liability, environmental, and cost issues posed by 
brownfields reclamation, and is taking steps to resolve them. Despite 
the popular image of brownfields as an urban problem, they are found in 
suburbs and rural areas, too. My state of New Jersey, a small state 
with widespread aging industrial sites, is heavily affected. 
Accordingly, New Jersey has taken a leadership role in developing 
regulatory and funding tools for cleaning up brownfields.
    The ability to reuse brownfields is important to implementing our 
states smart growth agenda because it blunts pressures to develop 
untouched Greenfield land, and therefore helps contain sprawl. However, 
brownfields redevelopment is also important because of the public 
policy perspective a tricky one at that.
    It is clear that there is no such thing as a typical brownfield 
site nor is there one problem common to all sites. They vary greatly in 
size, location, origin, marketability, and degree of contamination. For 
the most part, none of the sites have been inventoried or assessed. 
Those two facts make it nearly impossible to prescribe a single 
solution which provides redevelopment incentives for the wide variety 
of brownfield sites that currently exist.
    With these concerns in mind, I believe the role for the 
Subcommittee is to strike a balance between the desire to provide 
redevelopment incentives that will work for such a variety of sites, 
while at the same time maintaining the assurance to affected citizens 
that these sites will no longer threaten the health of the community.
    Four years ago this month, the Democrats in the House of 
Representatives introduced H.R. 1120, the first stand-alone brownfields 
bill. That was in the 105th Congress. In the 106th Congress, every 
Democratic Member on this Committee cosponsored H.R. 1750, a stand-
alone brownfields bill, that had received the endorsement of the 
Environmental Protection Agency. In the near future, I along with Mr. 
Towns, and Mr. DeFazio, and other Democratic colleagues will be 
reintroducing similar brownfields legislation.
    I was pleased to hear that in her testimony last week before the 
Senate Environment and Public Works Committee, EPA Administrator 
Whitman and the Bush Administration endorsed the stand-alone 
brownfields approach--that means addressing brownfields separate from 
any other Superfund reform. If we are to be successful in enacting 
brownfields legislation, it must be targeted to the traditional 
brownfields issues discussed in her testimony.
    There are many different types of voluntary cleanup programs in the 
country. A report from the GAO found that the state programs vary 
significantly in their approaches to public participation, direct state 
oversight, and monitoring after an action has been taken. In Illinois, 
a new developer may decide to cleanup just one of several chemicals at 
a site and receive a certification for that chemical alone. In my home 
state, New Jersey, the liable party responsible for creating the 
contamination is not eligible for any liability protection under the 
Brownfields program. In other states, the person or company who 
polluted the site is eligible for liability protection.
    Recently, there have been disturbing reports that voluntary 
cleanups under one state program are being performed with no public 
participation, minimal direct state oversight, and with a heavy 
emphasis on deed restrictions, fences, caps, or landscaping rather than 
permanently cleaning up or removing contamination. In other state 
brownfields programs, deed restrictions are apparently not an allowable 
cleanup method.
    With the wide array in voluntary cleanup programs, we should be 
very careful in placing restrictions on Federal enforcement authorities 
and we must maintain a strong and effective Federal safety net. If a 
site may present an imminent and substantial endangerment to human 
health or the environment after a voluntary cleanup, it is vital that 
the affected citizens and communities can rely on both Federal and 
State authorities to protect their health and neighborhoods. There are 
a significant number of memorandum of agreements entered into by states 
and the EPA concerning voluntary cleanups that follow this practical 
approach and have been successful in facilitating brownfields cleanups.
    Thank you. I look forward to hearing from the witnesses today.

    Mr. Gillmor. The gentleman from Louisiana, the chairman of 
the full committee.
    Chairman Tauzin. Thank you, Mr. Chairman. Let me first 
congratulate you and Ranking Member Pallone for the cooperative 
way in which you have begun this very important 2-year period 
in which your committee will focus on some extraordinarily 
important environmental concerns of our country.
    For the audience's sake, let me advise you that in 
structuring our committee this year, we obviously put clean air 
into the Energy Committee because of its extraordinary 
closeness with both mobile and stationary source of energy 
consumption issues. Outside of that, we broke the mold of the 
previous administration of this committee in putting the other 
environmental issues that are under the jurisdiction of this 
committee into a single subcommittee without any other focus. 
No longer will the Environmental committee be also interested 
in the questions of financial services, for example, or the 
Environmental Committee be interested in the extraordinary 
issues of Medicare and Medicaid and patients' bill of rights 
and prescription drug issues, but it will be literally 
discussed here in this subcommittee and hopefully shepherded to 
the full committee and to the floor in due order because we are 
focusing this subcommittee's work strictly on our environmental 
jurisdiction.
    And I want to commend you for making brownfields your first 
inquiry in the subcommittee's first hearing. Indeed, I am also 
pleased that the administrator of EPA, Governor Whitman, will 
make her first appearance in the U.S. House of Representatives 
here today. I am also especially pleased that Governor Minner 
is here from the great State of Delaware to bring the 
perspective of the States to this issue.
    Obviously one of the things we hope to do--and I know that 
Governor Whitman has already spoken of it--is to establish a 
better partnership between the EPA and the States in terms of 
this important issue and to hopefully remove the barriers of 
the Federal Government and to establish a more flexible program 
that respects the State's decisions in these areas. That is 
going to be I hope the work and the focus of this committee on 
this important issue.
    Important to this consideration is also the way in which we 
work with the States. Governor Whitman and President Bush have 
indicated that it is time we extend a helping hand, an open 
hand, rather than the back of our hand, to the States as they 
struggle to make these important decisions.
    We don't know how many brownfield sites there are, Mr. 
Chairman. You correctly said that. They could be hundreds of 
thousands. Getting them cleaned up and back into productive use 
in a way that both protects the environment and aids the 
economy of our local communities is a worthwhile goal.
    Indeed, the Bush administration has announced that it wants 
to work for a brownfields bill that it can support and that 
this committee can support. We have pledged to Governor Whitman 
a new relationship of cooperation and partnership in this and 
other environmental areas under the committee's jurisdiction.
    Let me also compliment Governor Whitman on a statement she 
made that she supports principles that are based upon good 
scientific analysis. The quote that I want to refer to is that 
she said that ``Neither policy nor politics should drive 
scientific results.'' I endorse that comment. I hope this 
committee does.
    And I hope that the extraordinary cooperation we have 
already seen between the chairman of this committee, Mr. 
Gillmor, and the ranking member, Mr. Pallone, will continue as 
we strive to make science the driver of the decisions that will 
literally be made to make sure that these brownfields are 
eventually put back into good productive use for the good of 
our economy and our environment.
    Finally, I wanted to not only welcome Governor Minner but 
to compliment her and all the Governors--there is a bunch of 
Governors in town today--for their efforts to stay in touch 
with us and to give us their perspective on how these Federal 
programs work in the States. We too often have neglected this 
kind of close and cooperative relationship.
    We are going to stress it at this committee level. We are 
going to seek your help, your guidance on the energy policy we 
write, on the environmental policy this committee develops, and 
on every issue that is important not only to the Federal system 
but intricately to the State systems that you folks manage.
    I deeply appreciate your coming, as I do Governor Whitman. 
Mr. Chairman, this is your first real venture out as a 
subcommittee. You and Mr. Pallone are to be congratulated on 
making this the important topic of discussion. You will have 
the full support of the chairman and the staff in this 
endeavor. And anything we can do to help you in this inquiry 
and to build the bipartisan bill that we are going to have to 
build out of this committee you have in abundance. And I ask 
you please to call upon me on either side when you require it.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    [The prepared statement of Hon. W.J. ``Billy'' Tauzin 
follows:]
 Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee 
                         on Energy and Commerce
    Thank you, Mr. Chairman, I commend you for holding this hearing. I 
am particularly pleased that Governor Whitman's first appearance in the 
U.S. House of Representatives, as Administrator of EPA, is before our 
Subcommittee. I am happy to join the Chairman in welcoming today's 
panel of witnesses, especially Governor Minner from Delaware, and the 
representatives from New Jersey and Wisconsin's state environmental 
agencies that have joined us to discuss the important topic of removing 
barriers to brownfields cleanups.
    Brownfields are those abandoned or under utilized properties often 
found in urban areas that are typically less contaminated than the 
toxic waste sites on the Superfund list. There are literally hundreds 
of thousands of these sites across the country and it makes perfect 
sense to me that this Subcommittee should focus its efforts on looking 
at ways to redevelop, revitalize and put these sites back into 
productive use.
    Governor Whitman has already identified principles that are 
designed to promote a smarter partnership for environmental programs, 
and EPA has my assurance today that the Energy and Commerce Committee 
will work with the Bush Administration on these important changes.
    Governor Whitman has also identified the need for more flexibility 
in Federal laws and more respect for state decisions. These are the 
fundamental elements of today's brownfields hearing. Uncertainty over 
federal overfiling, overly broad Superfund liability, and needless 
Federal bureaucracy have stifled brownfields cleanups for decades. 
Federal law and federal programs should encourage the redevelopment of 
brownfields, rather than impose barriers and disincentives to cleanups. 
We must change federal programs so they are a helping hand for states 
and local governments, not a heavy hand that gets in the way.
    I also applaud Governor Whitman for her support for the principle 
that scientific analysis should drive public policy, and that ``neither 
policy nor politics should drive scientific results.'' While not a 
specific topic at this hearing, rest assured, that the Energy and 
Commerce Committee supports sound science as a driver for environmental 
programs and improvements.
    Honesty and trust are cornerstones for a smarter partnership in 
environmental programs. Over my years of public service, I have seen 
firsthand the damage that groups which rely on rhetoric and fear-
mongering have inflicted on reasonable and bipartisan efforts to make 
progress in the environmental arena. I want to assure you Mr. Chairman, 
that I am committed to confronting these obstacles head-on in order to 
promote environmental improvements that foster more cleanups, faster 
cleanups and better cleanups.
    Over the past several years the Committee's relationship with EPA 
has been often times rocky and partisan. I look forward to working 
constructively with an EPA that works diligently and directly with this 
Committee to minimize rhetoric, and to focus on the task of eliminating 
barriers and disincentives to cleaning up America's toxic waste sites 
and putting brownfields back into productive use.
    With a new direction and a smarter partnership: between the Federal 
and state governments, between EPA and Congress, and between the 
regulators and industry, I hope we can have a serious evaluation of the 
problems facing current cleanup programs, and that we share a common 
objective: to make those federal and state programs better, more 
effective, and more efficient. I look forward to the testimony of 
today's witnesses, and I encourage my colleagues, federal and state 
regulators and other stakeholders to working with us in making 
brownfields reform a reality.
    Thank you Mr. Chairman, I yield back the balance of my time.

    Mr. Gillmor. Thank you very much, Mr. Chairman. And I might 
say as Chairman of the Environment and Hazardous Materials 
Committee, we plan to take very good care of all the trees and 
trash.
    The Chair recognizes the gentleman from Ohio, Mr. Brown.
    Mr. Brown. Thank you, Mr. Chairman.
    Mr. Chairman, I represent neighboring districts in 
northeast Ohio. Lorain County is split between our two 
districts. And we both know northeast Ohio's proud history as a 
center for manufacturing. We also share a concern about the 
down side of that legacy: contamination from previous 
commercial or industrial activities or concerns about possible 
contamination that prevent the productive use of many urban 
sites. By cleaning up these sites, we can create jobs and 
preserve farmland and green space.
    I strongly support legislation that provides increased 
funding to local governments and redevelopment authorities for 
site assessment grants and revolving loan funds. In addition, I 
believe there is virtual consensus on providing liability 
protection for innocent landowners, for owners of contiguous 
property, and for new developers who were not responsible for 
creating the contamination. Enacting these provisions would 
encourage brownfield cleanups because anyone who qualifies as 
an innocent landowner or a new developer or purchaser would 
have liability protection under Superfund.
    In other cases, specific persons or companies will be 
responsible and potentially liable for cleaning up toxic 
pollution at brownfield sites. In these circumstances, as 
Ranking Member Pallone said, a strong and effective Federal 
safety net is essential to protect citizens from health risks 
or from toxic contamination of their neighborhoods. For 
example, in the chairman's and my State of Ohio, citizens and 
environmental groups throughout the State believe that the 
voluntary cleanup program Ohio has undermines environmental 
protection in our State. Ohio is the only State in Region 5 
without a signed memorandum of understanding for brownfields 
with EPA.
    A recent comprehensive evaluation of the Ohio voluntary 
cleanup program raises serious questions about the wisdom of 
any restrictions on Federal enforcement authority. Let me 
briefly cite a few of the findings.
    The current voluntary action program does not meet U.S. EPA 
requirements for brownfields cleanup programs in the area of 
government oversight, of public participation, and of 
enforcement.
    Of the 88 Ohio States reviewed, none contained evidence of 
any notification or interaction with residents in surrounding 
communities during any phase of the assessment and cleanup 
process.
    Deed restrictions on land use or groundwater use, the most 
common institutional control, were adopted by only 55 out of 
111 sites, not quite half the sites.
    Fifty-seven Ohio sites received covenants not to sue, but 
only 30 percent of these sites physically removed contaminated 
dirt or other contaminated substances. The other 70 percent of 
these sites relied on institutional or engineering controls to 
limit human exposure to these hazards, rather than actual 
removal of contaminants, a pretty sorry state of affairs when 
you look at all of those findings.
    These are troubling findings. As we move forward, I hope 
the subcommittee will recognize that the State voluntary 
cleanup programs that, unfortunately, my State the last several 
years has put together, that those differ significantly from 
where we should be.
    Mr. Chairman, I look forward to working with you on this 
issue. I welcome the new Governor of Delaware to us today. And 
I look forward to working on other issues of importance to 
northeast Ohio and to our nation. And I thank the chairman.
    Mr. Gillmor. The Chair recognizes the gentleman from 
Indiana for 3 minutes.
    Mr. Buyer. Thank you, Mr. Chairman.
    Governor, over the years I sat at that table where you are 
right now testifying on Superfund reform issues. Now I have the 
opportunity as a new member of this committee to be fully 
engaged in the issues, not only on Superfund but interstate 
waste and brownfields. So I look forward to your testimony on 
behalf of the Governors' Association today.
    I appreciate, Mr. Chairman, you not only holding this 
hearing today to examine the brownfields program but also your 
continued interest and dedication in ensuring a clean 
environment. Cleaning up our nation's contaminated sites is 
important, not only to redevelop economically viable properties 
but to also ensure a safe and healthy environment for our 
children to grow and play. We will look at the effectiveness of 
a program and its funding, the barriers to cleanup, what 
flexibility you as Governors need in all of the States, and the 
roles and responsibilities of all entities involved in the 
process.
    In my congressional district in Indiana, is the largest 
Superfund site in EPA's Region 5. It is called the Continental 
Steel site in Kokomo, Indiana. The site has been on the 
national priority list since 1988 and presently includes the 
main plant of about 68 acres, a lagoon area of about 53 acres, 
and 20 acres of quarry area. Approximately 1,600 people obtain 
drinking water from private wells within 3 miles of the site.
    This site does not suffer from any of the difficulties 
other sites suffer, whether it is liability or costly court 
cases, as it is an orphan site. Instead, it suffers because of 
the vast size and extremely costly price tag to clean up with 
estimates well above $100 million.
    While the State of Indiana has taken great initiative and 
recently demolished the buildings, the hardest and most costly 
portions, though, are left. The funding route for the site has 
been diverted. Why? You can never get a straight answer. It was 
very disappointing throughout the 1990's that the ability of 
regional directors to prioritize sites was removed from them 
and it was held in Washington, D.C. I think that was wrong. I 
am interested to learn if similar problems exist in the 
brownfields program.
    I also want to comment that I do not believe we should have 
a stand-alone brownfields bill. If you do that, you will never 
get Superfund reform. Now, I can understand why some of my 
Democrat colleagues want to say: Well, let us just move a 
brownfields bill. Let us just focus on that for which we can 
agree. If you do that, you will never focus on your 
differences. So I am hopeful that we do Superfund reform with 
brownfield together. It is like jelly in a peanut butter 
sandwich.
    I yield back the balance of my time.
    Mr. Gillmor. The gentleman yields back. And the Chair would 
announce that any members who wish to submit records to be 
entered in the record, that will be done. The gentleman Mr. 
Luther?
    Mr. Luther. Thank you, Mr. Chairman. And thanks for holding 
this hearing.
    Mr. Chairman, my home State of Minnesota has been a pioneer 
in creating State voluntary assessment and cleanup programs for 
brownfields sites. In speaking with State and local officials 
in Minnesota, it is clear to me that improvements can be made 
in our Federal brownfields program.
    There is just one point that I wanted to raise this morning 
before the testimony begins because I think it is a point that 
deserves mention. And that is that I hope that our committee 
will deliberate on designating Federal funds for converting 
brownfields into green space.
    I come from a largely suburban district. Many of my 
constituents would rather convert their brownfields into parks, 
bike trails, or the like, rather than another office building. 
And, as you know, the emphasis under current laws tends to be 
on commercial development to the exclusion of other forms of 
development.
    As such, I believe that we ought to consider in this 
committee providing our local communities with the option to 
use brownfields grant and loan money for commercial, 
residential, or recreational use, whichever best serves the 
interests of the people of the local community.
    I look forward, Mr. Chairman, to working with you and other 
members of the committee on this important issue. And I look 
forward to hearing the testimony. Thank you.
    Mr. Gillmor. The gentleman from Pennsylvania, Mr. 
Greenwood.
    Mr. Greenwood. Thank you, Mr. Chairman. I want to also 
thank you for convening the hearing today.
    We want to welcome all of the witnesses, including Governor 
Minner. We will be finished with all of this fodder pretty 
soon. Also I look forward to Governor Whitman's, EPA Director 
Whitman's, testifying later today. I am especially pleased that 
President Bush has identified the issue of brownfields as a 
priority for his administration.
    I think we all recognize that the Superfund law frequently 
impedes, rather than encourages, cleanup of brownfield sites. I 
am hopeful that today's hearing will offer important evidence 
about the barriers to cleanup and also help us understand what 
innovative approaches States such as my home State of 
Pennsylvania have used to overcome such barriers.
    My district has nearly 4 square miles of brownfield sites, 
deserted gas stations, small industrial buildings, empty 
factories, located in the southern portion of Bucks County. It 
is for this reason that since coming to Congress one of my top 
priorities has been to craft legislation that allows the States 
to turn these large areas of abandoned or under-utilized, once 
prime commercial real estate back to America's original Fields 
of Dreams. And that is why in the last session I introduced the 
Land Recycling Act, which was H.R. 2580.
    Returning these Fields of Dreams to active use is key to 
economic development and, as we all know, economic development 
leads to job creation, a drop in welfare rolls, a reduction in 
crime, and safer, healthier neighborhoods. In fact, economic 
development is a vital component of the fulfillment of the 
American Dream: self-sufficiency and opportunity. As long as 
these properties lie vacant, the dream will remain unfulfilled 
for many Americans who live and struggle to survive in these 
blighted areas.
    The brownfields problems have many sources. Foremost among 
them is the Federal law itself. Under Superfund, parties who 
currently own or operate a facility can be held 100 percent 
liable for any cleanup costs, regardless of whether they were 
in any way at fault. The imposition of this liability has led 
to tragic consequences, including the rejection by potential 
developers of any site with a history of industrial activity. 
It is simply not worth dealing with the environmental exposure 
when they have the alternative of developing in pristine 
greenfields where there is no potential for liability.
    Pennsylvania, like many other States, has made significant 
strides in the cleanup and reuse of contaminated and abandoned 
industrial sites. Pennsylvania's award-winning Land Recycling 
Program is a national model for voluntary cleanup programs. 
Nearly 770 sites have been addressed under its program since 
inception in 1995, with over 20,000 people now employed at 
those sites.
    Despite Pennsylvania's success, States, businesses, and 
other experts have testified that they could be far more 
effective if participation in a State voluntary cleanup program 
also included a release from Federal liability. It remains 
imperative that we reform Superfund so that it includes a 
strong brownfields provision.
    Once again, Mr. Chairman, thank you for holding this 
hearing today. I look forward to working with the committee in 
crafting legislation that will ensure a clean and safe 
environment for ourselves, for our children, and for 
generations to come.
    Mr. Gillmor. Thank you.
    Mr. Doyle?
    Mr. Doyle. Mr. Chairman, thank you for scheduling this 
timely hearing to examine Federal and State efforts to promote 
the cleanup, redevelopment, and reuse of brownfields 
properties.
    Federal brownfields policy is of great concern to my 
communities in southwestern Pennsylvania, which comprise much 
of the region referred to as the Rust Belt. As you can imagine, 
these are numerous old, defunct industrial sites in these 
communities, which stand to benefit from our efforts to improve 
the effectiveness of the brownfields program and to identify 
and remedy barriers and disincentives to brownfields cleanups.
    Without question, the brownfields program has spurred 
serious public discussion about the link between environmental 
restoration and economic development and has proven to be a 
valuable resource that neighborhoods all across the country 
have accessed to help make their redevelopment ideas a reality. 
In communities where tax bases took a major hit, where heavy 
industries crumpled in the early 1980's, redevelopment of 
brownfield sites often plays a critical role in accelerating 
the rate at which their economic climate is rejuvenated.
    The end result of an unimpeded brownfields cleanup is that 
the condition of our residents' public health and private 
pocketbooks both are improved and not at the cost of busting 
the local tax base but actually growing it.
    In Pennsylvania alone, as my colleague has stated, the 
brownfields program has supported 654 cleanups on 583 
properties covering 9,000 acres and creating over 17,000 jobs. 
It is also important to keep in mind that Pennsylvania has been 
nationally recognized as having an outstanding State-run 
program.
    That being said, I believe there is much more that we can 
do to better tailor the brownfields program to meet the most 
pressing needs of our communities. The most frequently cited 
impediments to redevelopment are: a lack of cleanup funds, 
liability concerns, the need for additional environmental 
assessment support, and permanent tax credits. The question is: 
Are we going to proceed in crafting meaningful responses to 
these very real impediments?
    And I always make a practice to approach whatever matter is 
at hand with an eye toward building consensus. It has been my 
experience that by fostering communication and greater 
understanding, the best solutions can be found to even our 
toughest problems.
    With this principle in mind, it is my hope that we will 
take seriously and thoroughly consider all concerns brought 
before this subcommittee. Throughout reaching and building 
partnerships among State and local governments, environmental 
groups, and the business sector, we lay the cornerstones of 
what makes brownfields programs so successful. We must not lose 
sight of this necessary dynamic when moving forward with any 
new legislative measure such that we ensure the brownfields 
program continues to make improvements in meeting currently 
unmet needs and offering hope for a cleaner environment, new 
jobs, a stronger tax base, and economic recovery.
    Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you.
    The Chair would announce that we have a vote on. It would 
be the Chair's hope that we can continue the hearing without 
recessing for the vote. The vice chairman of the committee is 
over voting and will be coming back while I vote. And for those 
members waiting for recognition, if you want to go vote, we 
will keep your place in the order of testimony.
    Gentleman from Maryland, Mr. Ehrlich.
    Mr. Ehrlich. I will be brief, Mr. Chairman. I will forego a 
prepared statement.
    Governor, if you are getting the idea this is a pretty 
important and relevant subject to every member here, you are 
right. And I know it is for you, too. So welcome.
    Second, Mr. Chairman, good luck. You are not going to need 
it. And congratulations. That is from classmate to classmate, I 
guess.
    Third, Mr. Chairman, I really do know you believe in this 
issue. And I think this should be the priority item with 
respect to the 107th Congress.
    With regard to my colleague's comments from Indiana, I 
agree, but I want to add a caveat. I would love to move a 
Superfund bill, as you know, but I think it is imperative, I 
think it is very important this committee move a bill this 
session because the need I know we are going to hear in a 
second is dramatic and timely.
    Last point. With regard to the issue of consensus, that is 
a subjective term, particularly in this town. I hope we do not 
do what some States have done, which is move consensus bills 
and, as a result of a consensus, nobody takes advantage of 
bills moved in those particular States because those statutes 
did not handle the difficult issues, particularly with respect 
to liability.
    I think it is important that this committee move not only a 
viable bill but a bill that deals with the real philosophical 
differences that exist on this issue, particularly with respect 
to liability relief.
    As someone who practiced law in this area, Mr. Chairman, we 
look forward to working with you. I look forward to taking this 
subcommittee to Baltimore, Maryland to see an awful lot of 
brownfield sites. And hopefully we can by the end of this 
Congress when we revisit the 108th Congress see far less 
brownfield sites.
    And I yield back.
    Mr. Gillmor. Gentleman yields back his time. Gentlewoman 
from California.
    Ms. Capps. Thank you, Mr. Chairman, for holding this 
important hearing today. And I want to add my welcome to the 
honorable Governor of Delaware as you are speaking here on 
behalf of all of the Governors.
    Over the past couple of years, we have come to a bipartisan 
consensus on the need to move forward with brownfields 
legislation. Not only that, but I believe we are actually very 
close to consensus on the parameters of such legislation. I 
hope that this year this subcommittee can produce such 
legislation and we can give support to an innovative set of 
programs at the EPA and at the States. We should work hard at 
this because the redevelopment of brownfields is a critical 
issue not only for our big cities but smaller cities and towns 
across this nation.
    Encouraging this redevelopment means reducing the threat of 
urban sprawl and the strains on our transportation systems. It 
means taking advantage of the infrastructure already in place 
in many urban or older industrial areas. It means creating jobs 
and economic opportunity for neighborhoods often neglected. And 
I know because I have seen this in my district. The 
redevelopment of the brownfields in the small Town of Goleta 
near Santa Barbara, California is a good example of a small and 
growing community recapturing some valuable property and 
improving the local economy and enhancing the quality of life 
there.
    Last year I was a cosponsor of Mr. Towns' brownfields bill, 
H.R. 1750. I believe that bill both encourages the 
redevelopment of brownfields and continues to ensure that the 
public health is always safeguarded. And so I hope the 
subcommittee will consider this bill as an excellent starting 
point for our discussions this year.
    The liability protections in the bill for prospective 
purchasers of brownfields, innocent landlords and contiguous 
property owners, are particularly important. They offer much 
needed assurances to developers and property owners who are 
trying to do the right thing by revitalizing brownfields.
    I know that much of the debate will focus on the Federal 
interaction with State plans and what is termed as 
``finality.'' It is my understanding that there is a wide 
variation in State voluntary cleanup programs in terms of who 
is eligible, the opportunity for public participation, and the 
level of direct State oversight. It is because of this wide 
variation that we must have a strong Federal safety net to 
ensure the public health and safety of all citizens and their 
neighborhoods with Federal support if necessary.
    Clearly we want to ensure finality for those involved in 
cleanups, but we also want some finality in the reduction of 
threats to public health and safety imposed by brownfields. And 
only effective cleanup will do that. And so I hope that this 
subcommittee can move quickly on the legislation to address 
this critical need.
    Thank you. I yield back the balance of my time.
    Mr. Shimkus [presiding]. I thank the gentlewoman, and I 
recognize the gentleman from Nebraska, Mr. Terry.
    Mr. Terry. Thank you, Mr. Acting Chairman.
    A little bit of historical perspective to kind of set my 
framework. I spent 8 years on the Omaha City Council. In those 
8 years, there was one issue that left deep and penetrating 
scars on my back. And that was a brownfields cleanup, where we 
wanted to take riverfront property that was an old industrial 
site and turn it into a nice city park that people could go 
back to the river. I have never been involved in a more bloody 
battle than that.
    You know, we hear across this board bipartisan desires for 
brownfield cleanup, but my experience in the field is that it 
is everything but bipartisan. I was sued for my vote to go 
forward with this as a city park. It was a feeding frenzy of 
environmental groups that came in and said removing 4 to 6 feet 
of dirt wasn't enough.
    And so I just want to state that I have been through some 
of these wars before and I have a kind of a very skewed view of 
the current process and a strong desire for reform here which 
recognizes certain realities.
    And so, Governor, I don't know if you have had similar type 
experiences in dealing with some of these extremist groups in 
these types of cleanups that say that they are in favor of the 
environment but take actions that from my standpoint are not 
logical if your conclusion or your desire is to clean up and 
create green space.
    We need to look at reforms in regard to how the EPA can 
sign off on certain projects without having to take them over 
as a Superfund site. We need to empower the States to make sure 
that they have the confidence in their own voluntary cleanup 
when the State departments sign off.
    We also need to make sure that if someone takes title, that 
they have some assurances that they won't be on the hook. Those 
are all areas that I think we need to look into. And while we 
have the voiced spirit of bipartisanship, there is a lot of 
heavy lifting that is involved in those three tenets.
    So I look forward to your testimony in regard to some of 
your personal experiences in Delaware. Thank you.
    Mr. Shimkus. Thank you, Mr. Terry. And I want to thank you, 
Governor, for being here. In fact, I was going to recommend to 
my colleague from Nebraska that I am the chairman now because I 
am in the chair. I am not acting.
    We do this to try to keep things moving so that we don't 
have to recess and waste time. I will give my 5-minute opening 
statement. Maybe a few more of my colleagues will come back and 
want to give theirs. And I think counsel is telling me that we 
will recess for your opening statements if I don't filibuster 
long enough to allow people to get back.
    Superfund reform, in this aspect brownfields, in an 
exciting issue now I think in this upcoming Congress. There is 
optimism on a lot of sides that we can move and address some of 
the problems that I think you will give testimony to, and we 
are very pleased with having you here.
    You talk about sprawl, which is a cliche that we are 
somewhat concerned about. Superfund reform and getting some of 
these old sites back in productive use could help address the 
entire sprawl debate. We think we are now in a position to pass 
some legislation which is environmentally sound and will help 
move our nation forward and get these areas back in 
productivity.
    Another aspect, the prerogative of the Chair and a 
prerogative of members to bring up other issues, that we are 
going to have other people testify on in this long list of 
people in different panels is small business liability from the 
Superfund relief, which I know we probably have some staffers 
from the EPA out there.
    It is no mystery or secret that I have been fighting for 
these small businesses who have been caught in this battle. And 
I am looking forward to the new administrator helping push not 
only brownfields reform but also small business liability 
relief protection. And I think there is an opportunity to do 
both of those.
    So it is an exciting time for those of us who serve on some 
of these committees that people wonder why we get on a 
committee that wants to address Superfund reform or 
brownfields. It is not very sexy, but I think for the growth 
and, really, the living conditions and the environment of some 
of our major metropolitan areas, it can be a great benefit in 
the future.
    So, with that, I am going to end my opening statement and 
check with counsel.
    Folks, we are going to take a short recess. And the recess 
is not going to have a time limit. So as soon as we get the 
other members back and find out they are going to do an opening 
statement, then we will call the committee back into session. 
So it is kind of like in the Army when they say, ``One foot in 
place. Rest.'' One foot in place, we will recess subject to the 
call of the Chair.
    [Brief recess.]
    Mr. Gillmor. The subcommittee will come to order. I 
apologize to Governor Minner for this break, but I also know 
that she is a former legislator and knows that sometimes these 
things are beyond our control.
    We will recognize the gentle lady from New Jersey, Ms. 
McCarthy, for an opening statement.
    Ms. McCarthy. I thank you, Mr. Chairman. And as a former 
legislator, I appreciate your understanding in needing to just 
spend a moment, first of all, to thank you for being here and 
to thank the chairman for holding this hearing and welcoming 
the opportunity to have a dialog on how we can developer a 
smarter partnership for the brownfields cleanup and Superfund 
sites that we all care so greatly about in our States. I have 
long been an advocate of both initiatives, both at the State 
legislative level and now at the Federal level.
    My State of Missouri has some pretty good success stories. 
Particularly my district, greater Kansas City, has been 
designated a showcase community by the Region 7 Environmental 
Protection Agency. And we got an award, the Phoenix Award, 
which is a national honor. It recognized our excellence in 
brownfields development work. And we have had some real good 
results.
    So I thought today what I would do is share with you some 
of the things that I think worked well in Missouri that might 
need to be expanded to other States. For example, we created in 
Missouri a remediation tax credit for up to 100 percent of 
remediation costs if it works through the voluntary cleanup 
program. We might think about that as becoming a similar 
Federal program for all States to use because it has been very, 
very successful.
    Initially the Federal brownfields tax credits could be 
implemented as demonstration pilot within the 28 brownfield 
showcase communities across the country on a 3-year basis. This 
has been very successful. The pilot proves its success as a 
showcase. And I think it would be good to expand it and roll it 
out as a national program that we could get behind.
    Historically many U.S. industrial sites which later became 
brownfields are located close to waterways. With their flood 
control, engineering, environmental, and project management 
expertise, the Corps of Engineers is uniquely positioned to 
assist in the national brownfields initiative. And I think we 
should consider at the Federal level incorporating the U.S. 
Army Corps of Engineers Water Resources Development Act into 
Section 7 of the brownfields revitalization program and make 
that partnership and teamwork national.
    Last, the brownfields funding for petroleum and lead-based 
paint and asbestos sites needs to be considered and addressed 
because I think legislation is needed to move beyond CERCLA 
limits that prevent assistance for worthy brownfield projects 
that involve petroleum, lead-based paint, and asbestos 
contamination.
    Due to the exclusion and limitations of CERCLA, most of the 
EPA assessments and remediation loan funding tools for 
brownfields cannot be used on these sites. But in urban areas 
such as mine, these are real sites people are interested in and 
if revitalized could continue to provide that economic 
development, local jobs, and restoration of our central cities.
    So, Mr. Chairman, I think this is a very apropos hearing 
that you have called today. I look forward to working with you 
to address some refinements to the law we created. It is a good 
law. It is working. It is helping. And we can make it even 
better if we work together. Thank you very much.
    Mr. Gillmor. Thank you very much.
    Are there other members desiring to make an opening 
statement? Gentleman from Wisconsin.
    Mr. Barrett. Thank you very much, Mr. Chairman. I 
appreciate your holding this hearing today.
    I will be brief in my comments. I am pleased that we are 
here today. I am especially pleased that George Meyer from the 
State of Wisconsin is joining us to testify before the 
subcommittee. He has a long and distinguished history in 
Wisconsin of public service and, really, for many, many years 
led a nonpartisan Department of Natural Resources in our State. 
And it is something that you can be proud of. And I thank you 
for the work that you have done in our State.
    In the past in this Congress and in this committee, 
unfortunately, this issue has been, from my viewpoint at least, 
a lost leader in trying to move Superfund legislation. I say a 
lost leader because I think that brownfields cleanup is an 
issue that has widespread bipartisan support. Particularly in 
some of the Midwestern, Northeastern cities, many of us feel 
very strongly that we could have moved legislation independent 
of the Superfund overhaul, which inevitably got bogged down 
into debates over who should pay.
    So I am especially pleased this session that the leadership 
of this committee has taken a different approach and has now 
willing to look at stand-alone legislation. I think that this 
dramatically increases the chance that we will be able to move 
forward on this very important issue.
    So, again, Mr. Chairman, I thank you and would yield back 
the balance of my time.
    Mr. Gillmor. The gentleman yields back.
    [Additional statements submitted for the record follow:]
    Prepared Statement of Hon. John D. Dingell, a Representative in 
                  Congress from the State of Michigan
    Mr. Chairman, I thank you for conducting this oversight hearing on 
brownfields. This subject is important to me, and to many of the 
Members of this Subcommittee. In the Detroit metropolitan area alone--
home to much of our country's industrial strength for over 100 years--
brownfields cover tens of thousands of acres of land once occupied by 
mighty manufacturing facilities and thriving communities. Today, many 
of these properties are abandoned by their once-prosperous owners. They 
have become an eyesore and, in some instances, a threat to the 
livelihood and health of the citizens who live around them. This 
situation is not unique to the Detroit area, nor to urban areas 
generally.
    For years now, we have enjoyed bipartisan agreement that 
brownfields legislation is needed. Yet, we have not seen brownfields 
legislation become public law. Some years ago, lender liability relief 
was enacted into law because we achieved consensus among stakeholders, 
the Administration, and Members on both sides of the aisle. That 
consensus produced one of the few amendments to any environmental law 
in recent memory. Consensus should be the model by which we proceed.
    By contrast, many controversial provisions to amend the Superfund 
statute have never come close to becoming public law--and they have 
held hostage consensus provisions such as prospective purchaser and 
innocent landowner relief. As these consensus provisions languish, some 
Members in this body cannot resist the temptation to tinker, thus 
sparking controversy where there was none.
    Having listened to my constituents over the years, I am aware that 
environmental laws did not create brownfields. I am aware that there 
are numerous challenges to the redevelopment of brownfields including 
financing and infrastructure needs. I am aware that it is often 
difficult to evaluate the economic condition of an area in which a 
brownfield is located: its crime record and potential to attract 
business. Environmental issues are often the most easily predictable of 
those a developer encounters when deciding whether to invest.
    That being said, I am pleased to report that brownfields 
redevelopment is occurring. Local governments, developers and citizens 
are finding creative ways to build their own consensus and to re-build 
their communities. My colleagues on the other side of the aisle once 
promoted appropriations riders that prohibited the use of Federal money 
for seeding brownfields revolving loan programs. But those programs are 
now up and running and gathering acclaim from the recipients of much-
needed funding.
    We can build upon our communities' success. I was pleased to hear 
that Administrator Whitman supports moving brownfields legislation 
separate from other Superfund reform efforts. While I am not very 
familiar with the details of the Senate bill she recently endorsed, I 
am aware that the scope of that bill is in keeping with what I have 
long encouraged this Committee to focus upon: funding, prospective 
purchaser relief, innocent landowner liability clarification, and 
promotion of state voluntary cleanup programs. I encourage my 
colleagues to identify and adhere to areas of consensus, fix only what 
is truly broken, and listen to the needs of our communities.
    I thank you, Mr. Chairman.
                                 ______
                                 
