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[Senate Report 107-2]
[From the U.S. Government Publishing Office]

                                                        Calendar No. 19
107th Congress                                                   Report
                                 SENATE
 1st Session                                                      107-2

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

 
  BROWNFIELDS REVITALIZATION AND ENVIRONMENTAL RESTORATION ACT OF 2001

                                _______
                                

                March 12, 2001.--Ordered to be printed.

   Mr. Smith, of New Hampshire from the Committee on Environment and 
                 Public Works, submitted the following

                              R E P O R T

                         [To accompany S. 350]

                             together with

                     additional and minority views

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 350) to amend the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
to promote the cleanup and reuse of brownfields, to provide 
financial assistance for brownfields revitalization, to enhance 
State response programs, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.

                           General Statement

    As a nation, our industrial heritage has left us with 
numerous contaminated ``brownfield'' sites that are abandoned 
or underutilized. A brownfield site is a parcel of real 
property at which expansion, redevelopment, or reuse may be 
hindered by the presence, or potential presence, of hazardous 
substances, pollutants, or contaminants. The U.S. Conference of 
Mayors and others have estimated that there are more than 
450,000 brownfield sites nationwide that blight our 
communities, pose health and environmental hazards, erode our 
cities' tax base, and contribute to urban sprawl and loss of 
farmland. The cleanup and redevelopment of brownfield sites 
presents the opportunity reduce the environmental and health 
risks in our communities, particularly those which are 
disproportionately affected by these sites, capitalize on 
existing infrastructure, create a robust tax base for local 
governments, attract new businesses and jobs, and reduce the 
pressure to develop open spaces.
    Many State and local governments have developed and 
implemented innovative and effective brownfield programs. State 
laws, however are unable to address Federal liability. More 
importantly, absent a specific statutory exemption, the Federal 
brownfields grant and loan program has been required to comply 
with the regulatory provisions of the National Contingency 
Plan, which is relieved under this legislation. By providing 
Federal funding, eliminating Federal liability for developers 
under Superfund, and reducing the regulatory burdens, State and 
local governments will improve upon what they are already 
doing.

                               Background

    The nation's laws governing abandoned hazardous waste sites 
date back to the late 1970's and the discovery of thousands of 
barrels of toxic waste buried illegally outside of Buffalo, New 
York. The U.S. Congress responded to Love Canal and other sites 
by enacting the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) of 1980, commonly 
referred to as Superfund. CERCLA was intended to clean up the 
nation's worst sites and identify responsible parties to bear 
the cost of cleanups. Litigation over CERCLA's strict, joint 
and several liability ensued. The fear of prolonged 
entanglements in Superfund's liability scheme has been reported 
by some to be an impediment to the cleanup of even lightly 
contaminated sites, today known as brownfields.
    Under CERCLA, parties can be held liable for the entire 
cost of cleanup, even if they purchased the property after the 
contamination occurred or were otherwise innocent parties. With 
many brownfield sites, the extent of contamination is unknown, 
and there is no entity available to assess the site conditions 
or pay for cleanup. Therefore, at abandoned sites, even those 
with little or no contamination, the fear that cleanup costs 
could exceed the property value can reduce incentives for 
redevelopment. The perceived risk associated with purchasing 
and developing lightly contaminated properties can drive 
parties away from these former industrial or commercial sites 
and toward less risky green and open spaces.
    In their report ``Recycling America's Land,'' the U.S. 
Conference of Mayors cited high cost and fear of CERCLA 
liability as the primary factors that prevent the successful 
redevelopment of brownfield sites. Because brownfield sites are 
generally abandoned industrial or commercial sites, the 
responsible party may not be available to pay the costs of 
cleanup. These sites may lay fallow indefinitely unless someone 
is willing to take on the risk associated with purchasing 
contaminated land and has the financial resources to pay for 
site investigation and cleanup. The perceived risk of Superfund 
liability is one of many factors that may influence a 
developer's willingness to acquire a brownfield site. In 
addition, even if there are parties willing to take the risk, 
they are sometimes unable to bring the necessary resources to 
the site because lenders may be unwilling to issue loans on 
properties with unknown contamination, and which therefore 
provide uncertain collateral for the loan.
    During the past decade, Federal, State, and local actions 
aimed at reclaiming the nation's abandoned contaminated 
properties and putting them to productive use. No provision in 
the current Superfund statute specifically authorizes the types 
of activities that have come to be known as brownfield cleanup 
and redevelopment. Other than annual line-item appropriations, 
the only enacted brownfield provisions are tax incentives for 
remediation created originally in the Taxpayer Relief Act of 
1997 (Public Law 105-34). That law allows parties to expense 
the costs of remediation at brownfield sites during the year in 
which the expenses were incurred. This tax incentive will 
expire on December 31, 2004.
    The U.S. Environmental Protection Agency (EPA) 
administratively created the existing brownfield grant program 
in 1995 to provide additional incentives for brownfields 
redevelopment. The purpose of these grants is to investigate 
property for potential contamination to facilitate its reuse. 
In 1997, EPA also began providing grants to State and local 
governments to establish revolving loan funds to fund site 
cleanup. Because EPA's brownfields program was created 
administratively under Superfund, it has been legally required 
to apply the provisions of the National Contingency Plan (NCP) 
to the brownfields grants and loans programs. Because the NCP 
is intended to address the nation's worst hazardous waste 
sites, many of its requirements are not appropriate in the 
context of funding for brownfields assessment and remediation. 
Further, its application to the brownfield grant process has 
proven cumbersome and has become a significant barrier to 
greater participation in the program.
    Notwithstanding concerns discussed above, States have taken 
a lead role in the redevelopment of lightly contaminated sites. 
Many States have developed programs, tailored to sites and 
conditions specific to their State, which promote a voluntary 
approach to site remediation. The need is clear. While less 
than 1,500 sites have been listed on the National Priorities 
List (NPL), there are estimated to be more than 450,000 
brownfield sites nationwide. Successful State programs have 
been so largely because of their ability to address larger 
numbers of sites, and their ability to waive State liability if 
a cleanup is performed in a manner acceptable to the State. 
Despite protection from State liability as an incentive to 
invest in these types of sites, testimony before the committee 
confirmed that the fear of incurring Federal liability 
sometimes drives developers and lenders toward open spaces. In 
addition, some States do not have fully developed State 
programs, and this legislation would provide funding and 
assistance to help develop these programs.
    To address these existing problems, the Brownfield 
Revitalization and Environmental Restoration Act of 2001 
(BRERA) was introduced on February 15, 2001 by Senators Chafee, 
Bob Smith, Reid, Boxer, Warner, Baucus, Specter, Graham, 
Campbell, Lieberman, Grassley, Carper, Clinton, Corzine, and 
Wyden. BRERA seeks to revitalize communities through the 
investigation, assessment, and remediation of brownfield sites 
across the nation, making them suitable for redevelopment or 
other beneficial reuse. The intent of the bill is to direct 
more public and private resources toward restoring contaminated 
properties that are not likely to be addressed by the Federal 
Government.

                     Objectives of the Legislation

    The bill authorizes $150 million for each of 5 years to 
inventory, investigate, assess and clean up abandoned and 
underutilized brownfield sites, which will address potential 
human health and environmental threats and create jobs, 
increase tax revenues, and preserve and create open space and 
parks.
    The bill provides legal protections for innocent parties 
who meet specified conditions, such as contiguous property 
owners, prospective purchasers, and innocent landowners.
    The bill authorizes $50 million for each of 5 years for the 
enhancement of State cleanup programs, and limits, where 
appropriate, enforcement by the Federal Government at sites 
cleaned up under a State response program. It provides a 
balance of certainty for prospective purchasers, developers and 
others while ensuring protection of the public health.
    The bill provides for States to create public records of 
brownfield sites, and enhances community involvement in site 
cleanup and reuse of these sites.
    The bill provides for deferral of listing sites on the 
National Priorities List if the State is taking action at the 
site.

                       Section-by-Section Summary

Section 1. Short Title; Table of Contents
    This section designates the title of the bill as the 
``Brownfields Revitalization and Environmental Restoration Act 
of 2001'' and establishes a table of contents.

               Title I Brownfields Revitalization Funding

Section 101. Brownfields Revitalization Funding

                                Summary

    New Section 128 of CERCLA provides funding to identify, 
investigate, assess, and clean up properties that are abandoned 
or underutilized. A ``brownfield site'' is defined in general 
as ``real property, the expansion, redevelopment, or reuse of 
which may be complicated by the presence or potential presence 
of a hazardous substance, pollutant, or contaminant.'' This is 
consistent with EPA's current definition of a brownfield site. 
For the purposes of funding under Title I, the term 
``brownfield site'' excludes certain sites or facilities for 
which the awarding of financial assistance would be 
inappropriate.
    This section authorizes EPA to establish a grant program 
for brownfield site characterizations, assessments, and to 
conduct planning. The maximum grant amount for site 
characterization and assessment is $200,000 for any individual 
brownfield site, except the Administrator may waive the 
limitation to permit a brownfield site to receive a grant not 
to exceed $350,000. Entities that are eligible to receive the 
grants are State and local governments, quasi-governmental land 
clearance authorities, regional councils, State-chartered 
redevelopment agencies and Indian Tribes. A mechanism to permit 
eligible entities to capitalize and administer revolving loan 
funds (RLF) for brownfields remediation also is provided. Based 
on certain considerations outlined in the bill, grants for 
remediation may be made either directly from EPA or from the 
RLF at the discretion of the eligible entity. The bill 
authorizes $150 million per year for fiscal years 2002 through 
2006 to carry out this section. The committee expects this 
money to be funded through general revenues and to be in 
addition to appropriate Superfund funding. It is the 
expectation of the committee that funding of these programs 
created under section 128 will fall under section 104, as does 
the current program.

                               Discussion

    The United States Conference of Mayors and many others have 
identified the lack of funding as an obstacle to brownfields 
redevelopment. Sites may qualify as brownfield sites simply due 
to fear that contamination may be present at a site. Many of 
the estimated 450,000 brownfield sites may be ripe for 
redevelopment, and merely lack a site assessment that confirms 
that a site is not contaminated. Often, funding is unavailable 
to conduct these site assessments or site characterizations. If 
the site assessment does confirm contamination at a brownfield 
site, private funding is often unavailable, but a small amount 
of Federal seed money can leverage other moneys that can be 
used for remediation.
    To address the funding needs at brownfield sites, the bill 
creates new section 128, which codifies and builds on EPA's 
brownfield program. The definition of the term ``brownfield 
site'' in S. 350 is intended to foster reuse of abandoned or 
idled sites that are contaminated to a lesser degree, if at 
all, relative to those higher risk sites that are more 
appropriately addressed by other State and Federal programs. 
Federal brownfield expenditures are appropriately limited to 
sites where, due to the threat of real or perceived 
contamination, no reuse is likely and no federally directed or 
funded cleanup is underway or imminent. The language ensures 
that the limited resources available under this section are not 
expended on sites that will be cleaned up under other 
provisions of Federal law. Thus, the term ``brownfield site'' 
excludes any property:

      where there is an ongoing Superfund removal 
action (a site at which a removal action has occurred in the 
past is clearly eligible as a brownfield site, if none of the 
other exclusionary factors apply);
      that has been listed, or proposed for listing on 
the NPL;
      where there is ongoing cleanup work prescribed by 
an administrative or judicial order under CERCLA, the Resource 
Conservation and Recovery Act (RCRA), the Federal Water 
Pollution Control Act (FWPCA), the Toxic Substances Control Act 
(TSCA) or the Safe Drinking Water Act (SDWA);
      that is subject to corrective action under 
3004(u) or 3008(h) of Solid Waste Disposal Act (SWDA) and to 
which a corrective action permit or order has been issued or 
modified to require the implementation of corrective measures;
      that is a hazardous waste disposal unit for which 
a closure notification has been submitted, and that has closure 
requirements specified in a closure plan or permit;
      that is federally owned or operated;
      that is a portion of a facility where there has 
been a release of polychlorinated biphenyls and that is subject 
to remediation under TSCA; or
      that has received assistance from the Leaking 
Underground Storage Tank (LUST) Trust Fund.

