PUBLIC LAW 107–118—JAN. 11, 2002

SMALL BUSINESS LIABILITY RELIEF AND

BROWNFIELDS REVITALIZATION ACT

115 STAT. 2356 PUBLIC LAW 107–118—JAN. 11, 2002

Public Law 107–118

107th Congress

An Act

To provide certain relief for small businesses from liability under the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, and to amend

such Act to promote the cleanup and reuse of brownfields, to provide financial

assistance for brownfields revitalization, to enhance State response programs,

and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Small Business Liability Relief

and Brownfields Revitalization Act’’.

TITLE I—SMALL BUSINESS LIABILITY

PROTECTION

SEC. 101. SHORT TITLE.

This title may be cited as the ‘‘Small Business Liability Protection Act’’.

SEC. 102. SMALL BUSINESS LIABILITY RELIEF.

(a) EXEMPTIONS.—Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9607) is amended by adding at the end the following new

subsections:

‘‘(o) DE MICROMIS EXEMPTION.—

‘‘(1) IN GENERAL.—Except as provided in paragraph (2),

a person shall not be liable, with respect to response costs

at a facility on the National Priorities List, under this Act

if liability is based solely on paragraph (3) or (4) of subsection

(a), and the person, except as provided in paragraph (4) of

this subsection, can demonstrate that—

‘‘(A) the total amount of the material containing hazardous substances that the person arranged for disposal

or treatment of, arranged with a transporter for transport

for disposal or treatment of, or accepted for transport for

disposal or treatment, at the facility was less than 110

gallons of liquid materials or less than 200 pounds of

solid materials (or such greater or lesser amounts as the

Administrator may determine by regulation); and

‘‘(B) all or part of the disposal, treatment, or transport

concerned occurred before April 1, 2001.

‘‘(2) EXCEPTIONS.—Paragraph (1) shall not apply in a case

in which—

42 USC 9601

note.

Small Business

Liability

Protection Act.

42 USC 9601

note.

Small Business

Liability Relief

and Brownfields

Revitalization

Act.

Jan. 11, 2002

[H.R. 2869]

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2357

‘‘(A) the President determines that—

‘‘(i) the materials containing hazardous substances

referred to in paragraph (1) have contributed significantly or could contribute significantly, either individually or in the aggregate, to the cost of the response

action or natural resource restoration with respect to

the facility; or

‘‘(ii) the person has failed to comply with an

information request or administrative subpoena issued

by the President under this Act or has impeded or

is impeding, through action or inaction, the performance of a response action or natural resource restoration with respect to the facility; or

‘‘(B) a person has been convicted of a criminal violation

for the conduct to which the exemption would apply, and

that conviction has not been vitiated on appeal or otherwise.

‘‘(3) NO JUDICIAL REVIEW.—A determination by the President under paragraph (2)(A) shall not be subject to judicial

review.

‘‘(4) NONGOVERNMENTAL THIRD-PARTY CONTRIBUTION

ACTIONS.—In the case of a contribution action, with respect

to response costs at a facility on the National Priorities List,

brought by a party, other than a Federal, State, or local government, under this Act, the burden of proof shall be on the

party bringing the action to demonstrate that the conditions

described in paragraph (1)(A) and (B) of this subsection are

not met.

‘‘(p) MUNICIPAL SOLID WASTE EXEMPTION.—

‘‘(1) IN GENERAL.—Except as provided in paragraph (2)

of this subsection, a person shall not be liable, with respect

to response costs at a facility on the National Priorities List,

under paragraph (3) of subsection (a) for municipal solid waste

disposed of at a facility if the person, except as provided in

paragraph (5) of this subsection, can demonstrate that the

person is—

‘‘(A) an owner, operator, or lessee of residential property from which all of the person’s municipal solid waste

was generated with respect to the facility;

‘‘(B) a business entity (including a parent, subsidiary,

or affiliate of the entity) that, during its 3 taxable years

preceding the date of transmittal of written notification

from the President of its potential liability under this section, employed on average not more than 100 full-time

individuals, or the equivalent thereof, and that is a small

business concern (within the meaning of the Small Business

Act (15 U.S.C. 631 et seq.)) from which was generated

all of the municipal solid waste attributable to the entity

with respect to the facility; or

‘‘(C) an organization described in section 501(c)(3) of

the Internal Revenue Code of 1986 and exempt from tax

under section 501(a) of such Code that, during its taxable

year preceding the date of transmittal of written notification from the President of its potential liability under this

section, employed not more than 100 paid individuals at

the location from which was generated all of the municipal

115 STAT. 2358 PUBLIC LAW 107–118—JAN. 11, 2002

solid waste attributable to the organization with respect

to the facility.

For purposes of this subsection, the term ‘affiliate’ has the

meaning of that term provided in the definition of ‘small business concern’ in regulations promulgated by the Small Business

Administration in accordance with the Small Business Act (15

U.S.C. 631 et seq.).

‘‘(2) EXCEPTION.—Paragraph (1) shall not apply in a case

in which the President determines that—

‘‘(A) the municipal solid waste referred to in paragraph

(1) has contributed significantly or could contribute significantly, either individually or in the aggregate, to the cost

of the response action or natural resource restoration with

respect to the facility;

‘‘(B) the person has failed to comply with an information request or administrative subpoena issued by the

President under this Act; or

‘‘(C) the person has impeded or is impeding, through

action or inaction, the performance of a response action

or natural resource restoration with respect to the facility.

‘‘(3) NO JUDICIAL REVIEW.—A determination by the President under paragraph (2) shall not be subject to judicial review.

‘‘(4) DEFINITION OF MUNICIPAL SOLID WASTE.—

‘‘(A) IN GENERAL.—For purposes of this subsection, the

term ‘municipal solid waste’ means waste material—

‘‘(i) generated by a household (including a single

or multifamily residence); and

‘‘(ii) generated by a commercial, industrial, or

institutional entity, to the extent that the waste

material—

‘‘(I) is essentially the same as waste normally

generated by a household;

‘‘(II) is collected and disposed of with other

municipal solid waste as part of normal municipal

solid waste collection services; and

‘‘(III) contains a relative quantity of hazardous

substances no greater than the relative quantity

of hazardous substances contained in waste material generated by a typical single-family household.

‘‘(B) EXAMPLES.—Examples of municipal solid waste

under subparagraph (A) include food and yard waste,

paper, clothing, appliances, consumer product packaging,

disposable diapers, office supplies, cosmetics, glass and

metal food containers, elementary or secondary school

science laboratory waste, and household hazardous waste.

‘‘(C) EXCLUSIONS.—The term ‘municipal solid waste’

does not include—

‘‘(i) combustion ash generated by resource recovery

facilities or municipal incinerators; or

‘‘(ii) waste material from manufacturing or processing operations (including pollution control operations) that is not essentially the same as waste normally generated by households.

‘‘(5) BURDEN OF PROOF.—In the case of an action, with

respect to response costs at a facility on the National Priorities

List, brought under section 107 or 113 by—

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2359

‘‘(A) a party, other than a Federal, State, or local

government, with respect to municipal solid waste disposed

of on or after April 1, 2001; or

‘‘(B) any party with respect to municipal solid waste

disposed of before April 1, 2001, the burden of proof shall

be on the party bringing the action to demonstrate that

the conditions described in paragraphs (1) and (4) for

exemption for entities and organizations described in paragraph (1)(B) and (C) are not met.