  Prepared Statement of Hon. Gene Green, a Representative in Congress 
                        from the State of Texas
    Thank you, Mr. Chairman, for holding this important hearing. I 
appreciate the opportunity to explore the issue of brownfields, which 
is of great importance to my constituents and people across the nation.
    Brownfields are a problem that impacts all of us. They range in 
size from abandoned truck or bus storage lots to large warehouses or 
manufacturing sites. Usually, they are concentrated in economically 
distressed areas.
    However, brownfields pose a significant roadblock to redevelopment. 
Not polluted enough to qualify as a Superfund site, they are avoided by 
many developers due to cleanup costs and potential liability, and can 
thus stall efforts to bring in new economic development to whole areas 
of a community.
    The program, thus far, has seen some successes. My hometown of 
Houston is involved in the redevelopment of over 550 acres of 
brownfields. whose remediation costs total over $460 million. These 
cleanups are creating almost 2,400 new jobs and returning almost $2 
million in taxes to the city, county, and school districts.
    The program has also helped to reduce eyesores in the community, 
improve neighborhood-quality-of-life, and spur different types of 
redevelopment, such as a new baseball stadium, a new performing arts 
center, and almost 1,000 units of new housing.
    In the 29th Congressional District, two projects in particular 
stand out. The state of Texas took the lead on the first by investing 
in what became the Central City Industrial Park.
    Located in the heart of Houston's Hispanic East End, this former 
heavy industrial site was redeveloped as office space for state 
agencies and for light industry.
    Over 1,500 new jobs were created, many of which went to residents 
in the surrounding area. Completed in 1997, the complex currently has 
an occupancy rate of 96%.
    The second project, also in the East End neighborhood, was a former 
trucking company staging area that was redeveloped into housing for 
seniors. The Latino Learning Center, Inc. invested in a brownfield that 
had been vacant for 17 years and had become a neighborhood dump.
    These days, though, it is home to a beautiful new, 64-unit housing 
complex for senior citizens, a Seniors' Day and Health Care Center, and 
a 5,500-sq. ft. community center.
    The redevelopment of this site also featured access to math and 
computer science classes for local students; created 5 new full-time 
jobs for the residents of the community; and created 150 construction 
jobs with 50% set aside for local residents. Completed in November of 
2000, it is a fine example of what this program can achieve.
    I hope that this committee will explore how we can continue to 
build on the successes of this program. I look forward to this and 
further hearings on the subject of brownfields, and I yield back the 
balance of my time.

    Mr. Gillmor. If there are no further opening statements, we 
will proceed with Panel 1, which consists only of Governor Ruth 
Ann Minner of the State of Delaware, newly elected chief 
executive, Democratic Governor. And she is here testifying on 
behalf of the National Governors' Association.
    Governor, we welcome you and we appreciate you taking the 
time to be with us and give us your thoughts on brownfields. 
The committee does have a copy of your written statement. And 
you have 5 minutes to summarize it. Members can then begin with 
questions.
    Governor?

STATEMENT OF HON. RUTH ANN MINNER, GOVERNOR, STATE OF DELAWARE, 
          ON BEHALF OF NATIONAL GOVERNORS' ASSOCIATION

    Ms. Minner. Thank you, sir.
    Good morning, Mr. Chairman and members of the subcommittee. 
I am Ruth Ann Minner, the Governor of the State of Delaware. I 
am here today to represent the National Governors' Association. 
I currently serve as a member of the NGA's Committee on Natural 
Resources. We appreciate the opportunity to provide testimony 
today on brownfields issues.
    The Governors believe that brownfields revitalization is 
critical to the successful redevelopment of many contaminated 
former industrial properties. It is a vital part of smart 
growth, and many of us are pursuing smart growth in our States.
    We commend and we thank this subcommittee for focusing on 
the brownfield issues early in this session, and we agree with 
you that passage of brownfields legislation should be the 
priority of this Congress, but it must be legislation that 
encourages actual cleanup of sites in our States.
    Brownfields represent an enormous potential economic 
development resource, one that can lead to many jobs, healthy 
communities and neighborhoods, increased local tax revenues, 
and less suburban sprawl. State brownfields programs have been 
operating now for about a decade. And in that short period of 
time, State programs have successfully facilitated reuse of 
more than 40,000 sites. There are still challenges ahead, and 
the States face those challenges in redeveloping brownfield 
sites.
    Real and perceived barriers are keeping us from eliminating 
these blights in our communities. State programs have 
flexibility that should be recognized and not impeded to 
stimulate brownfield redevelopment. We think the Federal 
Government can help remove some of these impediments that 
currently exist.
    Owners of contaminated industrial sites often desire the 
site cleanup in order to sell their properties and return it to 
productive use. Some developers are afraid that their 
involvement in these State-managed sites may result in 
environmental cleanup liability, liability for contamination 
they did not create under the 1980 Superfund Act. Many of our 
potential developers of brownfields have been deterred from 
investing in a contaminated site. And that is because they know 
that even if a State is completely satisfied with the property 
that has been cleaned up, there is a potential for the EPA to 
take action against them under the Superfund liability scheme.
    If there is legislation on brownfields, Governors believe 
that it should address this problem by providing for needed 
liability protection for innocent owners as well as owners of 
contiguous properties. Just as importantly, legislation should 
preclude enforcement by anyone other than a State at sites 
where cleanup has already occurred or is being conducted under 
a State program. This finality should mean what it says: 
completion of cleanup under State law. To not give this 
insurance reduces the chances of restoration at the site.
    We do not disagree with those who want exceptions to this 
finality, but the exceptions should be limited and the 
exceptions should give States an opportunity to take 
appropriate action themselves before EPA is permitted to reopen 
the cleanup and take enforcement action.
    What the Governors would strongly recommend is language 
that puts the burden on the EPA to demonstrate that the 
Governor was notified of a problem and that the State was 
unwilling or unable to take appropriate action. Of course, if 
the EPA needed to take emergency action to protect the public 
health or the environment and the State was unwilling to 
respond, intervention by the Federal Government would be 
appropriate. Similarly, a State could ask for Federal 
assistance in cleaning up any site if the circumstances 
warranted it.
    Another provision that we believe is very important in any 
bill is to require the concurrence of the States' Governors 
before a site may be added to the national priorities list. It 
is currently an EPA policy, and we ask that you codify this 
practice.
    We would also like to see action on the Superfund Act 
clarified regarding the States' cost share at Superfund sites. 
The Governors believe the law should clearly provide that the 
Superfund response trust fund can be used to support operation 
and maintenance at the same match as the cleanup actions; that 
is, the 10 percent.
    Last, we would like to see a bill that includes a waiver of 
sovereign immunity for Federal facilities so that States can 
enforce State environmental laws. Such authority has been 
provided in the Clean Water Act, the Clean Air Act, the 
Resource Conservation and Recovery Act. And we seek to hold the 
Federal Government to the same standard of compliance for its 
brownfields in our States as other parties in our State.
    We sincerely appreciate your consideration of our views. We 
look forward to working with you on the development of 
brownfields legislation during this session. Thank you very 
much. And if you are interested in specifics by way of programs 
or what we have been doing in Delaware, I would be happy to 
answer those questions.
    [The prepared statement of Hon. Ruth Ann Minner follows:]
  Prepared Statement of Hon. Ruth Ann Minner, Governor of Delaware on 
              Behalf of The National Governors Association
    Good morning, Mr. Chairman and members of the Subcommittee. I am 
Ruth Ann Minner, Governor of the State of Delaware, and am here today 
representing the National Governors Association. I currently serve as a 
member of the NGA's Committee on Natural Resources; we appreciate the 
opportunity to provide testimony today on Brownfields issues. I have 
attached a copy of the NGA policy statement on Superfund reform and ask 
that it be included in the record of this hearing, along with my 
statement.
    The Governors believe that brownfields revitalization is critical 
to the successful redevelopment of many contaminated former industrial 
properties. In fact, it is a vital part of the smart growth agendas 
being pursued by many Governors t his year, including my own ``Livable 
Delaware'' plan. Therefore, we commend the Subcommittee for focusing on 
the brownfields issue so early in this session. We agree with you that 
passage of brownfields legislation should be a priority for this 
Congress, but it must be legislation that encourages actual cleanup of 
the sites.
    Brownfields represent an enormous potential economic development 
resource, one that can lead to new jobs, healthier neighborhoods, 
increased local tax revenues, and less suburban sprawl. Some have 
called brownfields the ``engines of the New Economy.'' Successful state 
brownfields programs improve the quality of life for a community, which 
in turn, increases that community's economic competitiveness and helps 
it attract new business and workers. State brownfields programs have 
been operating now for about a decade. In that short period, state 
programs have successfully facilitated reuse of more than 40,000 sites. 
For example, New Jersey, under the leadership of former Governor, now-
Administrator Whitman, led an effort to provide funding to reimburse 
brownfields developers up to 75 percent of remediation and cleanup 
costs, and in her last budget as Governor, she signed legislation to 
award $15 million in grants to municipalities to acquire and clean up 
brownfields sites. Michigan passed a bond issue that devotes $335 
million to prepare brownfields sites for redevelopment, including 
grants and loans to municipalities and counties. Massachusetts provides 
brownfields tax credits ranging from 25--50 percent for owners who 
pursue site cleanups in economically distressed areas.
    In my state of Delaware, brownfields account for nearly 25 percent 
of the land in our largest city, Wilmington. In 1995, we established 
several financial incentives for brownfields redevelopment and 
initiated a number of reforms to our state Superfund law. We provide a 
50-50 matching grant of up to $25,000 for the state share from our 
economic development strategic fund to cover the cost of environmental 
assessment. We also offer low-interest loans for site cleanup and offer 
a Blue Collar Job Creation and Capital Investment Tax Credit for 
redeveloping brownfields. Perhaps most importantly, our state law, 
which has a liability scheme identical to that in the federal Superfund 
Act, provides liability relief for prospective purchasers of 
brownfields sites that have gone through the state cleanup process and 
have been issued a Certificate of Completion of Remedy.
    But there are still challenges states face in redeveloping 
brownfields, real and perceived barriers that are keeping us from 
eliminating these blights on many of our communities. In Delaware, we 
believe that the package of incentives and limited liability relief 
I've described are examples of the flexibility that should be 
recognized, and not impeded, under federal law to stimulate brownfields 
redevelopment.
    State level creativity and innovation in meeting their brownfields 
needs has been the hallmark of redeveloping many industrial sites. But 
there are many more sites in Delaware and thousands more across this 
nation that need to be addressed. We think the federal government can 
help remove some of the impediments to their redevelopment.
    Owners of contaminated industrial sites often desire site cleanup 
in order to sell the property and return it to productive use. State 
brownfields programs allow redevelopment to take place at these sites 
quickly, with appropriate cleanup standards, and with minimal 
government involvement. However, some developers are afraid that their 
involvement in these state-managed sites may result in environmental 
cleanup liability for contamination they did not create, under, the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) of 1980, commonly referred to as ``Superfund.'' As a result, 
valuable industrial land remains contaminated, unused, or abandoned, 
denying communities economic activity and the direct benefits of jobs 
and taxes. Many potential developers of brownfields sites have been 
deterred from investing in a contaminated site. That is because they 
know that even if the state is completely satisfied that the property 
has been properly cleaned up, there is the potential for EPA to take 
action against the cooperating party under the CERCLA liability scheme.
    If there is legislation on brownfields, Governors believe that it 
should address this problem by providing needed liability protections 
for innocent owners and owners of property contiguous to contaminated 
sites. Just as importantly, legislation should preclude enforcement by 
anyone (other than by a state) at sites where cleanup has already 
occurred or is being conducted under state programs. This ``finality'' 
should mean what it says--satisfactory completion of a cleanup under 
state law should be final. To not give this assurance to developers who 
are spending thousands, or hundreds of thousands, of dollars of their 
own money to rehabilitate a property reduces the chances that the 
rehabilitation will happen.
    We do not disagree with those that want exceptions to this 
finality, but the exceptions should be limited and should give states 
an adequate opportunity to take appropriate action themselves before 
EPA is permitted to reopen the cleanup and take an enforcement action 
against the owner or the developer.
    For example, we do not think that EPA's mere assertion that a 
potential release of a contaminant from a brownfields site ``may 
present an imminent and substantial endangerment to public health or 
welfare or the environment'' should be sufficient to override the 
state's approval of the cleanup and begin an enforcement action. Such 
language does not assure that the problem is taken care of; it just 
brings the federal government into the picture and scares away future 
developers from cleaning up other sites.
    What the Governors would strongly recommend is language that at 
brownfields sites, the burden should be on EPA to show that the 
Governor was notified and given an reasonable opportunity to correct 
the problem, or threat of the problem, and was unwilling or unable to 
take appropriate action. Of course, if EPA needed to take emergency 
action to protect public health or the environment, and the state was 
unwilling to respond, intervention by the federal government might be 
appropriate. Similarly, a state could ask for federal assistance in 
cleaning up any site if the circumstances warrant it.
    Another provision that we believe is very important in any bill 
that addresses contaminated sites is a provision to require the 
concurrence of the Governor of a state in which a site is located 
before a site may be added to the National Priority List. The nation's 
Governors believe such a provision is vital. It is currently EPA policy 
to seek the concurrence of a governor before listing a site, and we ask 
that you codify this practice.
    We also would like to see a section of CERCLA clarified regarding 
the state cost share at Superfund sites. The Governors believe that the 
law should clearly provide that the Superfund response trust fund can 
be used to support operation and maintenance activities at the same 
state match requirements as cleanup actions--that is, a 10 percent cost 
share.
    Lastly, we would like to see a bill that includes a waiver of 
sovereign immunity for federal facilities, so that states can enforce 
state environmental laws. Such authority has been provided in the Clean 
Water Act, the Clean Air Act, and the Resource Conservation and 
Recovery Act. Congress confirmed its commitment to state enforcement of 
environmental laws at federal facilities in 1992 under the Federal 
Facility Compliance Act, but the authority under the Superfund law is 
less clear. States seek clear authority to require and oversee response 
activities at federal facilities. As you may know, federal facilities 
and former federal facilities are among the worst contaminated sites in 
the nation. We seek to hold the federal government to the same standard 
of compliance as other parties in our states.
    We appreciate your consideration of our views, and we look forward 
to working with you on the development of brownfields legislation 
during this session.

    Mr. Gillmor. Thank you very much, Governor.
    Governor Whitman, who is going to be in, or ex-Governor 
Whitman, this afternoon, in the testimony she submitted 
emphasis a need for flexibility in working with State and local 
governments to promote faster, more efficient cleanup. What 
kind of flexibility would be of most benefit to the efforts of 
developers, cleanup contractors, investors, and regulators at 
the State level as well?
    Ms. Minner. Well, we can look at each State and each site 
and tell you that everyone is different. But, then, you have 
dealt with them in your States, and you know that. And so the 
flexibility is to allow the States to do the evaluation, to 
intercede with the cleanup, to help those people who are there, 
to have flexibility in our own programs, as long as our goals 
are all the same, to clean up the site, to make it reusable, 
and to keep the suburban sprawl down and save our open spaces 
and green land.
    Mr. Gillmor. Governor, some groups have testified that 
Federal reforms to bolster finality for brownfields cleanup is 
not needed because, even though the EPA has broad authority to 
reopen cleanups, that the agency rarely uses it.
    Your testimony points out that the problem lies not only 
with instances where EPA actually uses this overfiling 
authority, but the problem also has to do with the perception 
and fear of Superfund liability and potential fellow 
involvement. Could you describe in greater detail how this so-
called chilling effect inhibits development?
    Ms. Minner. A site that has been designated and is ready 
for cleanup, a developer willing to spend their own personal 
money and sometimes hundreds of thousands of dollars takes a 
look at the whole process and says: What do you mean there is 
no finality? I end up spending this money, and I still may have 
a problem. Here is a site 5 miles down the road, open space, 
green space, no problems. Why would I spend all of my money 
cleaning up a site?
    They want the finality settled so that they know once they 
have done the work that we have asked them to do, once they 
have met all of the requirements, they don't have to worry 
about a problem unless it is a new problem that they need to 
deal with.
    Mr. Gillmor. In terms of Federal involvement, one 
suggestion has been made that I would like to bounce off of 
you. And that is, would you support limiting the Federal 
Government's ability to reopen State brownfield cleanups to 
instances where there is a public health emergency?
    Ms. Minner. That is part of what we have as a policy for 
the Governors. And we absolutely agree that if there is a 
health hazard or an environmental hazard, then the Federal 
Government should step back in. For the most part, they should 
work with us as they do that.
    If we don't work to meet those standards once they have 
found the second problem, then they should step in. But we 
really hope that you would give the States the opportunity, the 
Governors would work with EPA in providing that additional 
cleanup and making sure that the site is safe.
    Mr. Gillmor. Governor, your testimony recommends that 
Federal law require EPA to notify a Governor of its concerns 
about an ongoing State cleanup and to provide the State with a 
reasonable opportunity to correct the problem. Can you 
elaborate on what this means and how it would work?
    Ms. Minner. Well, if you think of some of the sites we have 
had--and I will use one in Delaware, which is along the 
riverfront, and it does affect some of the things that you 
would have to do by way of the waterway as well as cleaning up 
the brownfield. As we work on that, we are dealing with two 
parts of State government. We also are making sure that we meet 
the Federal compliances with all of those laws that are 
involved.
    We wanted to do many things there. We wanted to create one 
part of that area as open park land and part of a wetland area 
but some area as park land, a river walk for our neighborhoods 
to enjoy. We also did the Riverfront Arts Center. We did some 
shops. We have got a ballpark there. If you are looking at a 
multiple-use facility, there are many things that we need to 
do. Give us the flexibility to do all of that at one time, 
rather than saying we have to work on each one of those issues, 
one cleaning up the riverfront, another putting in a site, 
which would be just an environmental site near the park land 
and the marshland that is there.
    Mr. Gillmor. Thank you very much, Governor.
    My time has expired. The ranking member, Mr. Pallone?
    Mr. Pallone. Thank you, Mr. Chairman. And thank you, 
Governor.
    I wanted to develop a little more this issue with regard to 
the language on finality that you mentioned and the chairman 
mentioned. You say in your written statement and I think you 
said the same thing, obviously, when you spoke that you don't 
think the EPA's mere assertion that a potential release of a 
contaminant from a brownfield site, quote, ``may present an 
imminent and substantial endangerment to public health or 
welfare or the environment should be sufficient to override the 
state's approval.'' And then you go into this language about 
the burden to show that the Governor was notified. I am just 
trying to figure how that relates to some of the agreements 
that have been entered into.
    I know that, in particular, in your state, if I could use 
it as an example, in 1997, Delaware and EPA signed a memorandum 
of agreement that said that unless EPA determines after 
consultation with the state, quote, ``that there is or may be 
an imminent and substantial endangerment to public health or 
welfare or the environment that is not being adequately 
addressed under the State program.'' That is obviously the 
agreement or the language of the agreement.
    Is there a problem with that language that you are citing? 
I don't mean in your state. On a national level, are you 
suggesting that that language be changed and you think it is 
inadequate?
    Ms. Minner. I think it works very well for us in most 
instances. However, one of the speakers spoke to the problem 
that every memorandum of understanding is different. They don't 
all have that. I think it works well for us in Delaware. We 
have been very fortunate in working very well with the region 
in making sure that we have complied to all of those 
restrictions.
    But I don't speak just for myself and for Delaware. I speak 
for all of the Governors. And it is different in every state.
    Mr. Pallone. But if we had the imminent and substantial 
endangerment language and then we had language that says that 
is not being adequately addressed under the State program, you 
would think that is okay? That is satisfactory at this----
    Ms. Minner. As long as they come to us and work with us. A 
lot of times, if we don't know something is there, they find 
something that we didn't, they think that something is there, 
it makes it very difficult for us. If they come to the state, 
offer us the opportunity to work and correct the problem, and 
if that State Governor or the department says, ``No, we don't 
do it,'' their stepping in is certainly understandable.
    Mr. Pallone. You just want to make sure that there is 
consultation with the state, effectively?
    Ms. Minner. Yes.
    Mr. Pallone. Okay. Then the other thing I was going to ask 
is on the second issue, which I guess is really a Superfund 
issue, but you mentioned it. So I am going to bring it up. The 
other provision that we believe is very important requiring the 
concurrence of the Governor of a State in which a site is 
located before a site can be placed on the national priority 
list. Has that been a problem either with you or other 
Governors, to your knowledge, in other words, that the EPA 
lists sites over the objection of a Governor?
    Ms. Minner. I think in the past, the policy has been that 
they have worked with us and worked with us very closely. In my 
statement, I said what we really want is that to be a part of 
the code, rather than just a policy. I think we all know, just 
as memorandums of understanding can be canceled or changed, so 
can policy. We like that very much. And we would like it to be 
codified so that we would know, we would continue to have that 
opportunity.
    Mr. Pallone. As far as you know, with the National 
Governors' Association or with your own state, there hasn't 
been any case in the last 5 years or in recent where the EPA 
has not followed that, where they have listed something over 
the objection of a Governor?
    Ms. Minner. They have been working closely with us and have 
always addressed it in our State of Delaware. However, I can't 
say that that is true across the country in every state. But 
the whole idea is simply to have it as a part of the code so we 
will know in the future that that policy is in the code and 
will continue.
    Mr. Pallone. I guess I will probably ask my own former 
Governor that question. But I watched as the President started 
to appoint the members of the cabinet, they seemed to be mostly 
Governors. I guess knowing Whitman and her background, it is 
unlikely, it would seem to me, as administrator that she would 
do anything to list a site without a Governor's approval, but I 
guess that is your concern, obviously.
    Ms. Minner. We are all looking forward to working with one 
of our colleagues in this area.
    Mr. Pallone. Thank you. Thank you, Mr. Chairman.
    Mr. Gillmor. Mr. Largent, the gentleman from Oklahoma?
    Mr. Largent. Thank you, Mr. Chairman. It is my turn? Is 
that what you said? I am sorry. I was talking to staff.
    Mr. Gillmor. You are recognized for questions if you wish.
    Mr. Largent. Great. I just have a couple. Governor, other 
testimony provided to this subcommittee today by the U.S. 
Public Interest Research Group argues that there is no need for 
greater finality for State brownfields cleanups because the 
current memorandum of agreement process between State voluntary 
cleanup programs and EPA, while not a formalized process, is 
still a sufficient form of finality. In fact, at the end of 
1999, only 14 States had MOAs. Do you think the MOA process 
defeats the need for stronger finality as part of a brownfields 
reform act?
    Ms. Minner. No. And I think you have to really look at that 
finality and say, ``As a business person, would I invest my 
money if I thought I might still have a problem?''
    And you are not talking in some cases of small amounts of 
money. In Delaware, especially, it is hundreds of thousands of 
dollars. We need to know that once it is done, that person who 
has invested that money has the finality they need.
    If there is another problem, work with us. We will work 
with that owner. But give him some assurance. Otherwise, they 
are not going to invest their money in cleaning up brownfields. 
They are going to go tear up more green space and build there.
    Mr. Largent. Governor, you are speaking on behalf of the 
National Governors' Association. I am wondering. I heard some 
of my colleagues say that they opposed moving a brownfields 
bill apart from a Superfund reform bill, more comprehensive 
bill. Do you agree with that position that we should wait on 
brownfields until it is a part of a more comprehensive bill?
    Ms. Minner. I think this is such an important issue and 
affects so many areas in our States, every town, every 
community. And if we are really serious that we want to run 
this program and have the States participate with our people to 
redevelop the areas that need to be redeveloped, rather than 
destroying more open space, I think we should move very 
quickly.
    And it is the Governors' Association's position that we 
should move quickly on brownfields legislation. We would be 
quite happy to work with the committee or individuals on the 
subcommittee to work on Superfund legislation as well, but we 
strongly urge you to do this legislation on brownfields as 
quickly as possible.
    Mr. Largent. Okay. Apparently it has been EPA's practice, 
although it is not in law, to seek the concurrence of a 
Governor before placing a new site on the national priority 
list. Is there any reason or argument against doing that from 
the National Governors' Association, actually placing that into 
law?
    Ms. Minner. That is exactly what we want, sir. We would 
prefer to have that, rather than just a noted policy, have it 
codified, so that we know we will have that opportunity to 
comment and to work with EPA on that priority listing.
    Mr. Largent. Great. Thank you, Governor, for your time. I 
yield back.
    Mr. Gillmor. The gentleman yields back. The gentleman Mr. 
Barrett?
    Mr. Barrett. Thank you very much, Mr. Chairman.
    I want to sort of continue along that line and the line 
that Mr. Pallone had to sort of help me with the real world 
here if you can. A State enters into a memorandum of agreement 
with the EPA. You indicated that if you were a business, that 
you would be reluctant to move forward. Who is actually 
investing the dollars or spending the dollars once that 
memorandum of agreement is entered into?
    Ms. Minner. Part of it, the 10 percent, normally comes from 
the Federal Government. The State does things by way of tax 
incentives and other programs. But the majority of the money 
invested in cleaning up a site comes from the individual who 
has that land.
    Mr. Barrett. Okay. And roughly what percent comes from the 
States? Again, I am just trying to understand.
    Ms. Minner. It varies in every State according to what our 
State program is. There is no set number.
    Mr. Barrett. Okay. And Delaware I assume does have a 
memorandum of agreement?
    Ms. Minner. Yes, we do.
    Mr. Barrett. How long have you had that?
    Ms. Minner. Back 1986 or 1987 if my memory serves me right. 
I am going back to a period of time when I was serving in the 
General Assembly.
    Mr. Barrett. Okay.
    Ms. Minner. I think it was about 1986 or 1987.
    Mr. Barrett. And has it worked?
    Ms. Minner. It has worked very well for us. However, we all 
know that at any time at their discretion, the department could 
decide to cancel our memorandums of understanding as well. And 
so we would like to know that we have those agreements and they 
are good agreements and they will continue to work.
    We have been very fortunate in Delaware, and ours has 
worked very well.
    Mr. Barrett. Okay. So specifically what are the Governors 
asking for again so I understand?
    Ms. Minner. On the finality issue or----
    Mr. Barrett. Yes, on the finality issue.
    Ms. Minner. That once the program has been completed at the 
State level with----
    Mr. Barrett. When you say ``the program has been 
completed,'' the----
    Ms. Minner. On any given site.
    Mr. Barrett. Okay.
    Ms. Minner. We do a plan for each site. Once that has been 
completed, the cleanup has been completed, that the owner of 
that land knows that he has a completion, rather than saying at 
some time in the future, EPA may step in and say, ``Okay. We 
think that something different should be done, and we want you 
now to reopen this site.'' We don't have a problem if it is the 
health and safety of our people. We certainly want that as well 
or if it is because of different environmental damage.
    But they need to have some finality. Otherwise they are not 
going to spend their money. They are going to go out and use 
that money to buy a site that is already clean.
    Mr. Barrett. Now, have you, again in the real world, had 
these problems in Delaware?
    Ms. Minner. Absolutely.
    Mr. Barrett. Okay. Can you give me an example?
    Ms. Minner. Well, we have many sites that have bene cleaned 
up, but we have had many where people have looked at sites, 
looked at the tax incentives, looked at the cost, and said: 
Well, wait a minute. If I may have to go back and spend more 
money and I have this other site 5 miles down the road that has 
no problems at all, why would I invest my money there? I am 
going down the road.
    And so you don't have that site cleaned up. You still have 
a blight in the community. You still have a problem in the 
community because it is not being addressed in the meantime. 
And you have more open space destroyed.
    Mr. Barrett. What is the best argument, if you can play 
devil's advocate, against that?
    Ms. Minner. The best argument I could think of against it? 
Golly, I wouldn't want to just say Federal interference because 
that might upset you, but that would be my first thought. I 
think basically the fact that we all want to make sure that the 
environmental cleanup is achieved, exactly what we want it to 
do. We all know we will never have a pristine site again, but 
if we have the environmental safeties of knowing we have 
cleaned up the damage that is there, we have protected our 
citizens and still are using that land, rather than destroying 
other open spaces.
    Mr. Barrett. Okay. To segue to the Governor issue, if I 
may, and the need or the desire for the gubernatorial 
concurrence, could you foresee a scenario where there would be 
political pressure on a Governor, say, from large contributors 
not to have a site listed?
    Ms. Minner. There is always that possibility. However, 
being a Governor for 2 months now, I can tell you that the 
people I have met and worked with on this Natural Resource 
Committee are as concerned about the environment as you are in 
making sure that that cleanup is done.
    We had in Delaware just 2 weeks ago--a week ago, actually, 
we made the announcement--a problem in an area where the owner 
pleaded with me not to make the announcement. I believe in the 
right for the citizens to know if there is a problem in their 
area. And although he has been a dear friend for 30 years, I 
told him: I am sorry. My people have the right to know what is 
in that area.
    I think you will find all of our Governors feel that way 
because it is our state. It is our future. It is our economic 
development. It is jobs. It isn't just an environmental site.
    Mr. Barrett. When I was first running for office, somebody 
asked me what my definition of a special interest was. I said 
it is someone who gave money to my opponent because I think all 
of us believe that we are the personification of goodness.
    I think the reality is that there may be political 
pressures at times and there might be one part of a State that, 
frankly, is not as politically important or provides as many 
votes. I think that there could be pressures there.
    Ms. Minner. We can all say there will never be the time 
when there won't be pressures, but I can tell you very honestly 
in our State there would be more political pressures from our 
environmental groups and our citizens who care very much about 
those sites. That would far override one or two individuals 
that might be the landowners.
    We are concerned about making sure our State is safe, not 
just for today's people but for future generations as well. 
That is the whole reason for these cleanup sites, the whole 
reason for reusing these sites. And I think that would far 
outweigh any political involvement by way of these cases.
    Mr. Barrett. Thank you. And I would yield back my time. 
Thank you.
    Mr. Gillmor. The gentleman's time has expired. The 
gentleman from Indiana Mr. Buyer.
    Mr. Buyer. I appreciate Mr. Largent asking you the question 
about should you do Superfund reform with brownfield 
legislation. I am not surprised by your answer. If I were a 
Governor of a particular state, I would want relief that is 
quick and as soon as I can get it on a whole array of things.
    You also have been in a legislative process. You know that 
sometimes in that process we like to do what is easy. Sometimes 
we will punt on that which is difficult.
    I like to try to get along, but in the 8 years that I have 
been here, we still haven't gotten Superfund reform. I find 
that distasteful. The only one that really has cleaned up is 
lawyers. So when the gentleman mentioned about special 
interest, there is a powerful special interest out there: trial 
lawyers who are cleaning up most of the Superfund money over 
the years. I find that just very bothersome. So that is why 
earlier I made that comment. I want to do them both together.
    Now, in the end, I don't run this place, but I don't know 
if we would ever actually get to Superfund reform if we do that 
which is the easiest. It is sort of a management thing. And 
that is why I threw that out.
    Ms. Minner. I think I would say to you, sir, that both are 
equally important. However, I think to wait and not do what we 
can accomplish with brownfields because of the problem of 
Superfund is letting our environment suffer. I would suggest 
that what we can do as quickly as we do we should and make sure 
that we get it----
    Mr. Buyer. Well, see, Governor, that is exactly what I 
would say to my Democrat colleagues here: Why are you putting 
off Superfund reform when we can help everyone? So that is my 
frustration with the process. So I am in agreement with you.
    The question that I have--and I am going to take this up 
with the new administrator of EPA--I noticed you shaking your 
head when I made the comments about the former EPA 
administrator had taken authority away from regional directors 
to prioritize sites within their regions and brought all of 
that power and authority to Washington.
    I take it that you would concur. What I am going to make 
sure, I don't know what she is going to do, but I want 
authorities to go out there to those regional directors. If 
they have supervision over these sites, they know these sites 
the most and the best because they work with the States and 
localities. I think their input is powerful and important. 
Would you agree?
    Ms. Minner. I absolutely agree. I think the best way of 
saying it might be if I said to you: What do you think about 
the problem that we had at the Sunday Breakfast Mission or 
maybe at the Moveable Feast Program or at the riverfront or at 
the New Castle County Courthouse site? You are going to say you 
don't know.
    Mr. Buyer. I don't know what that is.
    Ms. Minner. We know it. We worked with our regional 
directors. Therefore, they have the availability of the 
information. It takes that much longer to go the next step to 
get it to Washington to whoever is working here. I think you 
need to trust us at the local level in saying I am one who has 
worked in environmental issues now for 26 years.
    I care very much about the environment in my State. I am 
not going to allow anybody to do anything knowingly to damage 
that, and the local area is just as important. We will work 
with whoever up the ladder, but we should have the right to 
protect our State.
    Mr. Buyer. Now, the testimony you just delivered, is that 
your personal opinion? Is that you as Governor? Would you say 
that that is also the consensus of the Governors' Association?
    Ms. Minner. I think I could probably speak for most of the 
Governors in saying we know our States. What I don't know 
perhaps about your State or the State of California or 
somewhere else I can't speak to today, but I can tell you that 
the Governors on the whole believe very strongly that the local 
control, our having the opportunity to work, whether it is this 
program or any other program, at the State and local level is 
the best way to go.
    Mr. Buyer. Thank you, Governor, for your testimony. I yield 
back.
    Mr. Gillmor. Thank you. The Chair recognizes for questions 
the gentle lady from California, Mrs. Capps.
    Ms. Capps. Thank you, Mr. Chairman.
    Governor Minner, based on your experience in Delaware, is 
it accurate to say that the most important issue is to provide 
liability protection for prospective purchasers of brownfield 
sites?
    Ms. Minner. Protection from liability or finality? Now you 
are making me draw a line that perhaps my national Governors 
would not want me to do.
    Ms. Capps. Please explain.
    Ms. Minner. I guess they are almost equally as important 
because unless you can do both, you actually don't offer any 
protection to those people who are investing their money in 
cleaning up the site.
    Ms. Capps. So you would want to rank them equally but both 
very important.
    Ms. Minner. Absolutely.
    Ms. Capps. I am sorry. I didn't want to have to make you 
pick one only, these two being extremely important. And also, 
in Delaware--I just want to hear it restated--do the 
prospective purchasers have to clean up the site before they 
get liability relief?
    Ms. Minner. Yes.
    Ms. Capps. Maybe if you would explain a little bit about 
how that process works.
    Ms. Minner. Well, it has to meet all of the standards. We 
have a program. We have a plant for an individual site. That 
site has to be cleaned up, and then we sign off on it saying 
that it has been completed. Unless that is done, they are not 
then relieved from the liability and the cost.
    Ms. Capps. So when a prospective buyer comes into the 
situation, they know that they are the bottom line and that 
they have the assurance that if they do it, that they will get 
the relief. And that is what you want also as an enticement for 
them to enter into the relationship so you don't want us 
backing out of that. It is an important statement, but I wanted 
to hear you say it in the chronology.
    Ms. Minner. But let me say again that is as long as they 
have met all of the standards. And if there is something that 
we find out later, we don't have a problem as Governors in 
saying we take another look at it. But we think we should be 
offered that opportunity as the Governor and as a state, rather 
than EPA stepping in and doing it.
    Ms. Capps. I see. So it is your relationship with the 
prospective buyer that is the critical one?
    Ms. Minner. Yes.
    Ms. Capps. And you need every means to hold them 
accountable so that you are reviewing the process every step 
along the way and only as the kind of like the tail end, then, 
does the Federal Government come in with this support?
    Ms. Minner. Right. Sometimes it might be as much as a year 
or 1\1/2\ years later.
    Ms. Capps. I see.
    Ms. Minner. And construction is already underway and 
somebody is putting up a building. In one case, it was a 
school. And then we thought we had another problem. After we 
sat down and worked with them, their fears were allayed and we 
did not have a problem. Had they stepped in and sited and moved 
forward on it, that school construction would have been delayed 
and we would have had all sorts of problems for the children as 
well as for the district and for the area.
    Ms. Capps. So the procedure is important, then?
    Ms. Minner. Yes, it is.
    Ms. Capps. The process? Thank you. Your testimony has been 
very valuable.
    Ms. Minner. Thank you.
    Ms. Capps. Thank you. I yield back.
    Mr. Gillmor. The gentleman from Pennsylvania, Mr. Doyle.
    Mr. Doyle. Thank you, Mr. Chairman.
    Governor, welcome and thank you for your testimony. I just 
have two questions. You are quite clear when you assert that 
finality in your opinion and the Governors' Association's 
opinion should be defined as ``satisfactory completion under 
State law''?
    Ms. Minner. Yes.
    Mr. Doyle. How important do you think it is to have a 
standard interpretation of what satisfactory completion means 
given that there is such a variance in State laws and cleanup 
programs?
    Ms. Minner. But the final point is the cleanup. And I think 
there each one of those sites must then meet the Federal 
requirement. And so to bring it to that level, then we should 
have finality. We don't always get that, but we want that. It 
makes it very difficult for us sometimes for us to get 
developers to enter into an agreement to clean up a site 
because they don't know what is going to be at the other end.
    And once you have a problem such as the one we had at one 
of our schools, it then backs off other developers because they 
are saying: But wait a minute. That was already done. We 
thought the State was satisfied with the cleanup. And now there 
is another problem.
    So it makes it very difficult. The end result should always 
be that the site is cleaned up and is able to be used for 
something else.
    Mr. Doyle. Does ``satisfactory completion'' in Delaware 
mean the same thing as it does in Ohio when you have these 
voluntary State programs--that is what I am trying to get at--
or should there be some sort of a standard that when EPA is 
looking at 50 different States that have different programs and 
they say, ``You know, this is substantially complete,'' does 
that mean the same thing in each state?
    Ms. Minner. I would think that under our memorandum of 
understanding and every other state's, it would be the same. 
For those States that do not have memorandums of understanding, 
it would be the Federal.
    Mr. Doyle. Would be the standard?
    Ms. Minner. Would be the standard. And so I would assume 
that that would hold true in every state.
    Mr. Doyle. Let me ask you another question, too. To what 
degree do you think allowing States the opportunity to take 
actions to redress problems before EPA is permitted to reopen a 
cleanup would help to mitigate the potential inconsistencies 
presented by the wide range of laws and programs?
    Ms. Minner. You have to remember that each state's 
standards are sort of tailored to their own State and what 
their problems might be. As that moves forward and we move 
forward with the programs, EPA does monitor quite often some of 
the things that we are doing. And if there is a problem partway 
through, we change if we have to.
    Each site is different. It would be very easy if I could 
tell you there are 40,000 sites in this country and every one 
of them is exactly the same. The context of the soil, the water 
level, there are all sorts of things that make each site 
different. And you almost have to look at an individual site, 
not at a State or not at a region.
    Mr. Doyle. But it is the Governors' testimony that you 
think it might be helpful if States are given an opportunity to 
redress these problems before EPA comes in?
    Ms. Minner. Absolutely.
    Mr. Doyle. Thank you very much. Thanks for your testimony 
today.
    Mr. Gillmor. Thank you, Mr. Doyle. Gentleman from Illinois, 
Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Governor, welcome again. Let me ask you:--it will be a 
simplistic question to begin with--Does State flexibility mean 
dirtier, less safe conditions for your constituents in your 
state?
    Ms. Minner. Every State has their own standards, but every 
State must be in compliance with the Federal law. So I don't 
think it would be dirtier. It would be how we achieve those 
standards. And some States might demand that it be done a 
little differently. The flexibility might be even within our 
States.
    Mr. Shimkus. Let me ask another question. As a Governor, 
elected Governor of a state, are you concerned about your 
citizens' environment and safe drinking water and environmental 
actions of your state?
    Ms. Minner. Sir, if I were not interested in those things, 
I would never have run for Governor.
    Mr. Shimkus. Thank you.
    In addition, I am going to go back to the greater finality. 
Obviously that is an issue of debate here. Section 106 of 
CERCLA that authorizes the President to compel a response 
action that sites not on the Superfund national priorities list 
``when a threatened release may impose''--and here we go 
again--``an imminent and substantial endangerment.'' Section 
703 of RCRA contains a similar requirement authorizing EPA 
action in the face of an imminent hazard.
    Your written testimony calls for greater finality to limit 
EPA's ability to reopen a State cleanup using its Superfund 
authority. To ensure true finality, Mr. Greenwood's legislation 
from the last Congress, which was House Resolution 2580, 
extended the finality bar to RCRA.
    It is our understanding that the Governors do not object to 
such an approach. Can you comment on that?
    Ms. Minner. If it endangers the health of our citizens or 
the integrity of our environment, you are right. We do not 
object. But we still feel that you should work with the States 
in allowing us the opportunity first to address those issues. 
And if, for some reason, the Governors does not address the 
issue or will not take the responsibility for the problem, then 
EPA should step in.
    Mr. Shimkus. And you do have the best interests of your 
citizens in mind, as the Governors stated?
    Ms. Minner. Absolutely.
    Mr. Shimkus. In a written testimony submitted by the U.S. 
Public Interest Group for today's hearing, they argue: If it 
ain't broke, don't fix it and, therefore, with broad state-
based liability protection in place and limited Federal 
intrusion in the State cleanups, that there is simply no need 
for greater finality for State brownfield cleanups. In fact, 
they actually call for increased, not decreased, Federal 
involvement in State cleanup programs by requiring up-front 
review of State programs before Federal funding could be used.
    What is your view on this approach?
    Ms. Minner. Well, I think if we want to continue to deter 
the cleanup of brownfield sites, we could move in that 
direction, but we really have to work with those people who are 
cleaning up those sites in making sure we achieve what we want 
to do.
    Once we have problems and there is Federal intervention at 
a later point in time, you see the number of people who are 
looking at cleaning up those sites decline. And it will 
continue to do that if we increase that problem.
    Mr. Shimkus. Thank you, Governor Minner. You have been a 
great witness, and we have enjoyed having you. I yield back, 
Mr. Chairman.
    Mr. Gillmor. Members having completed their questions, the 
Chair would announce that the record will be kept open for 
members to submit questions in writing.
    That will conclude our first panel. Governor, I very much 
appreciate you being with us and the very helpful testimony 
that you have given us. Thank you.
    Ms. Minner. Thank you very much, Mr. Chairman. And I look 
forward to working with you in the future, as do all of our 
Governors, to achieve our goal of a cleaner environment.
    Mr. Gillmor. I expect we are going to be calling on you. 
Thank you.
    Ms. Minner. Thank you very much.
    Mr. Gillmor. Our second panel, I would ask them to come 
forward. The second panel consists of: the Honorable Robert 
Shinn, who is the Commissioner of the Department of 
Environmental Protection for the State of New Jersey; Mr. 
George Meyer, who is President of the Environmental Council for 
the States and is a special assistant to the Secretary for the 
Wisconsin Department of Natural Resources; and Mr. Grant Cope, 
who represents U.S. Public Interest Group.
    Gentlemen, the committee does have a copy of your complete 
written statement. And you have 5 minutes to summarize it 
before the members begin asking questions. We will begin with 
Mr. Shinn.