    The bill allows the President to make a site-specific 
determination to authorize financial assistance under section 
128 at certain excluded sites if the President finds that 
financial assistance will protect human health and the 
environment, and either promote economic development or enable 
the creation of, preservation of, or addition of, parks, 
greenways, undeveloped property, other recreational property, 
or other property used for public, non-profit purposes. Sites 
on the NPL or proposed NPL sites, facilities subject to an 
order or consent decree under CERCLA, and Federal facilities 
are ineligible for inclusion. The bill makes clear that former 
drug labs and mine-scarred land are eligible for funding unless 
they are otherwise excluded. The bill also recognizes that 
excluded sites may nonetheless have significant redevelopment 
potential. Accordingly, a savings clause in section 128(j) 
provides that exclusion of a site from the definition of 
``brownfield site'' under section 128 shall have no effect on 
eligibility for assistance under any other provision of Federal 
law.
    Section 128(a) defines the term ``eligible entities'' to 
mean State and local governments, quasi-governmental land 
clearance authorities, regional councils, State-chartered 
redevelopment agencies and Indian Tribes. Any entity not in 
compliance with an administrative or judicial order issued 
under CERCLA, the Resource Conservation and Recovery Act 
(RCRA), the Clean Water Act (CWA), the Toxic Substances Control 
Act (TSCA) or the Safe Drinking Water Act (SDWA) cannot be an 
eligible entity.
    Section 128(b) directs the Administrator to create a 
brownfield site characterization and assessment grant program. 
Eligible entities can apply to the Administrator for grants for 
site characterization, assessment or to conduct planning. Site 
characterizations can include a process to identify and 
inventory potential brownfield sites. EPA can also use money to 
directly perform targeted site assessments at brownfield sites 
in a continuation of current practice. No individual site may 
receive in excess of $200,000 under this subsection. The 
Administrator may waive the limit to permit the site to receive 
a grant not to exceed $350,000, based onsite-specific factors, 
such as the level of contamination, the size of the facility, 
or the status of ownership of the facility. Site assessments 
funded by grants under this subsection shall be in accordance 
with standards and practices, which the Administrator will 
promulgate under 101(35)(B)(ii) or interim standards specified 
under 101(35)(B)(iv), as amended.
    Section 128(c) authorizes the President to provide grants 
to: (1) eligible entities to capitalize remediation revolving 
loan funds; and (2) eligible entities, or nonprofit 
organizations under certain circumstances, to be used directly 
for remediation of one or more brownfield sites. Eligible 
entities may apply for RLF capitalization grants on a site-by-
site or community-wide basis, but may not receive more than $1 
million. The Administrator may make additional grants to 
eligible entities in subsequent years, after taking into 
consideration: the number of sites and number of communities 
that are addressed by the RLF; the demand for funding by 
eligible entities that have not previously received funding 
under this section; the demonstrated ability of the eligible 
entity to enhance remediation and provide funds on a continuous 
basis; and any other factors that the Administrator considers 
appropriate. Eligible entities that establish RLFs may provide 
one or more loans to other eligible entities, site owners, site 
developers, or other persons. The bill does not limit the 
amount of funding an eligible entity may provide to any one 
site for remediation, but the ability to enhance remediation 
and provide funds on a continuous basis is a factor that will 
be considered if an eligible entity applies for supplemental 
capitalization grants. No more than $200,000 per site may be 
granted directly by the Administrator to an eligible entity or 
nonprofit organization to carry out cleanup activities.
    Under the current EPA brownfields program, funding for 
remediation exists only in the form of loans. Brownfield sites 
that will be cleaned up and maintained as recreational 
property, open space, or other non-economic uses may not 
generate the future revenue stream to repay a loan and 
therefore, it has been difficult to arrange private or public 
funding for cleanup of these areas. In addition, disadvantaged 
communities often cannot repay a loan. While the loans are 
generally preferred because repayment of the loans will extend 
the life and expand the utility of Federal expenditures under 
this program, this subsection allows EPA or eligible entities 
to provide direct grants for remediation (to parties that are 
not potentially liable) under certain circumstances. In 
determining whether a grant for remediation is warranted under 
128(c)(1)(B) or 128(c)(2)(B), the President or the eligible 
entity shall take into consideration: the extent to which a 
grant will facilitate the creation of, preservation of, or 
addition to a park, a greenway, undeveloped property, 
recreational property, or other property used for non-profit 
purposes; the extent to which a grant will meet the needs of a 
community that has an inability to draw on other sources of 
funding for environmental remediation and subsequent 
redevelopment of the area in which a brownfield site is located 
because of small population or low income of the community; the 
extent to which a grant will facilitate the use or reuse of 
existing infrastructure; the benefit of promoting the long-term 
availability of funds from a revolving loan fund for brownfield 
remediation; and other such factors as the Administrator 
considers appropriate.
    Section 128(d) prohibits any part of a grant or loan from 
being used to pay for a penalty or fine, a Federal cost-share 
requirement, an administrative cost, a response cost at a 
brownfield site for which the recipient of the grant or loan is 
potentially liable under section 107, or a cost of compliance 
with any Federal laws that are not applicable to the cleanup. 
For the purposes of this section, ``administrative costs'' do 
not include the cost of investigation and identification of the 
extent of contamination, design and performance of a response 
action, or monitoring of a natural resource. Section 128(d)(3) 
allows a local government that receives funding under this 
section to use up to 10 percent of the grant funds to develop 
and implement a brownfields program that may include monitoring 
the health of populations exposed to hazardous substances and 
monitoring and enforcement of any institutional controls used 
to prevent human exposure to hazardous substances at a 
brownfield site.
    In addition, section 128(e) provides requirements for 
applications by eligible entities for assistance under section 
128(b). One of the major complaints of EPA's current 
brownfields program is that under the law, funding applications 
must be made in accordance with the National Contingency Plan 
(NCP). Many witnesses before the committee, and others 
interviewed by staff, have pointed out that since the NCP was 
designed to address the nation's worst sites, applying the NCP 
to brownfield sites is unnecessary and onerous in most cases. 
The bill provides explicitly that the requirements of the NCP 
shall not be included in any requirement for submission of an 
application, unless the Administrator determines that a 
particular NCP requirement is relevant and appropriate to the 
program under this section. It is intended that this will 
greatly simplify the application and assistance process.
    EPA must issue guidance to assist eligible entities in 
applying for grants under subsection (e). It is expected that 
applications will be made to EPA regional offices. A single 
application can, at the discretion of the applicant, include 
grant requests for one or more brownfield sites. The 
Administrator is directed to coordinate with other Federal 
agencies so that applicants are made aware of assistance 
available from other Federal agencies for related purposes. The 
Administrator is directed to establish a system for ranking 
grant applications that includes in the criteria the extent to 
which a grant will stimulate the availability of other funds 
for environmental assessment or remediation, and subsequent 
reuse, of an area in which one or more brownfield sites are 
located. The ranking criteria also must give preferential 
recognition to applications for projects that:
      stimulate economic development;
      address or facilitate the identification and 
reduction of threats to human health and the environment;
      use or reuse existing infrastructure;
      create additional park, greenway or recreational 
acreage;
      meet the needs of a community that has an 
inability to draw on other sources of funding for environmental 
remediation because of small population or low income;
      the extent to which the applicant is eligible for 
funding from other sources;
      the grant will further the fair distribution of 
funding between urban and non-urban areas; and
      the grant provides for involvement of the local 
community in the decisionmaking process.
    The Administrator is directed to complete, at least 
annually, a review of applications for grants received from 
eligible entities and award grants to those eligible entities 
that the Administrator determines have received the highest 
rankings under the ranking criteria.
    The eligible entity must provide a matching share, which 
may be in the form of a contribution of labor, material, or 
services, of at least 20 percent, from non-Federal funding 
sources, unless the Administrator determines that the matching 
share would place an undue hardship on the eligible entity.
    The bill allows the Administrator to provide, or fund 
eligible entities or other nonprofit organizations to provide, 
training, research, and technical assistance to individuals and 
organizations to facilitate the inventory of brownfield sites, 
site assessments, remediation of brownfield sites, community 
involvement, or site preparation. The total Federal funds to be 
expended by the Administrator for this purpose are limited to 
15 percent or less of the total amount appropriated in any 
given year.
    The bill provides in section 128(g) that the Inspector 
General of EPA shall periodically audit all grants and loans 
established under this section in accordance with procedures 
established by the Comptroller General. Since the funds 
provided under this section are limited compared to the total 
universe of brownfield sites that can be cleaned up, it is 
intended that assistance received under this section will be 
used as seed money to leverage other financial resources. To 
this end, section 128(h) clarifies that eligible entities may 
use grant funds received under this section in conjunction with 
other sources of money.
    Section 128(k) provides an authorization of $150 million 
per year for fiscal years 2002 through 2006 to carry out this 
section. The committee expects this money to be funded through 
general revenues and to be in addition to appropriate Superfund 
funding. It is the expectation of the committee that funding of 
these programs created under this bill will fall under section 
104, as does the current program.
    In order to avoid disruption of EPA's existing program, the 
provisions of section 128 apply to RLFs established prior to 
the date of enactment of this section.

             Title II Brownfields Liability Clarifications

Section 201. Contiguous Properties

                                Summary

    Section 201 creates a new section 107(o) that provides 
liability protection for landholders whose property may be 
contaminated by a contiguous contaminated site if they did not 
contribute to the contamination and meet other conditions. 
These landowners must cooperate with the Federal or State 
enforcement authority and provide facility access for site 
cleanup activities.

                               Discussion

    New section 107(o) is added to Superfund's liability 
section to clarify that a person who owns real property 
contaminated by a hazardous substance that has migrated from 
another person's land that is contiguous or similarly situated 
will not be considered to be a potentially liable owner or 
operator under section 107 for that release, so long as they 
meet certain conditions. The provision is similar to EPA 
guidance on the topic entitled Final Policy Toward Owners of 
Property Containing Contaminated Aquifers (OSWER Memorandum 
dated May 24, 1995), which clarifies that EPA will not bring 
enforcement actions against owners of property that has been 
impacted by contaminated groundwater migrating from a 
neighboring facility.
    Section 107(o)(1)(A) establishes the conditions which a 
person must demonstrate by a preponderance of the evidence for 
the liability protection to apply:

      the person cannot have caused, contributed to or 
consented to the release or threat of release;
      the person must not be potentially liable, or 
affiliated through a familial relationship or any contractual, 
corporate, or financial relationship (other than one created by 
a contract for the sale of goods or services) with another 
party that is or was potentially liable at the facility. In 
addition, the person must not be an entity created through the 
reorganization of a business entity that was potentially 
liable;
      the person must have taken reasonable steps to 
stop any continuing release, prevent any threatened future 
release, and prevent or limit human, environmental, or natural 
resources exposure to any hazardous substance released on or 
from property owned by that person;
      the person must provide full cooperation, 
assistance, and access to persons that are authorized to 
conduct response actions or natural resource restoration at the 
vessel or facility from which there has been a release or 
threatened release;
      the person must be in compliance with any land 
use restrictions and not impede the effectiveness or integrity 
of any institutional control employed in connection with a 
response action;
      the person must be in compliance with any request 
for information or administrative subpoena issued by the 
President under this Act;
      the person must provide all legally required 
notices with respect to the discovery or release of any 
hazardous substances found at the facility;
      at the time at which the person acquired the 
property, the person must have conducted all appropriate 
inquiry within the meaning of 101(35)(B) and did not know or 
have reason to know that the property was or could be 
contaminated by a release or threatened release from a 
contiguous property not owned or operated by the person.