‘‘(6) CERTAIN ACTIONS NOT PERMITTED.—No contribution

action may be brought by a party, other than a Federal, State,

or local government, under this Act with respect to circumstances described in paragraph (1)(A).

‘‘(7) COSTS AND FEES.—A nongovernmental entity that commences, after the date of the enactment of this subsection,

a contribution action under this Act shall be liable to the

defendant for all reasonable costs of defending the action,

including all reasonable attorney’s fees and expert witness fees,

if the defendant is not liable for contribution based on an

exemption under this subsection or subsection (o).’’.

(b) EXPEDITED SETTLEMENT.—Section 122(g) of such Act (42

U.S.C. 9622(g)) is amended by adding at the end the following

new paragraphs:

‘‘(7) REDUCTION IN SETTLEMENT AMOUNT BASED ON LIMITED

ABILITY TO PAY.—

‘‘(A) IN GENERAL.—The condition for settlement under

this paragraph is that the potentially responsible party

is a person who demonstrates to the President an inability

or a limited ability to pay response costs.

‘‘(B) CONSIDERATIONS.—In determining whether or not

a demonstration is made under subparagraph (A) by a

person, the President shall take into consideration the

ability of the person to pay response costs and still maintain

its basic business operations, including consideration of

the overall financial condition of the person and demonstrable constraints on the ability of the person to raise

revenues.

‘‘(C) INFORMATION.—A person requesting settlement

under this paragraph shall promptly provide the President

with all relevant information needed to determine the

ability of the person to pay response costs.

‘‘(D) ALTERNATIVE PAYMENT METHODS.—If the President determines that a person is unable to pay its total

settlement amount at the time of settlement, the President

shall consider such alternative payment methods as may

be necessary or appropriate.

‘‘(8) ADDITIONAL CONDITIONS FOR EXPEDITED SETTLEMENTS.—

‘‘(A) WAIVER OF CLAIMS.—The President shall require,

as a condition for settlement under this subsection, that

a potentially responsible party waive all of the claims

(including a claim for contribution under this Act) that

the party may have against other potentially responsible

parties for response costs incurred with respect to the

facility, unless the President determines that requiring

a waiver would be unjust.

President.

President.

President.

115 STAT. 2360 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(B) FAILURE TO COMPLY.—The President may decline

to offer a settlement to a potentially responsible party

under this subsection if the President determines that the

potentially responsible party has failed to comply with

any request for access or information or an administrative

subpoena issued by the President under this Act or has

impeded or is impeding, through action or inaction, the

performance of a response action with respect to the facility. ‘‘(C) RESPONSIBILITY TO PROVIDE INFORMATION AND

ACCESS.—A potentially responsible party that enters into

a settlement under this subsection shall not be relieved

of the responsibility to provide any information or access

requested in accordance with subsection (e)(3)(B) or section

104(e).

‘‘(9) BASIS OF DETERMINATION.—If the President determines

that a potentially responsible party is not eligible for settlement

under this subsection, the President shall provide the reasons

for the determination in writing to the potentially responsible

party that requested a settlement under this subsection. ‘‘(10) NOTIFICATION.—As soon as practicable after receipt

of sufficient information to make a determination, the President

shall notify any person that the President determines is eligible

under paragraph (1) of the person’s eligibility for an expedited

settlement.

‘‘(11) NO JUDICIAL REVIEW.—A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject

to judicial review.

‘‘(12) NOTICE OF SETTLEMENT.—After a settlement under

this subsection becomes final with respect to a facility, the

President shall promptly notify potentially responsible parties

at the facility that have not resolved their liability to the

United States of the settlement.’’.

SEC. 103. EFFECT ON CONCLUDED ACTIONS.

The amendments made by this title shall not apply to or

in any way affect any settlement lodged in, or judgment issued

by, a United States District Court, or any administrative settlement

or order entered into or issued by the United States or any State,

before the date of the enactment of this Act.

TITLE II—BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION

SEC. 201. SHORT TITLE.

This title may be cited as the ‘‘Brownfields Revitalization and

Environmental Restoration Act of 2001’’.

Subtitle A—Brownfields Revitalization

Funding

SEC. 211. BROWNFIELDS REVITALIZATION FUNDING.

(a) DEFINITION OF BROWNFIELD SITE.—Section 101 of the Comprehensive Environmental Response, Compensation, and Liability

42 USC 9601

note.

Brownfields

Revitalization

and

Environmental

Restoration Act

of 2001.

42 USC 9607

note.

President.

President.

President.

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2361

Act of 1980 (42 U.S.C. 9601) is amended by adding at the end

the following:

‘‘(39) BROWNFIELD SITE.—

‘‘(A) IN GENERAL.—The term ‘brownfield site’ means

real property, the expansion, redevelopment, or reuse of

which may be complicated by the presence or potential

presence of a hazardous substance, pollutant, or contaminant.

‘‘(B) EXCLUSIONS.—The term ‘brownfield site’ does not

include—

‘‘(i) a facility that is the subject of a planned or

ongoing removal action under this title;

‘‘(ii) a facility that is listed on the National Priorities List or is proposed for listing;

‘‘(iii) a facility that is the subject of a unilateral

administrative order, a court order, an administrative

order on consent or judicial consent decree that has

been issued to or entered into by the parties under

this Act;

‘‘(iv) a facility that is the subject of a unilateral

administrative order, a court order, an administrative

order on consent or judicial consent decree that has

been issued to or entered into by the parties, or a

facility to which a permit has been issued by the United

States or an authorized State under the Solid Waste

Disposal Act (42 U.S.C. 6901 et seq.), the Federal

Water Pollution Control Act (33 U.S.C. 1321), the Toxic

Substances Control Act (15 U.S.C. 2601 et seq.), or

the Safe Drinking Water Act (42 U.S.C. 300f et seq.);

‘‘(v) a facility that—

‘‘(I) is subject to corrective action under section

3004(u) or 3008(h) of the Solid Waste Disposal

Act (42 U.S.C. 6924(u), 6928(h)); and

‘‘(II) to which a corrective action permit or

order has been issued or modified to require the

implementation of corrective measures;

‘‘(vi) a land disposal unit with respect to which—

‘‘(I) a closure notification under subtitle C of

the Solid Waste Disposal Act (42 U.S.C. 6921 et

seq.) has been submitted; and

‘‘(II) closure requirements have been specified

in a closure plan or permit;

‘‘(vii) a facility that is subject to the jurisdiction,

custody, or control of a department, agency, or

instrumentality of the United States, except for land

held in trust by the United States for an Indian tribe;

‘‘(viii) a portion of a facility—

‘‘(I) at which there has been a release of polychlorinated biphenyls; and

‘‘(II) that is subject to remediation under the

Toxic Substances Control Act (15 U.S.C. 2601 et

seq.); or

‘‘(ix) a portion of a facility, for which portion, assistance for response activity has been obtained under

subtitle I of the Solid Waste Disposal Act (42 U.S.C.

6991 et seq.) from the Leaking Underground Storage

115 STAT. 2362 PUBLIC LAW 107–118—JAN. 11, 2002

Tank Trust Fund established under section 9508 of

the Internal Revenue Code of 1986.