    STATEMENTS OF HON. ROBERT C. SHINN, JR., COMMISSIONER, 
 DEPARTMENT OF ENVIRONMENTAL PROTECTION FOR NEW JERSEY; GEORGE 
   E. MEYER, PRESIDENT, ENVIRONMENTAL COUNCIL OF THE STATES, 
  SPECIAL ASSISTANT TO THE SECRETARY, WISCONSIN DEPARTMENT OF 
NATURAL RESOURCES; AND GRANT COPE, STAFF ATTORNEY, U.S. PUBLIC 
                    INTEREST RESEARCH GROUP

    Mr. Shinn. Thank you very much, Mr. Chairman.
    There are a number of mayors of smaller municipalities in 
many States who think brownfields are only a problem in larger 
cities or urban areas of the state. New Jersey is no exception.
    Let me say that brownfield redevelopment is absolutely not 
limited to these larger cities or urban areas of the nation. 
The fact is that most of New Jersey's 566 municipalities have 
probably at least one brownfield that could be considered for 
remediation, as do many communities in the country.
    Brownfields sites include that long-abandoned gas station, 
the out-of-business dry cleaner on the corner, in addition to 
the industrial complex that closed up years ago and is now 
abandoned or overgrown. These sites do not always pose an 
immediate threat to public health. So it is not surprising that 
many of our cities find other problems of a higher priority 
than brownfields redevelopment.
    We need to stop thinking of brownfields as contaminated 
sites that burden a town and drain the tax rolls and to start 
viewing them as valuable real estate for that new business that 
wants to relocate in your town or perhaps a recreational 
opportunity that can benefit the community.
    Brownfield sites are attractive opportunities for 
redevelopment because in most instances there is existing 
infrastructure. Many brownfields sites can become choice real 
estate when incorporated into a municipal redevelopment plan 
and you utilize the tools such as I am going to talk about in 
New Jersey.
    The State of New Jersey has many incentives and dedicated 
resources to stimulate environmental cleanup at identified 
sites. A good example, which demonstrates our commitment to 
this effort, is the Berger Industries site in Edison Township, 
New Jersey. This cleanup resulted in the protection of public 
health and also expanded the region's economic base.
    As a former steel tube manufacturing facility, the Berger 
property lay abandoned due to financial hardship of the 
responsible party. The site had soil and groundwater 
contamination present. Contaminants included petroleum 
hydrocarbons, base neutral organic compounds, chemical 
solvents, residuals, chlorinated hydrocarbons, and VOCs.
    The former areas of environmental concern included 
underground storage tank systems used for waste oil and fuel 
oil, above-ground storage tank systems, exterior hazardous 
substance drum storage areas, interior sumps, drains, trenches, 
underground concrete basins, electrical transformers, 
underground tunnels, and dry wells all used for operational 
purposes by the former owner and operator. This was in addition 
to the operational discharges that took place onsite during the 
operation.
    The developer entered into a cleanup and redevelopment 
agreement with the New Jersey Commerce and Economic Growth 
Commission and the Department of Treasury that was endorsed by 
the New Jersey Department of Environmental Protection. This 
agreement allowed him to be reimbursed for 75 percent of the 
total cleanup costs from new taxes generated from the site. It 
should be noted that this New Jersey cash incentive is probably 
the first in the nation.
    Project costs were approximately $29 million overall with 
$2.1 million in remediation costs with community benefits of 
hundreds of new full-time and part-time jobs as well as the 
developers making a repayment of over $1 million in back taxes 
to the municipality.
    As the first site in New Jersey to complete the 
redevelopment agreement process, the redeveloped site, known as 
Edison Crossroads, has generated over $2 million in new State 
tax revenues in the first 9 months of operation. We expect that 
this project will generate $4.4 million in new taxes in its 
first year of complete operation. In addition, more than $4.4 
million will be generated each year as new businesses open and 
existing ones expand. It is important to note that these taxes 
are not being generated as the site sat idle.
    Additional incentives include an immediate third party 
defense for a prospective purchaser of a contaminated property 
who voluntarily enters into a department cleanup oversight 
document prior to taking ownership. Moreover, the department 
issues with every ``no further action'' letter a covenant not 
to sue. The covenant not to sue contains provisions releasing 
the non-responsible party who conducted the cleanup from all 
civil liability to the State to perform additional remediation 
under certain conditions.
    New Jersey has also established a one-stop approach to 
acquiring permits. This innovative regulatory and compliance 
assistance process is based on a single point of contact in the 
Department of Environmental Protection. The one-stop approach 
is a total facility approach to permitting. One-stop's benefits 
include a thorough identification of all regulatory 
requirements and coordination among various NJDEP programs for 
major construction, development, and remediation projects which 
are complex in number, requiring a variety of permits and 
specific timing of these permits. This assures better customer 
service to the public and regulated entities. In addition, it 
provides more opportunity to integrate pollution prevention 
concepts early on in the permitting process that may, in turn, 
reduce costs and improve efficiency of the facility.
    New Jersey's goal is simple: solving environmental problems 
and providing business a place to locate, create jobs, to build 
new housing and entertainment opportunities, all without having 
to go into farmlands, open space, and other areas of the State 
which lack existing infrastructure.
    However, additional resources are needed to be brought to 
bear on assisting all municipalities with their brownfield 
cleanup and redevelopment efforts. Municipalities need 
assistance in addressing demolition and disposal costs at sites 
where the demolition is necessary to assist in the cleanup and 
redevelopment effort. In addition, many State programs may 
provide low-interest loans and grants to municipalities and 
private entities but usually for conducting the preliminary 
assessment, site investigation, and remedial investigation.
    Financial assistance needs to be provided to non-
responsible parties for the completion for the remediation. 
Moreover, there is a need for financial assistance to 
municipalities who want to turn that abandoned, contaminated 
property into open space, perhaps a playground or park. This 
not only takes a brownfield site from an eyesore on the 
community but also improves the town's quality of life.
    We need to encourage cleanup and redevelopment efforts at 
the Federal level as well. By streamlining some of the Federal 
processes regarding the cleanup of contaminated brownfields 
sites as well as putting some predictability and finality into 
the process, additional brownfields site cleanups could happen 
in our States. These initiatives could greatly enhance the 
programs that currently exist at the State level and certainly 
improve the quality of life. This is a huge, largely untapped 
national investment opportunity for both public and private 
sector.
    Many of the municipalities in New Jersey have already taken 
the initiative and identified brownfield sites in their 
communities in the hopes of putting them back on the tax roll. 
Many of these sites can be found on the Department of 
Environmental Protection's GIS Web site, where we have 
established an interactive listing of brownfields called I-Map. 
This unique computer application allows for the identification 
and potential marketing of brownfields sites to interested 
parties via the Web. It gives you critical screening data like 
population density, per capita income, and aerial photography. 
This may be another tool that could be used in a broader sense 
to enhance the cleanup and redevelopment efforts within other 
communities around the country.
    This is an exciting time for the brownfield marketplace and 
urban redevelopment, is truly a rare government win-win. 
Brownfield sites that have been previously overlooked for years 
in New Jersey are now seen as some of the most exciting real 
estate investment opportunities.
    I would like to take this opportunity to thank you for 
allowing me to address the committee and hope this provides an 
opportunity to answer some questions and promote interest in 
the continued success of the States' brownfield cleanup and 
redevelopment efforts. Thank you.
    [The prepared statement of Robert C. Shinn, Jr. follows:]
    Prepared Statement of Hon. Robert C. Shinn, Jr., Commissioner, 
           Department of Environmental Protection, New Jersey
    There are a number of mayors of smaller municipalities in many 
states who think brownfields are only a problem in larger cities or 
urban areas of the state. New Jersey is no exception. Let me say, that 
Brownfield redevelopment is absolutely not limited to those larger 
cities or urban areas of the nation.
    The fact is that most of New Jersey's 566 municipalities have 
probably at least one site that could be considered a brownfield site. 
As do many communities in the country. Brownfield sites include that 
long abandoned gas station, the out of business dry cleaner on the 
corner, in addition to the industrial complex that closed up years ago 
and is now abandoned and overgrown. These sites do not always pose an 
immediate threat to public health, so it is not surprising that many of 
our cities find other problems of a higher priority than brownfields 
redevelopment.
    We need to stop thinking of brownfields as ``contaminated sites'' 
that burden a town and drain the tax roles, and to start viewing them 
as valuable real estate for that new business that wants to relocate to 
your town. Or perhaps as a recreational opportunity that can benefit 
the community.
    Brownfield sites are attractive opportunities for redevelopment 
because in most instances there is existing infrastructure. Many 
brownfield sites can become choice real estate when incorporated into a 
municipal redevelopment plan and you utilize the tools such as the 
state of New Jersey has to offer.
    The State of New Jersey has many incentives and dedicated resources 
to stimulate environmental cleanup at identified sites. A good example, 
which demonstrates our commitment to this effort, is the New Jersey 
Phoenix Award Winner Berger Industries site in Edison Township, New 
Jersey. This cleanup resulted in the protection of public health and 
also expanded the region's economic base. As a former steel tubing 
manufacturing facility the Berger property lay abandoned due to 
financial hardship of the responsible party. The site had soil and 
groundwater contamination present. Contaminants included petroleum 
hydrocarbons, base neutral organic compounds, chemical solvents and 
residuals, chlorinated hydrocarbons and volatile organic compounds. The 
former areas of environmental concern included underground storage tank 
systems used for waste oil and fuel oil, above ground storage tank 
systems, exterior hazardous substance drum storage areas, interior 
sumps, drains and trenches, underground concrete basins, electrical 
transformers, underground tunnels, and dry wells all used for 
operational purposes by the former owner and operator. This was in 
addition to the operational discharges that took place on site. The 
developer, Marc Parell from ARC Properties Inc. entered into a cleanup 
and redevelopment agreement with the New Jersey Commerce and Economic 
Growth Commission and the Department of Treasury that was endorsed by 
New Jersey Department of Environmental Protection. This agreement 
allowed him to be reimbursed for 75% of the total cleanup costs from 
the new taxes generated from the site. It should be noted that this New 
Jersey cash incentive is the first in the nation. Project costs were 
approximately $29 million, with $2.1 million in remediation costs with 
community benefits of hundreds of new full time and part time jobs, as 
well as the developers repayment of over $1 million in back taxes to 
the municipality.
    As the first site in New Jersey to complete the ``redevelopment 
agreement process'' the redeveloped site, now known as Edison 
Crossroads, has generated over $2 million in new state tax revenues in 
the first nine months of operation. We expect that the site will 
generate approximately $4.4 million in new taxes its first year of 
complete operation. In addition, more than the $4.4 million will be 
generated each year as new businesses open and existing ones grow. It 
is important to note that these taxes were not being generated as the 
site sat idle, abandoned and contaminated for the previous 8 years.
    Additional incentives include an immediate third party defense for 
a prospective purchaser of a contaminated property who voluntarily 
enters into a Department cleanup oversight document prior to taking 
ownership. Moreover, the Department issues with every no further action 
letter a covenant not to sue. The covenant not to sue contains 
provisions releasing the non-responsible party who conducted the 
cleanup from all civil liability to the state to perform additional 
remediation under certain conditions.
    New Jersey has also established a ``one-stop'' approach to 
acquiring permits. This innovative regulatory and compliance assistance 
process is based on a single point of contact in the Department of 
Environmental Protection. The one stop approach is a total facility 
approach to permitting. One stop's benefits include a thorough 
identification of all regulatory requirements and coordination among 
the various NJDEP programs for major construction, development and 
remediation projects which are complex in number, requiring a variety 
of permits and the specific timing of those permits. This assures 
better customer service to the public and regulated entities. In 
addition, it provides more opportunity to integrate pollution 
prevention concepts early on in the permitting process, that may in 
turn reduce costs and improve the efficiency of the facility.
    New Jersey's goal is simple: solving environmental problems and 
providing businesses a place to locate, create jobs, to build new 
housing and entertainment opportunities all without having to go into 
farmlands, open space and other areas of the state which lack existing 
infrastructure.
    However, additional resources need to be brought to bear on 
assisting all municipalities in their brownfield cleanup and 
redevelopment efforts. Municipalities need assistance in addressing 
demolition and disposal costs at sites where the demolition is 
necessary to assist in the cleanup and redevelopment effort. In 
addition, many state programs may provide low interest loans and grants 
to municipalities and private entities but usually for conducting the 
preliminary assessment, site investigation and remedial investigation. 
Financial assistance needs to be provided to non-responsible parties 
for the completion of the remediation. Moreover, there is a need for 
financial assistance to municipalities who want to turn that abandoned, 
contaminated property into open space, perhaps a playground or park. 
This not only takes a brownfield site from an eyesore or blotch on the 
community but also actually improves that town's quality of life.
    We need to encourage cleanup and redevelopment efforts at the 
Federal level as well. By streamlining some of the federal processes 
regarding the cleanup of contaminated brownfield sites as well as 
putting some predictability and finality into the process, additional 
brownfield site cleanups could happen in our states. These initiatives 
could greatly enhance the programs that currently exist at the state 
level. This is a huge largely untapped national investment opportunity 
for both the public and private sector!
    Many of the municipalities in New Jersey have already taken the 
initiative and identified brownfield sites in their communities in the 
hopes of putting them back on the tax roles. Many of these sites can be 
found on the Department of Environmental Protection's GIS website where 
we have established an interactive listing of brownfields called I-Map. 
This unique computer application allows for the identification and 
potential marketing of brownfield sites to interested parties via the 
web. It gives you critical screening data like population density, per 
capita income and aerial photography.
    This may be another tool that could be used in other states to 
further enhance the cleanup and redevelopment efforts within their 
communities.
    This is an exciting time for the brownfield marketplace and urban 
redevelopment its truly a rare government win-win. Brownfield sites 
that have been previously overlooked for years in New Jersey are now 
seen as some of the most exciting investment potential.
    I would like to take this opportunity to thank you for you allowing 
me to address this Committee and hope that this provides an opportunity 
to answer questions and promotes interest in the continued success of 
the states brownfield cleanup and redevelopment efforts.

    Mr. Gillmor. Thank you very much, Mr. Shinn.
    Mr. Meyer?

                  STATEMENT OF GEORGE E. MEYER

    Mr. Meyer. Thank you very much, Mr. Chairman and members of 
the subcommittee.
    My name is George Meyer. I served 8 years as Secretary of 
the Wisconsin Department of Natural Resources and currently am 
Special Assistant to the Secretary. I also have the great 
privilege of being President of ECOS, the environmental 
commissioners from the 50 States across the country.
    These issues are important in virtually every state, as we 
have heard today from the committee members, and brownfields is 
a high priority. We are very interested in your organization to 
help draft legislation to break down the barriers to cleaning 
up and reusing the brownfields sites in this country.
    Although I am using for purposes of this testimony my 
experience in Wisconsin, which I am most familiar with, over 
the last 15 years we have cleaned up 14,000 brownfield sites. 
And we have 8 to 10 thousand sites still remaining on our list 
for cleanup.
    I want to point out very importantly of all those sites, 
less than 1 percent of the Federal connection being cleaned up 
by CERCLA or RCRA, 99 percent are being cleaned up under State 
laws, either under mandatory laws or voluntary cleanup. We have 
what we consider a single comprehensive cleanup regulation that 
sets a broad framework for cleanup of all sites, regardless of 
types of property; contamination; and, most importantly, the 
different types of Federal and State regulations there are to 
make it less complicated for developers and municipalities.
    We have been able to do these cleanups, despite having the 
more stringent groundwater protection and quality protection 
laws in the country. We have been aggressive on financial 
incentives. The last biennium, the legislature appropriated $26 
million in brownfield grants. Twenty million dollars in 
brownfield loans, $30 million in tax credits were available. 
And there were site assessment grants given to our agency for 
$1.5 million a year.
    We have also been very aggressive, and GAO has recognized 
us as being very innovative in terms of liability incentives, 
liability exemptions for lenders, local governments, offsite 
parties, and persons who volunteer to clean up an entire 
property. Last month we adopted a new innovation, and that is 
adding an environmental insurance component to our voluntary 
party exemption program where, in fact, if, in fact, a cleanup 
still has not met standards, but our staff and consultants 
believe it will, that is a loss that, in fact, can be ensured. 
So we can go to final closeout knowing there is going to be 
money there if, in fact, judgments happen to be wrong.
    We have public information and outreach programs that, in 
fact, include, very importantly, a brownfields study group. So, 
in fact, we go back and fine-tune our law every legislative 
session based on a quality improvement basis which includes 
environmentalists, developers, and local units of government.
    Let me make some recommendations to you on behalf of ECOS 
and our own personal experience. We would recommend that there 
be comprehensive reforms across all Federal cleanup programs. 
While attention is given to Superfund as a barrier to 
brownfield cleanup, we believe it is time for Federal 
legislation ultimately to address the challenges presented by 
all EPA cleanup programs. RCRA causes problems in terms of 
cleanup also.
    States should be major partners in this initiative. The 
legislation, the oversight legislation, should reflect that. As 
I indicated in our state, 99 percent of the cleanups are state-
based. So we have to be very careful in this legislation not to 
Federalize or complicate what are successful programs.
    There needs to be improved delivery of the grants. We would 
recommend that States that elect you and are capable of 
administering grants and loan programs should be given the 
opportunity to do so on a delegated basis. These grants and 
loans should be given out on a project-specific basis without 
regard to the regulatory status of the program. And the 
recipient should follow the state's technical procedures.
    You discussed at great length the issue of finality. I 
would like to address that also. Federal legislation must 
provide more assurances and finality to persons cleaning up a 
property using a State process.
    Past legislation has provided too much discretion to EPA to 
reopen or step in during the cleanup process. In fact, we not 
only would recommend that; for instance, the word ``may'' is 
too open-ended. It may present an imminent and substantial 
endangerment. It is very broad, can be interpreted very 
broadly. There needs to be a higher standard, even whether it 
is just putting the word ``does'' in or coming up with another 
type of standard. And also there should not be an intervention 
in cases where, in fact, the State or the responsible party are 
willing and are, in fact, coming back in to address the issue.
    There are also creative solutions. And I mention the one 
many of these risks can be dealt with by creative use of 
environmental insurance, and it can be done relatively 
expensively. In fact, it is a broad master policy like we have 
come up with in the State of Wisconsin.
    Also, in terms of finality, I would like to address the 
issue the Governors have. The States through Governors' 
concurrence process on Superfund sites, you have a greater 
saying whether a site is put on the national priorities list. 
If, in fact, there is a State effort to go forward to deal with 
a Superfund site, that, in fact, should be a basis for 
nonconcurrence for the Governor for EPA to come in and put 
something on the NPL list.
    Last, there should be flexible approaches to public 
participation. The States should have the opportunity to 
develop and enhance their public participation needs for their 
cleanups based on input from their own communities. I can 
reflect, even in a State such as Wisconsin, in Congressman 
Byrd's district, we would use a totally different, in 
Milwaukee, we would use a totally different, public 
participation process than we would use in a rural area of our 
state. And there needs to be that kind of flexibility built 
into the system.
    Mr. Chairman and members of the committee, thank you very 
much for the opportunity to testify. Our organization would be 
very willing to help develop further legislation. Thank you.
    [The prepared statement of George E. Meyer follows:]
Prepared Statement of George E. Meyer, President, Environmental Council 
of the States, Special Assistant to the Secretary, Wisconsin Department 
                          of Natural Resources
                             introduction:
    Good morning, Mr. Chairman and distinguished members of the 
Subcommittee, my name is George E. Meyer, and I am the President of the 
Environmental Council of the States (ECOS), and the Special Assistant 
to the Secretary of the Wisconsin Department of Natural Resources 
(WDNR). I would like to thank you for the opportunity to be here today, 
to speak on one of the more exciting and pragmatic environmental 
initiatives our country has embarked on in a decade: the brownfields 
initiative. Today, I plan to touch on the brownfields experiences I 
have had in the State of Wisconsin, as a means of illustrating the 
efforts that are being replicated in the other states across our 
country.
    As the title of your hearing clearly indicates, the key to 
revitalizing these brownfields properties is by forming partnerships 
and removing barriers. Through the use of partnerships--either between 
government agencies, with the private sector, or both--brownfields has 
become a model environmental program were all participants work 
together to return these properties back to the community. The success 
of this initiative in the states and at the Environmental Protection 
Agency (EPA) has involved the systematic process of identifying 
barriers and crafting creative, yet safe, solutions to overcoming these 
barriers.
    Today, I would like to share with you our state's ideas, which I 
believe are strongly shared by other states, on how this country can 
build a smarter partnership to deal with brownfields. A key to this 
smarter partnership is recognizing the successful initiatives of those 
states that have conquered many of the barriers that were in place 5 or 
more years ago. In addition, I would like to identify, for you, what 
barriers remain. While much has been done in the states to improve 
their own cleanup programs, the states often lack the financial 
resources to make a large impact on the universe of brownfields they 
deal with on a daily basis. They need staff, equipment, and funds to 
support grant programs. In addition, while the states have sought to 
streamline their own cleanup programs, by making them less 
administratively burdensome, they still struggle with the requirements 
of cleanup programs that are under the jurisdiction of the federal 
government.
                   wisconsin's brownfields challenge
    Wisconsin is not considered a state that is ``rich'' in 
brownfields. We estimate that we have approximately 8,000 to 10,000 
brownfields properties in the state. We would likely not win any 
boasting contest with our sister states that surround the Great Lakes. 
On the other hand, we have quietly made progress on cleaning up the 
sites in our state over the last 20 years. To date, over 14,000 
cleanups have been completed in the state. Over 2,000 of those did not 
involve petroleum contamination. Of the 8,000 or more brownfields 
properties which require further work, they : (1) are the more 
difficult properties to cleanup from an environmental standpoint; (2) 
have many societal challenges (e.g., tax delinquency, transportation 
concerns, blighted neighborhoods); or (3) have a combination of these 
challenges. While many states have made tremendous progress, we may 
have the more ``challenging'' properties left to deal with.
    Because of the many environmental and societal challenges presented 
by these brownfields properties, our state knew we had to have 
different tools to deal with this type of property. Wisconsin entered 
into the brownfields arena by passing its first legislation in 1994, 
called the Land Recycling Act. Since then, the state has continued to 
consider this issue a priority, by forming strong, long-term 
partnerships with the private sector, environmentalists, local 
governments and other practitioners in the field. Each consecutive 
state budget has contained major brownfields initiatives, associated 
with financing and liability issues.
    The state has received national prominence for the efforts it has 
undertaken to deal creatively and successfully with its brownfields. A 
General Accounting Office report, dated December 2000, ``Information on 
the Programs of the EPA and Selected States,'' refers to Wisconsin's as 
one of the ``most innovative brownfields programs in the nation.'' We 
believe we have achieved this status by forming smarter partnerships 
with the public, and safely, but creatively removing barriers to 
achieving a protective cleanup.
                   wisconsin's brownfields initiative
    I would like to share with you the successful initiatives that we 
have undertaken in our state, which are replicated in whole or in part 
by other states across the nation, to make our cleanup process more 
responsive to the needs of all of the public. I believe that the 
success of our state and that of the other states' is that no one gave 
us a federal answer to a local problem. Rather, I think the states have 
been successful because they have listened to their many publics and 
have shaped solutions that address local concerns.
    Here are the four successful components of our state's brownfields 
initiative. I hope they illustrate for you the creativity and the 
success a state can have by forming partnerships and by removing 
barriers to cleaning up and reusing contaminated properties.
   1. a comprehensive cleanup program that applies to all discharges
    In 1990, the WDNR undertook a large risk. We sat down with the 
public, including the regulated community, and asked: ``how can we 
improve the way we do cleanups?'' Six years later, we had a 
comprehensive cleanup regulation, which dealt with sites from discovery 
through final cleanup. The regulation was unique in that it covered 
investigation and cleanup for all types of sites, including underground 
storage tanks, landfills, wastewater treatment facilities, and spill 
sites. Finally, there was one regulation for the public to understand 
and comply with.
    This comprehensive regulation includes promulgated soil cleanup 
standards, for both groundwater migration and direct contact concerns. 
It also provides the property owner the flexibility to choose the type 
of cleanup standard, based on the current land use of the site. This 
regulation is used in combination with our existing groundwater 
regulation, which has promulgated groundwater quality standards. Even 
though we have some of the most stringent groundwater quality standards 
in the country, we have completed cleanups at over 14,000 sites. We 
have achieved this level of success by using natural attenuation of 
groundwater, where appropriate, and by requiring actual monitoring--not 
just modeling--of the environment to ensure the remedy will work.
    How does having a comprehensive regulation that applies to all 
types of discharges help get more brownfields cleaned up? It's simple. 
The public, regulated community and consultants have one set of 
requirements to understand and follow. They do not have to spend 
valuable time trying to figure which ``regulatory'' program has 
jurisdiction over the release and which set of regulations to follow. 
Time is money, and simplifying the process saves the public's time and 
money.
    The WDNR also provides the public with the opportunity to seek 
assistance throughout the cleanup, both in terms of technical, 
liability and financial assistance. Generally, the WDNR discovers a 
``site'' because state law requires the person who caused the discharge 
or owns the property to immediately report the discharge (including 
existing environmental contamination) to the state. Once that is done, 
the person who is responsible for the cleanup is required to take all 
necessary actions to address the environmental contamination. WDNR can 
provide these individuals with assistance, when requested, in reviewing 
technical documents and clarifying liability. The WDNR tracks the 
progress of these properties through a comprehensive database, called 
the Bureau for Remediation and Redevelopment Tracking System (BRRTS).
    What I hope is evident from this testimony is that there is no 
separate brownfields program, per se, in the State of Wisconsin. The 
financial and technical incentives that the state has created apply 
generally to all properties, regardless of whether it is a UST 
property, a spill site or a RCRA hazardous waste site. There are no 
separate cleanup standards for a brownfields property, versus a non-
brownfields property. Putting up regulatory and programmatic fences is 
what helped to create the brownfields situation to start with. We felt 
it was time to bring those fences down.
          2. financial incentives to promote cleanup and reuse
    The states with the most successful programs understand that money 
is a key component of any brownfields initiative. Without it, you will 
only get the brownfields properties cleaned up that the private sector 
would have gotten to anyway. In Wisconsin, we had $26 million in 
brownfields grants and $20 million in loans available in state fiscal 
year 1999 ``2001. In addition, the state had over $30 million in tax 
credits available.
    You don't need large amounts of money to be successful in providing 
incentives. Over the last year, the WDNR created a new grant program to 
assist local governments with financing the non-cleanup costs at 
brownfields properties. (Please refer to the WDNR's Site Assessment 
Grant at www.dnr.state.wi.us/org/caer/cfa/EL/Section/SAG.html for 
further information.)
    In about a year's time, the WDNR:

 Promulgated a regulation and issued guidance on the grant 
        program.
 Issued two rounds of grants, worth a total of $1.45 million to 
        local governments.
 Awarded grants to 35 communities and signed 50 contracts with 
        those communities.
 Received 110 requests from local governments for $3.8 million.
 Obtained commitments from local governments to spend $1 
        million in additional funds or in-kind services at these 
        properties over the one-year grant term.
 Will fund 22 initial assessments, 22 site investigations, 
        removal of 60 underground tanks, and demolition of 40 
        structures.
 Will make environmental progress on 109 acres of contaminated 
        property.
    What is the key to the success of this program? We were successful 
for two reasons: partnerships and simplicity. The public requested the 
program, and then helped us create it. We gave money to brownfields 
projects that were ready to start, rather than giving money to a 
community that had yet to select the projects. We kept the application 
and technical process simple. The agency giving the money was also the 
same agency assisting the community with the technical aspects of the 
environmental work.
               3. liability clarifications and exemptions
    Clarifying and providing finality to a person's environmental 
liability is a strong incentive to getting brownfields properties 
cleaned up and reused. This is especially true where a state or a 
federal cleanup program can hold a property owner responsible for the 
cleanup, even if they did not cause the environmental contamination. In 
Wisconsin, we have authority to ask the current property owner to 
conduct the necessary environmental activities at a property. Thus, 
having liability exemptions and letters, which clarify liability, are 
particularly important to getting sites cleaned up. In Wisconsin, we 
have a similar array of liability exemptions and ``comfort'' letters 
when compared to other states. A sampling of those exemptions and 
letters, include:

 Local government exemption from the state's cleanup law: If a 
        local government acquires a property through tax delinquency, 
        condemnation, slum clearance or through blight elimination, the 
        local government is not required to investigate or cleanup the 
        property.
 Lender and trustee exemption from the state's cleanup law: If 
        a lender forecloses on a property, they are only required to 
        conduct a phase I and II assessment of the property. A lender 
        cannot be held liable under state law for a cleanup if their 
        only involvement with the property was by virtue of lending 
        money.
 Off-site exemption from the state's cleanup law: If a property 
        is impacted by contamination migrating from a neighbor's 
        property, the affected property is exempt from having to 
        conduct an investigation and cleanup.
    The state has two different types of liability clarifications that 
a person can receive, once they have a cleanup reviewed and approved by 
the state. A person can choose between receiving a ``closure letter'' 
or a ``certificate of completion'' at the end of the process. Where a 
person is cleaning up the known problems at a property, they are 
eligible for the closure letter path. They must investigate the known 
problem and cleanup according to state law. At the conclusion, WDNR 
staff reviews their case and they receive a closure letter. The WDNR 
may reopen the ``closed'' case if new information arises that indicates 
that the conditions at the property pose a threat to public health or 
the environment.
    If a person is seeking a certificate of completion, they are 
required to conduct an investigation of the entire property, not just 
the known problem. Once the investigation has identified the areas to 
be cleaned up, the same technical standards apply to persons seeking a 
certificate as those seeking a simple close out letter. Once the 
cleanup is complete, the WDNR will issue the certificate, which limits 
the liability of the person receiving the certificate and future owners 
of the property. The WDNR cannot reopen the certificate, even if 
further ``old'' contamination is found, environmental standards change, 
or the remedy fails. In seven years, the WDNR has not encountered a 
situation where it felt it needed to reopen a certificate. Having this 
type of finality has resulted in some of the more ``challenging'' 
brownfields being cleaned up by voluntary parties.
    I am aware that there are persons who have concerns about state 
cleanup programs and the limitations on ``reopening'' decisions made by 
the state. I would like to offer you an example of what we believe is a 
creative solution to balancing the need to give finality on cleanups, 
with the need to protect the interests of the public if the property 
needs to be revisited. Until recently, the State of Wisconsin would not 
allow persons to get a certificate of completion if they were relying 
on natural attenuation to cleanup the groundwater, and the groundwater 
still exceeded state groundwater quality standards, even if the plume 
was stable or receding. You could get a closure letter in this 
situation, because if natural attenuation failed, the state could 
reopen it.
    Starting next week, the state will be allowing persons to get a 
certificate of completion while using natural attenuation--as 
previously described--if they pay an ``insurance fee'' to the state at 
the time that the certificate is issued. This issurance fee will be 
used by the state to pay for an environmental insurance policy that the 
state is purchasing to cover any anticipated loss it may have at these 
sites due to natural attenuation failing. The master policy covers the 
state's anticipated costs of having to reopen these cases, less an 
agreed upon deductible. Because of this unique private--public 
solution, persons are able to get ``finality'' on their cleanups 
sooner, and the state is insured if the remedy does not perform as 
anticipated. The fees to participate in this option are much more 
reasonable than if the person was required to individually insure the 
state's potential risk. It is the type of creative solution that we 
hope others explore, especially those that are concerned about 
limitations on the ability to reopen a state's decision.
    I would also like to mention that the State of Wisconsin has 
received a great deal of benefit from having the 3rd Superfund--
Brownfields Memorandum of Agreement (MOA) in the nation. Having this 
written agreement, endorsing EPA's belief in how we do cleanups, has 
cleared up a number of uncertainties with regards to the EPA's role in 
Wisconsin cleanups. We would like the EPA to consider doing more 
brownfields MOAs that would encompass other federal cleanup programs.
             4. public information, education and outreach:
    Smarter partnerships start and thrive with good public outreach and 
education. The foundation of our effort has been to reach out to the 
public, to ask for their input and to provide them with information in 
a form that easy for them to understand. I would like to highlight 
three models for outreach that WDNR and other states are using:
Partnerships: Brownfields Study Group
    Since 1998, the WDNR has been meeting regularly with a group of 30 
brownfields practitioners to continue to evaluate and improve this 
state's initiative. This group includes mayors, county treasurers, EPA, 
industry representatives, attorneys, state agencies, environmentalists, 
planners, consultants and other interested persons. The group has had a 
major impact on improving this state's initiative by identifying 
``real'' barriers to cleanup and reuse, and offering ``real'' solutions 
to the problem. The key to the group is that the practitioners, not the 
state, chaired the ``issue groups.'' The WDNR offered administrative 
support for compiling and issuing the two Study Group reports to the 
Legislature and Governor, in 1998 and 2000. You can access the state's 
Brownfields Study Group Web page at the following address: 
www.dnr.state.wi.us/org/aw/rr/rbrownfields/bsg/index.htm
Inventory of Sites Available on the Web
    In the last year, the WDNR made publicly available on the world 
wide web the program's comprehensive inventory of sites. (This had been 
available in the past in paper version.) The public has access to 
information on 21,000 open and closed (i.e., cleaned up) sites in the 
state where a hazardous substance was discharged, and an investigation 
is or was required. The location of the web site is 
www.dnr.state.wi.us/org/aw/rr/brrts/index.htm. A person can search for 
a property by name or location, and in the near future you can search a 
geographic area for information.
    By the summer of 2001, the WDNR hopes to have detailed information 
on closed (i.e., cleaned up) sites available on the web. We are in the 
process of scanning actual WDNR approval letters, which include 
property use limitations, and we are geographically locating these 
sites, so you could view the properties through a geographical 
information system. The public will be able, in the future, to 
determine if a site has been cleaned up, and then review the actual 
WDNR approval letters on the web.
Improvements to Public Participation Requirements
    The WDNR's comprehensive cleanup regulation includes opportunities 
for public involvement and participation in the cleanup process. At 
present, we are updating those rules to further enhance the notice that 
must be provided to property owners whose property are impacted by off-
site contamination. At the time that contamination is discovered off 
the property and at the time that the cleanup is complete, the property 
owner where the source of contamination is will be required to send a 
letter to neighboring property owners notifying them of the situation. 
Those impacted owners will be notified of their opportunities to 
receive information about the cleanup.
    I think it is important to note that having these types of 
partnerships, web sites, and databases all take time and money. States 
need resources to implement and update these kind of initiatives. Money 
for staff, equipment--such as geo-locational devices, software, and 
scanners--is crucial if we are to fully implement these types of 
initiatives.
           closing remarks: a means to a smarter partnership
    I believe that we can form a smarter partnership to improve this 
country's efforts to cleanup and reuse brownfields properties. As we 
have done in Wisconsin and in other states, we need to actively seek 
out the ``real'' people who are making the brownfields initiative a 
success. We need to continuously seek out their recommendations to 
remove the barriers to get these properties cleaned up in a protective 
manner. We need to adopt the attitude that the programs we operate can 
always be improved.
    I would like to leave you with several recommendations that you may 
want to consider in formulating federal legislation on brownfields. I 
would encourage you to ``think outside the box,'' and not simply adopt 
an existing federal pilot program. We should take what worked and did 
not work from those past pilot experiences, but also seek out other 
successful experiences, such as at the state level, to build a new 
federal model for brownfields.
    Listed below are the recommendations that I would like to provide 
you with today, intended to form smarter partnerships and identify the 
remaining barriers to an effective brownfields initiative.
    1. Any national brownfields reforms or initiatives must cut across 
federal regulatory and program boundaries. For those of us in the 
states that deal with a morass of brownfields properties on a daily 
basis, we would like you to consider more comprehensive reforms. We 
should ask ourselves: Why do the federal Underground Storage Tank (UST) 
and Superfund programs have liability relief for lenders, and the 
Resource Conservation and Recovery Act (RCRA) Hazardous Waste program 
does not? Why does Superfund--as well as many states--provide a 
liability exemption for local governments, but the federal UST and RCRA 
hazardous waste programs do not? A smarter partnership is one that 
involves comprehensive reforms across all federal cleanup programs.
    2. In shaping a national brownfields initiative, it should be 
recognized that the environmental cleanups needed at most brownfield 
properties generally are the jurisdiction of the state. Let me 
illustrate this point by using Wisconsin as an example. Presently, 
Wisconsin has 39 Superfund sites, with 2 additional sites ``proposed'' 
for inclusion on the National Priorities List (NPL). In addition, we 
have approximately 125 RCRA hazardous waste corrective action sites, 
which the state has authorization to take the lead on all but 10 of 
these cleanups. Thus, the sites with specific ``federal'' interest add 
up to 51 sites, or less than 1% of the estimated brownfields sites in 
Wisconsin. I believe it important to point out that the remaining 99% 
of the remaining sites are being cleaned up using the state's law and 
regulations. Clearly, this state--as well as other states--have 
jurisdiction over most brownfields cleanups. The states' role should be 
considered as a major, not minor, component of any future federal 
legislation.
    3. Consider a different approach to providing grants to local 
governments:

 Provide the states the opportunity to administrator the grants 
        and loans, given their experience and relationships with their 
        own local governments.
 Provide money to brownfields properties, regardless of the 
        regulatory jurisdiction. Many federal Superfund removal sites 
        and RCRA hazardous waste sites are tax delinquent, bankrupt 
        properties. These properties are often the largest challenges 
        to communities, yet past efforts at federal legislation have 
        excluded these sites. Allowing them to receive grants as an 
        ``exception'' may send the wrong message to communities. We 
        would recommend all properties be included, unless the person 
        that caused the contamination is able to pay for the 
        environmental work.
 We need to make the grants available for demolition costs, and 
        removal of underground storage tanks.
 Require that the grant recipient follow state--not federal--
        cleanup requirements, since these properties generally are not 
        federal Superfund sites. Requiring these grantees to follow the 
        federal cleanup process, or some form of it, is a duplication 
        of effort, since the grantee will need to comply with state 
        environmental laws as well.
 Simplify the administrative requirements, as the states have 
        done.
 Provide grants to specific projects that are planned and ready 
        to implement.
 Keep the process simple, so communities of all sizes can 
        equally participate and succeed.
4. Provide assurances and finality to persons cleaning up properties 
        under state cleanup programs:
 Federal legislation should provide more assurances to states 
        and persons cleaning up that the federal government has limited 
        ability, in all of its environmental programs, to reopen a 
        state cleanup or ``step in'' during a cleanup, without the 
        state's approval.
 Exemptions for lenders and local governments should be 
        included in legislation for those EPA programs that currently 
        do not have those specific exemptions. For example, local 
        governments should be afforded the same protections under RCRA 
        Subtitle C, as they are under Superfund, if they acquire a 
        property through involuntary means. Many of the worst 
        brownfields properties in this state are the tax delinquent, 
        bankrupt hazardous waste sites. At present, a local government 
        can be required to cleanup one of these properties if they 
        acquire it through condemnation or tax delinquency.
 Past drafts of legislation have given too much discretion to 
        the EPA as to when it can step in. In the draft S. 350, EPA may 
        take action if ``a release may present an imminent and 
        substantial endangerment.'' Language such as this would likely 
        allow EPA to step in at anytime, and would give little clarity 
        to states and persons voluntarily cleaning up a property.
 Many states believe that the EPA should not be able to propose 
        a site for inclusion on the NPL without the governor's 
        concurrence. Once again, the language gives too much discretion 
        to EPA.
 There are creative ways to fashion a system that we can all 
        live with. Wisconsin has addressed its concerns about reopening 
        sites with very tight liability exemptions, by working with the 
        insurance industry to develop a cost-effective solution.
5. Public Outreach and Participation
 The states believe that public participation is a very 
        important part of any process.
 The key is not to dictate one method of public participation, 
        but allow the states to fashion their own systems to meet the 
        needs of their communities.
 Federal legislation should provide adequate funding to states 
        that need to enhance their current processes. This funding 
        needs to be over a 5-year period of time, at a minimum, if 
        Congress wants the states to develop data bases and inventories 
        of brownfields properties.
 Consider adopting a ``brownfields study group'' process at the 
        federal level, to continue to identify barriers and improve the 
        brownfields initiative, even if new legislation is enacted.
    In closing, I would like to thank you Mr. Chairman and members of 
the subcommittee for allowing me to present to you today 
recommendations for creating smarter partnerships and removing barriers 
to brownfields cleanups. I understand that we may not all agree on a 
solution to this large challenge, but I believe that through open and 
continued dialogue we can build a better program. I look forward to 
working with you, ECOS, EPA and other interested persons to develop a 
better program to address the estimated 600,000 brownfields properties 
nationwide.

    Mr. Gillmor. Mr. Meyer, thank you very much.
    And Mr. Cope?