    With respect to contamination that exists due to subsurface 
migration of hazardous substances in an aquifer, section 
107(o)(1)(D) specifies that a person shall not be required to 
conduct ground water investigations or to install ground water 
remediation systems, except in accordance with the Final Policy 
Toward Owners of Property Containing Contaminated Aquifers 
(OSWER Memorandum dated May 24, 1995).
    Section 107(o) protects parties that are essentially 
victims of pollution incidents caused by their neighbor's 
actions. It is not intended to require parties raising section 
107(o) as an affirmative defense to alleged liability to 
undertake full-scale response actions with respect to migrating 
contaminated plumes passing through their property. It requires 
that they take reasonable steps, which typically will include 
actions such as notifying appropriate Federal, State and local 
officials regarding the situation; erecting and maintaining 
signs or fences to prevent public exposure; or maintaining any 
existing barrier or other elements of a response action on 
their property that address the contaminated plume. Except 
under exceptional circumstances as outlined in EPA's May 24, 
1995 contaminated aquifer policy, such as at a site where the 
operation of a drinking water well could impact the migration 
of a plume, these persons are not expected to conduct ground 
water investigations or install remediation systems, or 
undertake other response actions that would more properly be 
paid for by the responsible parties who caused the 
contamination.
    Section 107(o)(3) provides the Administrator discretion to 
issue assurances, known as ``comfort letters,'' that no 
enforcement action will be initiated against a person meeting 
the requirements of this section. EPA also may enter into 
settlements that would insulate a person meeting the 
requirements of the section from a cost recovery or 
contribution action under CERCLA.
    The section also clarifies that a person who may not 
qualify under this section because the person had, or had 
reason to have, knowledge that the property might be 
contaminated, may still qualify as a bona fide prospective 
purchaser under section 101(40) if the person meets the 
requirements of section 101(40).
Section 202. Prospective Purchaser and Windfall Liens

                                Summary

    Section 202 adds a new section 107(p) that provides 
liability relief under section 107(a) for purchasers of 
contaminated property who establish by a preponderance of the 
evidence that they did not contribute to the contamination if 
they do not impede the performance of a cleanup or restoration 
at a site they acquire after enactment, exercise appropriate 
care with respect to hazardous substances, provide cooperation 
and access to persons authorized to clean up the site, 
conducted appropriate inquiries prior to the purchase, and are 
in compliance with institutional controls and requests for 
information. This section authorizes the United States to place 
liens on properties at which unrecovered response costs exist 
and at which the fair market value of the property was enhanced 
by the Federal cleanup.

                               Discussion

    Two provisions are added to CERCLA to provide protection to 
persons who wish to purchase contaminated property without 
incurring Superfund liability. Fear of potential Superfund 
liability is frequently cited as a barrier to redevelopment of 
contaminated sites. EPA has attempted to address this problem 
on a case-by-case basis with so-called prospective purchase 
agreements. The process of negotiating these agreements, 
however, is cumbersome and resource-intensive.
    The new provisions add a definition of ``bona fide 
prospective purchaser'' to CERCLA's definitions. Section 107 
would be amended to exclude persons who qualify as bona fide 
prospective purchasers from liability under CERCLA.
    A bona fide prospective purchaser is a person, or tenant of 
the person, who acquires property after the date of enactment 
of the Brownfields Revitalization and Environmental Restoration 
Act of 2001 and can establish each of the following conditions 
by a preponderance of the evidence. First, for purposes of this 
exemption, all disposal of hazardous materials must have 
occurred at the facility before the person acquired the 
property. Second, the person must have made all appropriate 
inquiry into the previous ownership and uses of the facility 
and the real property in accordance with generally accepted 
commercial and customary standards and practices as set forth 
in section 101(35)(B). Such inquiry should include reviews of 
historical sources and documents, such as deeds, easements, 
leases, covenants, and other title and restriction documents 
which may indicate prior uses and site conditions. It should 
also include searches for liens filed against the real 
property. These standards and practices will be established by 
a regulation issued by the Administrator within 2 years of 
enactment of this section. Until the Administrator promulgates 
the regulation, the interim standards and practices described 
in 101(35)(B)(iv) shall apply. The section recognizes that 
appropriate inquiry for residential property is appropriately 
different from appropriate inquiry for commercial property. If 
the purchaser of property for residential or a similar use is 
not a governmental or commercial entity, a facility inspection 
and title search that reveals no basis for further 
investigation will generally satisfy this requirement. A 
purchaser also must provide any required notices if there is a 
discovery or release of any hazardous substance.
    In the case of a property at which hazardous substances are 
found, any bona fide prospective purchaser must exercise 
appropriate care by taking reasonable steps to stop any 
continuing releases, prevent any threatened release, and 
prevent or limit human, environmental, or natural resource 
exposure to any previously released hazardous substance. Like 
the contiguous landowner, a bona fide prospective purchaser 
must provide full cooperation, assistance and site access in 
the course of any necessary response action (including site 
assessment and investigation activities). In addition, the 
prospective purchaser must comply with any land use 
restrictions at the site and must not impede the effectiveness 
or integrity of any institutional control employed at the 
facility (such as damaging a cap, removing signs or fences, or 
otherwise failing to maintain an institutional control, etc.). 
In order to satisfy the definition, a person also must comply 
with any request for information or administrative subpoena 
issued under this Act. Finally, a bona fide prospective 
purchaser must not be potentially liable, or affiliated through 
a familial relationship or any contractual, corporate, or 
financial relationship (other than one created by a contract 
for the sale of goods or services) with another party that is 
or was potentially liable at the facility. Also, the person 
must not be an entity created through the reorganization of a 
business entity that was potentially liable.
    The liability limitation for a bona fide prospective 
purchaser is created in new section 107(p)(1). A bona fide 
prospective purchaser shall not be liable under CERCLA section 
107(a) if the person establishes by a preponderance of the 
evidence that liability is based solely on the party's status 
as an owner or operator of a facility by reason of the 
purchase, provided that the purchaser does not impede the 
performance of a response action or natural resource 
restoration.
    While bona fide prospective purchasers are protected from 
liability, new section 107(p)(2) prevents these parties from 
reaping a windfall due to the increase in a property's value as 
a result of the Federal Government's cleanup efforts. If the 
Federal Government incurs response costs at a facility, this 
section creates a Federal windfall lien on the property. The 
amount of the lien would be equal to the lower of the Federal 
Government's unrecovered response costs or the increase in the 
fair market value of the property due to the government's 
cleanup efforts. In the event that the Federal Government 
recoups part of its unrecovered response costs, such that the 
value of the lien exceeds the unrecovered costs, the 
government's lien will be reduced to the amount of unrecovered 
costs. The windfall lien provision recognizes that the cost of 
cleanup may exceed the fair market value of the property (which 
may be valueless unless it is cleaned up). The windfall lien 
would be satisfied from the proceeds when the bona fide 
prospective purchaser resells or otherwise disposes of the 
property.
Section 203. Innocent Landowners

                                Summary

    Section 203 amends section 101(35)(B) to clarify the 
obligations of any party who seeks to use the innocent 
landowner defense currently in section 107(b)(3). The bill 
provides that the appropriate inquiry requirement is satisfied 
by conducting an environmental site assessment that meets 
specific standards to be promulgated by the Administrator 
within 2 years of enactment or as provided in interim standards 
outlined in the bill.

                               Discussion

    CERCLA provides an affirmative defense for innocent 
purchasers of real property who prior to the date of purchase 
had no reason to know of any release or threatened release of a 
hazardous substance that was disposed of on, in, or at the 
facility. This section amends CERCLA section 101(35) to clarify 
the obligations of parties that seek to use this defense.
    First, a party using this defense must provide full access, 
assistance and cooperation in the conduct of any response 
actions at the facility. In addition, the landowner must not 
impede the effectiveness or integrity of any institutional 
controls at the facility. A landowner seeking to use the 
defense also must demonstrate that he or she had no reason to 
know of the contamination. This is intended to mean that at, or 
prior to, the date the property was acquired, the landowner 
undertook all appropriate inquiry into the previous ownership 
and uses of the facility and the associated real property in 
accordance with standards and practices established by 
regulation by the Administrator within 2 years of enactment of 
this section, or prior to promulgation of the regulations in 
accordance with this section. A defendant must establish it 
took reasonable steps regarding the release as provided in 
(B)(i)(II). These requirements are in addition to the due care 
requirement of section 107(b)(3).
    In order to increase certainty and provide clarity, this 
section provides specific criteria that the Administrator shall 
include in regulations that establish standards and practices. 
One such criteria is the review of historical sources. The 
provision lists examples to demonstrate types of historical 
sources which may be relied upon, but does not contain an 
exhaustive list of such sources. In satisfying all appropriate 
inquiry, it is not intended that a person specifically produce 
each historical source listed. If the property was purchased 
before May 31, 1997, a court shall take into account 1) a 
defendant's specialized knowledge or experience, 2) the 
relationship of the purchase price to the value of the 
property, if the property was not contaminated, 3) commonly 
known or reasonably ascertainable information about the 
property, 4) the obviousness of the presence or likely presence 
of contamination, and 5) the ability of the defendant to detect 
the contamination by appropriate inspection. For property 
purchased after May 31, 1997, and before the regulations are 
promulgated, the procedures published by the American Society 
for Testing and Materials, including the document known as 
`Standard E1527-97', entitled Standard Practice for 
Environmental Site Assessments: Phase I Environmental Site 
Assessment Process can satisfy the all appropriate inquiries 
requirement. This section recognizes that all appropriate 
inquiry for residential property is different than for 
commercial property. If the property is for residential use or 
other similar use and the purchaser is not a governmental or 
commercial entity, a facility inspection and title search that 
reveals no basis for further investigation satisfies the all 
appropriate inquiries requirement.
    A landowner also must demonstrate the exercise of 
appropriate care, defined at new section 101(40)(D). This is 
the same standard that applies to owners or operators who 
qualify for the bona fide prospective purchaser exemption under 
section 107(p).

                   Title III State Response Programs

Section 301. State Response Programs

                                Summary

    Section 301 adds a new CERCLA section 129, authorizing EPA 
to provide funding to States and Indian tribes to establish and 
enhance State programs when the State's or tribe's program 
meets certain elements, they are making reasonable progress 
toward meeting the elements, or they have entered into a 
Memorandum of Agreement with EPA. The bill authorizes 
$50,000,000 to be appropriated for each of fiscal years 2002-
2006 to carry out these provisions.
    This section also provides additional deference for 
cleanups conducted under a State program by precluding 
subsequent Federal enforcement by the President under sections 
106(a) or recover response costs under section 107(a) except: 
(1) at the State's request; (2) in connection with migration 
across a State line or onto Federal property; (3) if the 
Administrator determines that an imminent and substantial 
endangerment to public health or welfare or the environment 
exists, after considering the response actions already taken at 
the site, and determines that additional response actions are 
likely to be necessary; or (4) if the Administrator determines 
new information as to the site conditions or contamination is 
discovered and the contamination and conditions of the site 
present a threat requiring further remediation to protect 
public health, welfare, or the environment. States are required 
to maintain and update at least annually a public record of 
sites, in order for sites cleaned up under a State program to 
be eligible for funding or for the bar on enforcement.