‘‘(C) SITE-BY-SITE DETERMINATIONS.—Notwithstanding

subparagraph (B) and on a site-by-site basis, the President

may authorize financial assistance under section 104(k)

to an eligible entity at a site included in clause (i), (iv),

(v), (vi), (viii), or (ix) of subparagraph (B) if the President

finds that financial assistance will protect human health

and the environment, and either promote economic development or enable the creation of, preservation of, or addition

to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit

purposes. ‘‘(D) ADDITIONAL AREAS.—For the purposes of section

104(k), the term ‘brownfield site’ includes a site that— ‘‘(i) meets the definition of ‘brownfield site’ under

subparagraphs (A) through (C); and ‘‘(ii)(I) is contaminated by a controlled substance

(as defined in section 102 of the Controlled Substances

Act (21 U.S.C. 802)); ‘‘(II)(aa) is contaminated by petroleum or a petroleum product excluded from the definition of ‘hazardous

substance’ under section 101; and ‘‘(bb) is a site determined by the Administrator

or the State, as appropriate, to be— ‘‘(AA) of relatively low risk, as compared with

other petroleum-only sites in the State; and

‘‘(BB) a site for which there is no viable responsible party and which will be assessed, investigated, or cleaned up by a person that is not

potentially liable for cleaning up the site; and

‘‘(cc) is not subject to any order issued under section 9003(h) of the Solid Waste Disposal Act (42 U.S.C.

6991b(h)); or

‘‘(III) is mine-scarred land.’’.

(b) BROWNFIELDS REVITALIZATION FUNDING.—Section 104 of the

Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (42 U.S.C. 9604) is amended by adding at

the end the following:

‘‘(k) BROWNFIELDS REVITALIZATION FUNDING.—

‘‘(1) DEFINITION OF ELIGIBLE ENTITY.—In this subsection,

the term ‘eligible entity’ means—

‘‘(A) a general purpose unit of local government;

‘‘(B) a land clearance authority or other quasi-governmental entity that operates under the supervision and

control of or as an agent of a general purpose unit of

local government;

‘‘(C) a government entity created by a State legislature;

‘‘(D) a regional council or group of general purpose

units of local government;

‘‘(E) a redevelopment agency that is chartered or otherwise sanctioned by a State;

‘‘(F) a State;

‘‘(G) an Indian Tribe other than in Alaska; or

‘‘(H) an Alaska Native Regional Corporation and an

Alaska Native Village Corporation as those terms are

defined in the Alaska Native Claims Settlement Act (43

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2363

U.S.C. 1601 and following) and the Metlakatla Indian

community.

‘‘(2) BROWNFIELD SITE CHARACTERIZATION AND ASSESSMENT

GRANT PROGRAM.—

‘‘(A) ESTABLISHMENT OF PROGRAM.—The Administrator

shall establish a program to—

‘‘(i) provide grants to inventory, characterize,

assess, and conduct planning related to brownfield sites

under subparagraph (B); and

‘‘(ii) perform targeted site assessments at

brownfield sites.

‘‘(B) ASSISTANCE FOR SITE CHARACTERIZATION AND

ASSESSMENT.—

‘‘(i) IN GENERAL.—On approval of an application

made by an eligible entity, the Administrator may

make a grant to the eligible entity to be used for

programs to inventory, characterize, assess, and conduct planning related to one or more brownfield sites.

‘‘(ii) SITE CHARACTERIZATION AND ASSESSMENT.—

A site characterization and assessment carried out with

the use of a grant under clause (i) shall be performed

in accordance with section 101(35)(B).

‘‘(3) GRANTS AND LOANS FOR BROWNFIELD REMEDIATION.—

‘‘(A) GRANTS PROVIDED BY THE PRESIDENT.—Subject to

paragraphs (4) and (5), the President shall establish a

program to provide grants to—

‘‘(i) eligible entities, to be used for capitalization

of revolving loan funds; and

‘‘(ii) eligible entities or nonprofit organizations,

where warranted, as determined by the President

based on considerations under subparagraph (C), to

be used directly for remediation of one or more

brownfield sites owned by the entity or organization

that receives the grant and in amounts not to exceed

$200,000 for each site to be remediated.

‘‘(B) LOANS AND GRANTS PROVIDED BY ELIGIBLE ENTITIES.—An eligible entity that receives a grant under

subparagraph (A)(i) shall use the grant funds to provide

assistance for the remediation of brownfield sites in the

form of—

‘‘(i) one or more loans to an eligible entity, a site

owner, a site developer, or another person; or

‘‘(ii) one or more grants to an eligible entity or

other nonprofit organization, where warranted, as

determined by the eligible entity that is providing the

assistance, based on considerations under subparagraph (C), to remediate sites owned by the eligible

entity or nonprofit organization that receives the grant.

‘‘(C) CONSIDERATIONS.—In determining whether a

grant under subparagraph (A)(ii) or (B)(ii) is warranted,

the President or the eligible entity, as the case may be,

shall take into consideration—

‘‘(i) the extent to which a grant will facilitate the

creation of, preservation of, or addition to a park, a

greenway, undeveloped property, recreational property,

or other property used for nonprofit purposes;

President.

Grants.

115 STAT. 2364 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(ii) the extent to which a grant will meet the

needs of a community that has an inability to draw

on other sources of funding for environmental remediation and subsequent redevelopment of the area in

which a brownfield site is located because of the small

population or low income of the community;

‘‘(iii) the extent to which a grant will facilitate

the use or reuse of existing infrastructure;

‘‘(iv) the benefit of promoting the long-term availability of funds from a revolving loan fund for

brownfield remediation; and

‘‘(v) such other similar factors as the Administrator

considers appropriate to consider for the purposes of

this subsection.

‘‘(D) TRANSITION.—Revolving loan funds that have been

established before the date of the enactment of this subsection may be used in accordance with this paragraph.

‘‘(4) GENERAL PROVISIONS.—

‘‘(A) MAXIMUM GRANT AMOUNT.—

‘‘(i) BROWNFIELD SITE CHARACTERIZATION AND

ASSESSMENT.—

‘‘(I) IN GENERAL.—A grant under paragraph

(2) may be awarded to an eligible entity on a

community-wide or site-by-site basis, and shall not

exceed, for any individual brownfield site covered

by the grant, $200,000.

‘‘(II) WAIVER.—The Administrator may waive

the $200,000 limitation under subclause (I) to

permit the brownfield site to receive a grant of

not to exceed $350,000, based on the anticipated

level of contamination, size, or status of ownership

of the site.

‘‘(ii) BROWNFIELD REMEDIATION.—A grant under

paragraph (3)(A)(i) may be awarded to an eligible entity

on a community-wide or site-by-site basis, not to exceed

$1,000,000 per eligible entity. The Administrator may

make an additional grant to an eligible entity described

in the previous sentence for any year after the year

for which the initial grant is made, taking into

consideration—

‘‘(I) the number of sites and number of communities that are addressed by the revolving loan

fund;

‘‘(II) the demand for funding by eligible entities that have not previously received a grant

under this subsection;

‘‘(III) the demonstrated ability of the eligible

entity to use the revolving loan fund to enhance

remediation and provide funds on a continuing

basis; and

‘‘(IV) such other similar factors as the

Administrator considers appropriate to carry out

this subsection.