                     STATEMENT OF GRANT COPE

    Mr. Cope. Thank you very much, Mr. Chairman.
    Mr. Chairman, Representative Pallone, thank you very much 
for inviting me to speak on the issue of brownfields 
legislation. I would like to address three different issues 
today: first, the need to redevelop expeditiously and safely 
brownfields throughout our nation; second, the need not to 
weaken, but to preserve or strengthen, the Federal safety net; 
third, the need for up-front Federal review of State voluntary 
cleanup programs.
    Now, first, the need to redevelop brownfields is 
unquestioned. Doing so will help curb sprawl and increase 
investment in inner-city areas. This is vital because it inures 
increased protections for environmental quality as well as 
public health.
    Now, in passing legislation that actually tries to 
accomplish those goals, it is absolutely essential that you not 
weaken the Federal safety net. I will give you five different 
reasons why. First, the Federal safety net actually provides a 
critical choice for public citizens between going to State 
governments or the Federal Government to get protection from 
contaminated areas in their neighborhoods.
    Second, the Federal safety net actually increases the 
efficacy of State voluntary cleanup programs. State officials 
can in dealing with an intransigent party say, ``Listen, you 
can either deal with me in good faith or you can deal with the 
Federal Government.'' Third, State voluntary cleanup programs 
actually provide broad liability relief for developers who go 
through their voluntary cleanup program.
    Fourth, really, the specter of Federal Government intruding 
on a State program is a non-issue. Two different studies, 
surveys of State programs, actually, make this point, one by 
ECOS in late 1990's. They surveyed State environmental 
protection departments and asked them, ``What about this 
overfiling issue, this intrusive Federal Government? How often 
does it happen?'' In fact, the States reported in the survey 
that in less than a fraction of 1 percent had the State ever 
overfiled or, rather, had the Federal Government ever overfiled 
on a State action.
    Second, National Association of Home Builders paid for 
another study that was completed last year, surveyed 42 State 
environmental voluntary cleanup programs. One of the questions 
that they asked was: What about the feds? What about EPA? Are 
they actually intruding in your voluntary cleanup program?
    The findings of the report came back. It said virtually all 
of the States said that there was either no intrusion or 
minimal oversight.
    Fifth and finally on this issue, falling up on Mr. Meyer's 
point, developers as long as they go through a program can 
actually cap their liability with environmental insurance. This 
means that they go through, they do what the State says. And if 
there is actually another need to do increased remediation at 
that state, their liability is capped.
    Now, briefly I would like to address some of the issues 
that the Federal Government should look at when reviewing a 
State program. First and foremost, they should ensure that 
these programs deal with sites that have low levels of 
contamination or, put another way, they should exclude heavily 
contaminated sites from being involved in voluntary cleanup 
programs.
    Second, State programs should make certain to make 
polluters pay to clean up the contamination.
    Third, they should ensure that citizens are meaningfully 
involved in those cleanup decisions. And that concludes my 
testimony.
    [The prepared statement of Grant Cope follows:]
     Prepared Statement of Grant Cope, U.S. PIRG Superfund Advocate
    Good morning Mr. Chairman and distinguished members the House 
Energy and Commerce Subcommittee on Environment and Hazardous 
Materials. I would like to thank you for the opportunity to speak about 
the important issue of brownfields legislation.
    My name is Grant Cope. I am an Environmental Advocate for the 
United States Public Interest Research Group. U.S. PIRG is the national 
office of the state Public Interest Research Groups (PIRGs). PIRGs are 
nonprofit, nonpartisan environmental and consumer advocacy groups 
active across the nation.
    Today, I will address three issues: first, the need to safely and 
expeditiously redevelop brownfields; second, the need to strengthen or 
at least preserve the federal safety net under current law; and third, 
the other critical issues that federal brownfields legislation should 
address. In brief, federal brownfields legislation should ensure that 
heavily contaminated sites are excluded from the definition of 
brownfields and ensure that EPA has the authority to conduct an upfront 
review of state programs to ensure they contain minimum, common sense 
criteria for protecting public health and environmental quality.
 i. there is a great need to clean up and safely redevelop brownfields
    There is a serious need in thousands of communities across our 
nation to safely and expeditiously clean up brownfields. EPA defines 
brownfields as ``abandoned, idled, or under-used industrial and 
commercial facilities where expansion or redevelopment is complicated 
by real or perceived environmental contamination.'' While there is no 
definite tally on the number of contaminated sites across our nation, 
there may be as many as 600,000 such sites. These contaminated sites 
can contain numerous toxic substances, including substances that cause 
cancer, birth defects and a variety of other adverse health effects. 
Regardless of the ultimate number of sites, or their levels of 
contamination, there is a clear consensus that the nation needs to 
clean up and safely redevelop brownfields sites.
    If this is not done correctly, the health of women, men, and 
particularly children that live, work, or play near contaminated sites 
will continue to be put at risk. In addition, developers will continue 
to seek out greenfields, rather than helping to redevelop blighted 
inner-city areas in need of reinvestment. Of course, this will 
exacerbate urban sprawl, which contributes to numerous health and 
environmental problems, including increased contamination of our 
nation's water resources, air pollution, and fragmentation of wildlife 
habitat. Clearly, brownfields redevelopment that protects public health 
and helps prevent sprawling development needs to occur across our 
nation.
    Brownfields redevelopment programs should include commonsense 
criteria such as strong clean up standards, provisions to ensure that 
polluters pay to clean up their contamination, and meaningful 
involvement of citizens in clean up decisions. These provisions are 
essential to help combat the real health dangers associated with 
contaminated sites.
    The federal government can help facilitate these types of programs 
by providing common sense criteria for state clean up programs and 
federal funds to help spur beneficial redevelopment efforts.
    Over the years, members in both the House and Senate have put 
forward responsible bills that sought to address the brownfields issue 
head on. Others bills have been drafted in such a way as to weaken 
protections for public health and environmental quality. U.S. PIRG 
would like to offer to assist the Committee, in any way possible, in 
constructing the former type of legislation.
    Of course, the environmental community remains united in opposing 
bills that seek to roll back protections provided by Superfund, and 
other statutes concerned with the remediation of toxics. Such roll back 
efforts have included weakening the polluter pays principle, clean up 
standards, and the federal safety net.
              ii. need to preserve the federal safety net
A. Federal Government Should Preserve Protections For Public Health
    EPA's order authority under the Superfund programs provides a vital 
federal safety net that is the last line of defense for protecting 
public health and environmental quality. EPA's order authority has a 
number of beneficial effects. For example, state clean up officials 
rely on EPA's order authority to force intransigent parties to 
negotiate in good faith, or risk involvement by federal 
authorities.1 Similarly, concerned citizens can go to the 
EPA and request that they facilitate clean up efforts. Additionally, 
EPA's order authority ensures that people have the choice to seek 
protections from both the state and federal governments.
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    \1\ General Accounting Office, Superfund, Stronger EPA-State 
Relationship Can Improve Cleanups and Reduce Costs, GAO/RECD-97-77, 4-5 
(1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New 
Hampshire, and Texas. The report choose these states because they ``are 
among the most experienced in leading cleanups as NPL sites'')
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    Proponents of barring or modifying EPA's order authority under 
Superfund fail to present coherent arguments for such actions. The main 
rationale generally given is the need to ensure developers get 
``finality.'' However, the need for additional finality disappears 
after considering five factors: 1) the benefits of a strong federal 
safety net for public health; 2) the benefits of a strong federal 
safety net for reduced transaction costs; 3) EPA's failure to credibly 
use its order authority; 4) consensus liability provisions that provide 
broad relief for responsible developers; 2 and 5) a growing 
market for environmental insurance.
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    \2\ E.g. 106th Cong. 1st. Sess. H.R. 1750, Sections 201 (Innocent 
Land Owner), 202 (Prospective Purchaser), and 203 (contiguous Property 
Owner).
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1. Federal Safety Net Helps State Programs Meet Minimum Protections For 
        Public Health
    The federal safety net can assist state voluntary clean up programs 
(VCP) provide minimum protections for public health and the 
environment. This is important because state programs provide widely 
differing levels of protection.3 Unfortunately, social, 
political and economic factors can contribute to inadequate state 
environmental protection programs, particularly for state brownfields 
programs.4 For example, because states constantly compete 
with neighboring states in attracting business and residential 
development, some states may relax clean up standards and liability 
systems.5 This could initiate a race to the bottom on 
protections that ultimately ends with an increase in threats to human 
health.6 Therefore, it is vital that state programs meet 
minimum standards, to ensure the long-term protection of human health. 
The federal safety net can help states meet these minimum standards.
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    \3\ Environmental Law Institute, An Analysis of State Superfund 
Programs: 50-State Study, 1998 Update, (1998) (finding differing levels 
of public participation in cleanup decision, resources, adequacy of 
oversight at clean ups, and enforcement powers, among other important 
program components); Charley Bartsh and Christine Anderson, State of 
the States: An End of the Session Review of Initiatives and Program 
Impacts In the 50 States (Oct. 1999) (describing types of liability 
relief and eligible sites); Charley Bartsh, Christine Anderson, and 
Bridget Dorfman, Brownfields voluntary Clean Up Program Impacts: Reuse 
Benefits, State by State (1999) (describing widely different program 
results); Charley Bartsh and Bridget Dorfman, Brownfields and Housing: 
How Are State VCPs Encouraging Residential Development, 3-4, 6-7, 8-9 
(May 2000) (finding considerable variability among state programs with 
respect to clean up standards, public participation requirements, and 
liability relief); and General Accounting Office, Brownfields: 
Information on the Programs of EA and Selected States, GAO-01-52 (2000) 
(noting different clean up standards, levels of publicly accessible 
information, and liability standards).
    \4\ William Buzbee, Brownfields, Environmental Federalism, and 
Institutional Determinism, 21 William & Mary Envtl. L. Rev. 1, 58 
(2000).
    \5\ Lisa Dittman, Overfiling: Policy Arguments in Support of the 
Gorilla in the Closet, 48 UCLA L. Rev. 375, 392 (2000) and Ellen 
Zahren, Overfiling Under Federalism: Federal Nipping At State Heels To 
Protect The Environment, 49 Emory L.J. 373, 3419-420 (2000).
    \6\ William Buzbee, Brownfields, Environmental Federalism, and 
Institutional Determinism, 21 William & Mary Envtl. L. Rev. 1, 22-24 
(2000).
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a. State and EPA MOA Process Provides A Tool For Protecting Human 
        Health
    The current Memorandum of Agreement Process (MOA) between State 
Voluntary Clean Up Programs and EPA, while not a formal review process 
of a delegated program, provides a surrogate for such a 
process.7 Under this program, EPA provides increased 
certainty to developers who operate under state programs that have an 
MOA. Under this process, a state and EPA agree to an MOA if the state 
VCP meets six minimum criteria.8 These baseline criteria 
include requirements that state programs provide opportunities for 
meaningful community involvement; ensure that voluntary response 
actions are protective of human health and the environment; and have 
adequate resources to ensure that clean up are conducted in appropriate 
and timely manner.9
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    \7\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing: 
How Are State VCPs Encouraging Residential Development, 3 (May 2000) 
(at the end of 1999, 14 states had MOAs with EPA and 7 more states were 
in negotiations for such an agreement).
    \8\ EPA, Memorandum from Elliott Laws to Superfund National Policy 
Managers, Interim Approaches for Regional Relations with State 
Voluntary Cleanup Programs (Nov. 1996).
    \9\ EPA, Memorandum from Elliott Laws to Superfund National Policy 
Managers, Interim Approaches for Regional Relations with State 
Voluntary Cleanup Programs (Nov. 1996) (To receive an MOA, state 
programs must: 1) provide opportunities for meaningful community 
involvement; 2) ensure that voluntary response actions are protective 
of human health and the environment; 3) have adequate resources to 
ensure that clean up are conducted in appropriate and timely manner and 
that both technical assistance and streamlined procedures, where 
appropriate, are available from the State agency responsible for the 
Voluntary Cleanup Program; 4) provide mechanisms for the written 
approval of response action plans and certification indicating that 
clean ups are complete; 5) provide adequate oversight to ensure that 
clean ups are conducted in a manner to protect public health and the 
environment; and 6) shows capability, through enforcement or other 
authorities, of ensuring completion of response actions if the 
volunteering party(ies) conducing the response actions fail(s) or 
refuse(s) to complete the clean up, including operation and maintenance 
or long-term monitoring activities.
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    Unfortunately, the State of Ohio is an example of a poor state 
clean up program that lacks an MOA (see discussion in III. D. below) 
For example, an initial report on Ohio's program raises serious 
concerns regarding the program's ability to protect public 
health.10 However, citizens are urging the State of Ohio to 
improve its VCP so that the program can enjoy the increased certainty 
associated with an MOA, and people can enjoy minimum protections under 
the state program.
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    \10\ Greene Environmental Coalition, The State of Ohio's Voluntary 
Action Program: Findings and Recommendations (Jan. 2001) (citizens have 
critiqued the program and are actively working with federal and state 
entities to remedy the program's deficiencies so that Ohio would 
qualify for an MOA).
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b. Federal Safety Net Gives Public Choice Between State and Federal 
        Protections
    In addition to helping to develop better state clean up programs, 
the federal safety net provides people with a choice between seeking 
protection from the state or federal government. This protection is 
critical because, at a minimum, developers will make mistakes during 
some clean ups. However, state programs also provide varying levels of 
protections. In fact, some states may bend to parochial considerations 
and choose to expedite their state's clean up process by weakening 
standards, cutting the public out of the clean up process, and seeking 
to protect industrial and redevelopment interests from federal 
enforcement efforts.11 When combined with state releases 
from liability, this can create a dangerous combination of ill-planned 
and unprotective cleanups with little or no incentives that development 
protect public health.
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    \11\ William Buzbee, Brownfields, Environmental Federalism, and 
Institutional Determinism, William and Mary Environmental Law and 
Policy Review 3 (1997).
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    Therefore, the federal government should maintain the ability of 
the public to choose between state and federal protections. At a 
minimum, we should retain the ability of citizens to request swift 
federal protection. Changing this protection could lead to burdensome 
litigation over new legal standards. This choice goes to the very heart 
of the benefits of a federal system of government, where states can 
choose to innovate and go beyond protection provided by the federal 
government.
c. Federal Safety Net Provides Important Deterrent Effect
    The federal safety net also provides an important deterrent effect 
against inappropriate clean ups. This deterrent effect can benefit 
state VCPs, reduce transaction costs and conserve limited public 
resources. For example, EPA's order authority assists state regulators 
in forcing intransigent parties into good faith negotiations at clean 
ups or during revisions to a program's regulations.12 
Parties are less likely to negotiate in bad faith with state entities 
if they know such action will result in the Federal government 
assisting state efforts to ensure compliance with applicable 
laws.13 This increases the efficacy of state VCPs, decreases 
the possibility that businesses may have to negotiate with multiple 
parties, and allows federal and state agencies to better target and 
coordinate resources.
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    \12\ General Accounting Office, Superfund, Stronger EPA-State 
Relationship Can Improve Cleanups and Reduce Costs, GAO/RECD-97-77, 4-5 
(1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New 
Hampshire, and Texas. The report choose these states because they ``are 
among the most experienced in leading cleanups as NPL sites'') and 
Ellen Zahren, Overfiling Under Federalism: Federal Nipping At State 
Heels To Protect The Environment, 49 Emory L.J. 373, 427 (2000).
    \13\ Lisa Dittman, Overfiling: Policy Arguments in Support of the 
Gorilla in the Closet, 48 UCLA L. Rev. 375 (2000).
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2. Federal Safety Net Can Help Reduce Transaction Costs
    Ensuring state voluntary clean up programs incorporate minimum 
protections can increase consistency and certainty for businesses 
wishing to redevelop contaminated sites.14 This consistency 
can decrease transaction costs for business and the government in a 
variety of ways. This is particularly true for good actors that do not 
want bad actors to financially benefit by being allowed to cut corners.
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    \14\ See Jerry Organ, Environmental Federalism Part II: The Impact 
of Harmon, Smithfield, and Clean on overfiling under RCRA, the CWA, and 
the CAA, 30 Envtl. L. R. 10732 (2000) (discussing federal oversight 
within the context of federally delegated state programs), Lisa 
Dittman, Overfiling: Policy Arguments in Support of the Gorilla in the 
Closet, 48 UCLA L. Rev. 375, 391 (2000) (same); and William Buzbee, 
Brownfields, Environmental Federalism, and Institutional Determinism, 
21 Wm. & Mary Envtl. L. Pol'y Rev. 1, 61-62 (2000) (applying same 
argument to state clean up programs).
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    Importantly, states retain the flexibility to develop and negotiate 
innovative programs within the MOA process.15 For example, 
states can respond to business concerns by targeting federal funds to 
certain parties and geographic regions. Alternatively, states can use 
tax incentives and federally funded state informational systems (e.g. 
databases and geographic information systems) to help spur safe 
redevelopment efforts.
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    \15\ See, Ellen Zahren, Overfiling Under Federalism: Federal 
Nipping At State Heels To Protect The Environment, 49 Emory L.J. 373, 
434 (2000) (discussing MOA within the Clean Air Act, not brownfields 
process).
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3. There Is No Evidence That EPA Has Abused Its Enforcement Authorities
    The force behind weakening the Federal Safety Net is filled with 
more hyperbole than fact. Put simply, overfilings are a very rare 
occurrence.16 (``Overfiling'' refers to a situation where 
the EPA conducts an enforcement action against the same entity and for 
the same violation as a state enforcement official.) The Environmental 
Council of the States (ECOS) conducted a state-by-state survey 
regarding EPA's use of its overfiling authorities.17 This 
survey used an extremely broad definition of ``overfile,'' which 
included instances where EPA brought an action for violations that a 
state had failed to address, rather than just instances where EPA 
brought an action for violations that a state had claimed to already 
have addressed. Even under this expansive definition of ``overfiling,'' 
the survey demonstrated that EPA overfiles in a fraction of one percent 
of all cases under numerous environmental laws. In fact, states 
reported that EPA overfiling accounted for just 0.3 percent of all 
Federal enforcement actions during fiscal years 1992-1994, and, during 
fiscal year 1994-1995, EPA overfiled on about 0.1 percent of all state 
enforcement actions.18 Based on these numbers, it is clear 
that EPA almost never uses its enforcement authority, indeed, it 
appears that EPA only overfiled against the worst violators or in the 
most inadequate state programs.
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    \16\ Salt lake City Tribune, Representative Stirs Up a Western Turf 
War With EPA; State's environmental watchdog is growling at fed 
interference, A4 (1999) (citing three instances of overfiling over a 
two year period including instances where the state failed to take any 
action against a violator, the state failed to fine a violator, and a 
instance where the state grossly underfined another violator).
    \17\ Senate Committee on Environment and Public Works, The 
Relationship Between the Federal and State Governments in the 
Enforcement of Environmental Law, S. Hrg. 105-173, 161-162 (June 10, 
1997).
    \18\ Senate Committee on Environment and Public Works, The 
Relationship Between the Federal and State Governments in the 
Enforcement of Environmental Law, S. Hrg. 105-173, 161-162 (June 10, 
1997).
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    The findings of the ECOS state-by-state survey are mirrored in a 
survey of 42 states' voluntary cleanup programs funded by the National 
Association of Homebuilders.19 This state survey reports 
that ``virtually all of the states [confirmed] that U.S. EPA is not 
involved or only minimally active in monitoring the state's [voluntary 
clean up programs].'' 20 A few states reported that while 
they have a close working relationship with EPA, the agency does not 
extensively monitor the state program, but rather provides funds and 
program support.21
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    \19\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing: 
How Are State VCPs Encouraging Residential Development (May 2000).
    \20\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing: 
How Are State VCPs Encouraging Residential Development, 12 (May 2000) 
(emphasis added).
    \21\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing: 
How Are State VCPs Encouraging Residential Development, 12 (May 2000).
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    There are a variety of reasons for the exceedingly low level of 
federal oversight of state programs. Some reasons include limited 
federal resources, the discretionary nature of enforcement actions, EPA 
respect for the cooperative federalism structure of environmental 
regulation, and the political repercussions of such 
overfiling.22
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    \22\ Ellen Zahren, Overfiling Under Federalism: Federal Nipping At 
State Heels To Protect The Environment, 49 Emory L.J. 373, 384-386, 
414-415, 430 (2000).
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4. Consensus Liability Exemption Already Exists That Would Gives 
        Responsible Developers Finality
    Over the course of many years, bills in both the House and the 
Senate have contained consensus liability exemptions that provide 
expansive relief from liability for responsible developers. These 
provisions include limitations on the liability of prospective 
purchasers, innocent landowners and contiguous landowners.23 
Innocent landowners language protects people that purchased land prior 
to the enactment of the legislation and who took steps to protect 
public health from contamination found on their property. Prospective 
purchasers language limits the liability of people that purchase 
property after enactment of the legislation and who take steps to 
protect public health from contamination found on their property. 
Contiguous landowner language protects people whose property has been 
contaminated by a nearby property, so long as the landowner takes steps 
to protect public health from that contamination. All three of these 
liability limitations protect responsible developers, while maintaining 
disincentives for irresponsible developers who desire quick profits at 
the expense of public health.
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    \23\ E.g. 106th Cong., 1st. Sess. H.R. 1750, Sections 201 (Innocent 
Land Owner), 202 (Prospective Purchaser), and 203 (contiguous Property 
Owner); 107th Cong. 1st Sess. S. 350, Section 201 (Contiguous Property 
Owners), Section 202 (Prospective Purchasers), and Section. 203. 
(Innocent Landowners).
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a. Developers Also Enjoy Broad Liability Limitations Under State Law
    In addition to enjoying a negligible amount of federal oversight, 
developers also enjoy broad liability protection under state laws. A 
1999 study funded by the National Association of Homebuilders found 
that most state voluntary clean up programs offer ``Covenants Not to 
Sue'' or ``No Further Action Letters'' to developers that complete the 
clean ups under state programs.24 By issuing these 
documents, states largely foreclose on their ability to make developers 
civilly liable for future clean ups costs. As described below, EPA 
provides similar assurances under federal brownfields initiatives.
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    \24\ Charley Bartsh and Christine Anderson, State of the States: An 
End of the Session Review of Initiatives and Program Impacts In the 50 
States (Oct. 1999).
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5. Insurance Policies Also Provide Developers With Protection
    There is an already established and growing environmental insurance 
market for brownfields redevelopment. The Northern Kentucky University 
and The E.P Systems Group, Inc. published a 1999 report of such 
products that is based, in part, on a survey and interviews with 
insurance carriers and brokers, including AIG Environmental and 
Kemper.25 The report found that developers already widely 
use such policies; further, the types of coverage, occurrences covered, 
dollar limits, and coverage periods of polices are expanding, while 
costs and preconditions to coverage are decreasing. The report quotes 
one insurance carrier representative, ``The market now provides very 
broad coverage, which it didn't five years ago . . .'' 26
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    \25\ Northern Kentucky University, The E.P Systems Group, Inc., 
Environmental Insurance Products Available for Brownfields 
Redevelopment (Nov. 1999).
    \26\ Id. at 52.
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    These insurance policies, which are no different from any other 
type of real estate insurance coverage, provide real estate buyers and 
developers with certainty. These policies cap liability, thereby 
enabling buyers and developers to better assess the impacts of market 
forces. Ultimately, these market forces dictate when, where, and how 
redevelopment occurs.
B. Federal Safety Net In Under Other Federal Statutes
    A number of federal statutes give EPA the ability to protect public 
health using their enforcement authorities.27 These 
authorities also provide a plethora of protections for public health. 
To weaken one of these provisions invites a downward spiral of 
weakening protections, and the benefits inherent in those 
protections.28 For example, requests for ``finality'' have 
led to calls for rolling back protections under a host of statute, such 
proposals have also suggested language that bars criminal fines and 
penalties. U.S. PIRG strongly urges the government to uphold EPA's 
ability to protect public health and environmental quality, rather than 
eroding it in this fashion.
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    \27\ Numerous statutes authorize EPA to issue clean up orders and 
assign liability, including 42 U.S.C. Sec. Sec. 9606 (Superfund); 6973 
(RCRA); 33 U.S.C. Sec. Sec. 1321(c) (Clean Water Act); 15 U.S.C. 
Sec. 2606 (TSCA: standard is ``unreasonable risk''); 30 U.S.C. 
Sec. 1271 (SMCRA: standard is ``imminent danger to the health or safety 
of the public, or is causing, or can reasonably be expected to cause 
significant, imminent environmental harm.''); 42 U.S.C. Sec. 107(a) 
(Superfund: must pay clean up costs); 42 U.S.C. Sec. Sec. 7003 (RCRA: 
penalties for violating orders) and 6991b (RCRA: order and penalty 
authority for releases of petroleum); and 42 U.S.C. 404 (TSCA: federal 
enforcement authority under federal programs concerning lead 
abatement).
    \28\ E.g. 1) Ellen Zahren, Overfiling Under Federalism: Federal 
Nipping At State Heels To Protect The Environment, 49 Emory L.J. 373 
(2000); 2) Jerry Organ, Environmental Federalism Part I: The History of 
Overfiling Under the RCRA, the CWA, and the CAA, 30 Envtl. L. R. 10615 
(2000); 3) Jerry Organ, Environmental Federalism Part II: The Impact of 
Harmon, Smithfield, and Clean on overfiling under RCRA, the CWA, and 
the CAA, 30 Envtl. L. R. 10732 (2000); and Lisa Dittman, Overfiling: 
Policy Arguments in Support of the Gorilla in the Closet, 48 UCLA L. 
Rev. 375 (s000).
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1. Numerous Statutes Provide People With Protection Against Particular 
        Contaminants
    EPA and other federal agencies rely on their order authorities to 
protect public health under a variety of circumstances. For example, 
EPA currently uses its order authority under the Resource Conservation 
and Recovery Act to protect children from lead based paint. Similar 
provisions also exist under the Toxic Substances Control Act (TSCA). 
TSCA and RCRA orders also apply to polychlorinated biphenyls, dioxin 
and a variety of other highly toxic substances. There is no justifiable 
reason to weaken EPA's authority with respect to such dangerous 
substances.
    Any attempt to modify EPA's enforcement authorities under numerous 
statutes is fraught with peril. Different statutes apply differing 
standards to a variety of regulatory requirements that pertain to 
hundreds of highly toxic substances. Modifying EPA's authority under 
numerous statutes risks not only creating massive confusion, but also 
an across-the-board weakening of EPA ability to protect public health 
and environmental quality.
    The same is true when modifying EPA's order authority under one 
statute. For example, EPA's order authority under RCRA includes the 
ability to enforce a variety of different requirements at different 
types of sites regulated under the program. Varying standards provide 
flexibility while protecting human health. Modifying this structure 
would create an adverse ripple effect across the RCRA program.
C. Strong Federal Enforcement Benefits Business and Public Health
    In addition to the benefits of retaining the federal safety net 
described above, a host of other benefits also inure to government, 
business interests, and the public through consistent and vigorous 
enforcement of environmental laws. First, consistent enforcement 
efforts ensure that members of the business community are treated 
fairly. This fact is reflected in the findings of a 1996 General 
Accounting Office report (GAO), which reiterated the findings of a 1991 
GAO report, that ``penalties play a key role in environmental 
enforcement by deterring violators and by ensuring that regulated 
entities are treated fairly and consistently so that no one gains a 
competitive advantage by violating environmental regulations. [The GAO 
also found that] environmental statutes have been violated repeatedly 
when penalties have not been applied.'' 29
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    \29\ General Accounting Office, Water Pollution: Many Violations 
Have Not Received Appropriate Enforcement Attention, GAO/RECD-96-23, 13 
(March 1996).
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    Vigorous enforcement of environmental laws, particularly hazardous 
waste, can also provide incentives to increase pollution prevention 
efforts. In fact, 96 percent of respondents to a 1995 Price Waterhouse 
survey identified enforcement pressure as one of the most important 
drivers of pollution prevention among both large and small 
businesses.30 Within the context of brownfields cleanups, 
enforcement actions can help to ensure that current regulated entities 
do not create future brownfields sites. This means that the by 
retaining the federal safety net, we both prevent harm and preserve 
future options for land and groundwater use.
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    \30\ Senate Committee on Environment and Public Works, The 
Relationship Between the Federal and State Governments in the 
Enforcement of Environmental Law, S. Hrg. 105-173, 5 (Statement of Hon 
Steven Herman, Assis. Admin. Office of Enforcement and Compliance 
Assurance, EPA) (June 10, 1997).
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D. There Is a Need For Increased Oversight Of State VCPs
    While there is no need to weaken the federal safety net, there 
appears to be a need for stepped up federal enforcement and oversight 
of state environmental programs. While this testimony goes into more 
detail below (See Section III. D.), a brief recitation of concerns 
regarding state enforcement of environmental laws is provided here. 
Both governmental and non-governmental studies document a consistent 
lack of state enforcement efforts against even significant violators of 
environmental laws.31 This deficiency stretches across 
environmental programs, and therefore raises concerns regarding weak 
state oversight and enforcement in voluntary clean up programs. Indeed, 
initial assessments of some state programs provide reason for such 
concerns.32 However, without modifications to budgetary 
priorities and political predilections, such protections will likely 
remain illusive. Therefore, at a minimum, the federal government should 
preserve or strengthen the federal safety net.
---------------------------------------------------------------------------
    \31\ United States Public Interest Research Group, Poisoning Our 
Water (2000) (finding a lack of state and federal enforcement actions 
against significant noncompliers under the Clean Water Act); 
Environmental Working Group, Prime Suspects: The Law Breaking Polluters 
America Fails To Inspect (2000) (finding weak state monitoring and 
enforcement measures against sources of pollutants under the Clean Air 
Act); General Accounting Office, More Consistency Needed Among EPA 
Regions in Approach to Enforcement, GAO/RECD-00-108 (2000); Inside EPA 
has printed a number of articles on state enforcement of environmental 
laws and EPA enforcement and oversight of state programs that implement 
such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21. 
Articles are based on internal EPA reports from the Office of 
Enforcement and Compliance Assurance that Inside EPA obtained through 
Freedom of Information Act requests. (Documents can be downloaded at 
http://www.iwpextra.com); Environmental Protection Agency, Office of 
Enforcement and Compliance Assurance, Enforcement and Compliance 
Evaluation of Region 5, Final Evaluation Report, (Dec. 1998) (finding 
general decreases in state enforcement of environmental programs); 
Environmental Protection Agency, Office of Enforcement and Compliance 
Assurance, Enforcement and Compliance Evaluation of Region 9, Final 
Evaluation Report, 29, 31 (May, 1998) (same); Office of Inspector 
General, Environmental Protection Agency, Superfund, State Deferrals: 
Some Progress, But Concerns For Long-Term Protectiveness Remain, (Sept. 
10, 1998) (finding that EPA administration of policy that allows states 
to clean up hazardous waste sites that would otherwise qualify as 
Superfund sites to result in less than adequate protections for public 
health); and Office of Inspector General, Region 6's Enforcement and 
Compliance Assurance Program (1997) (noting that stronger state 
enforcement is needed to ensure effective deterrent against polluters 
breaking the law).
    \32\ See discussion about the inadequacy of state clean up programs 
below.
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E. Conclusion
    With consensus on broad forms of liability relief, an insignificant 
risk of federal intrusion in state programs, and bars on state civil 
liability for future clean up costs, developers could enjoy broad 
guarantees of ``finality,'' so long as they do one simple thing: ensure 
that cleanups adequately protect public health. Indeed, the only people 
that would need additional ``assurance'' are developers that do an 
inadequate job of cleaning up contamination. Importantly, this is the 
very situation where the federal government should retain 
``unencumbered'' its ability to protect public health.
    There is an old saying, ``If it ain't broke, don't fix it.'' 
Nowhere is this adage more true than with the fundamental protection 
for public health that is currently embodied in EPA's order authority.
   iii. critical issues that federal brownfields legislation should 
                                address
    There are a number of issues that are critical to redressing the 
problem of brownfields redevelopment. In this testimony, I would 
address two of the more prominent and contentious issues. First, I will 
address the need to ensure that heavily contaminated sites are excluded 
from the definition of brownfields. Second, I will address the need for 
an upfront review of state programs prior to getting any federal funds. 
In this section, I will also outline some of the commonsense criteria 
that state programs should include. The need for this federal review 
and for the inclusion of only sites with low levels of contamination is 
that state programs provide disparate levels of protection. Therefore, 
an upfront review process would ensure minimum levels of protection 
that also precludes a race-to-the-bottom between state clean up 
programs.
A. Brownfields Legislation Should Only Apply To Sites With Low Levels 
        Of Contamination
    Many state clean up programs incorporate expanded liability relief 
under state law and varied clean up standards without adequate 
oversight or long-term assurances of protection. Therefore, state 
programs should only include sites with low levels of contamination.
    This is vitally important because some legislative proposals have 
called for state clean up programs to include heavily contaminated 
sites. This is danger given that such federal legislation also calls 
for vastly increased funding. According to the National Conference of 
Mayors, lack of funding for redeveloping brownfields is the number one 
factor inhibiting redevelopment.33 However, such money 
should not be used to fuel inadequate and inappropriate state programs. 
Rather, federal funds should be appropriately focused on thoroughly 
cleaning up brownfields, preserving and promoting parks and open 
spaces, and meaningfully incorporating the local community in clean up 
decisions.
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    \33\ National Conference of Mayors, Recycling America's Land, 11 
(Feb. 2000).
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B. Brownfields Legislation Should Incorporate An Upfront Review Of 
        State Programs
    Federal legislation should include an upfront review of state clean 
up programs prior to funneling federal resources to those programs. 
This review process should ensure that state programs include 
commonsense criteria to protect public health and integrate citizens 
into the clean up process. The lack of a review process could result in 
federal funds increasing the capacity, but not the quality, of state 
clean up programs. This could dramatically accelerate ill-planned and 
unprotective redevelopment activities. If this occurs, our nation could 
face a new public health crisis in the coming decades. After all, lead, 
arsenic, and mercury will be toxic long after the last developer leaves 
a brownfields site and the first homeowner moves in. Therefore, it is 
vital that states ensure developers thoroughly clean up sites.
    Put another way, prevention is the best approach when protecting 
public health and environmental quality. Therefore, U.S. PIRG strongly 
supports an upfront federal review of state programs prior to the 
distribution of any federal funds or transfer of oversight authorities. 
A front-end review process is a preventative measure that helps to 
ensure peoples' lives are not put at risk by inadequate and 
unprotective state programs.
1. Elements Of State Clean Up Programs
    The following issues are criteria that state should incorporate in 
their clean up programs. This is not meant to be a full vetting of the 
issues, but rather a brief highlight of the main components for such 
programs.
a. Highly Protective Clean Up Standards
    State clean ups must protect human health, welfare, and the 
environment. Programs should completely remediate both soil and 
groundwater. State programs must monitor and track all contaminated 
sites in a public database. If a ``remediated'' site may endanger 
public health or the environment, the State must, with public input, 
reassess the site remedy and rectify any problems.
b. Safeguards on the use of Institutional Controls
    State programs use institutional controls (e.g. deed and zoning 
restrictions) if they decide to allow developers to leave contamination 
on-site. Institutional controls are ``non-engineered instruments such 
as administrative and other legal controls that minimize the potential 
for human exposure to contamination by limiting land or resource use. 
State use of institutional controls to limit exposure to toxic 
substances must protect public health--including the most vulnerable in 
our society'' and the environment, incorporate multiple layers of 
institutional controls that rely on different parties for enforcement, 
by supported by the community, and include a publicly available 
database.34 Additionally, all entities must use the database 
prior to conducting any work on or near a site.
---------------------------------------------------------------------------
    \34\ The database should contain the name and location of sites, 
types of controls used and the entities that are responsible for 
enforcing those controls.
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c. Site Surveys and Assessments
    State programs must survey their state for contaminated sites, 
assess the risks posed by each site to humans and the environment, and 
list all known or suspected sites in a publicly available database.
d. Appropriate Sources of Stable Funding
    State programs must not use taxpayer funds to finance the program. 
States must provide a stable, long term source of funding based on the 
polluter pays principle (e.g. taxes or fees on polluting industries) to 
finance clean up programs. This funding must pay for all program costs, 
including the clean up of orphan sites (sites for which there are no 
liable parties).
e. Liability System Based On Polluter Pays Principle
    Clean ups must be primarily funded by strict, joint and several, 
and retroactive liability, or with revenue derived from funding as 
described in paragraph ``d.'' The only acceptable defenses to this 
liability system are for ``innocent landowners,'' ``bona fide 
prospective purchasers'' and ``contiguous property owners.''
f. Citizen Enforcement Of Clean Up Plans
    All states must give citizens the right to file citizen suits for 
contamination resulting from such sites and provide citizens with a 
fees for winning any such suit in court.
g. Redevelopment Should Decrease Sprawl and Increase Preservation of 
        Open Space
    State clean up programs should focus their programs on devising 
smart growth plans that decrease sprawl and revitalize urban areas. 
This includes preserving existing parks, open spaces and greenways, as 
well as promoting the creation of such areas.
h. Meaningfully Involve The Public In Clean Up Decisions
    State programs must meaningfully involve all citizens in clean up 
decisions. This includes making all clean up related documentation and 
correspondence publicly available, providing for public notice, 
comment, and a hearing, and giving citizens the right to appeal the 
results of that hearing. Clean up activities must not occur until the 
community is satisfied with the protectiveness of the clean up. This 
includes assurances that state clean up programs and individual clean 
up plans act to remedy any pattern of industrialization that has 
created pockets of contamination and contaminated lands.35 
Further, state programs should provide communities with resources (both 
technical and financial) to fund citizen boards that provide an avenue 
for meaningful public input in the construction of the clean up plan.
---------------------------------------------------------------------------
    \35\ For information on this issue, please see the following 
articles: 1) Bradford Mank, Reforming State Brownfield Programs To 
Comply With Title VI, Harvard Envtl L. Rev. 115 (2000) and 2) EPA, 
Brownfields Title VI Case Studies, EPA 500-R-003 (June 1993).
---------------------------------------------------------------------------
i. Assure The Public's Right To Know About Toxics In Their Community
    State programs must ensure all citizens have the right to know 
about all toxics in their community. This includes ensuring that 
citizens are made aware of any past, current, or ongoing releases, the 
name of the company responsible for the release and responsible for 
cleaning up the release, as well as health effects associated with the 
chemicals being released (including any cumulative or synergistic 
effects, if known).
C. Upfront Review is Commonplace Under Other Programs
    An upfront review is commonplace in other environmental programs, 
including the Resource Conservation and Recovery Act and the Clean Air 
and Water Acts.36 Despite this type of review, experience 
with these programs demonstrates that states are extremely varied in 
their ability and commitment to strongly enforce these laws that 
protect public health and environmental quality.37 Simply 
put, some states do a better job of protecting public health than do 
others. However, because there are minimum standards, citizens can both 
work to ensure their states meet these minimal standards and, realizing 
the true benefits of federalism, push their states to go beyond these 
minimal protections.
---------------------------------------------------------------------------
    \36\ Resources Conservation and Recover Act, 42 U.S.C. Sec. 6926; 
Clean Air Act, 42 U.S.C. Sec. 7410; and Clean Water Act, 33 U.S.C. 
Sec. 1342(b)
    \37\ E.g., United States Public Interest Research Group, Poisoning 
Our Water (2000) (finding a lack of state and federal enforcement 
actions against significant noncompliers under the Clean Water Act); 
Environmental Working Group, Prime Suspects: The Law Breaking Polluters 
America Fails To Inspect (2000) (finding weak state monitoring and 
enforcement measures against sources of pollutants under the Clean Air 
Act); General Accounting Office, More Consistency Needed Among EPA 
Regions in Approach to Enforcement, GAO/RECD-00-108 (2000); Inside EPA 
has printed a number of articles on state enforcement of environmental 
laws and EPA enforcement and oversight of state programs that implement 
such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21. 
Articles are based on internal EPA reports from the Office of 
Enforcement and Compliance Assurance that Inside EPA obtained through 
Freedom of Information Act requests. (Documents can be downloaded at 
http://www.iwpextra.com); Environmental Protection Agency, Office of 
Enforcement and Compliance Assurance, Enforcement and Compliance 
Evaluation of Region 5, Final Evaluation Report, (Dec. 1998) (finding 
general decreases in state enforcement of environmental programs); 
Environmental Protection Agency, Office of Enforcement and Compliance 
Assurance, Enforcement and Compliance Evaluation of Region 9, Final 
Evaluation Report, 29, 31 (May, 1998) (same); Office of Inspector 
General, Environmental Protection Agency, Superfund, State Deferrals: 
Some Progress, But Concerns For Long-Term Protectiveness Remain, (Sept. 
10, 1998) (finding that EPA administration of policy that allows states 
to clean up hazardous waste sites that would otherwise qualify as 
Superfund sites to result in less than adequate protections for public 
health); and Office of Inspector General, Region 6's Enforcement and 
Compliance Assurance Program (1997) (noting that stronger state 
enforcement is needed to ensure effective deterrent against polluters 
breaking the law).
---------------------------------------------------------------------------
D. Upfront Review Is Needed Because Some States Have Inadequate Clean 
        Up Programs
    It is clear that not all state clean up programs are alike. 
However, some broad themes are evident from the available data. For 
example, initial data on state clean up programs demonstrates that some 
states do an inadequate job of protecting public health, meaningfully 
involving the public in clean up decisions, ensuring that polluters pay 
to clean up contamination, enforcing the law, managing contained sites 
over the long-term, funding their clean up programs, and retaining and 
developing sufficient technical expertise to remediate very 
contaminated sites.
    The following failings highlight the need to ensure that state 
programs meet minimum, commonsense criteria that protect public health 
and environmental quality.
1. Some States heavily Rely On Institutional Controls To Decrease Human 
        Exposure, Rather Than Cleaning Up Contamination
    For example, one of the most controversial issues regarding the 
clean up of contaminated sites is the use of institutional controls to 
decrease human exposure to toxic substances that are left on-site after 
clean up activities are complete. (Institutional controls are legal 
instruments, such as a deed restriction, that restricts the use of land 
as a way of controlling exposure to toxic substances.)
    In 1997, the Association of State and Territorial Solid Waste 
Management Officials (ASTSWMO) conducted a survey of 40 states to 
determine how they used institutional controls when remediating toxic 
waste sites.38 The survey found that 31 states required the 
use of institutional controls, while 8 states allowed them as an option 
in clean ups. Of the 40 states, only 16 states required public 
notification or participation when there is a restriction put on the 
use of the land and only 11 required public notification and 
involvement when the there was restriction placed on the use of 
contaminated groundwater.
---------------------------------------------------------------------------
    \38\ ASTSWMO, Survey of State Institutional Control Mechanisms 
(Dec. 1997).
---------------------------------------------------------------------------
    Importantly, limiting the use of land or groundwater in an area can 
adversely impact a community. For example, cleaning up areas to only 
industrial or commercial standards may decrease the amount of 
residential development in a neighborhood, while vastly increasing the 
amount of industrial development. This could increase pollution, 
depress property values and degrade the residential quality of nearby 
communities. These types of issues affect the entire community; 
therefore, states should reach out and attempt to integrate the public 
into the decision-making process for cleaning up contaminated sites.
    The ASTSWMO study also surveyed states about their enforcement of 
institutional controls.39 Only 9 states provided for fines 
or penalties for a failure to comply with institutional controls. 
Further, many types of institutional controls rely on local government 
for enforcement. However, 20 states noted that local governments 
generally lack adequate funding to enforce institutional 
controls.40 The ASTSWMO survey also found problems with 
enforcing institutional controls, as well as raft of problems that 
inhibit the successful use of these controls.
---------------------------------------------------------------------------
    \39\ Id.
    \40\ Other reports have noted similar problems. Resources for the 
Future, Linking Land Use and Superfund Cleanups (1997) (The report 
noted that an ICMA focus group had indicated ``many state and local 
officials do not fully appreciate the long-term demands--including 
oversight and enforcement--that institutional controls may place upon 
local governments.''); and Robert Hersh, et. al., Linking Land Use and 
Superfund Cleanups, Uncharted Territory, at 91 (1997) (citing 
International City/Council Management Association, ICMA Draft 
Preliminary Summary of Findings of Institutional Controls Study 
(Washington, D.C., Nov. 1996) (the survey ``suggested that fewer than 
10% of the local government respondents have experience implementing 
and enforcing institutional controls at former hazardous waste 
sites.'') (emphasis added).
---------------------------------------------------------------------------
    Another study, by the Environmental Law Institute, examined the 
effectiveness of institutional controls at Superfund 
sites.41 This study found problems with enforcement at a 
local level, even at these highly contaminated sites. One problem noted 
was the failure to implement some institutional controls, as required 
in clean up plans. Other failures included the lack of a public 
education program regarding the dangers of waste left on-site and the 
failure to pass local regulations restricting the use of contaminated 
sites. The study also documents instances of possible human exposure to 
contaminated waste as a result of noncompliance with institutional 
controls.
---------------------------------------------------------------------------
    \41\ Environmental Law Institute, Protecting Health at Superfund 
Sites: Con Institutional Controls Meet the Challenge? (1999).
---------------------------------------------------------------------------
    Importantly, a report published by Northeast-Midwest Institute in 
2000 found that states are encouraging residential development on 
brownfields.42 For example, California reported that 5,200 
new housing units had been built on brownfields, and Colorado reported 
the construction of 2,855 such units. The report goes on to site 
numerous incentives that states have implemented to encourage 
residential development on brownfields. Particularly at residential 
sites, of developers use institutional controls, it is vital that the 
controls are effective.
---------------------------------------------------------------------------
    \42\ Northeast-Midwest Institute (on behalf of the National 
Association of Homebuilders), Brownfields and Housing: How are State 
VCPs Encouraging Residential Development?, (May 2000).
---------------------------------------------------------------------------
    However, even if a site is initially cleaned up and developed for 
commercial or industrial development, it is still vital that 
authorities monitor for any changing land use and the adequacy of 
protections over the long term. Land use is a dynamic process of 
economic and social growth, not static endpoint. Commercial 
developments can hold day care centers and industrial areas can be 
transformed into housing developments. Therefore, it is essential that 
authorities monitor the adequacy and enforce the requirements of 
institutional controls.
2. The Effectiveness of States Clean Up Programs Vary
    A wealth of data indicates a variety of problems with states' clean 
up programs.
a. Ohio
    Public notice and involvement in cleanup decisions is critical for 
ensuring the long-term protection of public health, particularly when 
contamination is left on-site. When the public is informed about the 
risks of a site and understands the tools used to decrease those risks, 
they are uniquely situated to help enforce those controls, whether by 
telling children not to play in certain areas or by informing new 
residents or businesses not to undertake certain actions.43
---------------------------------------------------------------------------
    \43\ Robert Hersh, et. al., Linking Land Use and Superfund 
Cleanups, Uncharted Territory (1997).
---------------------------------------------------------------------------
    However, a study by the Northeast-Midwest Institute on Ohio's 
Voluntary Action Program (VAP) found that the public might not be 
notified of a clean up plan until after a cleanup occurs and the state 
has issued a covenant not to sue.44
---------------------------------------------------------------------------
    \44\ Northeast-Midwest Institute (on behalf of the National 
Association of Homebuilders), Brownfields and Housing: How are State 
VCPs Encouraging Residential Development?, 5 (May 2000).
---------------------------------------------------------------------------
    A coalition of groups recently reviewed Ohio's VAP.45 
Their findings are rather disturbing. Under Ohio's VAP, if the Ohio EPA 
agrees that a site meets the standards set forth in the VAP, Ohio EPA 
will issue a Covenant Not to Sue, which releases the owner from state 
civil liability. By releasing developers from liability, the state 
largely forecloses its primary tool to ensure that landowners or 
developers pay to clean up dangerous contamination left on-site. This 
means that taxpayers may bear the costs of any future clean ups.
---------------------------------------------------------------------------
    \45\ Greene Environmental Coalition, The State of Ohio's Voluntary 
Action Program: Findings and Recommendations (Jan. 2001).
---------------------------------------------------------------------------
    The report lists a number of other disturbing findings regarding 
Ohio's VAP. For example, Ohio provided financial incentives for some 
sites to participate in the VAP, but the sites were never cleaned. 
Additionally, the report notes that the VAP process did not address 
offsite contamination concerns, as required by Ohio statutes, and that 
``[s]ome sites were located on or near critical resource aquifers, 
wells, and/or municipal water supplies. On- and offsite [contamination] 
threatened these critical resources, [and] potentially [threatened] 
human health.'' 46
---------------------------------------------------------------------------
    \46\ Id. at 7.
---------------------------------------------------------------------------
    The VAP program also strongly relies on institutional or 
engineering controls as a form of clean up, rather than requiring 
contamination to be remediated or removed. For example, deed 
restrictions on land use or groundwater use, the most common form of 
institutional control employed, were applied at 49.5 percent of the 111 
surveyed sites. Additionally, Ohio's program has an Urban Setting 
Designation that allows developers to avoid cleaning up contaminated 
groundwater. Thus far, the Ohio Program has issued 57 ``Covenants Not 
to Sue'' at VAP sites; of these sites, 17,526 acres of groundwater have 
been defined as Urban Setting Designators, while another 525 acres of 
groundwater and 828 acres of land have also been restricted through 
institutional controls.
    Other problems continue to crop up with Ohio's clean up program. 
For example, The Columbia Dispatch recently reported that that only 10 
sites within Ohio have been completely cleaned up since the program 
began over a decade ago.47 Additionally, owners of 
contaminated property recently won a suit that bars Ohio EPA from 
publicly listing contaminated sites.48
---------------------------------------------------------------------------
    \47\ Columbus Dispatch, Ohio cleanup program shows only 10 
successes since 1989 (Feb. 25, 2001).
    \48\ Michael Hawthorne, Brownfields widespread, Confidential Ohio 
industrial pollution list shows, Columbus Dispatch (Feb. 25 2001) 
(discussing fact that Ohio EPA is not allowed to maintain a pub
---------------------------------------------------------------------------
    Currently, citizens across Ohio are urging their state government 
to improve their program by meeting EPA's standards that would allow 
for a Memoranda of Agreement. Thus far, the state has failed to make 
the required program improvements.
b. New York
    Problems have also been found with New York's state clean up 
program. In February 2001, the New York comptroller published an audit 
of the state clean up program.49 The audit found that since 
1979, 167 sites have been taken off of the state contaminated site 
list. Of those sites, only two met the goal of being as clean as they 
were before being polluted. Of the 221 treated sites that were still on 
the list, 30 did not meet the state's minimum standards for protecting 
public health. At five other sites, state workers had failed to meet 
their own cleanup goals. At 141 other sites, the comptroller found that 
state records did not demonstrate whether the state's cleanup goals 
were met. The audit also noted that gaps in the system could have left 
the public unaware of the continuing dangers or the restrictions on 
some sites. Finally, the state administration has recently projected 
that the state clean up fund will be exhausted by March, with a 
projected deficit of about $50 million.
---------------------------------------------------------------------------
    \49\ H. Carl McCall, New York State Comptroller, Dept. of 
Environmental Conservation, Selected Operating Practices Related to the 
Remediation of Inactive hazardous Waste Disposal Sites (99-S-33) (Feb. 
2001) (discussing audit); New York Times, McCall Faults Pataki's Record 
on Cleanup of Toxic Waste (Feb. 9 2001); and Times Union, Superfund 
Cleanup Record Hit In Audit (Feb. 9 2001) (discussing audit).
---------------------------------------------------------------------------
c. California
    In 1999, the California legislature failed to reauthorize the 
state's Superfund cleanup law.50 On November 19, 1998, a 
state agency had to adopt emergency cleanup regulations, which were 
effective for only 120 days.
---------------------------------------------------------------------------
    \50\ Legislative Analyst's Office, State Superfund Reauthorization 
Expediting Hazardous Substance Site Cleanup, http://www.lao.ca.gov/
011199__superfund__reprint.html, 1 (January 11, 1999) (noting sunset of 
law on January 1, 1999).
---------------------------------------------------------------------------
    In 1998, the Los Angeles Daily News reported that at least nine Los 
Angeles schools were built on sites that school district officials knew 
might be contaminated.51 These findings came from a study 
prepared by California's Joint Legislative Audit Committee.
---------------------------------------------------------------------------
    \51\ David Baker, Nine Schools on Possibly Toxic Ground, Los 
Angeles Daily News, http://democrats.assembly.ca.gov/members/
a43art98.htm (Aug. 28, 1998).
---------------------------------------------------------------------------
d. Pennsylvania
    The Philadelphia Inquirer reported that ``many states [including 
Pennsylvania], under the banner of so-called brownfields, have 
dramatically loosened cleanup regulations and standards in recent years 
to spur the development, or sales, of contaminated lands.'' 
52 The story quotes Rick Gimello, assistant commissioner at 
New Jersey's Department of Environmental Protection as stating, ``I 
don't think any state is as busy as we are . . . Our pace [of putting 
properties through the program] is off the charts.''
---------------------------------------------------------------------------
    \52\ Bob Fernandez, Rules let contaminants be covered, not cleaned, 
zThe Philadelphia Inquirer (April 13, 1999).
---------------------------------------------------------------------------
e. Washington
    On April 16, 1999, the Seattle Post-Intelligencer reported that the 
state fund which pays for the cleanup of toxic spills and environmental 
contamination is facing a $5.9 million shortfall, about a seventh of 
the program's annual budget.53 The story noted that cleanup 
work could be halted or delayed at a minimum of 12 highly contaminated, 
high-priority sites. The shortfall could also severely limit monitoring 
and testing operations. The paper referenced Jim Pendowski, manager of 
the state toxic cleanup program, as stating that the ``shortfall would 
compromise the department's ability to detect emerging toxic problems 
in the environment and deal with existing ones.''
---------------------------------------------------------------------------
    \53\ Heath Foster, $5.9 million shortfall for toxic cleanup, 
Seattle Post-Intelligencer Reporter, http://www.ceattle-pi.com/pi/
local/eco16.shtml (Fri., April 16, 1999).
---------------------------------------------------------------------------
    A series of reports by the same paper present compelling evidence 
that the state's Department of Ecology failed to protect 635 Hispanic 
migrant workers from drinking contaminated groundwater, while providing 
other (mostly Caucasian) people with bottled drinking 
water.54 The migrant workers lived for ``several years at a 
camp with a well that had ethylene dibromide levels 17 times higher 
than federal regulators considered safe.'' The paper quotes agency 
memos from 1988 and 1989 that describe agency debate about whether to 
provide bottled water to workers. The memos also express concern about 
the public reaction if people learned that the agency was providing 
water to white residents, but not Hispanic workers.
---------------------------------------------------------------------------
    \54\ Heath Foster, Migrant workers heard nothing of pesticide 
danger, Seattle Post-Intelligencer Reporter, http://www.seattle-pi.com/
pi/local/migr22.shtml (Mon., March 22, 1999).
---------------------------------------------------------------------------
f. New Jersey
    In a series of stories, the Bergen Record reported that the Mayor 
of Secaucus, New Jersey failed to notify citizens and city council 
members about the migration of contamination from a nearby Superfund 
site, under the homes of nearby residents.55 The paper also 
reported that the Mayor ordered engineers to locate test wells on 
municipal property where there was no requirement to notify the public. 
The Mayor stated that since the waste did not pose a danger to the 
residents, release of the information would have unnecessarily alarmed 
the public. While some city council members agreed with the Mayor's 
decision, the paper reported that homeowners and other city council 
members insisted that they should have been included in the decision 
making process.
---------------------------------------------------------------------------
    \55\ Peter Sampson, Something foul is spreading in the ground, The 
Bergen Record (Fri., May 14, 1999) & Peter Sampson, Council clears air 
on toxic plume, The Bergen Record (Fri., May 21, 1999).
---------------------------------------------------------------------------
E. Problems May Be National In Scope
    These problems do not appear to be relegated to the few state 
programs highlighted above. A 1999 report by the National Conference of 
Mayors surveyed officials in 231 cities across the nation. The survey 
asked the officials to rank their state's voluntary clean up 
program.56 Only 23% of the officials reported that their 
state programs were excellent, while almost one out of every five 
officials reported that their state program was not very good. Perhaps 
more troubling, 34% could not rank their states program, pointing to a 
large gap in knowledge or a lack of any coherent efforts at education, 
oversight, and implementation.
---------------------------------------------------------------------------
    \56\ National Conference of Mayors, Recycling America's Land (Feb. 
2000).
---------------------------------------------------------------------------
F. Inadequate State Clean Up Programs Threaten Vital Public Resources
    Recent EPA reports on the quality of our nation's groundwater 
document the extremely high value of this resource and startling 
statistics on groundwater contamination.57 These reports 
find that groundwater use is of fundamental importance to human life 
and is of significant important to our nation's economic 
vitality.58 Groundwater supplies drinking water to half of 
the nation and virtually all people living in rural areas. Some states 
obtain more than 50% of their total water supply from ground water. 
Groundwater supports billions of dollars worth of food and industrial 
production. It also supplies the majority of streamflow in large areas 
of the nation and provides much of the water in our country's lakes and 
wetlands.59
---------------------------------------------------------------------------
    \57\ Safe Drinking Water Act, Section 1429 Ground Water Report to 
Congress, (1999) (Section 1429 Report); Environmental Protection 
Agency, National Water Quality Inventory, 1998 Report to Congress, 
(2000) (National Inventory).
    \58\ National Inventory, 187.
    \59\ Section 1429 Report, ii, 5-6 and National Inventory, 157-58, 
162-23.
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1. Hazardous Waste Sites Threaten Our Nation's Groundwater Resources
    A variety of agricultural, industrial, commercial, and waste 
disposal practices contaminate our nation's ground water 
supply.60 Some of the most frequently cited major sources of 
potential ground water contamination are landfills, hazardous waste 
sites, impoundments, industrial facilities, and hazardous waste 
generators.61 ``Spills [of industrial contaminants] are a 
source of grave concerns among states.'' 62 Unfortunately, 
because of existing data gaps, inaccurate data submitted by states, and 
a lack of appropriate analytical tools, the problem of groundwater 
contamination may be far worse than currently estimated.63
---------------------------------------------------------------------------
    \60\ Section 1429 Report, ii, 15-16 (emphasis added); National 
Inventory, 161-64.
    \61\ Section 1429 Report, 12 (emphasis added) and National 
Inventory, 164, 166, 168 (emphasis added).
    \62\ National Inventory, 168.
    \63\ National Inventory, 187, 189; Section 1429 Report, iii, 25, 
35-36; and U.S.G.S., Strategic Directions for the U.S. Geological 
Survey Ground-Water Resources Program: A Report To Congress, 4, 11-12 
(1998) (hereinafter U.S.G.S. Strategic Direction).
---------------------------------------------------------------------------
2. More Vigorous Oversight and Enforcement Is Needed To Clean Up 
        Contaminated Ground Water
    A wide variety of public health and environmental concerns 
accompany groundwater contamination from hazardous waste 
sites.64 Only through the expense of millions of dollars to 
clean up contaminated groundwater have ``people [been protected] from 
exposure to ground water contaminants released from sources such as 
hazardous waste sites and leaking underground storage tanks.'' 
65 However, despite these clean up efforts, the reports 
recognize that more federal, state and local coordination is needed to 
prevent future contamination and to clean up contaminated ground water 
resources.66
---------------------------------------------------------------------------
    \64\ National Inventory, 191; Section 1429 Report, 5-6, 19-20, 35.
    \65\ Section 1429 Report, 11.
    \66\ Section 1429 Report, iii, 11, 35-36. National Inventory, 158.
---------------------------------------------------------------------------
G. Conclusion
    Looking at clean up programs along a continuum, upfront federal 
review protects public health by ensuring that state programs meet 
common sense criteria, while the federal safety net protects public 
health at the back end. Since prevention is often less costly, in terms 
of funds expended and lives affects, than remediation, U.S. PIRG 
supports an upfront federal review of state programs prior to giving 
these programs the resources to ramp up their redevelopment activities. 
This position is supported by data that indicates a wide disparity 
between the protections afforded by state programs.
                             iv. conclusion
    In conclusion, we look forward to working with the committee to 
craft good brownfields legislation that both speeds much-needed 
redevelopment of blighted inner city areas, while preserving and 
increasing protections for public health. Of course, legislation that 
weakens protections would certainly engender strong opposition from the 
environmental community. In particular, this includes modification to 
federal safety new.
    Thank you very much for opportunity to testify today. I will be 
happy to answer any questions that you may have.