                               Discussion

    The vast majority of contaminated sites across the Nation 
will not be cleaned up by the Superfund program. Instead, most 
sites will be cleaned up under State authority. For example, 
while there are an estimated 450,000 brownfield sites, there 
are fewer than 1,300 NPL sites. In recognition of this fact, 
and the need to create and improve State cleanup capacity, new 
section 129(a) provides financial assistance to States and 
Indian tribes to establish or enhance voluntary response 
programs. It is the expectation of the committee that funding 
of these programs created under this bill will fall under 
section 104, as does the current brownfields program. In 
addition, the State or tribe may use part or all of a grant 
under this subsection to capitalize a revolving loan fund 
established under section 128(c) or develop a risk sharing 
pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions under a State response program. 
In order for a State or Indian tribe to qualify to receive a 
grant under this section for an existing or new program, it 
must demonstrate that the program includes the elements listed 
in section 129(a)(2) or that it is taking reasonable steps to 
include each of the elements in section 129(a)(2). This 
provision regarding State programs where the State is ``taking 
reasonable steps to include'' the elements is meant to 
encourage States that are in the midst of revising their 
programs in a timely fashion to meet the elements specified in 
the bill and not to penalize them in the annual funding 
discussion with EPA if they have not completed their program. 
It is not intended to be an open ended provision, however, and 
the committee would not expect the Administrator to continue 
funding States in a subsequent year without showing additional 
substantial progress toward meeting the elements.
    The State program elements include oversight and 
enforcement authorities to ensure protection of human health 
and the environment, meaningful opportunities for public 
participation, a survey and inventory of brownfield sites in 
the State, and mechanisms for approval of cleanup plans and a 
requirement for verification that the response action has been 
completed. A State is automatically eligible for funding under 
this subsection if it is a party to a memorandum of agreement 
(MOA) with the Administrator for voluntary response programs. 
MOAs have helped to foster more effective and efficient working 
relations between EPA and the States that have entered into 
them, and the bill will encourage their use by providing 
automatic eligibility for funding to States with MOAs.
    The bill clarifies the role of the Federal Government under 
Superfund at sites cleaned up under State response programs. 
Similar to title I, title III focuses on relatively low risk 
sites, and excludes sites which are more appropriately 
addressed under Superfund or other Federal environment laws. 
However there are a few significant differences between the 
universe of sites covered in title I (``brownfield sites'') and 
those addressed in title III (``eligible response sites''). 
Sites eligible for funding under title I but excluded from 
liability relief under title III include sites which might be 
eligible for inclusion on the NPL based on their ``pre-score'' 
(i.e., their preliminary score in the current EPA computer 
model, or its successor, to assess sites for possible inclusion 
on the NPL), but have not been proposed for listing and may not 
yet have had an HRS package prepared, unless the President 
determines that no further Federal action will be taken. The 
enforcement bar can be applied to a site excluded from coverage 
under title III at the discretion of the President, after 
consultation with the State in which the site is located. Where 
the President exercises discretion to add a site that would 
otherwise be excluded due to coverage under other laws, the 
responsible party is not relieved of any obligation under those 
laws.
    The universe of sites to which this title applies is 
further limited by the effective date, which provides that the 
liability relief ``applies only to response actions conducted 
after February 15, 2001'' (the date of introduction of BRERA). 
The word ``conducted'' is used rather than ``commenced'' in 
order not to arbitrarily exclude a site at which a minor 
portion of the work is conducted prior to February 15, 2001. It 
is not the intent of the committee for the enforcement bar to 
apply to response actions which were commenced in order to 
qualify for the bar.
    Section 129(b)(1) limits the authority of EPA at eligible 
response sites that have been or are being cleaned up in 
compliance with a State response program. The State program 
must be one that specifically governs response actions for the 
protection of public health and the environment. Section 
129(b)(1) provides that EPA may not bring a cost recovery 
action under section 107(a) or take an administrative or 
judicial enforcement action under section 106(a) against a 
person that is conducting or has completed a response action, 
with respect to the specific release addressed by the response 
action (there may be separate releases at the same facility 
that are addressed separately, especially if they occur at 
different times, or have different parties responsible for 
them). Where more than one media is contaminated by a hazardous 
substance (e.g. soil and groundwater), these are to be 
considered separate releases for purposes of this bill. The 
limit on EPA's authority applies only to actions by EPA against 
the person conducting the cleanup. In addition, this title does 
not limit in any way the authority of EPA to itself take action 
under section 104 or other authority. In addition, there is no 
intent to limit EPA's authority to issue so-called 
``participate and cooperate'' orders. That is, where some 
responsible parties at a site are conducting a cleanup, EPA's 
authority is not limited with respect to other responsible 
parties. They may be compelled to cooperate with the 
responsible parties that are conducting the cleanup.
    There are four exceptions to the liability limitations:

    (1) The State requests assistance in performance of a 
response action.
    (2) The Administrator determines that contamination has 
migrated or will migrate across a State line, necessitating 
further response action, or the President determines that 
contamination has migrated or is likely to migrate onto 
property subject to the jurisdiction, custody or control of a 
department, agency, or instrumentality of the United States and 
may impact the authorized purposes of the Federal property.
    The phrase ``authorized purposes'' is intended to be read 
broadly to include management responsibilities or statutory 
trust obligations of the department, agency or instrumentality. 
It is not limited to current uses of property where the 
property is intended to be used for multiple purposes.
    (3) The Administrator determines, after taking into 
consideration response activities already taken, that a release 
or threatened release may present an imminent and substantial 
endangerment to public health or welfare or the environment, 
and that additional response actions are likely to be necessary 
to address the release or threatened release.
    The current threshold for EPA to initiate an action under 
section 107 to recover response costs incurred at a site is ``a 
release or threatened release . . . of a hazardous substance.'' 
In order for EPA to issue a unilateral administrative order 
under section 106, the President must determine that ``a 
release or threatened release may present an imminent and 
substantial endangerment to human health or welfare or the 
environment.''
    The bill specifically uses phrases already contained in 
CERCLA, for many of which there already exist definitions, and 
for which there is a well-established body of CERCLA case law 
(for example, the term ``imminent and substantial 
endangerment''). This was done with the express intent of 
incorporating this case law, and to avoid, as far as possible, 
new litigation. However, the bill contains two phrases that do 
not currently appear in CERCLA. First, it expressly states that 
EPA's determination on an imminent and substantial endangerment 
must be made ``after taking into consideration response 
activities already taken.'' The purpose of this phrase is to 
make clear that EPA's imminent and substantial endangerment 
determination at a site addressed under a State cleanup program 
should be based on current conditions at the site, as of the 
time EPA is considering taking action, as contrasted with 
conditions as they existed before cleanup activities had began. 
Although this generally reflects EPA's current practice in 
connection with brownfield sites, it is important to confirm 
that EPA's determination under this provision be made in light 
of the site conditions as affected by prior response activities 
by a party under a State program. This provision is not 
intended to impose a requirement on EPA to conduct a historical 
search of response activities conducted in the past, but rather 
to ensure that determinations are made based on conditions at a 
site at the time the order is issued under section 106(a) or at 
the time of incurrence of response costs for which EPA seeks 
recovery under section 107.
    Second, in addition to determining that there may be an 
imminent and substantial endangerment, EPA must determine that 
additional response actions are likely to be necessary to 
address the release or threatened release. This reflects EPA's 
current practice at brownfield sites addressed under State 
programs and ensures that EPA's actions in the future will be 
appropriate. This current practice has resulted in EPA never 
having taken an enforcement action at a brownfield site being 
addressed under a State cleanup program without a request from 
the State.
    (4) The Administrator determines that information that was 
not previously known by the State has been discovered, and that 
further remediation is necessary to protect human health or 
welfare or the environment.
    This reopener would apply in situations where the 
Administrator determines that new information concerning site 
conditions or contamination reveals that more cleanup is 
needed. If information was not contemplated by the State at the 
time of approval or completion of the cleanup, then it cannot 
be assumed that the cleanup addressed such conditions or 
contamination, and EPA should not be precluded from requiring 
any further response action in connection with that new 
information, or from recovering its response costs. By defining 
``new'' information as that which the State did not know at a 
defined time, as reflected in cleanup documents, we intend to 
eliminate potentially lengthy disputes as to who knew what 
when, and provide more objective criteria and certainty for the 
determination.
    This bill does not make the limitations on EPA authority 
contingent on EPA's prior review and approval of the State's 
response program. The circumstances of brownfields cleanups 
under State laws are unique in several significant respects.
    First, the sites are cleaned up under programs established 
solely under State law, and are not the result of authorization 
or delegation from the Federal Government, as in the Clean 
Water Act or the Resource Conservation and Recovery Act, or 
other environmental laws. The absence of a Federal nexus 
distinguishes these purely State programs from programs 
implementing Federal environmental laws. And, as discussed 
above, this title applies to a limited universe of relatively 
low risk sites that generally are considered to be not of 
``Federal interest''. In addition, the bill provides other 
safeguards to ensure that EPA's authority is not 
inappropriately limited. These include the exceptions--or 
``reopeners''--to the limitations, discussed above, and the 
condition on funding that State programs meet or take steps to 
meet threshold requirements. By conditioning funding on a State 
having met or taking reasonable steps to meet the specified 
elements, or being party to a MOA, the bill will promote State 
programs that contain these basic elements.
    In addition, the limitations on EPA's authority apply only 
in States that maintain a public record of sites at which 
response actions have been conducted and are planned for the 
coming year, including whether they will be suitable for 
unrestricted use and what, if any, institutional controls are 
relied on. A number of stakeholders have indicated that it 
would be most useful for this information to be made available 
electronically. While the bill requires that the State update 
their records at least annually, more frequent updates would be 
appropriate in States that address many sites each year. The 
public record can put communities on notice of cleanup 
activity, allowing them to inquire further, and it can serve as 
a tool for developers and others seeking to do business in the 
State.
    New section 129(b)(1)(D) establishes a notification 
requirement whenever EPA intends to take an administrative or 
judicial enforcement action that may be barred. This permits 
the State governments to notify EPA of any State action at the 
site. The section requires EPA to notify a State of its intent 
to undertake an administrative or judicial enforcement action 
at a facility that may be covered by the bar and where there is 
a release or threatened release of a hazardous substance, prior 
to taking such action. The State has 48 hours to respond to the 
notice and inform EPA if the site is currently, or has been, 
subject to a State remedial action. Unless one of the reopeners 
under section 129(b)(1)(B) applies, the enforcement bar applies 
if the site is being addressed under a State program. This is 
simply a notice requirement and has no effect on the Federal-
State relationship at the facility, but it is intended to help 
encourage communication and coordination between the Federal 
Government and the States. In the situation where the 
Administrator determines that one of the exceptions to the 
enforcement bar applies, the Administrator can take any 
appropriate action immediately. The Administrator still must 
give notice to the State, but there is no requirement to await 
State acknowledgment. If the Administrator does take an 
enforcement action under any of the reopeners (other than the 
State request for Federal intervention), the President shall 
submit to Congress, within 90 days after the initiation of an 
enforcement action, a report describing the basis for the 
enforcement action, including specific references to the facts 
demonstrating that enforcement action is permitted under a 
particular reopener.
    Section 129(b)(2) provides a savings provision that allows 
the President to recover costs incurred prior to the date of 
enactment of BRERA or during a period in which the enforcement 
bar in section 129(b)(1)(A) was not applicable. In addition, 
the bill clarifies that nothing in section 129 modifies or 
otherwise affects a memorandum of agreement, memorandum of 
understanding, or any similar agreement between a State agency 
or an Indian tribe and the Administrator that is in effect on 
or before the date of enactment of BRERA. Similarly, nothing 
limits the discretionary authority of the President to enter 
into or modify an agreement with a State, Indian tribe, or 
other person relating to the implementation by the President of 
statutory authorities. Fifteen States have signed memoranda of 
agreement (MOA) with EPA. MOAs are valuable tools in 
establishing Federal and State priorities and dividing the 
workload and providing greater certainty that EPA will not 
bring enforcement actions at specified sites. They have proven 
effective at avoiding duplication of effort at sites. The 
committee expects that States and EPA will continue to develop 
and implement MOAs.
    Section 129(c) confirms that nothing in section 129 affects 
liability or response authority under CERCLA (except as 
provided in subsection (b)), or any other Federal law.
Section 302. Additions to National Priorities List

                                Summary

    Section 302 creates a new section 105(h) that provides for 
the President to defer listing an eligible response site on the 
NPL at the request of a State, if the President determines that 
the State or other party is cleaning up a site under a State 
program or if the State is pursuing a cleanup agreement. The 
President may list a deferred site on the National Priorities 
List (NPL), after 1 year from proposed listing, if the State is 
not making reasonable progress toward completing the response 
action or a cleanup agreement has not been reached.

                               Discussion

    This section amends section 105 of CERCLA to add a new 
subsection (h) to address when the listing of a facility on the 
NPL should be deferred. Under new subsection (h)(1), the 
President is expected to defer listing a facility if a State, 
or another party under an agreement with or an order from the 
State, is conducting a response action at an eligible response 
site in compliance with a State program.
    The President also is expected to defer final listing of a 
facility if a State is attempting to obtain an agreement from 
parties to perform a remedial action that will provide long-
term protection of human health and the environment. The 
committee believes that this provision will create a strong 
incentive for parties to agree to work with State authorities 
to clean up a site. If, after 1 year from the deferral of 
listing a site on the NPL, an agreement has not been reached 
with the State, the President may defer the listing for an 
additional 180 days if the President determines deferring the 
listing would be appropriate based on the complexity of the 
site, the substantial progress made in negotiations, and other 
appropriate factors. This is intended to allow time for 
completion of ongoing negotiations which are nearing 
completion. In addition, the President may decline to defer, or 
elect to discontinue a deferral of, a listing if the President 
determines that a deferral would not be appropriate because: 
the State, as an owner or operator or a significant contributor 
of hazardous substances to the facility, is a potentially 
responsible party; the criteria under the National Contingency 
Plan for issuance of a health advisory have been met; or the 
conditions upon which the original deferral was based are no 
longer being met.