‘‘(B) PROHIBITION.—

‘‘(i) IN GENERAL.—No part of a grant or loan under

this subsection may be used for the payment of— ‘‘(I) a penalty or fine;

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2365

‘‘(II) a Federal cost-share requirement;

‘‘(III) an administrative cost;

‘‘(IV) a response cost at a brownfield site for

which the recipient of the grant or loan is potentially liable under section 107; or

‘‘(V) a cost of compliance with any Federal

law (including a Federal law specified in section

101(39)(B)), excluding the cost of compliance with

laws applicable to the cleanup.

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

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

the cost of—

‘‘(I) investigation and identification of the

extent of contamination;

‘‘(II) design and performance of a response

action; or

‘‘(III) monitoring of a natural resource.

‘‘(C) ASSISTANCE FOR DEVELOPMENT OF LOCAL GOVERNMENT SITE REMEDIATION PROGRAMS.—A local government

that receives a grant under this subsection may use not

to exceed 10 percent of the grant funds to develop and

implement a brownfields program that may include—

‘‘(i) monitoring the health of populations exposed

to one or more hazardous substances from a brownfield

site; and

‘‘(ii) monitoring and enforcement of any institutional control used to prevent human exposure to any

hazardous substance from a brownfield site.

‘‘(D) INSURANCE.—A recipient of a grant or loan

awarded under paragraph (2) or (3) that performs a

characterization, assessment, or remediation of a

brownfield site may use a portion of the grant or loan

to purchase insurance for the characterization, assessment,

or remediation of that site.

‘‘(5) GRANT APPLICATIONS.—

‘‘(A) SUBMISSION.—

‘‘(i) IN GENERAL.—

‘‘(I) APPLICATION.—An eligible entity may

submit to the Administrator, through a regional

office of the Environmental Protection Agency and

in such form as the Administrator may require,

an application for a grant under this subsection

for one or more brownfield sites (including information on the criteria used by the Administrator

to rank applications under subparagraph (C), to

the extent that the information is available).

‘‘(II) NCP REQUIREMENTS.—The Administrator

may include in any requirement for submission

of an application under subclause (I) a requirement

of the National Contingency Plan only to the extent

that the requirement is relevant and appropriate

to the program under this subsection.

‘‘(ii) COORDINATION.—The Administrator shall

coordinate with other Federal agencies to assist in

making eligible entities aware of other available Federal resources.

115 STAT. 2366 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(iii) GUIDANCE.—The Administrator shall publish

guidance to assist eligible entities in applying for

grants under this subsection.

‘‘(B) APPROVAL.—The Administrator shall— ‘‘(i) at least annually, complete a review of applications for grants that are received from eligible entities

under this subsection; and ‘‘(ii) award grants under this subsection to eligible

entities that the Administrator determines have the

highest rankings under the ranking criteria established

under subparagraph (C).

‘‘(C) RANKING CRITERIA.—The Administrator shall

establish a system for ranking grant applications received

under this paragraph that includes the following criteria: ‘‘(i) The extent to which a grant will stimulate

the availability of other funds for environmental

assessment or remediation, and subsequent reuse, of

an area in which one or more brownfield sites are

located. ‘‘(ii) The potential of the proposed project or the

development plan for an area in which one or more

brownfield sites are located to stimulate economic

development of the area on completion of the cleanup. ‘‘(iii) The extent to which a grant would address

or facilitate the identification and reduction of threats

to human health and the environment, including

threats in areas in which there is a greater-thannormal incidence of diseases or conditions (including

cancer, asthma, or birth defects) that may be associated

with exposure to hazardous substances, pollutants, or

contaminants.

‘‘(iv) The extent to which a grant would facilitate

the use or reuse of existing infrastructure.

‘‘(v) The extent to which a grant would facilitate

the creation of, preservation of, or addition to a park,

a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.

‘‘(vi) The extent to which a grant would meet the

needs of a community that has an inability to draw

on other sources of funding for environmental remediation and subsequent redevelopment of the area in

which a brownfield site is located because of the small

population or low income of the community.

‘‘(vii) The extent to which the applicant is eligible

for funding from other sources.

‘‘(viii) The extent to which a grant will further

the fair distribution of funding between urban and

nonurban areas.

‘‘(ix) The extent to which the grant provides for

involvement of the local community in the process of

making decisions relating to cleanup and future use

of a brownfield site.

‘‘(x) The extent to which a grant would address

or facilitate the identification and reduction of threats

to the health or welfare of children, pregnant women,

minority or low-income communities, or other sensitive

populations.

Grants.

Publication.

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2367

‘‘(6) IMPLEMENTATION OF BROWNFIELDS PROGRAMS.—

‘‘(A) ESTABLISHMENT OF PROGRAM.—The Administrator

may provide, or fund eligible entities or nonprofit organizations to provide, training, research, and technical assistance

to individuals and organizations, as appropriate, to facilitate the inventory of brownfield sites, site assessments,

remediation of brownfield sites, community involvement,

or site preparation.

‘‘(B) FUNDING RESTRICTIONS.—The total Federal funds

to be expended by the Administrator under this paragraph

shall not exceed 15 percent of the total amount appropriated to carry out this subsection in any fiscal year.

‘‘(7) AUDITS.—

‘‘(A) IN GENERAL.—The Inspector General of the

Environmental Protection Agency shall conduct such

reviews or audits of grants and loans under this subsection

as the Inspector General considers necessary to carry out

this subsection.

‘‘(B) PROCEDURE.—An audit under this subparagraph

shall be conducted in accordance with the auditing procedures of the General Accounting Office, including chapter

75 of title 31, United States Code.

‘‘(C) VIOLATIONS.—If the Administrator determines

that a person that receives a grant or loan under this

subsection has violated or is in violation of a condition

of the grant, loan, or applicable Federal law, the Administrator may—

‘‘(i) terminate the grant or loan;

‘‘(ii) require the person to repay any funds received;

and

‘‘(iii) seek any other legal remedies available to

the Administrator.

‘‘(D) REPORT TO CONGRESS.—Not later than 3 years

after the date of the enactment of this subsection, the

Inspector General of the Environmental Protection Agency

shall submit to Congress a report that provides a description of the management of the program (including a description of the allocation of funds under this subsection).

‘‘(8) LEVERAGING.—An eligible entity that receives a grant

under this subsection may use the grant funds for a portion

of a project at a brownfield site for which funding is received

from other sources if the grant funds are used only for the

purposes described in paragraph (2) or (3).

‘‘(9) AGREEMENTS.—Each grant or loan made under this

subsection shall—

‘‘(A) include a requirement of the National Contingency

Plan only to the extent that the requirement is relevant

and appropriate to the program under this subsection, as

determined by the Administrator; and

‘‘(B) be subject to an agreement that—

‘‘(i) requires the recipient to—

‘‘(I) comply with all applicable Federal and

State laws; and

‘‘(II) ensure that the cleanup protects human

health and the environment;

Deadline.