    Mr. Gillmor. Thank you very much, Mr. Cope.
    We will go to questions. If I might start out with Mr. 
Shinn, we have had a lot of State cleanup officials testify in 
the past that all or the majority of brownfield sites will 
never be placed on the NPL, they are still subject to CERCLA 
liability, even after the site has been cleaned up to State 
standards and that the potential for EPA overfiling for third 
party lawsuits under CERCLA is beginning to cause many owners 
of potential brownfield sites to simply mothball the properties 
and, further, that States ought to be able to release sites 
from liability once a site has been cleaned up.
    A couple of questions. Is it correct that Superfund 
liability does apply even after the site has been cleaned up to 
State standards? And, second, would you agree with the 
statement that States should be able to release sites from 
liability once it has been cleaned up to State standards?
    Mr. Shinn. Well, we have gone at this in several ways. We 
have implemented State programs that the legislature has passed 
in New Jersey. One deals with landfills that allows the 
developer to recoup 50 percent of its investment.
    The other is a brownfield incentive that we work with the 
Department of Treasury, Department of Commerce, Economic 
Development Authority, and our department that will reimburse 
the developer 75 percent of his cleanup costs out of new tax 
revenues. For instance, if you generate sales tax and New 
Jersey State income tax, as that tax is generated, treasury 
will pay back the cleanup cost of that site up to 75 percent.
    I also reiterate what George Meyer said. The predictability 
and liability of this site, private insurance carriers are 
providing environmental liability insurance to cover that 
possibility. So it is becoming more predictability.
    We are putting programs together to fill these different 
gaps in predictability and finality. But a little legislative 
reform at this level would certainly be welcome to help us 
through this process and get to another level of sites that we 
all have in our States.
    Mr. Gillmor. Thank you very much. Mr. Meyer, could you tell 
us how Wisconsin has successfully dealt with the issue of 
finality in the closure of brownfield sites?
    Mr. Meyer. The recent proposal we put into place has been 
insurance. Let us take the situation. Before we issue a 
certificate, in a situation where we have a site that, in fact, 
we have approved the cleanup, the cleanup has been done but the 
final remedy involves natural attenuation, it still doesn't 
meet groundwater standards, but there is a desire to have a 
closure, at that point a certificate issued, what we have done 
is created a master State contract for insurance. And what, in 
fact, this allows someone to do now, a developer, we are not 
going to close out that site because, candidly, it may not 
work. We don't know for sure.
    The State did not want to accept that risk. Obviously the 
future buyer of that property wouldn't want to create the risk. 
So what we have done is through a master State contract 
required but also allowed them the completion to be certified 
by that individual or that developer buying an insurance under 
this program, a one-time fee.
    The insurance contractors have come in, looked at our 
program. There is a great deal of confidence that the sites are 
going to be relatively safe. We have got a good track record.
    So, in fact, there is a very favorable premium. Well, what 
that does, it allows the developer to get a certificate of 
completion for no further liability. And, in fact, the State 
doesn't hold a liability in that situation. I think this may be 
a solution to some of these finality issues.
    Mr. Gillmor. Mr. Meyer, Governor Minner talked about some 
of the problems or chilling effect of not being able to get 
finality. Mr. Cope has testified, essentially doesn't think 
that that is a problem because they seldom come back.
    Your testimony points out that the problem lies not only 
with instances where the EPA actually uses the overfiling 
authority but the problem also to do with the perception or 
fear of Superfund liability and potential involvement. Could 
you describe in greater detail how that chilling effect would 
inhibit redevelopment?
    Mr. Meyer. That is really the case. I think once you are in 
the front line of these issues, you see it every day. I think 
the numbers are probably true in terms of overfiling. What we 
have learned, we have put this brownfield study group together 
which has developers, environmentalists, State and local 
officials, and lenders. And they worked on barriers.
    In fact, if you talked to the developers, some of these 
projects are going to be financially closed or, in fact, they 
may not be able to get the funds. And the perception that there 
may be a reopener, in fact, often does drive the decisions.
    We have cleaned 14,000 sites, but I can tell you there are 
sites, in fact, people have walked away from because, in fact, 
there may not be our protection. We sort of protected that in 
our case by going to an MOA, but it still has a broad opener 
with EPA. It is a perception issue, and we see it every day.
    In our State because we have had this group together, 
including developers, we have constantly refined the law and 
came up with this insurance provision. There still is a 
concern, and it does drive people away, even if there isn't a 
real threat of old filing.
    Dollars will go to different sites and often greenfield 
sites, rather than brownfield sites.
    Mr. Gillmor. Thank you very much. Mr. Pallone?
    Mr. Pallone. Thank you, Mr. Chairman. I have to start out 
by welcoming my DEP commissioner. And I am sure he is thinking 
or at least I was thinking that it is always nice to be in a 
meeting where we are not talking about fish or shore 
protection. We are actually talking about something other than 
that. Usually I only see him on coastal issues.
    Let me start out. I wanted to start out with Mr. Meyer 
before I get to Commissioner Shinn. Mr. Meyer, you commented, 
made reference in the written testimony to S. 350 and 
specifically the finality language that says ``A release may 
present an imminent and substantial endangerment,'' which we 
discussed with Governor Minner and has been a major focus here.
    I have to be honest with you. I know that I was kind of 
amazed that S. 350 was able to get such widespread support 
early in the session. I mean, you have people like Senator 
Smith and Senator Helms on the one side. You have got Senators 
Boxer and Corzine. This is like the liberal conservative gamut 
there in the Senate.
    Of course, Governor, now Administrator, Whitman also 
indicated support for the bill in the Senate. So I was 
surprised that you seemed to be so critical.
    I know you referenced particularly that finality language, 
but there are other statements that you made in the written 
document that seemed to be very critical of S. 350. I mean, let 
me ask right out: Has the Environmental Council of the States 
taken a position in opposition to that bill? Are they against 
it? Are you against it?
    Mr. Meyer. I think the concerns I referenced--and they are 
very similar to the concerns that NGA has referenced--are 
things, in fact, we see on a daily basis; in fact, cause 
difficulties in terms of cleaning up these sites.
    Yes, S. 350 is a step in the right direction, but the 
breadth of that language does cause difficulties. We see on a 
daily basis as commissioners this perception of cleanup.
    Mr. Pallone. So would you say that at this point the ECOS 
is actually opposed to it? Have they taken a position?
    Mr. Meyer. No, we have not taken a formal position against 
that bill. We are here today before the House to try to present 
improvements that can be made to that bill so that it, in fact, 
will better remove barriers. Well, it is still protecting the 
environment. That is our bottom line as commissioners.
    There are better things that could be done that can get 
more of these sites cleaned up faster and more cost efficiently 
back into either residential or commercial use.
    Mr. Pallone. Okay. Thank you. I wanted to ask Mr. Cope, if 
I could,--I guess I am passing over Mr. Shinn again, but I 
think we are going to get back to you--two issues that you seem 
to highlight. One is this idea of the up-front review. And the 
second one is this categorization, if you will, of brownfield 
sites so that those eligible not be those that may I guess be 
eligible for Superfund status at one point. You are concerned 
that maybe they drop out of the Superfund program and maybe 
they should be eligible.
    If you could, this up-front review is not practiced now. In 
other words, there is nothing in what the EPA does now that 
would provide for that up-front review. How are you suggesting 
that it be done? In some kind of legislative vehicle or what?
    Mr. Cope. Yes. It is actually a fairly common practice. You 
can look at the Clean Water Act, the Clean Air Act, or the 
Resource Conservation Recovery Act. It is commonplace for the 
Federal Government to delegate programs to the States, also 
supply funds to run those programs.
    Mr. Pallone. So you just have the example that whatever we 
adopt here legislatively, you would like to have that in there 
in the same way?
    Mr. Cope. Absolutely. It can provide, really, at the front 
end a preventative measure against inadequate State programs. 
What we see is that States are just all over the map in the 
levels of protection that they provide.
    Of course, Representative Brown pointed to Ohio's program. 
We have some real serious concerns in talking with 
environmental organizations that deal on the ground on a day-
to-day basis with that program. There are other States that 
have environmental organizations that also deal with those 
cleanup programs that have very serious concerns. So that up-
front review is critical to ensuring minimum protection. It is 
common sense protections, really.
    And then the critical issue that you brought up with 
respect to the type of sites that are included?
    Mr. Pallone. No. You referenced a categorization of the 
sites. In other words, you seem to be concerned I think that 
there may be some sites that haven't been reviewed for 
Superfund status that shouldn't be eligible for brownfields 
cleanup. I wondered if you had a legislative suggestion there 
in terms of how to make certain sites ineligible for 
brownfields cleanup if that is what I think you are suggesting.
    Mr. Cope. Yes, certainly. Actually, the environmental 
community has put our heads together and come up with language 
just on that issue. I would be happy to share it with your 
staff.
    The essential issue is to make certain that sites with high 
level of contamination are excluded from the definition of 
brownfields. So essentially when EPA or a State agency will go 
onto a site, they will do a preliminary assessment and possibly 
a site investigation after that.
    If that initial step, that initial cut, if you will, at how 
contaminated a site is, shows that it could be an NPL-caliber 
site, it should be excluded from brownfields programs given 
just the diversity and the levels of cleanup standards that 
they have.
    Mr. Pallone. Thank you. Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman from Illinois Mr. Shimkus?
    Mr. Shimkus. Thank you, Mr. Chairman. I will be brief 
because hopefully we can move and get to our votes. And 
hopefully there is agreement on ending this problem.
    I was going to ask other questions, but, Mr. Cope, just 
briefly, one of the three areas you talked about was making 
polluters pay. That is something we address all the time up 
here. Wouldn't it be appropriate to use a causation standard 
where those who actually cause environmental damage would be 
responsible for the cleanup?
    Mr. Cope. The problem with the causation standard is that 
when you have, say, one industrial site next to a manufacturing 
site, next to another site and, say, that they are all three 
contaminating groundwater, you get into a toxic soup situation 
whereby somebody can say, ``Well, it is not me. The other guy 
caused it'' and then the other guy can say, ``Well, it is not 
me. The other guy caused it'' and then you get everybody 
pointing fingers.
    Mr. Shimkus. Didn't that happen already?
    Mr. Cope. Well, what you have, strict joint settlement 
retroactive liability as in the Superfund program, which I 
believe you are referring to right now, is the EPA steps in and 
says: Okay. Let us take a look at your past actions. What types 
of contaminants have you been handling on the site?; matches 
those with the contaminants in the ground and says: Okay. We 
can see a release. We can see contamination on the ground. You 
have been here for 20 years. The contamination has been here 
for that long. We can tell just through our studies. You are an 
owner of property. Pay.
    Now, what will often happen is that one particular polluter 
will then sue other parties. The EPA doesn't sue them. That one 
polluter will sue other parties and attempt to try to draw them 
into litigation to compensate for their costs.
    Mr. Shimkus. I think the problem is the law. I mean, they 
have the----
    Mr. Cope. Upon their ride, yes.
    Mr. Shimkus. They will ride on the Superfund reform that we 
are going to try to address on the other issue, but I would say 
that we need to focus on brownfield cleanup and on the small 
business liability with making polluters pay, holding them 
accountable and making sure that the non-polluters aren't drawn 
into this legislative trap and, really, the community's, too, 
because they end up paying, too.
    For the sake of time, Mr. Chairman, I yield back my time.
    Mr. Gillmor. The gentleman yields back. The gentleman Mr. 
Ehrlich?
    Mr. Ehrlich. Thank you, Mr. Chairman.
    Commissioner Shinn, in the interest of time, I am just 
going to make this a request, rather than a question. I was 
impressed and fascinated with the innovative rebate, tax rebate 
program, you testified about earlier.
    You said it was a first in the Nation type of initiative? 
Was that your testimony?
    Mr. Shinn. That was our first example. That was the first 
project under the new program.
    Mr. Ehrlich. And it worked and everybody is happy and the 
tax revenues are coming in? Is there any problem with respect 
to quantifying the tax revenues?
    Mr. Shinn. This goes through a fairly elaborate process. As 
you noticed, we have got economic development authority which 
is a loan authority in New Jersey. We have got the Department 
of Treasury, which has a special accounting system to keep 
track. I think there are six taxes that it triggers that are 
generated from this new remediated brownfield. This particular 
site----
    Mr. Ehrlich. Do you mean--I am sorry.
    Mr. Shinn. This particular site has facilities like Home 
Depot, Office Depot. It has a bank. It has got quite a nest of 
businesses on the site. So the reason it is generating the kind 
of revenues it is, it is a fairly well-populated site in 
Edison, New Jersey.
    Mr. Ehrlich. Obviously this had to be negotiated very 
carefully. I suspect there are rules with respect to tax 
revenue and the amount of money that goes----
    Mr. Shinn. You have to generate it before you get paid 
back.
    Mr. Ehrlich. Right.
    Mr. Shinn. Accounting keeps track of what is generated. And 
you pay back out of that accounting. I think it has taken us 
about the better part of a year to pay back the developer 75 
percent of its investments cost, which I think amounted to $1.6 
million in this particular project.
    Mr. Ehrlich. That was an agreed-upon figure?
    Mr. Shinn. That was all agreed upon up front. And any 
changes in that--any new discoveries on the site, as you heard, 
it was a fairly complex site--could easily be qualified as an 
NPL site with all of the contaminants on that site.
    So it seems to me that we are going to clean up more sites 
with some flexibility on how we define sites. I will agree that 
there are some sites that should be NPL sites and not 
brownfields, but there is a huge opportunity in a host of 
different category sites to use a brownfield strategy and 
really gain some progress or clean up inventory.
    What I found particularly interesting in the reimbursement 
program, a State can get more of its list on the table of what 
it wants to do on that site and actually achieve a better 
cleanup because it is investing in part of the cleanup itself.
    So it adds an interesting wrinkle to the possibilities. If 
that was permissive in the statute, it would be beneficial and, 
of course, having EPA be able to contribute to the actual 
cleanup cost would help as well.
    Mr. Ehrlich. It is an exciting idea. Would you send me a 
fact sheet or information? Would you send that to my office? I 
would love to learn more about it.
    Mr. Shinn. Sure, absolutely.
    Mr. Ehrlich. Thank you. I yield back, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Ehrlich. We have probably a 
little less than 5 minutes before the vote closes. But before 
we terminate this hearing, I would like to go to Mr. Pallone 
again.
    Mr. Pallone. Just quickly, Commissioner Shinn, because I 
don't want to think I have left you out here today. You know, 
when the State brownfields program was being considered, there 
was a lot of concern about eliminating the preference for 
permanent cleanup and possibly not having as much public 
participation, which has been so important in New Jersey.
    I just wondered if you could get back to me. You don't have 
to do it now necessarily because I don't know if we have the 
time, but if you could get back to me with some information 
about the percentage of the sites that have deed restrictions 
that are using fences, caps, and covers, as opposed to removal 
of contaminants or permanent treatment of toxicity because that 
remains a concern that a number of the environmentalists in New 
Jersey have brought up. If I could get some statistics on that, 
I would appreciate it.
    Mr. Shinn. Okay. Sure.
    Mr. Gillmor. Very good. We will now excuse this panel, but 
I do want to announce we will leave the record open for any 
other questions or responses. I would like to thank you, 
Commissioner Shinn and Mr. Meyer, Mr. Cope for being here.
    The committee now plans to take a recess until 2:30 p.m., 
at which time we will reconvene to hear the testimony of 
Christine Todd Whitman, the Administrator of the U.S. EPA, and 
members of her advisory team promptly so that we can 
participate at that time. Thank you very much.
    Mr. Shinn. Thank you.
    [Whereupon, at 12:21 p.m., the subcommittee recessed, to 
reconvene at 2:44 p.m. that same day.]
    Mr. Gillmor. The subcommittee will come to order. We have 
been advised that the ranking member is on his way, and we will 
proceed.
    The Chair on behalf of the committee is very pleased to 
welcome the new Administrator of the U.S. Environmental 
Protection Agency, Christine Todd Whitman. Administrator 
Whitman came to her post after almost 8 years serving as 
Governor of New Jersey. During that time, she built a strong 
environmental record on air, water, and land protection. She is 
an advocate of forging smart growth partnerships that bring 
together citizens, government, and business interests working 
for the common good.
    We are very pleased that you could join us today, 
Administrator, because I do know you have a very demanding 
schedule. I would like to start with your statement, and then 
we will get into questions.

    STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR, 
                ENVIRONMENTAL PROTECTION AGENCY

    Ms. Whitman. Certainly. Well, first of all, Mr. Chairman, 
thank you and members of the subcommittee very much for the 
opportunity to appear here today. I want to commend you as 
subcommittee Chair and Representative Pallone as well for 
focusing on what is for us and for this administration a very 
critical issue.
    State brownfields programs have been enormously successful, 
as I know you have heard this morning. We'd like to think that 
the Environmental Protection Agency has been an important 
partner there. I think the way that this hearing has 
highlighted those State programs has been very helpful for 
everyone's understanding, but we believe that actions that 
Congress will take can further expedite brownfield cleanup and 
redevelopment and improve EPA's ability to act as a partner and 
support State and local groups.
    Enacting brownfields legislation this year is an important 
priority for President Bush and this administration, as you may 
well know. It provides the opportunity to remove existing 
barriers to brownfields site cleanup and development. I look 
forward sincerely to working with all of the members of this 
committee to develop bipartisan legislation as soon as possible 
and legislation that is consistent with the President's 
principles and his budget.
    In my confirmation testimony, as you may have noted, I 
emphasized the need for flexibility when working with States 
and local communities. States have developed significant 
expertise in cleanup and development of brownfields properties, 
together with local communities. I know they will and must 
continue to play the primary role there.
    I am pleased that the purpose of this hearing is to examine 
ways in which we can develop smarter partnerships to help 
remove barriers to brownfields cleanup and development.
    Brownfields cleanup is an important urban redevelopment 
tool. It provides an alternative to the development of 
greenfields or open space. The administration believes that 
brownfields legislation is important enough to be considered 
independently of other statutory reform efforts, such as 
Superfund.
    I know many members of this committee are very concerned 
and interested in reforming Superfund. And I am committed to 
work with you and with them. But I would urge that Superfund as 
well as other statutory reform issues not hold up the passage 
of brownfields legislation.
    President Bush is committed to strengthening State and 
local brownfields programs based on several principles, which I 
would like to reiterate for you. Brownfields legislation should 
remove a significant hurdle to brownfields cleanup by providing 
redevelopers with protection from Federal Superfund liability. 
Brownfield legislation should ensure that States have the 
authority and resources to run their own brownfields programs 
while ensuring those cleanups are protective of human health 
and the environment. Brownfields legislation should direct the 
Environmental Protection Agency to work with States to ensure 
that they employ high, yet flexible cleanup standards, and 
allow EPA to step in to enforce those standards when and if 
necessary. Brownfields legislation should streamline and 
expedite the process by which grants are given to States and, 
in turn, to local communities so that they have maximum 
flexibility to use the funds according to their unique needs.
    The Federal Government should focus additional research and 
development efforts on new cleanup technologies and techniques 
to clean up brownfields. And while I recognize the brownfields 
tax incentive is not under the jurisdiction of this committee, 
it should be made permanent. The President has included this 
proposal in his fiscal year 2002 budget.
    The States and the U.S. Environmental Protection Agency 
have been at the forefront of encouraging the cleanup and 
economic redevelopment of brownfields. EPA has awarded more 
than 360 assessment pilots of up to $200,000 each to States, 
tribes, and local governments to help assist them in 
brownfields redevelopment. Grantees report that EPA funding 
supported assessments at over 2,000 properties and helped 
leverage more than $2.8 billion in economic development and 
generated more than 11,000 jobs. EPA's job-training pilots have 
trained more than 560 people and put more than 400 to work. In 
addition, EPA has funded 104 revolving loan fund pilots, 
provided over $80 million in funding for State programs, and 
worked with States to perform targeted brownfield assessments 
at more than 550 properties.
    However, much remains to be done to facilitate rapid, high-
quality assessment, cleanup, and sustainable economic 
development in communities across the nation. With your help, 
this administration will provide the tools that communities 
need to address the problems posed by brownfields properties 
and will encourage redevelopment while fully protecting human 
health and the environment.
    I understand that barriers may exist as a result of the 
uncertainty over Federal liability and enforcement issues. In 
addressing these concerns, there should be limited 
circumstances where EPA would need to take further action if 
the State approves a protective cleanup.
    As I discussed before the Senate Environment and Public 
Works Committee, there should be compelling evidence that a 
cleanup is no longer protecting human health or the environment 
before EPA would step in. In fact, we know of no case in the 
past where EPA has acted on its own to step in at a brownfield 
site.
    Brownfields legislation must strike the correct balance 
between liability certainty sought by parties cleaning up 
brownfields and the need to protect human health and the 
environment. Legislation should also clarify Superfund 
liability for contiguous property owners, prospective 
purchasers, and innocent landowners.
    The administration supports brownfields legislation that 
encourages the identification, assessment, cleanup, and 
redevelopment of a full range of contaminated brownfields 
properties by specifically authorizing a Federal program for 
grants and loans to States, tribes, and local governments.
    In addition, legislation should relieve EPA's current 
brownfields program of unnecessary Superfund regulatory 
procedures for brownfields cleanup revolving loan fund and 
provide for expedited grant funding of cleanup of contaminated 
properties.
    Brownfields legislation that is consistent with the 
President's principles should provide flexible grant funding to 
the States, local communities, and tribes to support their 
brownfields programs in ways that will enhance the already 
impressive achievement of the 47 State programs that address 
brownfields currently.
    According to a study by the Northeast/Midwest Institute, 
more than 16,000 sites have enrolled in State voluntary cleanup 
programs. States with emerging programs would benefit from the 
resources and support that enable them to use creative programs 
in encouraging protective assessment, cleanup, and 
redevelopment of properties. States with established 
brownfields programs, such as Ohio and New Jersey, would 
benefit from support that enhances successful brownfield 
redevelopment work.
    The administration also supports funding for technical 
assistance, training, and technology to encourage the best 
methods and approaches to clean up brownfields. New tools that 
improve the ability to conduct protective cleanups while 
reducing costs can help promote the redevelopment of 
brownfields across the nation.
    Whether States and localities receive Environmental 
Protection Agency grants for assessment and cleanup, Housing 
and Urban Development grants for redevelopment, Economic 
Development Administration grants, Department of Energy 
research support, or whether redevelopment is encouraged by the 
Federal brownfields tax incentive, this administration is 
committed to strengthening State and local brownfields programs 
to address the problem of derelict brownfields properties.
    Thank you for the opportunity to appear before you today 
and to describe the President's support for brownfields 
legislation. I look forward to working with you, as I stated at 
the onset, to ensure swift passage of brownfields legislation.
    Mr. Chairman, I would be happy to take questions.
    [The prepared statement Hon. Christine Todd Whitman 
follows:]
Prepared Statement of Hon. Christine Todd Whitman, Administrator, U.S. 
                    Environmental Protection Agency
    Good morning, Mr. Chairman, and members of the Subcommittee. It is 
my pleasure to appear before you today as Administrator of the 
Environmental Protection Agency on the important subject of 
brownfields. I commend Subcommittee Chairman Gillmor and Representative 
Pallone for holding a hearing on brownfields to highlight State 
brownfields programs and the actions Congress can take to further 
expedite brownfields cleanup and redevelopment and improve EPA's 
ability to support State and local programs.
    Enacting brownfields legislation this year is an important priority 
for President Bush and this Administration and provides the opportunity 
to remove existing barriers to brownfields cleanup and development. I 
look forward to working with all members of this Committee to develop 
bipartisan legislation as soon as possible that is consistent with the 
President's principles and budget.
    In my confirmation testimony I emphasized the need for flexibility 
when working with States and local communities. States have developed 
significant expertise in the cleanup and development of brownfield 
properties, and together with local communities, will continue to have 
the primary role. I am pleased that the purpose of this hearing is to 
examine ways to develop smarter partnerships to help remove barriers to 
brownfield cleanup and development.
    Brownfields cleanup is an important urban redevelopment tool that 
provides an alternative to development of greenfields. The 
Administration believes that brownfields legislation is important 
enough to be considered independently from other statutory reform 
efforts, such as Superfund. I know that some members of this Committee 
are interested in reforming Superfund and I am committed to working 
with them, but I would urge that Superfund, as well as other statutory 
reform issues, not hold up brownfields legislation.
    President Bush is committed to strengthen state and local 
brownfields programs based on the following principles:

 Brownfields legislation should remove a significant hurdle to 
        brownfields cleanup by providing redevelopers with protection 
        from federal Superfund liability;
 Brownfields legislation should ensure that states have the 
        authority and resources to run their own brownfields programs 
        while ensuring those cleanups are protective of human health 
        and the environment;
 Brownfields legislation should direct EPA to work with the 
        States to ensure that they employ high, yet flexible cleanup 
        standards, and allow EPA to step in to enforce those standards 
        when necessary;
 Brownfields legislation should streamline and expedite the 
        process by which grants are given to states, and in turn to 
        local communities, so that they have maximum flexibility to use 
        the funds according to their unique needs;
 The federal government should focus additional research and 
        development efforts on new cleanup technologies and techniques 
        to clean up brownfields; and
 While not under the jurisdiction of this committee, the 
        brownfields tax incentive should be made permanent. The 
        President has included this proposal in his Fiscal Year 2002 
        budget.
    The States and the U.S. Environmental Protection Agency have been 
at the forefront of encouraging the cleanup and economic redevelopment 
of brownfields. EPA has awarded more than 360 assessment pilots of up 
to $200,000 each to states, Tribes, and local governments to assist 
them with brownfields redevelopment. Grantees report that EPA funding 
supported assessments at over 2000 properties and helped leverage more 
than $2.8 billion in economic development and generated more than 
11,000 jobs. EPA's job training pilots have trained more than 560 
people and put more than 400 to work. In addition, EPA has funded 104 
revolving loan fund pilots, provided over $80 million in funding for 
state programs, and worked with states to perform Targeted Brownfields 
Assessments at more than 550 properties.
    However, much remains to be done to facilitate the rapid, high-
quality assessment, cleanup and sustainable economic development in 
communities across the nation. With your help, this Administration will 
provide the tools that communities need to address the problems posed 
by brownfield properties, and will encourage redevelopment while fully 
protecting human health and the environment.
    I understand that barriers may exist as a result of the uncertainty 
over Federal liability and enforcement issues. In addressing these 
concerns, there should be limited circumstances where EPA would need to 
take further action if a State approves a protective cleanup. As I 
discussed before the Senate Environment and Public Works Committee, 
there should be compelling evidence that a cleanup is no longer 
protecting human health and the environment before EPA would step in. 
In fact, we know of no case in the past where EPA has acted on its own 
to step in at a brownfields site.
    Brownfields legislation must strike the correct balance between the 
liability certainty sought by parties cleaning up brownfields and the 
need to protect public health and the environment. Legislation also 
should clarify Superfund liability for contiguous property owners, 
prospective purchasers, and innocent landowners.
    The Administration supports brownfields legislation that encourages 
the identification, assessment, cleanup, and redevelopment of a full 
range of contaminated brownfields properties by specifically 
authorizing a federal program for grants and loans to states, Tribes, 
and local governments. In addition, legislation should relieve EPA's 
current brownfields program of unnecessary Superfund regulatory 
procedures for the Brownfields Cleanup Revolving Loan Fund, and provide 
for expedited grant funding of cleanup of contaminated properties.
    Brownfields legislation that is consistent with the President's 
principles should provide flexible grant funding to the states, local 
communities, and Tribes to support their brownfields programs in ways 
that will enhance the already impressive achievements of the 47 state 
programs that address brownfields currently. According to a study by 
the Northeast/Midwest Institute, more than 16,000 sites have enrolled 
in state voluntary cleanup programs. States with emerging programs 
would benefit from resources and support that enable them to use 
creative approaches in encouraging protective assessment, clean up and 
redevelopment of property. States with established brownfields 
programs, such as Ohio and New Jersey, would benefit from support that 
enhances successful brownfields redevelopment work.
    The Administration also supports funding for technical assistance, 
training, and technology to encourage the best methods and approaches 
to cleaning up brownfields. New tools that improve the ability to 
conduct protective cleanups while reducing cost can help promote the 
redevelopment of brownfields across the Nation.
    Whether states and localities receive Environmental Protection 
Agency grants for assessment and cleanup, Housing and Urban Development 
grants for redevelopment, Economic Development Administration grants, 
Department of Energy research support--or whether redevelopment is 
encouraged by the Federal Brownfields tax incentive--this 
Administration is committed to strengthening State and local 
brownfields programs to address the problem of derelict brownfields 
properties.
    Thank you for the opportunity to appear before you today and to 
describe the President's support for brownfields legislation. I look 
forward to working with you to achieve swift passage of brownfields 
legislation. Mr. Chairman, I will be happy to answer any questions you 
or the committee members may have.