                                Hearings

    On February 27, 2001, the Subcommittee on Superfund, Waste 
Control, and Risk Assessment met to consider S. 350, a bill to 
amend the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 to promote the cleanup and reuse of 
brownfields, to provide financial assistance for brownfields 
revitalization, and to enhance State response programs, and for 
other purposes, receiving testimony from Hon. Christine Todd 
Whitman, Administrator, Environmental Protection Agency; Mayor 
J. Christian Bollwage, Elizabeth, NJ, on behalf of the United 
States Conference of Mayors; Mayor Myrtle Walker, East Palo 
Alto, CA, on behalf of the National Association of Local 
Government Environmental Professionals; Philip J. O'Brien, New 
Hampshire Department of Environmental Services, Concord, NH; 
Mike Ford, Mike Ford Agency, Clark, NJ, on behalf of the 
National Association of Realtors; Alan Front, The Trust for 
Public Land; John G. Arlington, American Insurance Association; 
Grant Cope, United States Public Interest Research Group; 
Robert D. Fox, Manko, Gold and Katcher, Bala Cynwyd, PA; and 
Deeohn Ferris, Global Environmental Resources, Inc., 
Finesville, NJ.

                          Legislative History

    On February 15, 2001, Senators Chafee, Smith, Reid, Boxer, 
Warner, Baucus, Specter, Graham, Campbell, Lieberman, Grassley, 
Carper, Clinton, Corzine, and Wyden introduced S. 350, a bill 
to amend the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 to promote the cleanup 
and resuse of brownfields, to provide financial assistance for 
brownfields revitalization, to enhance State response programs, 
and for other purposes. The Subcommittee on Superfund, Waste 
Control, and Risk Assessment conducted a hearing on the bill on 
S. 350 on February 27, 2001.
    S. 350, as amended, was reported by the Committee on 
Environment and Public Works on March 8, 2001.

                             Rollcall Votes

    On March 8, 2001, the Committee on Environment and Public 
Works met to consider S. 350, the Brownfields Revitalization 
and Environmental Restoration Act of 2001. A manager's 
amendment offered by Senators Smith of New Hampshire, Reid, 
Chafee, and Boxer was agreed to by voice vote.
    An amendment offered by Senator Inhofe to extend 
enforcement authority exemptions from the Toxic Substances 
Control Act failed to pass by a rollcall vote of 5 ayes to 13 
nays. Voting in favor were Senators Bond, Crapo, Inhofe, 
Specter, and Voinovich. Voting against were Senators Baucus, 
Boxer, Campbell, Carper, Chafee, Clinton, Corzine, Graham, 
Lieberman, Reid, Smith of New Hampshire, Warner, and Wyden.
    An amendment offered by Senator Inhofe to extend 
enforcement authority exemptions from the Resource Conservation 
and Recovery Act failed to pass by a rollcall vote of 5 ayes to 
13 nays. Voting in favor were Senators Bond, Crapo, Inhofe, 
Specter, and Voinovich. Voting against were Senators Baucus, 
Boxer, Campbell, Carper, Chafee, Clinton, Corzine, Graham, 
Lieberman, Reid, Smith of New Hampshire, Warner, and Wyden.
    An amendment offered by Senator Inhofe to extend 
enforcement authority exemptions from section 9003(h) of the 
Resource Conservation and Recovery Act failed to pass by a 
rollcall vote of 5 ayes to 13 nays. Voting in favor were 
Senators Bond, Crapo, Inhofe, Specter, and Voinovich. Voting 
against were Senators Baucus, Boxer, Campbell, Carper, Chafee, 
Clinton, Corzine, Graham, Lieberman, Reid, Smith of New 
Hampshire, Warner, and Wyden.
    An amendment offered by Senator Inhofe to limit the 
expenditure of funds for EPA's administrative costs failed to 
pass by a rollcall vote of 4 ayes to 14 nays. Voting in favor 
were Senators Bond, Crapo, Inhofe, and Warner. Voting against 
were Senators Baucus, Boxer, Campbell, Carper, Chafee, Clinton, 
Corzine, Graham, Lieberman, Reid, Smith of New Hampshire, 
Specter, Voinovich, and Wyden.
    A motion to report the bill as amended was agreed to by 
rollcall vote of 15 ayes and 3 nays. Voting in favor were 
Senators Baucus, Boxer, Campbell, Carper, Chafee, Clinton, 
Corzine, Graham, Lieberman, Reid, Smith of New Hampshire, 
Specter, Voinovich, Warner, and Wyden. Voting against were 
Senators Bond, Crapo, and Inhofe.

                    Evaluation of Regulatory Impact

    Section 11(b) of rule XXVI of the Standing Rules of the 
Senate requires publication of the report of the committee's 
estimate of the regulatory impact made by the bill as reported. 
No regulatory impact is expected by the passage of S. 350. The 
bill will not affect the personal privacy of others.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(P.L. 104-4), the committee finds that this bill would impose 
no Federal intergovernmental unfunded mandates on State, local, 
or tribal governments. All of its governmental directives are 
imposed on Federal agencies. The bill does not directly impose 
any private sector mandates.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment Act 
requires each report to contain a statement of the cost of a 
reported bill prepared by the Congressional Budget Office. 
Senate Rule XXVI paragraph 11(a)(3) allows the report to 
include a statement of the reasons why compliance by the 
committee is impracticable. The committee is unable to include 
a statement of the cost at this time because the Congressional 
Budget Office has not finished an analysis of the bill.
                 Additional Views of Senator Voinovich

    Our States have a vested interest in cleaning up waste 
sites on their own and in many instances, they are doing so 
more efficiently and more cost-effectively than the Federal 
Government. The result is healthier downtowns and an emphasis 
on preventing urban sprawl and preserving farmland and 
greenspaces. State programs are cleaning-up industrial eyesores 
in our urban centers, making them more desirable places to 
live. By their actions, States are putting abandoned sites back 
into productive use; they are the key to creating jobs in areas 
that have traditionally been hit-hard by unemployment.
    Unfortunately, under current Federal law, disincentives to 
cleaning-up brownfields sites remain. It is important that we 
alleviate this problem by providing a waiver of Federal 
Superfund liability to parties that clean-up sites under State 
voluntary cleanup and enforcement programs. While S. 350 
provides some relief from Federal liability to developers who 
clean-up these sites under State programs, I believe that 
States should be given the ``opportunity to cure'' before EPA 
initiates an enforcement action. The National Governor's 
Association (NGA) and the National Conference of State 
Legislatures both agree that States must be given adequate 
opportunity to respond before the Federal Government steps in.
    Last summer, the NGA wrote to members of the Committee to 
express their strong support for provisions ``that relieve the 
fear of Federal Superfund liability from prospective 
purchasers, innocent landowners, and contiguous property 
owners.'' The NGA has stated that they also strongly support 
significantly improved language that would provide ``some 
degree of certainty that States can assure landowners who 
participate in State voluntary cleanup programs that they will 
not be engulfed in the Federal liability scheme.''
    As S. 350 moves forward, I look forward to working out a 
more workable process for State authority. It is important that 
this issue is addressed so we can return old industrial sites 
to productive use.
  Additional Views of Senators Boxer, Baucus, Lieberman, Clinton, and 
                                Corzine

Introduction

    We are pleased to see that this committee was able to come 
together around the important issue of Brownfields legislation. 
We think that this bill generally makes important strides in 
addressing these sites. We think the bill could have been 
strengthened by the amendments we offered, as discussed below.

Directing Assistance to Vulnerable Populations

    The U.S. Conference of Mayors and many others have noted 
that brownfields create problems that afflict communities 
around the country. There was widespread agreement among the 
witnesses testifying before the committee that the status quo 
with regards to brownfields is unacceptable. We concur. While 
EPA's efforts have met with significant successes, this bill is 
needed to ensure that the Brownfields Initiative is able to 
expand to more effectively address the hundreds of thousands of 
contaminated sites around the country.
    It is important that a brownfields bill maximize the 
assistance provided to communities that have been 
disproportionately impacted by brownfields; in particular, low-
income minority communities that are least able to address the 
problems on their own. As Deeohn Ferris, President of Global 
Environmental Resources Incorporated testified, ``Compared to 
their numbers in the general population, many of these 
properties are in minority and low-income neighborhoods. Thus, 
equity, race and class discrimination, the diminished tax base 
in municipalities, and suburban sprawl are inseparable from the 
blight and marginalized communities that accompany 
brownfields.''
    Children, pregnant women, and the elderly have been found 
to be particularly vulnerable to some of the contamination 
common to brownfields sites. As such, any brownfields bill 
should also give special attention to the unique needs of these 
vulnerable populations. Amendments filed by Senators Boxer, 
Clinton, and Corzine would have directed EPA to give priority 
to these communities and would have improved the bill as it 
applies to these communities. Unfortunately, the bill fails to 
adequately address either the specific health concerns of 
pregnant women, children, and the elderly or the needs of low-
income, minority communities that have been disproportionately 
impacted by brownfields.
    The bill could also go further in targeting resources to 
those communities faced with a higher-than-normal incidence of 
disease (including cancer, asthma, or birth defects). Many in 
the scientific and public health communities believe that 
diseases such as these may be linked to exposure to hazardous 
substances found in brownfields sites. Unfortunately, there are 
still significant gaps in our understanding about how exposure 
to these substances may impact human health, and particularly 
the health of children, the elderly, and other vulnerable 
subpopulations. Focusing much needed resources on the cleanup 
of sites in communities with a higher-than-normal incidence of 
disease would help to fill in the gaps in our understanding, 
while at the same time minimizing additional human health risks 
in these communities that are already plagued by illness. 
Again, the bill fails to take such measures; we would strongly 
support changes to the bill that would provide for this.

Open Space

    Brownfields remediation efforts have often focused on the 
need to clean up sites for future economic redevelopment. The 
benefits to be gained from the revitalization and re-use of 
these sites can not be overstated. Areas of blight can be 
restored so that they bring jobs and tax revenue back to local 
communities. However, many brownfields sites also have the 
potential to serve as parks, greenways, or areas of open space. 
Unlike past brownfields bills, this bill includes important 
language that gives priority to sites that will be cleaned-up 
in order to be used for outdoor recreational purposes.
    As communities around the country face rapid, and often 
overwhelming, development pressures, we anticipate that the use 
of brownfields sites for open space purposes will become 
increasingly important. Deeohn Ferris testified, ``In view of 
efforts of communities to preserve already limited green spaces 
within, in particular, the urban environment, it's encouraging 
that the bill favors grants that facilitate, among other 
activities, creation and preservation of parkland. While 
economic development in certain areas is highly desirable, 
quality of life is greatly enhanced by neighborhood 
beautification and amenities.'' Alan Front, Senior Vice 
President of the Trust for Public Land echoed this sentiment in 
his testimony about the bill's provision which encourages 
grants for parks and greenways. ``This provision, which 
recognizes the importance of improving quality of life in 
brownfields-affected neighborhoods, places open-space and 
community recreation appropriately in the equation alongside 
revenue-producing economic redevelopment.''
    We strongly support the bill's provisions to give added 
emphasis to sites that will be used for open space and 
parkland.

No Effect on Other Federal Laws

    The bill is designed to provide funding for and liability 
relief to brownfields sites addressed under CERCLA. As outlined 
in the discussion of eligible sites, the bill specifies that 
only sites with low levels of contamination be considered under 
this bill. The bill limits the bar on EPA's enforcement to 
actions taken under Sections 106 and 107 of CERCLA and only 
under the circumstances set forth in the bill. This provision 
is purposefully narrow even though some brownfields sites may 
be regulated by EPA or a State under these other statutes. The 
committee considered and rejected efforts to address liability 
under these other statutes; this has been critical to our 
support and that of many outside groups. Environmentalists and 
communities who have a very strong interest in cleaning up 
brownfields sites are also very concerned that we not 
compromise protections under these other statutes. Moreover, 
many members indicated a strong unwillingness to make changes 
in other laws without full hearings and other opportunities to 
fully appreciate how changes made in this bill might impact the 
other laws and their enforcement schemes. Given the sensitive 
nature of the liability relief and the enforcement bar that the 
bill creates under CERCLA, and the potential for inadvertent 
effects on other environmental laws, the committee was 
unwilling to make similar changes for other statutes without 
thorough consideration of the implications.
    Numerous witnesses testified that modifications to other 
statutes were not necessary for this bill to have positive 
benefits for developers, real estate interests, and others in 
encouraging brownfields cleanup. Indeed, Administrator Whitman 
testified, ``The Administration believes that brownfields 
legislation is important enough to be considered independently 
from other statutory reform efforts, such as Superfund. . . I 
would urge that Superfund reform issues not hold up passage of 
S. 350.'' Mike Ford testified on behalf of the National 
Association of Realtors that ``A shortage of cleanup funds and 
liability concerns continue to impede brownfields 
redevelopment. S. 350 effectively addresses these issues.''