115 STAT. 2368 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(ii) requires that the recipient use the grant or

loan exclusively for purposes specified in paragraph

(2) or (3), as applicable; ‘‘(iii) in the case of an application by an eligible

entity under paragraph (3)(A), requires the eligible

entity to pay a matching share (which may be in the

form of a contribution of labor, material, or services)

of at least 20 percent, from non-Federal sources of

funding, unless the Administrator determines that the

matching share would place an undue hardship on

the eligible entity; and ‘‘(iv) contains such other terms and conditions as

the Administrator determines to be necessary to carry

out this subsection. ‘‘(10) FACILITY OTHER THAN BROWNFIELD SITE.—The fact

that a facility may not be a brownfield site within the meaning

of section 101(39)(A) has no effect on the eligibility of the

facility for assistance under any other provision of Federal

law.‘‘(11) EFFECT ON FEDERAL LAWS.—Nothing in this subsection affects any liability or response authority under any

Federal law, including— ‘‘(A) this Act (including the last sentence of section

101(14)); ‘‘(B) the Solid Waste Disposal Act (42 U.S.C. 6901

et seq.); ‘‘(C) the Federal Water Pollution Control Act (33 U.S.C.

1251 et seq.); ‘‘(D) the Toxic Substances Control Act (15 U.S.C. 2601

et seq.); and ‘‘(E) the Safe Drinking Water Act (42 U.S.C. 300f et

seq.).

‘‘(12) FUNDING.— ‘‘(A) AUTHORIZATION OF APPROPRIATIONS.—There is

authorized to be appropriated to carry out this subsection

$200,000,000 for each of fiscal years 2002 through 2006. ‘‘(B) USE OF CERTAIN FUNDS.—Of the amount made

available under subparagraph (A), $50,000,000, or, if the

amount made available is less than $200,000,000, 25 percent of the amount made available, shall be used for site

characterization, assessment, and remediation of facilities

described in section 101(39)(D)(ii)(II).’’.

Subtitle B—Brownfields Liability

Clarifications

SEC. 221. CONTIGUOUS PROPERTIES.

Section 107 of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is

amended by adding at the end the following: ‘‘(q) CONTIGUOUS PROPERTIES.—

‘‘(1) NOT CONSIDERED TO BE AN OWNER OR OPERATOR.—

‘‘(A) IN GENERAL.—A person that owns real property

that is contiguous to or otherwise similarly situated with

respect to, and that is or may be contaminated by a release

or threatened release of a hazardous substance from, real

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2369

property that is not owned by that person shall not be

considered to be an owner or operator of a vessel or facility

under paragraph (1) or (2) of subsection (a) solely by reason

of the contamination if—

‘‘(i) the person did not cause, contribute, or consent

to the release or threatened release;

‘‘(ii) the person is not—

‘‘(I) potentially liable, or affiliated with any

other person that is potentially liable, for response

costs at a facility through any direct or indirect

familial relationship or any contractual, corporate,

or financial relationship (other than a contractual,

corporate, or financial relationship that is created

by a contract for the sale of goods or services);

or

‘‘(II) the result of a reorganization of a business entity that was potentially liable;

‘‘(iii) the person takes reasonable steps to—

‘‘(I) stop any continuing release;

‘‘(II) prevent any threatened future release;

and

‘‘(III) prevent or limit human, environmental,

or natural resource exposure to any hazardous

substance released on or from property owned by

that person;

‘‘(iv) the person provides full cooperation, assistance, and access to persons that are authorized to

conduct response actions or natural resource restoration at the vessel or facility from which there has

been a release or threatened release (including the

cooperation and access necessary for the installation,

integrity, operation, and maintenance of any complete

or partial response action or natural resource restoration at the vessel or facility);

‘‘(v) the person—

‘‘(I) is in compliance with any land use restrictions established or relied on in connection with

the response action at the facility; and

‘‘(II) does not impede the effectiveness or integrity of any institutional control employed in

connection with a response action;

‘‘(vi) the person is in compliance with any request

for information or administrative subpoena issued by

the President under this Act;

‘‘(vii) the person provides all legally required

notices with respect to the discovery or release of any

hazardous substances at the facility; and

‘‘(viii) at the time at which the person acquired

the property, the person—

‘‘(I) conducted all appropriate inquiry within

the meaning of section 101(35)(B) with respect to

the property; and

‘‘(II) did not know or have reason to know

that the property was or could be contaminated

by a release or threatened release of one or more

hazardous substances from other real property not

owned or operated by the person.

115 STAT. 2370 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(B) DEMONSTRATION.—To qualify as a person

described in subparagraph (A), a person must establish

by a preponderance of the evidence that the conditions

in clauses (i) through (viii) of subparagraph (A) have been

met.

‘‘(C) BONA FIDE PROSPECTIVE PURCHASER.—Any person

that does not qualify as a person described in this paragraph because the person had, or had reason to have,

knowledge specified in subparagraph (A)(viii) at the time

of acquisition of the real property may qualify as a bona

fide prospective purchaser under section 101(40) if the person is otherwise described in that section. ‘‘(D) GROUND WATER.—With respect to a hazardous

substance from one or more sources that are not on the

property of a person that is a contiguous property owner

that enters ground water beneath the property of the person solely as a result of subsurface migration in an aquifer,

subparagraph (A)(iii) shall not require the person to conduct ground water investigations or to install ground water

remediation systems, except in accordance with the policy

of the Environmental Protection Agency concerning owners

of property containing contaminated aquifers, dated May

24, 1995.

‘‘(2) EFFECT OF LAW.—With respect to a person described

in this subsection, nothing in this subsection—

‘‘(A) limits any defense to liability that may be available to the person under any other provision of law; or

‘‘(B) imposes liability on the person that is not otherwise imposed by subsection (a).

‘‘(3) ASSURANCES.—The Administrator may—

‘‘(A) issue an assurance that no enforcement action

under this Act will be initiated against a person described

in paragraph (1); and

‘‘(B) grant a person described in paragraph (1) protection against a cost recovery or contribution action under

section 113(f).’’.

SEC. 222. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.

(a) DEFINITION OF BONA FIDE PROSPECTIVE PURCHASER.—Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601) (as amended by

section 211(a) of this Act) is amended by adding at the end the

following:

‘‘(40) BONA FIDE PROSPECTIVE PURCHASER.—The term ‘bona

fide prospective purchaser’ means a person (or a tenant of

a person) that acquires ownership of a facility after the date

of the enactment of this paragraph and that establishes each

of the following by a preponderance of the evidence:

‘‘(A) DISPOSAL PRIOR TO ACQUISITION.—All disposal of

hazardous substances at the facility occurred before the

person acquired the facility. ‘‘(B) INQUIRIES.—

‘‘(i) IN GENERAL.—The person made all appropriate

inquiries into the previous ownership and uses of the

facility in accordance with generally accepted good

commercial and customary standards and practices in

accordance with clauses (ii) and (iii).

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2371

‘‘(ii) STANDARDS AND PRACTICES.—The standards

and practices referred to in clauses (ii) and (iv) of

paragraph (35)(B) shall be considered to satisfy the

requirements of this subparagraph.

‘‘(iii) RESIDENTIAL USE.—In the case of property

in residential or other similar use at the time of purchase by a nongovernmental or noncommercial entity,

a facility inspection and title search that reveal no

basis for further investigation shall be considered to

satisfy the requirements of this subparagraph.

‘‘(C) NOTICES.—The person provides all legally required

notices with respect to the discovery or release of any

hazardous substances at the facility. ‘‘(D) CARE.—The person exercises appropriate care with

respect to hazardous substances found at the facility by

taking reasonable steps to— ‘‘(i) stop any continuing release;

‘‘(ii) prevent any threatened future release; and

‘‘(iii) prevent or limit human, environmental, or

natural resource exposure to any previously released

hazardous substance.