    Mr. Gillmor. Thank you very much, Administrator.
    I understand that this is your first appearance before the 
House. Our committee does have dominant jurisdiction over EPA 
programs. I just want to ensure you that I and I think the 
other members of this committee are looking forward to working 
with you on a new partnership and a smarter partnership for 
environmental protection. We need economic development. We need 
jobs. But I think it is clear that economic development and 
strong environmental protection are not mutually exclusive 
goals.
    I have asked several of our witnesses today about the fact 
that some groups have testified that Federal reforms to boost 
their finality for brownfields cleanups is not needed because 
even though the EPA does have broad authority to reopen 
cleanups, the agency rarely uses it.
    Your testimony points out that this problem lies not only 
with the circumstances where EPA actually uses the overfiling 
authority, but the problem also has to do with the perception 
or the fear of Superfund liability and potential Federal 
involvement. Could you describe how this chilling effect 
inhibits redevelopment?
    Ms. Whitman. There is no question that uncertainty is what 
prevents people from maximizing the opportunity to clean up 
brownfield sites. And the issue to which you are speaking, 
finality, is one that obviously speaks to certainty on the part 
of redevelopers.
    I would just reiterate what I said in the testimony, that 
to our knowledge, having surveyed all of those who participated 
with the EPA in brownfields redevelopment, we have never come 
in to over file at a State-led brownfield site cleanup. Having 
said that, we believe that it is important, however, if there 
are substantive changes to the cleanup, if there becomes a time 
when there is a significant question about whether or not there 
is a threat to human health or the environment, that we allow 
the Environmental Protection Agency to have that ability to 
step in under certain very limited conditions. I would envision 
that it would not occur very often. It hasn't to date.
    Mr. Gillmor. Thank you, Administrator.
    I guess I would ask you if you would commit to a direct 
dialog with this subcommittee and with the Governors and with 
the agencies involved to develop legislation that would respect 
the finality and the certainty of State enforcement actions so 
that the remaining EPA authority would be used only in those 
exceptional circumstances where there is a clear and compelling 
need for EPA actions and where States will not take the 
necessary steps.
    Ms. Whitman. Mr. Chairman, I commit to working with you on 
any type of bipartisan language that can get us brownfields 
legislation. And I recognize that an understanding that there 
is some finality and some certainty as you move forward will be 
an important part of that.
    Mr. Gillmor. One of your former colleagues in the 
Governors' Association, Governor Minner,--actually, I guess she 
came in just as you were leaving--Governor Minner of Delaware, 
testified this morning on behalf of the NGA that Federal law 
ought to be amended to require the EPA to notify a Governor of 
its concerns about an ongoing State cleanup and provide the 
State with a reasonable opportunity to correct the problem 
before it intervenes in a State cleanup action. Would you agree 
with that view?
    Ms. Whitman. Actually, that is our standing policy. That is 
how the EPA approaches things at the moment. And so that is not 
problematic as far as we are concerned, respecting that 
relationship between the States and the Federal Government.
    Mr. Gillmor. Could you touch briefly on what you envision 
as some of the more serious barriers that we are facing in 
terms of encouraging more, better, and faster brownfield 
cleanups?
    Ms. Whitman. Again, I think a lot of it comes down to the 
issue of certainty, liability. That is why I think it is so 
important that legislation includes some liability protection 
for the innocent party that comes in to clean up a brownfield 
site.
    I know you received testimony this morning from 
Commissioner Shinn from New Jersey's Environmental Protection 
Agency. And one of those things that was so important in the 
program that we put forward in New Jersey was the flexibility 
applied and given to the local communities. And that would be 
important in any Federal legislation so that the States and 
local communities have maximum flexibility, some insurance 
liability protection, some liability relief, some insurance 
protection. And we provided a tax reimbursement.
    Again, what we see in brownfields redevelopment is very 
often the up-front costs are enormous with no guarantee that 
there is going to be a whole lot of profit at the other end. 
That is why this administration supports making the tax credit 
a permanent part of the tax code, to provide some incentive and 
some certainty for developers that expend the dollars necessary 
for cleanup.
    We are in the happy position of having seen many of those 
sites in New Jersey become very, very economically successful, 
but you can't guarantee this result and the costs are large. 
The other part of that, of course, is the certainty that once 
you have cleaned up, if you get a notice of no further action, 
you are not going to be subject to late penalties for things 
that suddenly are found on the site.
    Mr. Gillmor. Thank you very much, Governor. I will now 
recognize the distinguished ranking member, Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. It is really nice to 
see Governor Whitman--I guess it is Administrator Whitman, but 
you will always be Governor Whitman to me--here today. I know I 
have congratulated you several times on your new position in 
New Jersey.
    Ms. Whitman. Thank you very much, Congressman.
    Mr. Pallone. I know that the environment has always been a 
major concern the whole time that you were the Governor and 
even before that in other positions. So I think it is certainly 
helpful for New Jersey and for the Nation to have you in that 
position.
    I have to say some of the things that have happened so far 
with regard to the clean air standards and some of the other 
issues is certainly a good beginning for what you are doing at 
the EPA.
    Ms. Whitman. Thank you.
    Mr. Pallone. I know we talked this morning and you heard I 
am sure about some of the other panels in the discussion. I 
guess I wanted to focus on some of the questions that I asked 
the previous panel and come back to you with some of the same 
things.
    There was a Mr. Meyer who was here this morning from the 
Environmental Council for the States. And he basically was 
somewhat critical, actually, of the Senate bill S. 350, which I 
mentioned in my remarks seems to be sort of a remarkable 
compromise because we have people on the ideological in a 
spectrum from Senator Helms all the way to John Corzine to 
Senator Boxer supporting this bill. He was critical of the 
standard that says--I guess this is the finality--that 
preserves EPA's authority where release or threatened release 
may present an imminent and substantial endangerment to public 
health or welfare.
    I know I believe you stated on the Senate side that you 
thought this was a good bill, that you supported the bill. I 
just wanted to ask you if you specifically endorse and support 
that standard within S. 350, which I think is a good standard.
    Ms. Whitman. Well, I had indicated the administration's 
general support of the legislation. But, again, I will state 
this afternoon that we would be willing to work with the 
committee on language necessary to get a bi-partisan 
brownfields bill through.
    Having said that, I think there is a history behind the use 
of that ``finality'' language. It appears in a number of 
Federal statutes. We are not wed to specific language. We just 
want to know that there is some ability for the Environmental 
Protection Agency to step in if a State should request us to do 
so. If you have a migration of pollution onto Federal property 
or from one State into the next, we feel that it is important 
that we have that ability. And whatever language receives the 
bipartisan support necessary to get the bill through, I am sure 
we could work with it. We would be happy to work with you.
    Mr. Pallone. The way I understand, basically you think that 
in general, that is a pretty good standard and that certainly 
there is no evidence that that standard has been abused by the 
EPA with any State voluntary cleanup site?
    Ms. Whitman. Not to our knowledge. And there is 20 years of 
case law behind it. Again, I would just reiterate that the most 
important thing to me is that we get the brownfields 
legislation through and that we do preserve some form of 
Federal safety net. I believe the public does deserve that.
    Mr. Pallone. The other thing that came up,--and I guess I 
asked it of Commissioner Shinn--as you know, in New Jersey when 
the brownfields legislation was passed that you signed, there 
was some concern on the part of the environmentalists about 
whether the permanent cleanup standard was being substituted 
for something less than that.
    That came up again this morning in the context of the 
member from PIRG who was on a previous panel, Mr. Cope. He 
talked about how there are so many different kinds of State 
programs and some of them don't seem to require any kind of 
permanent cleanup and some of them don't seem to have much in 
the way of public participation, which I know has always been 
important in New Jersey.
    And so I guess I wanted to say this is this whole idea of 
up-front review. Do you think that at some point there needs to 
be some sort of up-front review so that, for example, a State 
would not be able to merely place a deed restriction on the 
land or groundwater or just put up a fence around the site, no 
active cleanup, as opposed to some kind of permanent cleanup 
standard.
    At what point would the State standard or the requirement 
be so minimal that perhaps there should be some sort of up-
front review by the Federal Government?
    Ms. Whitman. We are looking at this point at maximum 
flexibility. We have found that most States, in fact, have done 
a very good job in meeting the needs of these sites. We think 
it would be good on the part of any State to seek, in their 
brownfields legislation, maximum public opportunity for input. 
We think it is important that they have the ability to oversee 
and enforce a response action.
    Requiring approval on the part of the State for cleanup 
plans and documentation of when the response is completed is 
important. We also would encourage that any brownfield 
legislation or any State program actually make the effort to 
compile a list of all brownfield sites in the State so that you 
can have some way of knowing what kind of cleanup is going on 
and how many sites have been cleaned up.
    It depends on what final piece of legislation comes 
through, but we have the ability now to work in close 
partnerships with the States. We would certainly want to 
continue that ability.
    We haven't had to overturn any State programs in the past. 
So I am not sure that there is a compelling need at this point 
to assume that that is going to become necessary. But if there 
are reopeners, the Federal safety net provision in any 
legislation would enable us to address a specific issue if it 
became problematic and became a threat to human health or the 
environment.
    Mr. Gillmor. The gentleman's time has expired. The 
gentleman from Oklahoma, Mr. Largent?
    Mr. Largent. Thank you. And we appreciate your attendance 
here at our hearing. We want to welcome you to Washington.
    I have just a couple of questions. The National Governors' 
Association supports the requirement of receiving the 
concurrence of the Governor of the State where a site resides 
prior to placing it on the national priority list. Do you agree 
that this is a sensible approach?
    Ms. Whitman. That has been our practice. That is the 
policy. It is not codified anywhere, but that is the policy 
that the EPA has used to date.
    Mr. Largent. Would you have a problem if it were codified 
in a brownfields bill?
    Ms. Whitman. Since it is what we use as our standard, that 
wouldn't be a problem. I want to ensure that we get bipartisan 
brownfields legislation. I think it is so important.
    Mr. Largent. Let me ask you another question. That is: Do 
you support the proposition of the Governors and State cleanup 
directors that there is no need for increased Federal 
intervention in t he form of up-front EPA approval of State 
cleanup programs?
    Ms. Whitman. Well, as I just was indicating in my response 
to Representative Pallone, I think we have a very good 
relationship now. State programs should have the goals of 
providing for meaningful public participation, providing the 
ability to oversee the response actions, keeping a list of 
brownfields sites in the State so that there is a way of 
ascertaining how the cleanup is going and where it is going, 
and requiring their own approval of cleanup plans and oversight 
of those cleanup plans.
    To date, we have never, to our knowledge, ever had to 
overfile on a brownfield site cleanup of a state. So I am 
reluctant to presume that all of a sudden now we would have to.
    Mr. Largent. Okay. Thank you very much. I yield back my 
time, Mr. Chairman.
    Mr. Gillmor. The gentleman yields back. The gentleman Ms. 
McCarthy?
    Ms. McCarthy. Thank you very much, Mr. Chairman. 
Administrator, we are delighted to hear from you today on this 
important project. I wanted to pursue with you something that 
was touched upon earlier today. Superfund and CERCLA cover 
remediation that is associated with petroleum, lead-based 
paint, and asbestos.
    Many of the potential brownfield sites that were noted as 
potential projects for cleanup in my community and I think 
around the Nation and also for redevelopment involved former 
gas stations in the urban core that closed and are now vacant, 
but they have a strategic location and the potential for future 
commerce.
    I wonder if you would reflect on what modifications, if 
any, should be made to afford brownfields cleanup authority to 
these sites and what criteria or threshold would you suggest 
for modifying Superfund and brownfield law and regulations to 
address contamination involving petroleum, lead-based paint, 
and asbestos?
    Ms. Whitman. Well, I recognize at this point you don't have 
specific language before you on the House side. On the Senate 
side, one of the things that is part and parcel of that 
legislation is flexibility for the Administrator of the 
Environmental Protection Agency on a site-by-site basis to 
review those sites that are outside the traditional definition 
of brownfields. We could extend brownfield grant funding to 
these sites. That is important, and that is good.
    I would be happy to work with you on any kind of language 
we could come up with that would ensure that we have the 
ability to be flexible. What we want to do is be flexible. What 
we want to do is clean up these sites.
    Ms. McCarthy. Yes.
    Ms. Whitman. That is the basic thing here for a whole host 
of reasons, environmental and economic.
    Ms. McCarthy. I appreciate your enthusiasm.
    Another idea that came out this morning was about the State 
of Wisconsin and their brownfields program. They post an 
inventory of their brownfield sites on the World Wide Web so 
that citizens in the State can obtain information about the 
whereabouts of the sites and the cleanup taking place. What do 
you think of posting an inventory of brownfield sites 
nationwide on the World Wide Web so people would be aware of 
this and the opportunities posed as well as improvements going 
on?
    Ms. Whitman. Well, we have done that same thing in New 
Jersey. And we have looked at it very much as an investment 
tool. We have had developers who have developed an expertise in 
reclamation of brownfield sites and they have wanted to find 
the sites. And, rather than having to have the developers try 
to track the sites down themselves, we have been able to show 
them with an overlay and a map in our GIS system so they would 
be able to identify the sites quickly. Again, that kind of 
thing has great promise. I would be happy to work with you 
toward that.
    Ms. McCarthy. Thank you. In your testimony this morning and 
even in your comments, there is talk of protecting the innocent 
party who comes in to clean up, who wants to make this better.
    It is my understanding that in the Brownfields Act in New 
Jersey, the liability protection, that covenant not to sue, is 
extended to a party, not just who is innocent, you know, the 
protected from suit, but also to the party responsible for the 
discharge or creating the problem. Am I correct on New Jersey 
law?
    Ms. Whitman. No. We still believe in polluter pays. And 
polluters pay in New Jersey. One of the things that we did in 
New Jersey, though, was to provide the polluter with protection 
from further liability if the polluter conducted a cleanup that 
resulted in a notice of no further action.
    Ms. McCarthy. Well, I am glad for the clarification because 
I would not want to entertain a Federal notion that those who 
create the problem are not responsible.
    Ms. Whitman. No. We believe they should be responsible.
    Ms. McCarthy. Thank you very much. Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you. The gentleman Mr. Shimkus?
    Mr. Shimkus. Thank you, Mr. Chairman. It is great to have 
you, Administration. Congressional prerogative is when we get 
someone from the administration, even though we are on a 
certain topic, to maybe veer off while we have a chance.
    The whole debate on polluter pays just lends into the 
aspect of the failed Superfund small business liability 
protection we talked before the hearing. Why we are asking for 
codification of some issues is because we weren't successful in 
getting a codification, even on agreed principles with the 
previous administration, even using their language at times to 
write legislation.
    And so I am excited about the aspect and your confirmation 
of polluter pays. We want to make sure that that is enforced in 
these brownfield cleanups, but we also want that to be involved 
as we address the small business liability aspects. Everyone 
agrees it is another issue.
    My position, we don't want to merge. I think we can move 
them separately. I am going to be working with the ranking 
member of this committee to try to roll out a bipartisan bill 
that we can get support from the administration. We think that 
is critical. But for too long, there have been people that have 
not polluted that have paid across this country. I just tell my 
colleagues that their turn is coming when they have a site that 
is on the NPL list and then years and years later, someone is 
going after their mom and pop doughnut shop in their small town 
square of 3,000 people for their whole yearly income, gross 
income, to pay some extorted amount to the EPA to help them out 
or from the government where it would help.
    And so that is my little filibuster. I appreciate getting 
this opportunity. The question that I am going to refer to is 
based upon previous testimony from Mr. Cope also, who was here 
this morning from the U.S. Public Interest Research Group. It 
addresses the polluters pay and the effect that we should have 
ether the causation standard in legislation proposed; in other 
words, our ability to identify the polluters, instead of 
assuming that they were polluters.
    Would you be supportive of some type of language on a 
causation standard?
    Ms. Whitman. Again, I would be very supportive of working 
with you toward achieving the goals that you are setting there 
because obviously those make sense. And we would be happy to 
work on specific language. I hope we could get something that 
would receive that bipartisan support so we could move the 
legislation forward, but we would be happy to work with you.
    Mr. Shimkus. this in trying to address this finality 
debate. The EPA now issues status of comfort letters on a case-
by-case basis to provide what has been said is some letter of 
finality. Do you see the use of these status comfort letters as 
a real issue of providing finality to these sites as far as our 
ability to redevelop them, fear of litigation in the future?
    Ms. Whitman. Were there an appropriate reopener provision, 
that is what they are intended to do. ``An appropriate 
reopener'' means some significant new knowledge has come 
forward that the site is no longer protecting human health or 
the environment. For example, there may be a migration of the 
pollution to a Federal site across State lines or the Governor 
may ask us to come in. These would represent the kind of 
limited circumstances under which we would come back in. As I 
say, we have never had to do that on a brownfield site.
    So it can be assumed that those letters of comfort have, in 
fact, provided just that. The track record is there to indicate 
that, in fact, they have been just what they say they are.
    Mr. Shimkus. And I think the reason why I bring that up,--
and I didn't get a chance to follow up with questions on this 
because of votes and we closed the hearing--it was my 
impression that the folks who testified from New Jersey and 
from Wisconsin were crying for more finality. And the 
implication was the status of these letters were not presenting 
as much finality as would have been hoped.
    With that, Mr. Chairman, I am finished. I thank the 
administrator, and I yield back my time.
    Mr. Gillmor. The gentleman yields back. I recognize the 
gentleman from Texas, Mr. Green, and then go to Mr. Terry. Mr. 
Green?
    Mr. Green. Thank you, Mr. Chairman. Again, I welcome our 
administrator. I am just glad my colleague from Illinois didn't 
ask about ethanol versus MTBE, but I am sure that will be 
something on another hearing.
    My colleague from Missouri mentioned a concern, and 
Commissioner Shinn this morning in his testimony identified 
abandoned service stations as an example of a typical 
brownfield site that a community might have and how to render 
the current brownfields restrictions, it is my understanding 
that with few exceptions, notwithstanding simple petroleum 
contamination, would render sites like the corner gasoline 
station ineligible to be redeveloped under brownfields.
    Since my district is in Texas in a very urban area in 
Houston, where, like New Jersey, the petrochemical industry is 
a very thriving part of our economy, I would be interested in 
your thoughts on how the fact we can deal with petroleum-
contaminated sites are generally ineligible for brownfields 
redevelopment and what we can do to make it maybe better.
    Ms. Whitman. As I indicated, the language in S. 350 on the 
Senate side does provide and allow for a case-by-case review by 
the Administrator to determine whether sites that are not 
within the traditional definition of brownfield can, in fact, 
be addressed.
    We would welcome the ability to be proactive with sites 
that States want to have cleaned up under a brownfield program 
that they have established and would look forward to working 
with you to establish the appropriate language that would get 
the bipartisan support necessary to see the legislation move.
    Mr. Green. Thank you, Mr. Chairman. I look forward to 
working with you to see if we could do that.
    Mr. Gillmor. Thank you, Mr. Green. With the concurrence of 
my colleagues on the majority side, we will recognize Mr. Terry 
out of order. He has to go to another meeting. Mr. Terry?
    Mr. Terry. Thank you, Mr. Chairman. I appreciate your 
flexibility.
    I mentioned in my opening statement several hours ago--you 
are from another side of the city--I am from Omaha, Nebraska. 
And when I served 8 years on the city council, probably the 
most significant, bloodiest, ugliest battle I was ever involved 
in was reclamation of a brownfield that we wanted as city 
property as part of our Back to the River project. An old 
smelting plant was around for over 100 years on a river bank in 
Omaha.
    The issue is that since it was a voluntary cleanup by the 
owner, the State has supplied their plans to the state, 
Nebraska Department of Environmental Quality, approved a 
significant cleanup of removing several feet of dirt, capping. 
So I think it was about a 5 or 6 millon-dollar cleanup of this 
property before they transferred the ownership to the city.
    One of the major issues in this process that the 
environmental groups used and even put it in the basis of their 
lawsuit in which they named me personally for my vote, which I 
will hold that forever, but we won't go there today, was the 
uncertainties, legal uncertainties, not only in the sense that 
you have a subsequent holder that could be liable for whatever 
contamination would be left, but what they kept saying--and 
this was the subject of their lawsuit again--was the letter 
that we had from the EPA saying, ``Looks like a good cleanup to 
us'' was really meaningless because the EPA could come in at 
any time and require different standards.
    And I was on the city council then or the subsequent 
holders. We are really putting all of the taxpayers at risk. So 
we should not do the project.
    So my issue becomes: in order to create some sort of legal 
finality because there was no doubt in my mind. I spent a lot 
of hours and with a lot of experts. And I fundamentally believe 
this was a great cleanup, probably exceeding anything that EPA 
would have demanded. That letter from the EPA and its 
importance was the focal point of the whole battle.
    So what can we do? Where does the EPA stand? And what can 
we do in the legislation in order to provide some finality 
where a city of Omaha or a new investor in a piece of property 
if they wanted to do a commercial project on a brownfield, that 
they could rely. I think the finality, legal finality, and 
certainty is so important here. Otherwise I think everything is 
meaningless because you always have that open-ended ``What 
if?'' And you can testify before us today that it has never 
happened before and we would not do it. But the very fact that 
it is still open-ended really prevents a lot of people from 
taking over a brownfield. So where do you stand on the 
finality? How can we do it? Is it a good idea?
    Ms. Whitman. Well, Congressman, what I have said previously 
and any time we talk about this, is we want to do everything 
that we can to assure that we are providing all the protection 
that people want and need to go ahead and redevelop brownfield 
sites. We provide them with the certainty that they require and 
desire.
    However, we have also said that we do think it is important 
for the public and for all of us to have some form of Federal 
safety net still there, for extraordinary circumstances where 
we would have to come back in. There needs to be some ability 
to do that under very refined and specific circumstances, where 
it is no longer protecting the public health and the 
environment.
    We look forward to the opportunity to work with this 
committee in drafting language that would address the issue 
that you are touching on because it is the key issue. It is a 
very, very important part of what I in my response to the 
chairman indicated is one of those drawbacks to development of 
brownfields sites. They tend to be very expensive. They tend to 
be very complicated to do. And it is the lack of certainty that 
scares away many of the developers.
    However, again, I think it is important that we do have 
some kind of ultimate Federal safety net. I could suggest what 
we did in New Jersey. We did a prospective purchaser provision 
that provided some protection for a prospective purchaser. 
Those kinds of things are good.
    There are a number of State programs that I am sure you 
have heard about today that do provide some certainty in the 
State program. Of course, their problem is you still have the 
question of Federal authority. So that has always been what 
they felt to have been a drawback.
    I can speak as a Governor on that. But there are things 
that you could do that would help ensure that there was reason, 
enough certainty and real reason, with potential for reaping 
the benefits of the investments you put in to start this 
redevelopment.
    And we would be very happy to work with you to find 
legislation that would meet the bipartisan criteria that are 
going to be necessary to get this legislation through. I 
believe we can do that. There is a record out there.
    Mr. Terry. Do you have any proposed language which would 
help create at least a perceived finality?
    Ms. Whitman. We don't have specific language. I have in 
general supported S. 350. But, again, as I indicated to the 
senators on their side, I would be happy to work with them to 
get bipartisan legislation, legislation where everyone can be 
comfortable that we are going as far as we can.
    The only thing that the agency is asking is that we do feel 
it is responsible to have some form of reopener in case there 
is the kind of change that sometimes we have seen, never on a 
brownfield site. And that is the delicate balance that we have 
to make here.
    Mr. Terry. That is a delicate balance because the broader 
the authority to go in, the less certainty that exists.
    Ms. Whitman. Right. I appreciate that.
    Mr. Terry. Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman's time has expired. Now the 
gentleman from New York, Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman. Let me join 
my colleagues in welcoming you to Washington.
    Ms. Whitman. Thank you, sir.
    Mr. Towns. Let me just say, first of all, I agree with your 
testimony, very much so, in terms of the fact that brownfield 
legislation should be independent and we should move that. I 
mean, I agree with that.
    Now, your testimony also provides an impressive description 
of the EPA's brownfields program accomplishments. Will you 
inform the subcommittee of the funding levels for the EPA 
brownfield program for the President's fiscal year 2002 budget?
    Ms. Whitman. Well, as you know, Congressman, we haven't 
done the details yet of the budget which will be submitted in 
April. You have seen the broad numbers. But I can assure you 
there will be more money for brownfields in EPA's budget.
    The overall budget at $7.3 billion is the second largest 
administrative request that has been ever sent with a 
President's budget. There will be increased funding for 
brownfields. I can tell you that. I just can't tell you the 
exact number because we haven't gotten to that yet.
    Mr. Towns. What about for site assessment grants? Would you 
have any idea as to the revolving fund program?
    Ms. Whitman. We are looking at increasing the overall 
spending on brownfields. We have not broken it out yet as to 
which program is going to get which dollars.
    Mr. Towns. All right. Thank you. The balance of the bills I 
sponsored in the last Congress, there were several criteria 
that we wanted State voluntary cleanup programs to meet in 
order to obtain an assurance that EPA would not overfile on 
brownfield cleanups under the State program. I would like to 
know.
    Did you have a chance to sort of look at that to see in 
terms of the areas? If not, I could just very quickly run down 
the list, but I don't want to take too much time, Mr. Chairman. 
I could run down the list very quickly. Should a program 
provide for cleanup that ensures adequate site assessment and 
protect human health and the environment? Should programs 
provide for meaningful opportunities for public participation 
on issues that affect the community? Does this include prior 
notice and opportunities? In other words, will the community 
have a lot of input in the process?
    Ms. Whitman. Well, EPA thinks that it is very important 
that any State program have the goals of providing meaningful 
opportunity for public participation. That is a critical part.
    It should be a critical part of any State program that 
there is an ability to oversee and enforce response action by 
the State, that the State program have the goal of requiring 
approval of the cleanup plans and documentation of completion 
and response actions. That also there be developed and 
maintained a list of the brownfield sites throughout a State we 
think is important. And we touched on perhaps the desirability 
of being able to expand that.
    We think those are important goals and public participation 
is one of the most important of those goals of a State program.
    Mr. Towns. Yes. Okay. Well, let me just say that I look 
forward to working with you. I think that brownfield 
legislation is something that we really should put forward, and 
we should do it right away. I am happy that you support that. 
Thank you very much. I yield back, Mr. Chairman.
    Mr. Gillmor. The gentleman yields back. The gentleman from 
Indiana, Mr. Buyer.
    Mr. Buyer. Welcome, Administrator.
    Ms. Whitman. Thank you.
    Mr. Buyer. Congratulations on your new job.
    Ms. Whitman. Thank you.
    Mr. Buyer. On April 4th of 1997, I drove to Chicago to meet 
with EPA's Region 5 administrator, Valdas Adamkus, who, 
incidentally, now is the new President of the Republic of 
Lithuania. During that meeting, he expressed great concern that 
the Clinton administration had removed decisionmaking authority 
of contaminated Superfund sites away from these regional 
directors and they sent it directly to Washington. Washington 
had removed this decisionmaking authority and was holding it 
here. He could not even give recommendations for priority of 
sites within his own region.
    When I brought this up this morning with Governor Minner, 
who was testifying on behalf of the Governors' Association, I 
noticed her shaking her head. So I asked for her input. She 
shared with me and stated testifying on behalf not only of 
herself but of the Governors' Association, ``Trust us at the 
local level.''
    So I want to ask you, Administrator Whitman, has the new 
administration looked into returning decisionmaking authority 
back to the regional administrators and let them give 
recommendations to you with regard to the priorities of sites 
for which they know? They work closely with these sites and 
know them very well. What are you doing on the inside of your 
administration?
    Ms. Whitman. Well, Congressman, first of all, let me say to 
you that our focus really has been on brownfields and this 
brownfields legislation. We have not spent to date a lot of 
time on Superfund and the administration position on Superfund 
relative to changes in Superfund. As I have indicated, we look 
forward to working with any kind of Superfund reform that the 
committee wants to work on.
    In general, as far as my attitude toward local 
decisionmaking, I am very supportive of it. That is one of the 
reasons why in the testimony I indicated that we should have 
flexibility in brownfields legislation to allow States and 
municipalities to design programs to meet the needs of their 
State and their municipality within obviously some broad 
parameters.
    I anticipate working very closely with the regional offices 
because they do know the problems in their various regions, but 
at this point we have not done any assessment of Superfund 
reform at the agency. We have been focusing on brownfields. But 
I would be happy to do that.
    Mr. Buyer. I take personal interest and am most hopeful 
that when you look at it, you empower the regional directors.
    Ms. Whitman. That is what we have got them there for. We 
pay them a lot of money.
    Mr. Buyer. That is right.
    Ms. Whitman. They have got good staff. They should know 
what they are doing.
    Mr. Buyer. All right. That makes me feel better. I just 
wanted to raise it on your radar screen.
    The other question relates to that which Mr. Cope testified 
earlier. You brought up this issue about the Federal safety 
net. He gave us testimony that States constantly compete with 
neighboring States in attracting business and residential 
development, some States may relax cleanup standards and 
liability systems. He called it a race to the bottom on 
protections. So it sort of beckons that should there be some 
form of Federal minimum standard or when you in this quote give 
flexibility to the States? I am trying to define the nebulus.
    Ms. Whitman. Congressman, you used the phrase that as a 
Governor I dealt with quite extensively on welfare reform. I 
heard time and again it would be a race to the bottom.
    I think our experience has been just the opposite. That is 
not to say, as I have testified before the Senate and here 
today, that I believe there should not be a Federal safety net 
and some ability for the Federal Government to reenter if a 
site is no longer protective of human health or the 
environment.
    There is language that is proposed. There has been language 
proposed in the bills in the last session that I believe set us 
on the right path to allow us to do that.
    But I believe it really would be a mistake to assume that 
States will engage in a race to the bottom. If I may set aside 
my hat as administrator for a moment and speak as a former 
Governor, I will tell you we hear very directly from our 
constituents. And we have a very direct responsibility to those 
constituents. To assume that any Governor would enter into a 
program knowingly or allow any agency or department within 
their government to knowingly embark on a program that was not 
going to meet the stated goals of cleaning the environment and 
protecting the public is a leap that I think is going too far.
    And so while we have ideas with respect to the goals that 
State programs should have--and those are pretty clear--and the 
history would bear this out as far as brownfields is 
concerned--the Federal Government has not had to intercede in 
brownfields. We haven't overfiled on brownfield sites to date 
because the States have been doing a good job of it.
    The important thing here is we are talking about between an 
estimated 450,000 and 600,000 sites across this country. These 
are sites that are currently sitting unused and are polluting. 
If we can encourage people to start to move toward at least 
encapsulating and controlling the pollution that is leeching 
into the environment, we will be doing a good thing. If we can 
return these sites to economically viable sites, we will be 
doing a very good thing. That is going to be the desire of 
Governors, and I don't know that we need to presume ahead that 
we are going to have severe problems.
    Again, I would just remind you that I have said that I do 
believe that some form of reopener is important. Some form of 
Federal safety net is important. But I am reluctant to 
subscribe to the presumption that States are going to do the 
wrong thing if given flexibility. We simply have not seen that 
in what was a very important debate that Congress took very, 
very seriously on welfare reform.
    Mr. Buyer. Thank you for the thoughtful answer to this 
question. Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman's time has expired. The 
gentleman Mr. Luther?
    Mr. Luther. Thank you, Mr. Chairman. Administrator Whitman, 
it is a pleasure to have you here today.
    Ms. Whitman. Thank you.
    Mr. Luther. As I mentioned when I introduced myself before 
the hearing, I represent suburbs around the Minneapolis-St. 
Paul area. Like so many areas, we are experiencing exploding 
growth and all of he problems associated with that.
    Local officials in my district and in the suburban area 
would like flexibility with the use of Federal cleanup dollars. 
In other words, they have instances where, for example, they 
might want to develop a park or open space, rather than an 
office building or another commercial establishment. As you 
know, current law emphasizes commercial uses, rather than 
recreational or open space uses.
    So the question that I would have is: What are your 
thoughts on allowing Federal cleanup dollars to be used for 
open space or recreational purposes?
    Ms. Whitman. Well, Congressman, if you are talking about 
cleaning up a brownfield site to allow for that sort of use, 
that is the kind of thing we have done and we did in New 
Jersey. I was very supportive of that.
    We need to understand that the way we redesigned our 
legislation recognized the potential and future use of that 
property. We put constraints on it depending on the level of 
cleanup, and then use was restricted. But open space, 
particularly urban parks, was very much a part of that effort 
because that, again, is a worthy goal.
    That is where the flexibility comes in to allow States and 
municipalities to meet their particular needs. One size does 
not fit all, and we should not be trying to impose that from 
Washington.
    Mr. Luther. I am pleased to hear that response. As I 
indicated before the meeting, I would be very interested in 
having you tour. As you know, Minnesota has been in the lead in 
this area. I appreciate your willingness to see if you could 
fit that kind of a tour into your reviewing your various 
regions. I will follow it up with correspondence to you.
    Ms. Whitman. Thank you.
    Mr. Luther. I very much appreciate that openness on your 
part. Thank you.
    Ms. Whitman. I would just like to add that, of course, HUD 
now does recognize that. EPA traditionally hasn't because our 
responsibility is the environment and public health. But I look 
forward to working with my colleagues to see what ways we can, 
in fact, encourage brownfields redevelopment, containment of 
pollution, and the ability of municipalities and States to meet 
their specific and particular needs.
    Mr. Luther. Thank you.
    Mr. Gillmor. The gentleman Mr. Walden?
    Mr. Walden. Thank you very much, Mr. Chairman. Governor, 
welcome. It is a delight to have you at the helm of the EPA, 
and I appreciate your testimony today, especially that which 
talks about things like flexibility and clarity and local 
involvement in the decisionmaking process. I think that is 
going to be very important as we work together on brownfields 
legislation. I commend the legislation for that.
    Do you agree that the source of some of that uncertainty 
and lack of finality includes a number of EPA enforcement 
authorities, including those under RCRA, which has very similar 
language to Superfund law?
    Ms. Whitman. I would hope that brownfields legislation 
clarifies all of the applicable law for reopeners and would 
ensure that we did provide the kind of certainty that was 
necessary to get these sites cleaned up. And that is why I look 
forward to working with this committee as you draft the 
language that is going to be your bipartisan effort to get this 
legislation through.
    Mr. Walden. One of the issues is, as you know, out in the 
Northwest right now is the whole combined animal feeding 
operation laws and AFL and CAFL. There we seem to have some 
conflict going on between what the States do and what EPA does.
    I am hearing from a lot of constituents now as the State 
tries to get its rules in order to comply fully with the 
Federal Government that the agency is back in doing 
overflights, back in doing enforcement. And there seems to be 
some real conflict occurring there as trying to determine who 
is doing what right now.
    It is an issue that I think begs the question of the need, 
I believe, to establish some sort of provision in the law for 
the ability for people to consult, to come to an agency and 
seek guidance so that they can conform the law without the fear 
of also getting hammered by the very same agency they seek to 
get guidance from.
    I would just wonder if you might be interested in pursuing 
that avenue in legislation. I know there is a bipartisan group 
of us in the Oregon delegation that is looking at trying to 
come up with something that would allow for that.
    Ms. Whitman. Congressman, I would be happy to work with you 
on that and have the agency work with you on that. I would also 
appreciate hearing from you and your staff on the particulars 
of the situation you are describing because I would like to 
look into that and see if we can't get some certainty.
    Mr. Walden. I appreciate that, and I appreciate the 
openness of your staff.
    The final comment I would make, my colleague Congressman 
Buyer mentioned about turning the authority over to these 
regional directors and really using them. I understand and 
support that concept in general. I hope, too, that we will look 
at making sure those regional directors are not only 
accountable but responsible to the agency and perhaps aren't 
overzealous in their enforcement activity.
    Sometimes it is one thing to go by the book and the letter 
of the rule. It is another to actually solve the problem.
    Ms. Whitman. I would agree with you, Congressman. While I 
would expect that the staff and the Regional Administrators 
would use their local knowledge to help guide the best way to 
solve the problem, policy will be made here in Washington, the 
overriding policy.
    I will tell you from the very beginning that one of the 
messages that I am sending to people, actually, it is a twofold 
message. One is that we want to accomplish things. We want to 
clean the environment. We want to make the environment 
healthier than we find it today. And we should be looking for 
ways to promote that.
    To the extent that we find ourselves in court, we find 
ourselves fining States or localities. We ought to look at 
ourselves to see if we haven't failed. If we can't be more 
creative, we still will always use the stick.
    Mr. Walden. Sure.
    Ms. Whitman. The stick is going to be an important part of 
how we manage the environment. But I would far prefer to see us 
work out collegial ways to solve problems and move cleanups 
forward than have to resort to sanctions.
    Mr. Walden. I think you mentioned the figure between 
450,000 and 600,000 brownfield sites.
    Ms. Whitman. Yes.
    Mr. Walden. There are probably a few out there that some 
owner is hoping nobody ever figures out because they don't 
necessarily want to do anything about it. They are afraid they 
will get fined. But maybe if there were a mechanism where they 
could come forward, we could get the pollution cleaned up.
    Ms. Whitman. We would be happy to work with you on that.
    Mr. Walden. Okay. Thank you, Mr. Chairman. Thank you, 
Governor.
    Mr. Gillmor. Thank you. The gentleman Mr. Doyle?
    Mr. Doyle. Thank you, Mr. Chairman.
    First let me congratulate you on your confirmation as the 
new head of EPA.
    Ms. Whitman. Thank you.
    Mr. Doyle. I know that I am the only thing standing between 
you getting out of here. So I will try not to be too long. I 
hope and I want to echo the comments that my colleague Greg 
Walden just made, too, that one of the top priorities of EPA 
will be to try to improve the manner in which you collect all 
types of data, particularly when it comes to combined sewer 
overflows and sanitary sewer overflows, so that we don't see a 
disparity in the way that different regions enforce the law.
    You know, when you talk about empowering the regions, we 
have seen different regions act very differently on the same 
sets of problems and the same sets of data. Some are quick to 
slap on consent decrees. Others work with local communities.
    I am optimistic that Region 3 will continue its partnership 
with the communities I represent in Pittsburgh and Allegheny 
County. I can tell you, especially on the SSOs and CSOs, it is 
a big problem in Allegheny County. We have half of our 
communities in the county under this order.
    I can tell you the level of confidence in moving forward to 
solutions to these problems would be greatly enhanced if we 
received the same kind of consideration as projects such as 
Rouge River Demonstration Project has in Michigan. So we are 
looking for that type of cooperation.
    And while we like things at the local level, we don't want 
the administrators to become too powerful because sometimes it 
is a double-edged sword.
    Just a couple of questions. We heard George Meyer from the 
Wisconsin Department of Natural Resources talk about the fact 
that they have a comprehensive cleanup program for all types of 
properties and all contaminants. And, as such, he doesn't 
advocate for the need to have a definition of what constitutes 
a brownfield site.
    Now, EPA defines brownfields as abandoned, idled, or under-
used industrial and commercial facilities where expansion or 
redevelopment is complicated by real or perceived environmental 
contamination. Let me ask you: Do you think that the current 
definition is sufficient? Should it be narrowed or broadened to 
leverage the program to its maximum potential? And should 
materials such as petroleum be included under the brownfields 
definition without requiring them to be characterized as 
hazardous material?
    Ms. Whitman. Well, Congressman, as I indicated, I am 
looking for maximum flexibility and will be happy to work with 
you and this committee to determine what is appropriate as far 
as that flexibility in language to ensure that we are 
addressing the public's health and concerns.
    There is some impending legislation to allow the 
Administrator on a case-by-case basis to make a determination 
to include sites that go beyond the traditional definition of 
brownfields.
    So that is an indication of the fact that we are desirous 
of being flexible and would work with you very closely to 
determine the appropriate language that would allow for maximum 
use in cleanup.
    We want to see these sites cleaned up. We would be happy to 
work with whomever will help us with that.
    Mr. Doyle. We heard several of my colleagues talk about the 
underground storage tanks and how there may be as many as 100 
to 200 thousand of these in the approximately 450,000 
brownfield sites nationwide and that many of these sites could 
go undeveloped as a result.
    Let me ask you the question a different way. Do you think 
that the leaking underground storage tank program is sufficient 
to address the petroleum in underground storage tanks?
    Ms. Whitman. We know that we have a huge problem with 
underground storage tanks. It has been addressed differently by 
different States. And some have had good finances and been very 
proactive in dealing with the issue. Others have been less able 
to take those similar steps. As combined sewer overflow it is 
an important area.
    I don't know if there is ever enough money or resources to 
do it all. I am not sure there ever would be. So we need to 
prioritize. We need to move forward and target our dollars 
appropriately. And that would be one part I would presume of 
any State effort at cleanup.
    And as the State targets and puts together its brownfields 
program, I would not be at all surprised if given sufficient 
flexibility that they wouldn't look for some help in the area 
of underground storage tanks as well because. I know it is an 
enormously expensive and complicated problem in New Jersey and 
other States .
    Mr. Doyle. Thank you very much. I look forward to working 
with you. Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Doyle. Are there any further 
members wishing to comment? I know Mr. Shimkus wishes to be 
recognized for a brief comment or question.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Just because I was challenged by my colleague from Texas, I 
would be remiss if I didn't put in my plug for ethanol. The New 
York Times had that editorial over a week ago calling us the 
children of corn. I am a child of corn. So my lobbying would be 
keep the Clean Air Act and deny the California waiver.
    If there are moves to do otherwise, I would think it would 
be advisory to work very closely with members of the House, 
especially this committee. I know on the Senate side with 
Senator Grassley, there may be things we can do, but we need to 
tread very, very carefully. And we would like your help as we 
move forward for clean air and clean water.
    Ms. Whitman. We look forward to working with you on that.
    Mr. Shimkus. Thank you.
    Mr. Gillmor. Thank you, Mr. Shimkus.
    If I could recognize myself for just one very brief comment 
and very brief question? I mean, it does appear that the really 
tough nut to crack on this issue when we get into it is going 
to be how we define finality, how we define those very extreme 
circumstances where EPA is going to have to reopen. In that 
respect, would you contemplate that reopening would require the 
discovery of something totally new and unknown from the time 
that the comfort letter is given or can we go back with 
something that was already known?
    Ms. Whitman. If the legislation sets up the appropriate 
standards for a State plan to move forward that would require 
careful review of the site and would require keeping the 
appropriate records, we don't think that the reopener would 
need to be employed, that the likelihood of it being employed 
would be very great.
    Having said that, it only makes sense to have the ability 
for the Environmental Protection Agency to come in if a State 
were to request it, if, in fact, it were found that the site 
was posing a threat and/or was no longer protective of the 
public health and the environment, if there had been a movement 
of contaminant across States lines or into Federal property. 
Those would be the circumstances under which at the present 
time we are considering reopeners.
    As I said before, I look forward to working with you on it. 
You are right in having identified that as probably being the 
crux and one of the more difficult issues in crafting language. 
It is going to take all of your skill as legislators to do that 
in a bipartisan way that will allow us to move forward, but I 
think we can reach that and would be happy to work with you.
    Mr. Gillmor. I think we know what we agree on. Now we have 
got to figure out a way to put it in words. That is going to be 
real tough.
    Well, Administrator, I want to take this opportunity to 
thank you for your testimony and thank you for your time that 
you have very generously spent with us. I would ask unanimous 
consent to keep the record open for 10 days for members to 
insert statements, questions, and additional material for the 
record. Without objection, it is so ordered. And the committee 
stands adjourned.
    [Whereupon, at 3:51 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]
       Prepared Statement of The American Water Works Association
                              introduction
    The American Water Works Association (AWWA) appreciates the 
opportunity to present its views on removing barriers to brownfields 
cleanups. AWWA is the world's largest and oldest scientific and 
educational association representing drinking water supply 
professionals. The Association's 55,000 plus members are comprised of 
administrators, utility operators, professional engineers, contractors, 
manufacturers, scientists, professors and health professionals. The 
Association's membership includes over 4,000 utilities that provide 
over 80 percent of the nation's drinking water. Since our founding in 
1881, AWWA and its members have been dedicated to providing safe 
drinking water.
    AWWA commends Chairman Gillmor and the members of the subcommittee 
for their leadership in moving the legislative process forward by 
holding hearings on improving the brownfields cleanup and reuse 
program. AWWA supports reforming the brownfields program to make it 
more efficient and productive. However, AWWA members are concerned 
about the liability exposure of utilities that must work at a 
brownfield site. AWWA respectfully recommends that the brownfields 
program should be improved by providing the same exemption from 
liability for utilities that work at a brownfield site as is provided 
to a response action contractor in Section 119(a) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) of 
1980 (42 U.S.C. 9619).
                  brownfields redevelopment liability
    The brownfields initiatives raise liability issues for public water 
suppliers as well as for others who work in a brownfield site. Both 
administrative and legislative efforts have been initiated to address 
the need to reuse properties that have been contaminated in the past 
and are now potential sites for productive use. Broadly, these efforts 
include provisions to fund the revitalization of brownfield sites, 
efforts to protect innocent landowners and prospective purchasers of 
brownfield sites from liability related to their use of the land, and 
reliance on state clean up programs to manage existing contamination 
which could include leaving contaminated ground water or other 
contaminants in place under the brownfield site.
    Certainly, the concept of returning property to productive use 
should be facilitated and barriers need to be removed. However, AWWA is 
concerned that previous initiatives to improve the brownfields program 
did not directly addresses potential liability for public water 
suppliers and others who work at a brownfield site. For many of these 
brownfield sites, the expansion, redevelopment or reuse will require 
new or modified utilities--water, sewerage, electric, gas, 
communications cables, etc. These underground utility connections will 
require deep disturbance of the ground under a brownfield site and 
construction of utility trenches to connect the site to the offsite 
utility grid. It is possible that these trenches could create a route 
for hazardous substances remaining on the site to move off the 
brownfield site. Given the broad scope of liability and the many novel 
ways in which liability has been interpreted, there is a risk that 
actions taken to provide essential utilities to a brownfield site will 
result in a liability claim against the utility. This would be an 
unintended and inappropriate consequence and could further limit the 
reuse of many properties. Contractors may be reluctant to work at a 
brownfield site because of the liability exposure. Congress needs to 
clearly protect the essential services provided by utilities and others 
working at a brownfield site from this liability threat.
    The situation of public water suppliers and others working at a 
brownfield site is analogous to the response action contractors working 
at a Superfund site. If contractors were reluctant to work at Superfund 
sites, the sites would not get cleaned up. Congress recognized the 
liability exposure and threat of litigation facing such contractors and 
provided them with liability protection in the CERCLA statute. The same 
rationale by which Congress provided response action contractors with 
liability protection applies to providing liability protection for 
utilities that work at a brownfield site. AWWA respectfully recommends 
that brownfields legislation considered by this subcommittee provide 
the existing response action contractor liability protection in CERCLA 
to utilities that work at a brownfield site. We believe that this will 
greatly enhance brownfields legislation by removing a potential barrier 
to returning brownfields to productive use.
                               conclusion
    AWWA thanks you for the opportunity to present comments on removing 
barriers to brownfields cleanup. We hope that our comments will be 
helpful to the subcommittee in its deliberations.
    This concludes the AWWA statement for A Smarter Partnership: 
Removing Barriers to Brownfields Cleanups hearing.
                                 ______
                                 