Eligibility for Only Low Level Sites

    The bill includes important provisions specifying that only 
sites with low level contamination are eligible for inclusion 
under this bill. Ineligible sites include those that are listed 
on the National Priorities List or sites that have undergone a 
preliminary assessment and site investigation and have received 
a ``pre-score'' under EPA's site evaluation process that would 
indicate that the site could qualify for inclusion on the 
National Priorities List. This distinction between high-level 
and low-level contamination is vital to ensure that liability 
relief and limitations on EPA enforcement are in no way granted 
to ``Superfund-caliber'' sites. These higher-risk sites should 
remain under the stringent strict liability provisions found in 
CERCLA to ensure that they are dealt with in a way that meets 
the health and safety needs of the public. This provision was 
critical to our support for the bill, and to others supporting 
the bill.

Maintaining the Federal Safety Net

    The bill allows only lightly contaminated sites to be 
eligible for limitations on Federal enforcement of CERCLA. 
Nevertheless, there may be situations where Federal 
intervention is necessary to ensure adequate cleanup occurs or 
to guarantee that the appropriate parties are held responsible. 
Accordingly, the bill is careful to maintain a strong Federal 
safety net that allows EPA to apply fully its enforcement 
options under CERCLA in the following circumstances: the State 
requests assistance; contamination has migrated or will migrate 
across a State line; contamination has migrated or is likely to 
migrate onto property that is subject to the jurisdiction, 
custody, or control of the United States and may impact the 
authorized purposes of the Federal property; a release or 
threatened release may present an imminent and substantial 
endangerment to public health or welfare or the environment; or 
new information becomes available to suggest that the 
contamination or conditions of the facility present a threat 
requiring further remediation to protect public health or 
welfare, or the environment.
    These exceptions were carefully designed to ensure that in 
these important instances, EPA can intervene under its normal 
CERCLA authority. One of the most important of these 
``reopener'' provisions deals with circumstances in which a 
site may present an imminent and substantial endangerment to 
public health or welfare or the environment. This provision is 
purposefully based on an identical ``imminent and substantial 
endangerment'' standard found in CERCLA. This standard has been 
used, and its meaning litigated for over 20 years and its 
meaning is well understood by all the parties involved in 
brownfields efforts. The committee considered and rejected the 
use of an alternative standard in part out of concern that it 
would lead to massive amounts of new litigation. This, in turn, 
would provide less certainty to developers and others about 
EPA's enforcement role.
    In determining whether a situation may present an imminent 
and substantial threat, the bill also requires the 
Administrator to give consideration to response activities 
already being taken and whether additional response actions are 
likely to be necessary. We are aware that some outside 
community and environmental organizations are very 
uncomfortable with making these additions, particularly in 
light of the fact that EPA has never overfiled in a single 
brownfields cases.
    These additions, however, are not intended to change the 
meaning of the imminent and substantial standard. In fact, 
these changes were intended to adopt that standard to avoid 
unnecessary litigation and just address when this standard 
would be applied. The standard for imminent and substantial 
endangerment has been used in a number of other environmental 
statutes (e.g. Solid Waste Disposal Act, Clean Air Act, Clean 
Water Act); it is used in a number of State statutes relating 
to brownfields cleanup; and it is used in a number of MOA's 
between individual States and EPA governing the State's 
voluntary brownfields cleanup program. More importantly, the 
imminent and substantial standard has an established meaning 
under the case law and courts have upheld its use. The courts 
have held that endangerment need not be actual harm, but rather 
potential or threatened harm. Additionally, they have found 
that the harm itself need not be imminent for the standard to 
apply; the risk of such harm is sufficient. Nothing in this 
bill is intended to deviate from that interpretation.
    The bill also purposefully includes language to ensure that 
EPA is not barred from taking enforcement action at sites where 
cleanup has been conducted before February 15, 2001. Sites 
where cleanup has been undertaken (prior to February 15, 2001), 
is well underway, or has been completed and are now being 
maintained or monitored should not be eligible for liability 
relief or the enforcement bar. This is because the argument in 
favor of the bar has been that potential liability discourages 
development and removing this potential liability will spur 
development. Clearly, if work has already commenced at a site 
there is no justification for a bar on Federal action.
    History suggests that EPA will not apply a heavy hand in 
implementing this safety net. EPA Administrator Whitman 
testified that the agency has yet to ever overfile under CERCLA 
at a brownfields site. Nonetheless, it is vital that this 
option be maintained so that all enforcement tools can be 
employed if any of the aforementioned circumstances develop. 
Furthermore, the knowledge that EPA can intervene if a State or 
private party fails to adequately clean up a site may serve as 
an incentive to get the cleanups done right the first time. As 
Grant Cope of the U.S. Public Interest Research Group 
testified, ``State cleanup officials rely on EPA's order 
authority to force intransigent parties to negotiate in good 
faith, or risk involvement by Federal authorities.''
    Maintenance of a strong Federal safety net is particularly 
important because the bill lacks sufficient provisions for 
Federal review of State programs. Democratic bills in the past 
have, without exception, required EPA review and approval of 
State programs, to ensure citizens are truly protected from 
threats to their health and environment. With one exception 
relating to the maintenance of a public record, the bill does 
not require States to demonstrate that they are in compliance 
with a set of Federal criteria before their program is eligible 
for the enforcement bar. This means that there is little 
opportunity for quality control on cleanups except for EPA's 
ability to come in at a particular site when the site 
conditions warrant it. Any weakening whatsoever of this 
provision would tip the balance of the bill away from ensuring 
protection of human health and the environment. Concerns with 
this provision are exacerbated by the fact that State programs 
vary widely. Even States with strong programs have, in the 
past, had a variety of problems (e.g. running out of funding, 
State statutes that have sunsetted). It is only by maintaining 
a Federal backup for State programs that we can ensure that our 
constituents are protected.
    Amendments by Senators Boxer, Clinton and Corzine would 
have strengthened the Federal safety net even further by 
allowing EPA to exert its full CERCLA enforcement authority at 
sites that would have placed children, pregnant women, or low 
income minority communities or communities with a higher 
proportion than normal incidence of disease at disproportionate 
risk.
    Many witnesses testified in favor of maintaining a strong 
and clear Federal safety net. EPA Administrator Whitman, for 
instance, testified that ``Brownfields legislation should 
direct EPA to work with States to ensure that they employ high, 
yet flexible cleanup standards, and allow EPA to step in to 
enforce those standards where that is necessary.''

Pre-Approval of State Programs

    As several witnesses testified, the quality of State 
brownfields programs varies dramatically from State to State. 
The bill requires that a State or tribal program include 
certain elements, or be taking reasonable steps to include 
these elements, before they are eligible for funding under the 
bill. These elements are vital components that reflect the 
minimum of a credible State or tribal voluntary cleanup 
program. These elements include: timely survey and inventory of 
brownfields sites; oversight and enforcement authorities; 
resources to ensure that adequate response actions will protect 
human health and the environment and comply with applicable 
Federal and State law; resources to ensure that if the person 
conducting the response fails, there is a mechanism for the 
necessary response activities to be completed; mechanisms for 
the public to participate in a meaningful way; and mechanisms 
for approval of a cleanup plan and a requirement for 
verification and certification.
    Some States lack programs that contain some or all of these 
elements. The bill allows them to receive funding while they 
develop, or enhance, their programs. The bill allows States to 
receive funding as long as they show that they are taking 
``reasonable steps'' to develop the program elements outlined 
in the bill. This is intended to encourage State programs which 
lag behind to make improvements, but is meant to clearly 
require that they make demonstrable progress in their program. 
If States fail to make marked improvements in their program, 
additional State money would not be available to them.
    We expect that the Administrator would evaluate annually 
the progress that States are making, assess whether they are 
indeed taking reasonable steps, and deny funding to those 
States that fail to make progress. Otherwise, this provision 
could serve as a loophole that would allow States to avoid 
incorporating the program elements into their program. Such 
behavior would constitute an abuse of the intent of this bill.
    In previous versions of brownfields legislation, and in 
many other environmental statutes, Federal approval of State 
programs is required before funding or liability relief are 
provided. Indeed, other statutes allow for State implementation 
only on the condition that EPA give prior approval certifying 
that the State has met minimum criteria. This bill would have 
benefited from similar provisions, and Sen. Baucus filed an 
amendment to this bill which would have done just that. 
Specifically, the bill should have explicitly required that the 
elements described in the bill be in an approved State program 
before there were any restraints on EPA's actions, and should 
have established explicit steps that EPA would take to review 
and assess a State program. Alternatively, it should at least 
have clarified that there was a distinct period of time (e.g. 
within 2 years of enactment of the bill) during which the State 
could get its program in place and approved.
    Clearly, this bill includes an inherent tradeoff between 
requiring State program elements and a strong Federal safety 
net. The bill just barely meets this balance. Any changes to 
the Federal safety net would compromise the integrity of the 
bill and provide too much deference to the States.

Improving Opportunities for Public Participation

    Providing adequate opportunities for public participation 
has proven to be an effective tool in ensuring that clean ups 
are conducted in an efficient and cost-effective manner. By 
allowing local communities to participate directly in the 
decisionmaking process, concerns can be addressed early, 
thereby helping to avoid unnecessary complications and delays.
    S. 350 takes a number of important steps to ensure adequate 
opportunities for public participation and involvement. The 
bill requires the inclusion of local community involvement as a 
grant application ranking criteria. It also includes mechanisms 
and resources for providing public participation opportunities 
as an element of State programs eligible for Federal funding. 
In addition, S. 350 links the bar on Federal enforcement to 
sites in States that maintain, update, and make available to 
the public a record of brownfields sites at which response 
actions have or will be taken.
    In her testimony, Deeohn Ferris pointed out how S. 350 
prioritizes public participation in the decisionmaking process: 
``Community involvement and public participation assurances in 
the bill. . . . elevate the significance of meeting community 
needs and inclusion in the decision process.'' She also 
emphasized the importance of linking the increased flexibility 
that S. 350 confers upon the States with an increase in the 
opportunities for community and public involvement.
    While we strongly support the public participation 
provisions that have been included in S. 350, we believe that 
they can be strengthened even further. We are particularly 
concerned that although States complying with the program 
elements already included in S. 350 must survey and inventory 
sites in the State, there may be sites in certain communities 
that are overlooked--particularly those communities that may be 
small or sparsely populated, low-income, minority, or otherwise 
socially or politically disenfranchised.
    We believe that such situations could be avoided by 
allowing individuals that may be affected by a nearby 
brownfields site to have the ability to request that the site 
be assessed under a State program. Such a provision could have 
been included in S. 350 while still allowing States complete 
discretion and flexibility with regard to how such a request 
mechanism would be established.
           Minority Views of Senators Inhofe, Crapo, and Bond