‘‘(E) COOPERATION, ASSISTANCE, AND ACCESS.—The person provides full cooperation, assistance, and access to

persons that are authorized to conduct response actions

or natural resource restoration at a vessel or facility

(including the cooperation and access necessary for the

installation, integrity, operation, and maintenance of any

complete or partial response actions or natural resource

restoration at the vessel or facility).

‘‘(F) INSTITUTIONAL CONTROL.—The person—

‘‘(i) is in compliance with any land use restrictions

established or relied on in connection with the response

action at a vessel or facility; and

‘‘(ii) does not impede the effectiveness or integrity

of any institutional control employed at the vessel or

facility in connection with a response action.

‘‘(G) REQUESTS; SUBPOENAS.—The person complies with

any request for information or administrative subpoena

issued by the President under this Act.

‘‘(H) NO AFFILIATION.—The person is not—

‘‘(i) potentially liable, or affiliated with any other

person that is potentially liable, for response costs

at a facility through—

‘‘(I) any direct or indirect familial relationship;

or

‘‘(II) any contractual, corporate, or financial

relationship (other than a contractual, corporate,

or financial relationship that is created by the

instruments by which title to the facility is conveyed or financed or by a contract for the sale

of goods or services); or

‘‘(ii) the result of a reorganization of a business

entity that was potentially liable.’’.

(b) PROSPECTIVE PURCHASER AND WINDFALL LIEN.—Section 107

of the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (42 U.S.C. 9607) (as amended by this Act)

is further amended by adding at the end the following:

115 STAT. 2372 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(r) PROSPECTIVE PURCHASER AND WINDFALL LIEN.—

‘‘(1) LIMITATION ON LIABILITY.—Notwithstanding subsection

(a)(1), a bona fide prospective purchaser whose potential

liability for a release or threatened release is based solely

on the purchaser’s being considered to be an owner or operator

of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response

action or natural resource restoration.

‘‘(2) LIEN.—If there are unrecovered response costs incurred

by the United States at a facility for which an owner of the

facility is not liable by reason of paragraph (1), and if each

of the conditions described in paragraph (3) is met, the United

States shall have a lien on the facility, or may by agreement

with the owner, obtain from the owner a lien on any other

property or other assurance of payment satisfactory to the

Administrator, for the unrecovered response costs.

‘‘(3) CONDITIONS.—The conditions referred to in paragraph

(2) are the following:

‘‘(A) RESPONSE ACTION.—A response action for which

there are unrecovered costs of the United States is carried

out at the facility.

‘‘(B) FAIR MARKET VALUE.—The response action

increases the fair market value of the facility above the

fair market value of the facility that existed before the

response action was initiated.

‘‘(4) AMOUNT; DURATION.—A lien under paragraph (2)—

‘‘(A) shall be in an amount not to exceed the increase

in fair market value of the property attributable to the

response action at the time of a sale or other disposition

of the property;

‘‘(B) shall arise at the time at which costs are first

incurred by the United States with respect to a response

action at the facility;

‘‘(C) shall be subject to the requirements of subsection

(l)(3); and

‘‘(D) shall continue until the earlier of—

‘‘(i) satisfaction of the lien by sale or other means;

or

‘‘(ii) notwithstanding any statute of limitations

under section 113, recovery of all response costs

incurred at the facility.’’.

SEC. 223. INNOCENT LANDOWNERS.

Section 101(35) of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (42 U.S.C. 9601(35)) is

amended—

(1) in subparagraph (A)—

(A) in the first sentence, in the matter preceding clause

(i), by striking ‘‘deeds or’’ and inserting ‘‘deeds, easements,

leases, or’’; and

(B) in the second sentence—

(i) by striking ‘‘he’’ and inserting ‘‘the defendant’’;

and

(ii) by striking the period at the end and inserting

‘‘, provides full cooperation, assistance, and facility

access to the persons that are authorized to conduct

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2373

response actions at the facility (including the cooperation and access necessary for the installation, integrity,

operation, and maintenance of any complete or partial

response action at the facility), is in compliance with

any land use restrictions established or relied on in

connection with the response action at a facility, and

does not impede the effectiveness or integrity of any

institutional control employed at the facility in connection with a response action.’’; and

(2) by striking subparagraph (B) and inserting the following:

‘‘(B) REASON TO KNOW.—

‘‘(i) ALL APPROPRIATE INQUIRIES.—To establish that

the defendant had no reason to know of the matter

described in subparagraph (A)(i), the defendant must

demonstrate to a court that—

‘‘(I) on or before the date on which the defendant acquired the facility, the defendant carried

out all appropriate inquiries, as provided in clauses

(ii) and (iv), into the previous ownership and uses

of the facility in accordance with generally

accepted good commercial and customary standards and practices; and

‘‘(II) the defendant took reasonable steps to—

‘‘(aa) stop any continuing release;

‘‘(bb) prevent any threatened future

release; and

‘‘(cc) prevent or limit any human, environmental, or natural resource exposure to any

previously released hazardous substance.

‘‘(ii) STANDARDS AND PRACTICES.—Not later than

2 years after the date of the enactment of the

Brownfields Revitalization and Environmental Restoration Act of 2001, the Administrator shall by regulation

establish standards and practices for the purpose of

satisfying the requirement to carry out all appropriate

inquiries under clause (i).

‘‘(iii) CRITERIA.—In promulgating regulations that

establish the standards and practices referred to in

clause (ii), the Administrator shall include each of the

following:

‘‘(I) The results of an inquiry by an environmental professional.

‘‘(II) Interviews with past and present owners,

operators, and occupants of the facility for the

purpose of gathering information regarding the

potential for contamination at the facility.

‘‘(III) Reviews of historical sources, such as

chain of title documents, aerial photographs,

building department records, and land use records,

to determine previous uses and occupancies of the

real property since the property was first developed.

‘‘(IV) Searches for recorded environmental

cleanup liens against the facility that are filed

under Federal, State, or local law.

Deadline.

Regulations.

115 STAT. 2374 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(V) Reviews of Federal, State, and local

government records, waste disposal records, underground storage tank records, and hazardous waste

handling, generation, treatment, disposal, and spill

records, concerning contamination at or near the

facility.

‘‘(VI) Visual inspections of the facility and of

adjoining properties.

‘‘(VII) Specialized knowledge or experience on

the part of the defendant.

‘‘(VIII) The relationship of the purchase price

to the value of the property, if the property was

not contaminated.

‘‘(IX) Commonly known or reasonably

ascertainable information about the property.

‘‘(X) The degree of obviousness of the presence

or likely presence of contamination at the property,

and the ability to detect the contamination by

appropriate investigation.

‘‘(iv) INTERIM STANDARDS AND PRACTICES.—

‘‘(I) PROPERTY PURCHASED BEFORE MAY 31,

1997.—With respect to property purchased before

May 31, 1997, in making a determination with

respect to a defendant described in clause (i), a

court shall take into account—

‘‘(aa) any specialized knowledge or experience on the part of the defendant;

‘‘(bb) the relationship of the purchase price

to the value of the property, if the property

was not contaminated;

‘‘(cc) commonly known or reasonably

ascertainable information about the property;

‘‘(dd) the obviousness of the presence or

likely presence of contamination at the property; and

‘‘(ee) the ability of the defendant to detect

the contamination by appropriate inspection.