Chamber of Commerce of the United States of America
                                           Washington, D.C.
                                                     March 16, 2001
The Honorable Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
United States House of Representatives
Washington, D.C. 20515
    Dear Chairman Gillmor: Thank you and the members of the 
Subcommittee on Environment and Hazardous Material for your leadership 
on developing Brownfields legislation and for setting the debate in 
Congress on this issue. Although the U.S. Chamber did not participate 
in the hearing ``Removing Barriers to Brownfields Cleanups'' that the 
subcommittee held on March 7, 2001, please include our attached written 
testimony in the hearing record.
            Sincerely,
                                            R. Bruce Josten
                       Executive Vice President, Government Affairs
Enclosure
   Prepared Statement of R. Bruce Josten, Executive Vice President, 
              Government Affairs, U.S. Chamber of Commerce
    Chairman Gillmor, Ranking Member Pallone, and members of the 
Subcommittee on Environment and Hazardous Materials, I am R. Bruce 
Josten, Executive Vice President of Government Affairs for the U.S. 
Chamber of Commerce (``U.S. Chamber''), the world's largest business 
federation representing more than three million businesses of every 
size, sector, and region.
    We commend you for conducting this important hearing on 
redeveloping abandoned and potentially contaminated former industrial 
and manufacturing properties, commonly referred to as ``Brownfields'' 
sites. Thank you also for the opportunity to submit this testimony for 
the record on ``Brownfields: Lessons from the Field.''
    The U.S Chamber believes legislation is necessary to encourage 
Brownfields redevelopment by reducing the uncertainty regarding the 
cleanup of Brownfields sites, and the separation of Brownfields 
redevelopment from the Comprehensive Environmental, Responsibility, 
Compensation, and Liability Act (``CERCLA'' or ``Superfund'') liability 
structure for sites with little or no contamination.
    In my testimony, I present recommendations that, if adopted, the 
U.S. Chamber believes will greatly accelerate the pace at which 
Brownfields sites are cleaned up and redeveloped for commercial, 
industrial and community uses.
        brownfields redevelopment should be a national priority.
    Among the members of the U.S. Chamber's federation are 3,000 state 
and local chambers. Perhaps no other environmental issue impacts these 
chambers and their respective communities as much as Brownfields 
redevelopment. Various estimates indicate there are as many as 500,000 
Brownfields sites throughout the United States. These sites are blights 
on communities, drain the local tax base, hinder economic growth, and 
often pose environmental risks. The vast majority of Brownfields sites 
remain abandoned, derelict and unattractive to developers--even though 
these sites are usually located in areas with access to a strong 
workforce, and transportation and utility infrastructure--because of 
uncertainty regarding:

The nature and extent of potential contamination;
Potential liability to be imposed on the owners and operators of the 
        site by the retroactive, strict and joint, and several 
        liability provisions of CERCLA; and
The ability of state voluntary cleanup programs to enable Brownfields 
        restorations without undue federal intervention.
  the u.s. chamber is a longstanding advocate of brownfields reforms.
    The U.S. Chamber has worked to bring together state and local 
governments, environmental regulators, local chambers, developers, the 
financial and insurance industries, and major sports organizations, 
such as the U.S. Soccer Foundation, to discuss strategies for 
Brownfields redevelopment. As part of this strategy, the U.S. Chamber:

Hosted the ``Brownfields to American Dream Fields'' conference in 1999 
        to explore methods to redevelop sites into athletic fields;
Hosted the ``Let's Make it Happen'' conference in 2000 that centered on 
        approaches to redevelop Brownfields sites as commercial and 
        community facilities; and
Will convene the ``Brownfields Summit'' on June 18, 2001 to highlight 
        strategies for implementing new Brownfields legislation, should 
        it be enacted, or efforts to promote and support Congressional 
        Brownfields legislation.
   brownfields restoration initiatives are beginning to demonstrate 
                                success.
    Over the past few years, the U.S. Environmental Protection Agency 
(``EPA'') has established a process, through a series of policies 
described in guidance documents, that encourages states to assert 
control over the restoration of Brownfields sites.1 
Currently, 35 states have voluntary cleanup programs designed to 
remediate Brownfields.2 Of the more than 12,273 sites in 
these state programs, 2,691 have been restored and redeveloped. 
Pennsylvania's program has been the most successful, cleaning up 583 of 
the 654 sites--89 percent--in its program.
---------------------------------------------------------------------------
    \1\ See http://www.epa.gov/swerosps/bf/gdc.htm for a list of 
guidance documents. For information on EPA Brownfields efforts, see 
http://www.epa.gov/swerosps/bf/index.html.
    \2\ Of these states, 12 have entered into Memoranda of Agreement 
(``MOA'') with EPA and follow the Agency's guidance. The remainder have 
state-sponsored voluntary cleanup programs that are similar to EPA's 
programs but independent of EPA oversight. The primary difference 
between these two efforts is that cleanups in those states working 
under MOAs receive a release from federal CERCLA liability when a site 
is remediated according to the appropriate plan. These MOAs include 
provisions that allow EPA to reopen the cleanup based on a set of 
conditions. Sites remediated in states with voluntary cleanup programs 
that do not have MOAs with EPA only receive a release from state 
liability and remain subject to CERCLA liability should there be 
subsequent discovery of significant contamination of the site. The 
state voluntary programs, however, have cleaned up 1,530 Brownfields 
sites and 1,161 sites have been cleaned up pursuant to EPA MOA 
programs. The vast majority of final cleanups have occurred in five 
states--Pennsylvania, Illinois, Texas, Washington and California.
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    Although this progress is praiseworthy, at the current pace it will 
take centuries to remediate 500,000 Brownfields sites. To accelerate 
the pace of redevelopment for Brownfields sites, Congress needs to 
build on the progress made by these 35 states and EPA. Redevelopment of 
Brownfields sites will bring jobs, significant economic development, an 
expanded tax base, and a better quality of life to the communities 
where these sites are located.
    congress must recognize the differences among brownfields sites.
    Any Brownfields reform legislation should treat sites according to 
the risk they pose to human health and the environment. Superfund was 
established to respond to the most highly contaminated sites that posed 
imminent and substantial endangerment to human health and the 
environment. However, as currently interpreted, any site that contains 
a detectable level of a hazardous substance--down to a few molecules--
is potentially subject to CERCLA liability. Due to this extremely 
broad, ridiculous interpretation of CERCLA, the number of Brownfields 
sites has grown from a few thousand to approximately 500,000.
    However, the vast majority of Brownfields sites are not 
contaminated at levels that require Superfund National Priority List 
(``NPL'') listing and Superfund liability. Among the 500,000 
Brownfields sites in the United States, there are three categories. 
Each type of site requires a different remediation strategy:

Sites with significant contamination. Sites in this category are high-
        risk sites under EPA or state screening criteria, listed or 
        proposed NPL sites, and sites subject to CERCLA enforcement 
        action should remain under CERCLA jurisdiction. Superfund is 
        the appropriate mechanism for restoring these highly 
        contaminated sites.
Sites not contaminated or sites with insignificant amounts of 
        contaminants. Sites with little or no contamination should be 
        released immediately from the CERCLA liability structure and 
        restored through state voluntary cleanup programs. Using 
        Superfund to clean up these sites is like using a bulldozer to 
        build a sandcastle. The Superfund ``bulldozer'' may work, but 
        for many Brownfields sites, it is not the right tool.
Sites that need additional investigation. Many sites require further 
        testing to determine the quantity and amount of contamination. 
        Sites that have not been characterized but are believed to be 
        contaminated should be studied to determine the nature and 
        extent of contamination and the best course of remediation.
    To this end, the U.S. Chamber provides the following three common 
sense recommendations for Brownfields legislation.
     recommendation 1: support efforts to fully characterize site 
                             contamination.
    Brownfields legislation should provide funding to encourage the 
full, comprehensive characterization of Brownfields sites. Funding, 
which could include grant programs and state revolving loan funds, will 
greatly reduce the uncertainty surrounding the extent of contamination 
at sites, and identify and implement the measures necessary for 
remediation.
    This type of financial support would greatly expedite Brownfields 
redevelopment because the potential number of sites with little or no 
contamination is significant. A report published by the U.S. General 
Accounting Office (``GAO'') in December 2000 stated that of the 1,666 
site assessment that had been completed pursuant to EPA Brownfields 
Restoration Pilot Program funding, 623 sites--approximately 37 
percent--did not require cleanup activities.3 If the GAO 
study is representative of the entire inventory of Brownfields sites, 
this data may indicate that 30--40 percent of the estimated 500,000 
Brownfields sites may require little or no remediation, totaling 
150,000 to 200,000 sites. Of the remaining sites, characterization 
would determine how to best cleanup and redevelop sites, through state 
voluntary cleanup programs, Superfund, or other statutes.
---------------------------------------------------------------------------
    \3\ U.S. General Accounting Office, Report to the Chairman, 
Committee on Commerce, House of Representatives, ``Brownfields: 
Information on the Programs of EPA and Selected States,'' Report Number 
GAO-01-52, (December 2000), at 31.
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           recommendation 2: enact cercla liability reforms.
    Certain site remediation should be managed through Superfund. As 
previously stated, sites that are proven to be significantly 
contaminated should be cleaned up and restored pursuant to CERCLA. 
Working with the states, EPA is the appropriate government body to 
ensure these sites are cleaned up and restored.
    Contamination below NPL listing criteria should be managed by state 
programs. For sites contaminated at levels below NPL listing standards, 
parties redeveloping sites should be able to work with state 
environmental agencies to establish cleanup plans under which the site 
will be remediated. Upon completion of the remediation, the state would 
certify to EPA that the site had been remediated according to the plan 
and appropriate cleanup standards. As long as the retroactive, strict 
and joint, and several liability provisions of CERCLA continue to apply 
to all sites that may contain any hazardous substance, the site owners 
and operators will be reluctant to redevelop these sites.
    To authorize this process, Brownfields reform legislation should 
release from CERCLA liability contiguous property owners, prospective 
purchasers, innocent landowners, and parties that redevelop Brownfields 
sites in accordance with a state approved plan. These provisions would 
remove potential uncertainty that could deter parties from cleaning up 
or purchasing restored Brownfields sites by ensuring that developers 
and purchasers of redeveloped sites will not be held responsible for 
any contamination on the site that occurred in the past.
    This reform would enable cleanups in accordance with other 
traditional federal and state environmental laws and common law 
liability requirements. Although Superfund would not apply in these 
cases, other federal and state statutes that regulate the treatment, 
storage, handling, transport and disposal of hazardous waste would 
ensure that cleanups are conducted in a manner that protects public 
health and the environment. These statutes contain severe sanctions for 
violators, and specify measures for addressing improper disposal, 
corrective action and other activities that endanger human health and 
the environment. Should unknown site contamination be discovered in the 
future, responsibility for cleanup would be assigned to potentially 
responsible parties (``PRPs'') pursuant to the CERCLA liability scheme.
    Release uncontaminated sites. As noted above, there may be 150,000 
to 200,000 sites classified as Brownfields that are not contaminated or 
do not pose a risk to human health and the environment. Provisions of 
legislation should allow developers to file with a state environmental 
permitting agency an audit report establishing the site as ``not 
contaminated.'' Should site characterization clearly demonstrate that 
Brownfields sites are free of environmental degradation, the site would 
be released from CERCLA liability.
    This categorization process will promote the expedited restoration 
and redevelopment of low-risk sites by encouraging state voluntary 
cleanup programs to harness and leverage private sector resources. It 
will also limit federal intervention in state cleanup programs 
concerning sites with minimum contamination and those restored to 
minimum state standards.
        recommendation 3: establish finality for state cleanups.
    Brownfields legislation must limit the role of the federal 
government in non-CERCLA, state voluntary cleanups to instances of 
imminent and substantial endangerment. Other more expansive provisions 
would lead to EPA meddling in state cleanups. Such an expansive ability 
to second-guess the states will discourage state cooperation.
    Under existing cleanup programs, many states have already proven 
reluctant to cooperate with EPA. Although 35 states currently have 
voluntary cleanup programs, only 12 have entered into agreements with 
EPA.4 The 23 remaining states have established independent 
voluntary cleanup programs to escape EPA micro-management of activities 
that states are very capable of performing.
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    \4\ See footnote 2.
---------------------------------------------------------------------------
    Clearly, EPA should not have a blank check to micro-manage state-
led remediation efforts. Without limiting EPA authority over state 
voluntary cleanups, a significant degree of uncertainty will continue 
to deter parties from redeveloping Brownfields sites. Such a degree of 
EPA oversight is unnecessary. As noted, state voluntary cleanup 
programs have already resulted in more than 2,600 restored Brownfields 
sites. Congress needs to build on the progress made by the states--not 
establish new statutory provisions that will undercut state 
responsibility.
    Once again, thank you and the members of the committee for your 
leadership on the Brownfields issue. The U.S. Chamber appreciates your 
consideration of our views on restoring Brownfields sites. These 
efforts are necessary to improve the economic prosperity and 
environmental conditions of communities throughout the nation.
                                 ______
                                 
       Prepared Statement of The American Institute of Architects
                              introduction
    The American Institute of Architects (AIA) is a professional 
society representing approximately 67,000 licensed architects and 
associated professionals located in 305 chapters throughout the United 
States. They are leaders in their community and understand the 
contribution architects make to the economic vitality of America. 
Working together with other elements of the design and construction 
industry, the AIA promotes a better quality of life through good 
design.
              brownfields development opportunities abound
    Architects throughout this nation understand the enormous 
significance of redeveloping former industrial sites--brownfields--into 
mixed uses including parks, shopping areas, learning centers, and 
affordable housing. Brownfield sites appear in every state and nearly 
every community, many in prime locations.
    Architects view brownfields redevelopment legislation as an 
opportunity to redesign and enhance America's communities. A simple act 
like redeveloping a brownfields site has profound effects on the 
community. It increases the local tax base, creates jobs, revitalizes 
neighborhoods, and extends environmental protection for all citizens. 
The benefits of brownfields redevelopment can been seen throughout the 
community for years to come. It is not only an investment in a parcel 
of land, it is an investment in our communities.
    The AIA commends Congressman Paul Gillmor (R-OH), Chair of the 
Environment and Hazardous Materials Subcommittee, and Congressman Billy 
Tauzin (R-LA), Chair of the Committee on Energy and Commerce, for 
holding these hearings on much-needed brownfields reform. This is a 
strong, positive step to providing much-needed relief to thousands of 
communities from coast to coast and the AIA stands ready to support the 
design and passage of brownfields legislation.
    The AIA urges the House to consider brownfields legislation that 
includes long awaited financial and liability remedies. Successful 
legislation would spur the cleanup of troublesome sites by providing 
financial resources and liability relief in a manner that both public 
and private sectors can endorse and wholeheartedly embrace. The 
financial remedies should include a combination of tax incentives and 
direct funding that is flexible and addresses the specific needs of the 
states and localities. Futhermore, liability reform needs to be 
included in the brownfields legislation to assist in the cleanup and 
redevelopment of these industrial sites while protecting parties not 
responsible for the contamination.
    Last week, the AIA endorsed the Brownfields Revitalization and 
Environmental Restoration Amendments Act of 2001 (S. 350), sponsored by 
Sen. Lincoln Chafee (R-RI) and Sen. Bob Smith (R-NH). S. 350 is a good 
legislative model because it would provide the financial and liability 
remedies necessary for successful brownfields redevelopment.
    For example, S. 350 would build on the Environmental Protection 
Agency's (EPA) current brownfields program by providing funding through 
a $150 million grant and loan program for fiscal years 2002-2006. These 
grants and loans are designed to help state and local governments 
identify and cleanup properties that are abandoned. EPA is authorized 
to provide grants to state or local governments and to set up the 
Revolving Loan Fund for remediation grants.
    Successful brownfields legislation must recognize that one size 
does not fit all and, thus, offer community-friendly solutions. It 
should provide flexibility to communities through grants and access to 
loan capitalization funds. These remedies must be designed to address 
both urban and rural communities that are experiencing problems with 
contaminated sites.
    In addition to commitment of federal financial resources, liability 
reform is critical to the success of brownfields redevelopment efforts. 
According to a recent Conference of Mayors (USCM) report, the most 
frequent impediments in redeveloping brownfields sites are liability 
concerns and lack of cleanup funding. Brownfields legislation should 
provide liability protection for landowners--who did not contribute to 
the contamination--whose property may be contaminated by a contiguous 
contaminated site, as well as relief for purchasers of contaminated 
property. These are the types of liability reforms that the private 
sector developers, entrepreneurs and architects view as necessary 
ingredients to recycle the estimated 500,000 brownfields properties in 
our nation.
    It is imperative that brownfields legislation passed in the 107th 
Congress address this issues in the manner that best facilitates the 
needs of the communities.
               realizing the potential: two case studies
    Two successful case studies of brownfields redevelopment where 
architects played a major role can be found in East Palo Alto, 
California, and Atlanta, Georgia. Both case studies demonstrate the 
unique skills architects bring to the brownfields redevelopment debate.
Silcon Valley Gets a New Front Door
    East Palo Alto is a Brownfields Regional Pilot, a federal 
Empowerment Zone, and an Enterprise Community. At the doorstep of the 
Silicon Valley, the town, incorporated for only about 15 years, is a 
prime location. It is still distancing itself from a disreputable past. 
The former downtown area was known as Whiskey Gulch and lived up to the 
moniker, according to those familiar with the area. East Palo Alto also 
had the dubious distinction of being the 1992 murder capital of the 
U.S. Enough was enough for community leaders who have begun to turn the 
tide, with the help of police from adjacent jurisdictions, eager 
developers, and The American Architectural Foundation (AAF).
    With a grant from the AAF, and with assistance from AIA San Mateo 
County and other area leaders, including Lee Lippert, AIA, and D. 
Michael Kastrop, AIA, East Palo Alto is in the process of planning to 
redevelop the 130-acre Ravenswood Industrial Area, an EPA-designated 
Regional Brownsfield Pilot site. Cleanup of the site was initially put 
at $30 million, killing any chance of development. A more thorough 
evaluation put the cleanup cost at $2 to $5 million and set a plan in 
motion. With an AAF grant funding a charrette, East Palo Alto residents 
finally have a chance to bring in such basics as grocery stores, other 
retail shops, and small businesses. Prior to this effort, East Palo 
Alto had virtually no tax base to speak of. Architects have made a 
difference in how this community tackled its brownfields problem.
Restoring Steel Town
    In Atlanta, Thompson, Ventulett, Stainback & Associates, Inc.(TVS), 
has completed the master plan to redevelop the 138-acre former midtown 
site of Atlantic Steel. Combining 3,600 residential units, 6.25 million 
square feet of retail and entertainment space, and 1,000 hotel rooms, 
developers Jacoby Development, Inc., and CRB Realty Associates are 
creating a new in-town community. ``The long-term benefit of the 
redevelopment of this site is not only the amenities, but that the 
project also extends and complements the existing mass transit and 
pedestrian infrastructure,'' said Philip A. Junger, AIA, TVS project 
manager. ``This project is big enough to make a real difference.'' 
There were no public funds for remediating the brownfield, said Thomas 
W. Ventulett, FAIA. Junger added that other than slag residue, a 
construction obstacle because it is expansive, there is minor 
contamination apparent. Architects view this not only as a financial or 
business opportunity but also as a successful community revitalization 
effort.
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