    Over the last several years, the Senate Committee on 
Environment and Public Works (the ``committee'') has worked 
very hard on Superfund reform. With S. 350, the committee has 
decided, for now, to address only brownfields a single portion 
of the old comprehensive Superfund reform bills. However 
because of the overwhelming evidence that the statute is not 
working as intended, the committee must work on additional 
reforms to Superfund, including, small business and used oil 
recyclers liability relief as well as remedy and natural 
resource damages reforms--at a minimum.
    If Congress is only going to do a small portion of the 
Superfund reform for now, Congress should do it right. S. 350 
contains provisions, which would be a positive first step 
toward revitalizing brownfields in this country. However, there 
are issues that--if addressed--would make a real difference in 
our nation's ability to address brownfields and could be 
addressed in a bipartisan manner. Specifically, the issues are 
(1) the legislation's site cleanup finality provisions; (2) the 
scope of the legislation's cleanup finality provisions; and (3) 
an administrative cap on the bill.
    First, Section 129 (b)(1)(B) (the exceptions provisions) 
are of great concern. Advocates of S. 350 State that the bill's 
purpose is to provide assurances to parties, who clean up 
brownfields under State plans, that the Federal EPA will not 
come back and force further Federal cleanups. S. 350 only 
provides developers with moderate assurances for Superfund-
forced cleanups. Many developers and business groups (the 
parties who have to fund brownfields redevelopment) argue that 
the bill does nothing to this end.
    Section 129 (b)(1)(B)(iv) of S. 350 is of particular 
concern. This provision would allow almost any new information 
to be used to allow EPA to re-enter a site. The mere existence 
of any information such that the contamination or conditions 
present any ``threat'' is a standard without boundaries. At a 
minimum, the committee should make it clear in legislative 
terms that the information must be ``clear and compelling.''
    The States also need to be provided a greater role in the 
process by clarifying the State's role. The States should have 
the primary role to select a remedy, which should be protective 
of public health and the environment. Rather, it is more 
appropriate for the State to be expected to continue its 
responsibility at cleaning up the site before the Federal 
Government must expend time and cost at the site.
    Secondly, the scope of the cleanup finality provision is of 
concern. If the power of EPA to force cleanups under Superfund 
is taken away, then the Federal EPA can simply side-step the 
bill by using the Resource Conservation and Recovery Act (RCRA) 
or the Toxic Substances and Control Act (TSCA) to force parties 
to cleanup sites--even after a cleanup has been performed under 
a State program. Assurances need to be provided that if clean 
up has been performed under a State program which is protective 
of public health and the environment, EPA does not utilize RCRA 
or TSCA to force additional requirements.
    According to EPA's figures, there are 200,000 sites 
contaminated primarily from petroleum. This is roughly half of 
the approximately 450,000 brownfields in the U.S. By not 
addressing petroleum liabilities under RCRA in S. 350, Congress 
is preventing almost half of the brownfields in this country 
from being cleaned up and developed. Congress must address this 
issue. It is not right to allow so many brownfields to remain 
contaminated under this program.
    Serious concerns remain that businesses will not feel 
adequately protected and, therefore, brownfields will not get 
cleaned up. It is true that EPA has never overfiled a State-
approved brownfields cleanup under any statute. However, it is 
the perceived threat that makes businesses shy away from 
revitalizing brownfields. In the end, developers and businesses 
are the parties that will determine whether there is adequate 
protection for developers. These are the parties, which will 
decide whether it is financially viable to revitalize a 
brownfield. Remember this is not about whether a polluter pays. 
This is about providing a safety net for parties, who want to 
do something positive for the environment and, therefore, the 
community. If a business does not feel adequately protected 
from liability and, therefore, is not inclined to remediate a 
site, we have done nothing. Brownfields will remain abandoned 
and contaminated and communities, mayors, developers, 
environmental groups--and in fact, everyone,--loses.
    Finally, we would like to work with the members of the 
committee and the Administration to place a cap on 
administrative costs set aside by the Federal EPA. A cost cap 
would ensure the States and parties, seeking to clean up and 
redevelop brownfields, are getting a vast majority of the funds 
for their brownfields programs and cleanups. EPA informed us 
that they current use approximately 16 percent of brownfields 
funds appropriated on administrative costs. This amount is 
unacceptable. Congress must place a cap on administrative 
costs. S. 350 was drafted to revitalize brownfields in 
communities all over this nation not fund a bureaucracy.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT 
                                OF 1980

                             ``SUPERFUND''

      

[As Amended Through P.L. 106-308, October 13, 2000]

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

            (35)(A) The term ``contractual relationship'', for 
        the purpose of section 107(b)(3) includes, but is not 
        limited to, land contracts, [deeds or] deeds, 
        easements, leases, or other instruments transferring 
        title or possession, unless the real property on which 
        the facility concerned is located was acquired by the 
        defendant after the disposal or placement of the 
        hazardous substance on, in, or at the facility, and one 
        or more of the circumstances described in clause (i), 
        (ii), or (iii) is also established by the defendant by 
        a preponderance of the evidence:
                    (i) At the time the defendant acquired the 
                facility the defendant did not know and had no 
                reason to know that any hazardous substance 
                which is the subject of the release or 
                threatened release was disposed of on, in, or 
                at the facility.
                    (ii) The defendant is a government entity 
                which acquired the facility by escheat, or 
                through any other involuntary transfer or 
                acquisition, or through the exercise of eminent 
                domain authority by purchase or condemnation.
                    (iii) The defendant acquired the facility 
                by inheritance or bequest.
        In addition to establishing the foregoing, the 
        defendant must establish that [he] the defendant has 
        satisfied the requirements of section 107(b)(3) (a) and 
        (b)[.], provides full cooperation, assistance, and 
        facility access to the persons that are authorized to 
        conduct response actions at the facility (including the 
        cooperation and access necessary for the installation, 
        integrity, operation, and maintenance of any complete 
        or partial response action at the facility), is in 
        compliance with any land use restrictions established 
        or relied on in connection with the response action at 
        a facility, and does not impede the effectiveness or 
        integrity of any institutional control employed at the 
        facility in connection with a response action.
            [(B) To establish that the defendant had no reason 
        to know, as provided in clause (i) of subparagraph (A) 
        of this paragraph, the defendant must have undertaken, 
        at the time of acquisition, all appropriate inquiry 
        into the previous ownership and uses of the property 
        consistent with good commercial or customary practice 
        in an effort to minimize liability. For purposes of the 
        preceding sentence the court shall take into account 
        any specialized knowledge or experience on the part of 
        the defendant, the relationship of the purchase price 
        to the value of the property if uncontaminated, 
        commonly known or reasonably ascertainable information 
        about the property, the obviousness of the presence or 
        likely presence of contamination at the property, and 
        the ability to detect such contamination by appropriate 
        inspection.]
                    (B) Reason to know.--
                            (i) All appropriate inquiries.--To 
                        establish that the defendant had no 
                        reason to know of the matter described 
                        in subparagraph (A)(i), the defendant 
                        must demonstrate to a court that--
                                    (I) on or before the date 
                                on which the defendant acquired 
                                the facility, the defendant 
                                carried out all appropriate 
                                inquiries, as provided in 
                                clauses (ii) and (iv), into the 
                                previous ownership and uses of 
                                the facility in accordance with 
                                generally accepted good 
                                commercial and customary 
                                standards and practices; and
                                    (II) the defendant took 
                                reasonable steps to--
                                            (aa) stop any 
                                        continuing release;
                                            (bb) prevent any 
                                        threatened future 
                                        release; and
                                            (cc) prevent or 
                                        limit any human, 
                                        environmental, or 
                                        natural resource 
                                        exposure to any 
                                        previously released 
                                        hazardous substance.
                            (ii) Standards and practices.--Not 
                        later than 2 years after the date of 
                        enactment of the Brownfields 
                        Revitalization and Environmental 
                        Restoration Act of 2001, the 
                        Administrator shall by regulation 
                        establish standards and practices for 
                        the purpose of satisfying the 
                        requirement to carry out all 
                        appropriate inquiries under clause (i).
                            (iii) Criteria.--In promulgating 
                        regulations that establish the 
                        standards and practices referred to in 
                        clause (ii), the Administrator shall 
                        include each of the following:
                                    (I) The results of an 
                                inquiry by an environmental 
                                professional.
                                    (II) Interviews with past 
                                and present owners, operators, 
                                and occupants of the facility 
                                for the purpose of gathering 
                                information regarding the 
                                potential for contamination at 
                                the facility.
                                    (III) Reviews of historical 
                                sources, such as chain of title 
                                documents, aerial photographs, 
                                building department records, 
                                and land use records, to 
                                determine previous uses and 
                                occupancies of the real 
                                property since the property was 
                                first developed.
                                    (IV) Searches for recorded 
                                environmental cleanup liens 
                                against the facility that are 
                                filed under Federal, State, or 
                                local law.
                                    (V) Reviews of Federal, 
                                State, and local government 
                                records, waste disposal 
                                records, underground storage 
                                tank records, and hazardous 
                                waste handling, generation, 
                                treatment, disposal, and spill 
                                records, concerning 
                                contamination at or near the 
                                facility.
                                    (VI) Visual inspections of 
                                the facility and of adjoining 
                                properties.
                                    (VII) Specialized knowledge 
                                or experience on the part of 
                                the defendant.
                                    (VIII) The relationship of 
                                the purchase price to the value 
                                of the property, if the 
                                property was not contaminated.
                                    (IX) Commonly known or 
                                reasonably ascertainable 
                                information about the property.
                                    (X) The degree of 
                                obviousness of the presence or 
                                likely presence of 
                                contamination at the property, 
                                and the ability to detect the 
                                contamination by appropriate 
                                investigation.
                            (iv) Interim standards and 
                        practices.--
                                    (I) Property purchased 
                                before may 31, 1997.--With 
                                respect to property purchased 
                                before May 31, 1997, in making 
                                a determination with respect to 
                                a defendant described of clause 
                                (i), a court shall take into 
                                account--
                                            (aa) any 
                                        specialized knowledge 
                                        or experience on the 
                                        part of the defendant;
                                            (bb) the 
                                        relationship of the 
                                        purchase price to the 
                                        value of the property, 
                                        if the property was not 
                                        contaminated;
                                            (cc) commonly known 
                                        or reasonably 
                                        ascertainable 
                                        information about the 
                                        property;
                                            (dd) the 
                                        obviousness of the 
                                        presence or likely 
                                        presence of 
                                        contamination at the 
                                        property; and
                                            (ee) the ability of 
                                        the defendant to detect 
                                        the contamination by 
                                        appropriate inspection.
                                    (II) Property purchased on 
                                or after may 31, 1997.--With 
                                respect to property purchased 
                                on or after May 31, 1997, and 
                                until the Administrator 
                                promulgates the regulations 
                                described in clause (ii), the 
                                procedures of the American 
                                Society for Testing and 
                                Materials, including the 
                                document known as ``Standard 
                                E1527-97'', entitled ``Standard 
                                Practice for Environmental Site 
                                Assessment: Phase 1 
                                Environmental Site Assessment 
                                Process'', shall satisfy the 
                                requirements in clause (i).
                            (v) Site inspection and title 
                        search.--In the case of property for 
                        residential use or other similar use 
                        purchased by a nongovernmental or 
                        noncommercial entity, a facility 
                        inspection and title search that reveal 
                        no basis for further investigation 
                        shall be considered to satisfy the 
                        requirements of this subparagraph.