‘‘(II) PROPERTY PURCHASED ON OR AFTER MAY

31, 1997.—With respect to property purchased on

or after May 31, 1997, and until the Administrator

promulgates the regulations described in clause

(ii), the procedures of the American Society for

Testing and Materials, including the document

known as ‘Standard E1527–97’, entitled ‘Standard

Practice for Environmental Site Assessment: Phase

1 Environmental Site Assessment Process’, shall

satisfy the requirements in clause (i).

‘‘(v) SITE INSPECTION AND TITLE SEARCH.—In the

case of property for residential use or other similar

use purchased by a nongovernmental or noncommercial

entity, a facility inspection and title search that reveal

no basis for further investigation shall be considered

to satisfy the requirements of this subparagraph.’’.

Courts.

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2375

Subtitle C—State Response Programs

SEC. 231. STATE RESPONSE PROGRAMS.

(a) DEFINITIONS.—Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9601) (as amended by this Act) is further amended by

adding at the end the following:

‘‘(41) ELIGIBLE RESPONSE SITE.—

‘‘(A) IN GENERAL.—The term ‘eligible response site’

means a site that meets the definition of a brownfield

site in subparagraphs (A) and (B) of paragraph (39), as

modified by subparagraphs (B) and (C) of this paragraph.

‘‘(B) INCLUSIONS.—The term ‘eligible response site’

includes—

‘‘(i) notwithstanding paragraph (39)(B)(ix), a portion of a facility, for which portion assistance for

response activity has been obtained under subtitle I

of the Solid Waste Disposal Act (42 U.S.C. 6991 et

seq.) from the Leaking Underground Storage Tank

Trust Fund established under section 9508 of the

Internal Revenue Code of 1986; or

‘‘(ii) a site for which, notwithstanding the exclusions provided in subparagraph (C) or paragraph

(39)(B), the President determines, on a site-by-site

basis and after consultation with the State, that limitations on enforcement under section 128 at sites specified in clause (iv), (v), (vi) or (viii) of paragraph (39)(B)

would be appropriate and will—

‘‘(I) protect human health and the environment; and

‘‘(II) promote economic development or facilitate the creation of, preservation of, or addition

to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.

‘‘(C) EXCLUSIONS.—The term ‘eligible response site’

does not include—

‘‘(i) a facility for which the President—

‘‘(I) conducts or has conducted a preliminary

assessment or site inspection; and

‘‘(II) after consultation with the State, determines or has determined that the site obtains a

preliminary score sufficient for possible listing on

the National Priorities List, or that the site otherwise qualifies for listing on the National Priorities

List; unless the President has made a determination that no further Federal action will be taken;

or

‘‘(ii) facilities that the President determines warrant particular consideration as identified by regulation, such as sites posing a threat to a sole-source

drinking water aquifer or a sensitive ecosystem.’’.

(b) STATE RESPONSE PROGRAMS.—Title I of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980

(42 U.S.C. 9601 et seq.) is amended by adding at the end the

following:

President.

115 STAT. 2376 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘SEC. 128. STATE RESPONSE PROGRAMS.

‘‘(a) ASSISTANCE TO STATES.—

‘‘(1) IN GENERAL.—

‘‘(A) STATES.—The Administrator may award a grant

to a State or Indian tribe that—

‘‘(i) has a response program that includes each

of the elements, or is taking reasonable steps to include

each of the elements, listed in paragraph (2); or

‘‘(ii) is a party to a memorandum of agreement

with the Administrator for voluntary response programs.

‘‘(B) USE OF GRANTS BY STATES.—

‘‘(i) IN GENERAL.—A State or Indian tribe may

use a grant under this subsection to establish or

enhance the response program of the State or Indian

tribe.

‘‘(ii) ADDITIONAL USES.—In addition to the uses

under clause (i), a State or Indian tribe may use a

grant under this subsection to—

‘‘(I) capitalize a revolving loan fund for

brownfield remediation under section 104(k)(3); or

‘‘(II) purchase insurance or develop a risk

sharing pool, an indemnity pool, or insurance

mechanism to provide financing for response

actions under a State response program.

‘‘(2) ELEMENTS.—The elements of a State or Indian tribe

response program referred to in paragraph (1)(A)(i) are the

following:

‘‘(A) Timely survey and inventory of brownfield sites

in the State.

‘‘(B) Oversight and enforcement authorities or other

mechanisms, and resources, that are adequate to ensure

that—

‘‘(i) a response action will—

‘‘(I) protect human health and the environment; and

‘‘(II) be conducted in accordance with

applicable Federal and State law; and

‘‘(ii) if the person conducting the response action

fails to complete the necessary response activities,

including operation and maintenance or long-term

monitoring activities, the necessary response activities

are completed.

‘‘(C) Mechanisms and resources to provide meaningful

opportunities for public participation, including—

‘‘(i) public access to documents that the State,

Indian tribe, or party conducting the cleanup is relying

on or developing in making cleanup decisions or conducting site activities;

‘‘(ii) prior notice and opportunity for comment on

proposed cleanup plans and site activities; and

‘‘(iii) a mechanism by which—

‘‘(I) a person that is or may be affected by

a release or threatened release of a hazardous

substance, pollutant, or contaminant at a

brownfield site located in the community in which

42 USC 9628.

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2377

the person works or resides may request the conduct of a site assessment; and ‘‘(II) an appropriate State official shall consider and appropriately respond to a request under

subclause (I).

‘‘(D) Mechanisms for approval of a cleanup plan, and

a requirement for verification by and certification or similar

documentation from the State, an Indian tribe, or a licensed

site professional to the person conducting a response action

indicating that the response is complete.

‘‘(3) FUNDING.—There is authorized to be appropriated to carry out this subsection $50,000,000 for each of fiscal years

2002 through 2006.

‘‘(b) ENFORCEMENT IN CASES OF A RELEASE SUBJECT TO STATE

PROGRAM.—

‘‘(1) ENFORCEMENT.— ‘‘(A) IN GENERAL.— Except as provided in subparagraph

(B) and subject to subparagraph (C), in the case of an

eligible response site at which—

‘‘(i) there is a release or threatened release of

a hazardous substance, pollutant, or contaminant; and

‘‘(ii) a person is conducting or has completed a

response action regarding the specific release that is

addressed by the response action that is in compliance

with the State program that specifically governs

response actions for the protection of public health

and the environment,

the President may not use authority under this Act to

take an administrative or judicial enforcement action under

section 106(a) or to take a judicial enforcement action to

recover response costs under section 107(a) against the

person regarding the specific release that is addressed by

the response action.

‘‘(B) EXCEPTIONS.—The President may bring an

administrative or judicial enforcement action under this

Act during or after completion of a response action

described in subparagraph (A) with respect to a release

or threatened release at an eligible response site described

in that subparagraph if—

‘‘(i) the State requests that the President provide

assistance in the performance of a response action;

‘‘(ii) the Administrator determines that contamination has migrated or will migrate across a State line,

resulting in the need for further response action to

protect human health or the environment, or the President determines that contamination has migrated or

is likely to migrate onto property subject to the jurisdiction, custody, or control of a department, agency, or

instrumentality of the United States and may impact

the authorized purposes of the Federal property;

‘‘(iii) after taking into consideration the response

activities already taken, the Administrator determines

that—

‘‘(I) a release or threatened release may

present an imminent and substantial

endangerment to public health or welfare or the

environment; and

115 STAT. 2378 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(II) additional response actions are likely to

be necessary to address, prevent, limit, or mitigate

the release or threatened release; or

‘‘(iv) the Administrator, after consultation with the

State, determines that information, that on the earlier

of the date on which cleanup was approved or completed, was not known by the State, as recorded in

documents prepared or relied on in selecting or conducting the cleanup, has been discovered regarding

the contamination or conditions at a facility such that

the contamination or conditions at the facility present

a threat requiring further remediation to protect public

health or welfare or the environment. Consultation

with the State shall not limit the ability of the

Administrator to make this determination.

‘‘(C) PUBLIC RECORD.—The limitations on the authority

of the President under subparagraph (A) apply only at

sites in States that maintain, update not less than

annually, and make available to the public a record of

sites, by name and location, at which response actions

have been completed in the previous year and are planned

to be addressed under the State program that specifically

governs response actions for the protection of public health

and the environment in the upcoming year. The public

record shall identify whether or not the site, on completion

of the response action, will be suitable for unrestricted

use and, if not, shall identify the institutional controls

relied on in the remedy. Each State and tribe receiving

financial assistance under subsection (a) shall maintain

and make available to the public a record of sites as provided in this paragraph.

‘‘(D) EPA NOTIFICATION.—

‘‘(i) IN GENERAL.—In the case of an eligible

response site at which there is a release or threatened

release of a hazardous substance, pollutant, or contaminant and for which the Administrator intends to carry

out an action that may be barred under subparagraph

(A), the Administrator shall—

‘‘(I) notify the State of the action the Administrator intends to take; and

‘‘(II)(aa) wait 48 hours for a reply from the

State under clause (ii); or

‘‘(bb) if the State fails to reply to the notification or if the Administrator makes a determination

under clause (iii), take immediate action under

that clause.

‘‘(ii) STATE REPLY.—Not later than 48 hours after

a State receives notice from the Administrator under

clause (i), the State shall notify the Administrator if—

‘‘(I) the release at the eligible response site

is or has been subject to a cleanup conducted under

a State program; and

‘‘(II) the State is planning to abate the release

or threatened release, any actions that are

planned.

‘‘(iii) IMMEDIATE FEDERAL ACTION.—The Administrator may take action immediately after giving

Deadline.

Applicability.

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2379

notification under clause (i) without waiting for a State

reply under clause (ii) if the Administrator determines

that one or more exceptions under subparagraph (B)

are met.

‘‘(E) REPORT TO CONGRESS.—Not later than 90 days

after the date of initiation of any enforcement action by

the President under clause (ii), (iii), or (iv) of subparagraph

(B), the President shall submit to Congress a report

describing the basis for the enforcement action, including

specific references to the facts demonstrating that enforcement action is permitted under subparagraph (B).

‘‘(2) SAVINGS PROVISION.— ‘‘(A) COSTS INCURRED PRIOR TO LIMITATIONS.—Nothing

in paragraph (1) precludes the President from seeking to

recover costs incurred prior to the date of the enactment

of this section or during a period in which the limitations

of paragraph (1)(A) were not applicable. ‘‘(B) EFFECT ON AGREEMENTS BETWEEN STATES AND

EPA.—Nothing in paragraph (1)—

‘‘(i) modifies or otherwise affects a memorandum

of agreement, memorandum of understanding, or any

similar agreement relating to this Act between a State

agency or an Indian tribe and the Administrator that

is in effect on or before the date of the enactment

of this section (which agreement shall remain in effect,

subject to the terms of the agreement); or

‘‘(ii) limits the discretionary authority of the President to enter into or modify an agreement with a

State, an Indian tribe, or any other person relating

to the implementation by the President of statutory

authorities.

‘‘(3) EFFECTIVE DATE.—This subsection applies only to

response actions conducted after February 15, 2001.

‘‘(c) EFFECT ON FEDERAL LAWS.—Nothing in this section affects

any liability or response authority under any Federal law,

including—

‘‘(1) this Act, except as provided in subsection (b);

‘‘(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);

‘‘(3) the Federal Water Pollution Control Act (33 U.S.C.

1251 et seq.);

‘‘(4) the Toxic Substances Control Act (15 U.S.C. 2601 et

seq.); and

‘‘(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).’’.

SEC. 232. ADDITIONS TO NATIONAL PRIORITIES LIST.

Section 105 of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (42 U.S.C. 9605) is

amended by adding at the end the following:

‘‘(h) NPL DEFERRAL.—

‘‘(1) DEFERRAL TO STATE VOLUNTARY CLEANUPS.—At the

request of a State and subject to paragraphs (2) and (3), the

President generally shall defer final listing of an eligible

response site on the National Priorities List if the President

determines that—

‘‘(A) the State, or another party under an agreement

with or order from the State, is conducting a response

action at the eligible response site—

President.

Applicability.

Deadline.

President.

115 STAT. 2380 PUBLIC LAW 107–118—JAN. 11, 2002

‘‘(i) in compliance with a State program that

specifically governs response actions for the protection

of public health and the environment; and

‘‘(ii) that will provide long-term protection of

human health and the environment; or

‘‘(B) the State is actively pursuing an agreement to

perform a response action described in subparagraph (A)

at the site with a person that the State has reason to

believe is capable of conducting a response action that

meets the requirements of subparagraph (A).

‘‘(2) PROGRESS TOWARD CLEANUP.—If, after the last day

of the 1-year period beginning on the date on which the President proposes to list an eligible response site on the National

Priorities List, the President determines that the State or other

party is not making reasonable progress toward completing

a response action at the eligible response site, the President

may list the eligible response site on the National Priorities

List.

‘‘(3) CLEANUP AGREEMENTS.—With respect to an eligible

response site under paragraph (1)(B), if, after the last day

of the 1-year period beginning on the date on which the President proposes to list the eligible response site on the National

Priorities List, an agreement described in paragraph (1)(B)

has not been reached, the President may defer the listing

of the eligible response site on the National Priorities List

for an additional period of not to exceed 180 days if the President determines deferring the listing would be appropriate

based on—

‘‘(A) the complexity of the site;

‘‘(B) substantial progress made in negotiations; and

‘‘(C) other appropriate factors, as determined by the

President.

‘‘(4) EXCEPTIONS.—The President may decline to defer, or

elect to discontinue a deferral of, a listing of an eligible response

site on the National Priorities List if the President determines

that—

‘‘(A) deferral would not be appropriate because the

State, as an owner or operator or a significant contributor

of hazardous substances to the facility, is a potentially

responsible party;

‘‘(B) the criteria under the National Contingency Plan

for issuance of a health advisory have been met; or

PUBLIC LAW 107–118—JAN. 11, 2002 115 STAT. 2381

LEGISLATIVE HISTORY—H.R. 2869:

CONGRESSIONAL RECORD, Vol. 147 (2001):

Dec. 19, considered and passed House.

Dec. 20, considered and passed Senate.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 37 (2001):

Jan. 11, Presidential remarks.

Æ

‘‘(C) the conditions in paragraphs (1) through (3), as

applicable, are no longer being met.’’.

Approved January 11, 2002.