           *       *       *       *       *       *       *

            (39) Brownfield site.--
                    (A) In general.--The term ``brownfield 
                site'' means real property, the expansion, 
                redevelopment, or reuse of which may be 
                complicated by the presence or potential 
                presence of a hazardous substance, pollutant, 
                or contaminant.
                    (B) Exclusions.--The term ``brownfield 
                site'' does not include--
                            (i) a facility that is the subject 
                        of a planned or ongoing removal action 
                        under this title;
                            (ii) a facility that is listed on 
                        the National Priorities List or is 
                        proposed for listing;
                            (iii) a facility that is the 
                        subject of a unilateral administrative 
                        order, a court order, an administrative 
                        order on consent or judicial consent 
                        decree that has been issued to or 
                        entered into by the parties under this 
                        Act;
                            (iv) a facility that is the subject 
                        of a unilateral administrative order, a 
                        court order, an administrative order on 
                        consent or judicial consent decree that 
                        has been issued to or entered into by 
                        the parties, or a facility to which a 
                        permit has been issued by the United 
                        States or an authorized State under the 
                        Solid Waste Disposal Act (42 U.S.C. 
                        6901 et seq.), the Federal Water 
                        Pollution Control Act (33 U.S.C. 1321), 
                        the Toxic Substances Control Act (15 
                        U.S.C. 2601 et seq.), or the Safe 
                        Drinking Water Act (42 U.S.C. 300f et 
                        seq.);
                            (v) a facility that--
                                    (I) is subject to 
                                corrective action under section 
                                3004(u) or 3008(h) of the Solid 
                                Waste Disposal Act (42 U.S.C. 
                                6924(u), 6928(h)); and
                                    (II) to which a corrective 
                                action permit or order has been 
                                issued or modified to require 
                                the implementation of 
                                corrective measures;
                            (vi) a land disposal unit with 
                        respect to which--
                                    (I) a closure notification 
                                under subtitle C of the Solid 
                                Waste Disposal Act (42 U.S.C. 
                                6921 et seq.) has been 
                                submitted; and
                                    (II) closure requirements 
                                have been specified in a 
                                closure plan or permit;
                            (vii) a facility that is subject to 
                        the jurisdiction, custody, or control 
                        of a department, agency, or 
                        instrumentality of the United States, 
                        except for land held in trust by the 
                        United States for an Indian tribe;
                            (viii) a portion of a facility--
                                    (I) at which there has been 
                                a release of polychlorinated 
                                biphenyls; and
                                    (II) that is subject to 
                                remediation under the Toxic 
                                Substances Control Act (15 
                                U.S.C. 2601 et seq.); or
                            (ix) a portion of a facility, for 
                        which portion, assistance for response 
                        activity has been obtained under 
                        subtitle I of the Solid Waste Disposal 
                        Act (42 U.S.C. 6991 et seq.) from the 
                        Leaking Underground Storage Tank Trust 
                        Fund established under section 9508 of 
                        the Internal Revenue Code of 1986.
                    (C) Site-by-site determinations.--
                Notwithstanding subparagraph (B) and on a site-
                by-site basis, the President may authorize 
                financial assistance under section 128 to an 
                eligible entity at a site included in clause 
                (i), (iv), (v), (vi), (viii), or (ix) of 
                subparagraph (B) if the President finds that 
                financial assistance will protect human health 
                and the environment, and either promote 
                economic development or enable the creation of, 
                preservation of, or addition to parks, 
                greenways, undeveloped property, other 
                recreational property, or other property used 
                for nonprofit purposes.
                    (D) Additional areas.--For the purposes of 
                section 128, the term ``brownfield site'' 
                includes a site that--
                            (i) meets the definition of 
                        ``brownfield site'' under subparagraphs 
                        (A) through (C); and
                            (ii)(I) is contaminated by a 
                        controlled substance (as defined in 
                        section 102 of the Controlled 
                        Substances Act (21 U.S.C. 802)); or
                                    (II) is mine-scarred land.
            (40) Bona fide prospective purchaser.--The term 
        ``bona fide prospective purchaser'' means a person (or 
        a tenant of a person) that acquires ownership of a 
        facility after the date of enactment of this paragraph 
        and that establishes each of the following by a 
        preponderance of the evidence:
                    (A) Disposal prior to acquisition.--All 
                disposal of hazardous substances at the 
                facility occurred before the person acquired 
                the facility.
                    (B) Inquiries.--
                            (i) In general.--The person made 
                        all appropriate inquiries into the 
                        previous ownership and uses of the 
                        facility in accordance with generally 
                        accepted good commercial and customary 
                        standards and practices in accordance 
                        with clauses (ii) and (iii).
                            (ii) Standards and practices.--The 
                        standards and practices referred to in 
                        clauses (ii) and (iv) of paragraph 
                        (35)(B) shall be considered to satisfy 
                        the requirements of this subparagraph.
                            (iii) Residential use.--In the case 
                        of property in residential or other 
                        similar use at the time of purchase by 
                        a nongovernmental or noncommercial 
                        entity, a facility inspection and title 
                        search that reveal no basis for further 
                        investigation shall be considered to 
                        satisfy the requirements of this 
                        subparagraph.
                    (C) Notices.--The person provides all 
                legally required notices with respect to the 
                discovery or release of any hazardous 
                substances at the facility.
                    (D) Care.--The person exercises appropriate 
                care with respect to hazardous substances found 
                at the facility by taking reasonable steps to--
                            (i) stop any continuing release;
                            (ii) prevent any threatened future 
                        release; and
                            (iii) prevent or limit human, 
                        environmental, or natural resource 
                        exposure to any previously released 
                        hazardous substance.
                    (E) Cooperation, assistance, and access.--
                The person provides full cooperation, 
                assistance, and access to persons that are 
                authorized to conduct response actions or 
                natural resource restoration at a vessel or 
                facility (including the cooperation and access 
                necessary for the installation, integrity, 
                operation, and maintenance of any complete or 
                partial response actions or natural resource 
                restoration at the vessel or facility).
                    (F) Institutional control.--The person--
                            (i) is in compliance with any land 
                        use restrictions established or relied 
                        on in connection with the response 
                        action at a vessel or facility; and
                            (ii) does not impede the 
                        effectiveness or integrity of any 
                        institutional control employed at the 
                        vessel or facility in connection with a 
                        response action.
                    (G) Requests; subpoenas.--The person 
                complies with any request for information or 
                administrative subpoena issued by the President 
                under this Act.
                    (H) No affiliation.--The person is not--
                            (i) potentially liable, or 
                        affiliated with any other person that 
                        is potentially liable, for response 
                        costs at a facility through--
                                    (I) any direct or indirect 
                                familial relationship; or
                                    (II) any contractual, 
                                corporate, or financial 
                                relationship (other than a 
                                contractual, corporate, or 
                                financial relationship that is 
                                created by the instruments by 
                                which title to the facility is 
                                conveyed or financed or by a 
                                contract for the sale of goods 
                                or services); or
                            (ii) the result of a reorganization 
                        of a business entity that was 
                        potentially liable.
            (41) Eligible response site.--
                    (A) In general.--The term ``eligible 
                response site'' means a site that meets the 
                definition of a brownfield site in 
                subparagraphs (A) and (B) of paragraph (39), as 
                modified by subparagraphs (B) and (C) of this 
                paragraph.
                    (B) Inclusions.--The term ``eligible 
                response site'' includes--
                            (i) notwithstanding paragraph 
                        (39)(B)(ix), a portion of a facility, 
                        for which portion assistance for 
                        response activity has been obtained 
                        under subtitle I of the Solid Waste 
                        Disposal Act (42 U.S.C. 6991 et seq.) 
                        from the Leaking Underground Storage 
                        Tank Trust Fund established under 
                        section 9508 of the Internal Revenue 
                        Code of 1986; or
                            (ii) a site for which, 
                        notwithstanding the exclusions provided 
                        in subparagraph (C) or paragraph 
                        (39)(B), the President determines, on a 
                        site-by-site basis and after 
                        consultation with the State, that 
                        limitations on enforcement under 
                        section 129 at sites specified in 
                        clause (iv), (v), (vi) or (viii) of 
                        paragraph (39)(B) would be appropriate 
                        and will--
                                    (I) protect human health 
                                and the environment; and
                                    (II) promote economic 
                                development or facilitate the 
                                creation of, preservation of, 
                                or addition to a park, a 
                                greenway, undeveloped property, 
                                recreational property, or other 
                                property used for nonprofit 
                                purposes.
                    (C) Exclusions.--The term ``eligible 
                response site'' does not include--
                            (i) a facility for which the 
                        President--
                                    (I) conducts or has 
                                conducted a preliminary 
                                assessment or site inspection; 
                                and
                                    (II) after consultation 
                                with the State, determines or 
                                has determined that the site 
                                obtains a preliminary score 
                                sufficient for possible listing 
                                on the National Priorities 
                                List, or that the site 
                                otherwise qualifies for listing 
                                on the National Priorities 
                                List;
                        unless the President has made a 
                        determination that no further Federal 
                        action will be taken; or
                            (ii) facilities that the President 
                        determines warrant particular 
                        consideration as identified by 
                        regulation, such as sites posing a 
                        threat to a sole-source drinking water 
                        aquifer or a sensitive ecosystem.

           *       *       *       *       *       *       *

      Sec. 105. (a) Revision and Republication.-- * * *

           *       *       *       *       *       *       *

    (h) NPL Deferral.--
            (1) Deferral to state voluntary cleanups.--At the 
        request of a State and subject to paragraphs (2) and 
        (3), the President generally shall defer final listing 
        of an eligible response site on the National Priorities 
        List if the President determines that--
                    (A) the State, or another party under an 
                agreement with or order from the State, is 
                conducting a response action at the eligible 
                response site--
                            (i) in compliance with a State 
                        program that specifically governs 
                        response actions for the protection of 
                        public health and the environment; and
                            (ii) that will provide long-term 
                        protection of human health and the 
                        environment; or
                    (B) the State is actively pursuing an 
                agreement to perform a response action 
                described in subparagraph (A) at the site with 
                a person that the State has reason to believe 
                is capable of conducting a response action that 
                meets the requirements of subparagraph (A).
            (2) Progress toward cleanup.--If, after the last 
        day of the 1-year period beginning on the date on which 
        the President proposes to list an eligible response 
        site on the National Priorities List, the President 
        determines that the State or other party is not making 
        reasonable progress toward completing a response action 
        at the eligible response site, the President may list 
        the eligible response site on the National Priorities 
        List.
            (3) Cleanup agreements.--With respect to an 
        eligible response site under paragraph (1)(B), if, 
        after the last day of the 1-year period beginning on 
        the date on which the President proposes to list the 
        eligible response site on the National Priorities List, 
        an agreement described in paragraph (1)(B) has not been 
        reached, the President may defer the listing of the 
        eligible response site on the National Priorities List 
        for an additional period of not to exceed 180 days if 
        the President determines deferring the listing would be 
        appropriate based on--
                    (A) the complexity of the site;
                    (B) substantial progress made in 
                negotiations; and
                    (C) other appropriate factors, as 
                determined by the President.
            (4) Exceptions.--The President may decline to 
        defer, or elect to discontinue a deferral of, a listing 
        of an eligible response site on the National Priorities 
        List if the President determines that--
                    (A) deferral would not be appropriate 
                because the State, as an owner or operator or a 
                significant contributor of hazardous substances 
                to the facility, is a potentially responsible 
                party;
                    (B) the criteria under the National 
                Contingency Plan for issuance of a health 
                advisory have been met; or
                    (C) the conditions in paragraphs (1) 
                through (3), as applicable, are no longer being 
                met.

           *       *       *       *       *       *       *

    Sec. 107. (a) Notwithstanding any other provision or rule 
of law, and subject only to the defenses set forth in 
subsection (b) of this section--

           *       *       *       *       *       *       *

    (o) Contiguous Properties.--
            (1) Not considered to be an owner or operator.--
                    (A) In general.--A person that owns real 
                property that is contiguous to or otherwise 
                similarly situated with respect to, and that is 
                or may be contaminated by a release or 
                threatened release of a hazardous substance 
                from, real property that is not owned by that 
                person shall not be considered to be an owner 
                or operator of a vessel or facility under 
                paragraph (1) or (2) of subsection (a) solely 
                by reason of the contamination if--
                            (i) the person did not cause, 
                        contribute, or consent to the release 
                        or threatened release;
                            (ii) the person is not--
                                    (I) potentially liable, or 
                                affiliated with any other 
                                person that is potentially 
                                liable, for response costs at a 
                                facility through any direct or 
                                indirect familial relationship 
                                or any contractual, corporate, 
                                or financial relationship 
                                (other than a contractual, 
                                corporate, or financial 
                                relationship that is created by 
                                a contract for the sale of 
                                goods or services); or
                                    (II) the result of a 
                                reorganization of a business 
                                entity that was potentially 
                                liable;
                            (iii) the person takes reasonable 
                        steps to--
                                    (I) stop any continuing 
                                release;
                                    (II) prevent any threatened 
                                future release; and
                                    (III) prevent or limit 
                                human, environmental, or 
                                natural resource exposure to 
                                any hazardous substance 
                                released on or from property 
                                owned by that person;
                            (iv) the person provides full 
                        cooperation, assistance, and access to 
                        persons that are authorized to conduct 
                        response actions or natural resource 
                        restoration at the vessel or facility 
                        from which there has been a release or 
                        threatened release (including the 
                        cooperation and access necessary for 
                        the installation, integrity, operation, 
                        and maintenance of any complete or 
                        partial response action or natural 
                        resource restoration at the vessel or 
                        facility);
                            (v) the person--
                                    (I) is in compliance with 
                                any land use restrictions 
                                established or relied on in 
                                connection with the response 
                                action at the facility; and
                                    (II) does not impede the 
                                effectiveness or integrity of 
                                any institutional control 
                                employed in connection with a 
                                response action;
                            (vi) the person is in compliance 
                        with any request for information or 
                        administrative subpoena issued by the 
                        President under this Act;
                            (vii) the person provides all 
                        legally required notices with respect 
                        to the discovery or release of any 
                        hazardous substances at the facility; 
                        and
                            (viii) at the time at which the 
                        person acquired the property, the 
                        person--
                                    (I) conducted all 
                                appropriate inquiry within the 
                                meaning of section 101(35)(B) 
                                with respect to the property; 
                                and
                                    (II) did not know or have 
                                reason to know that the 
                                property was or could be 
                                contaminated by a release or 
                                threatened release of 1 or more 
                                hazardous substances from other 
                                real property not owned or 
                                operated by the person.
                    (B) Demonstration.--To qualify as a person 
                described in subparagraph (A), a person must 
                establish by a preponderance of the evidence 
                that the conditions in clauses (i) through 
                (viii) of subparagraph (A) have been met.
                    (C) Bona fide prospective purchaser.--Any 
                person that does not qualify as a person 
                described in this paragraph because the person 
                had, or had reason to have, knowledge specified 
                in subparagraph (A)(viii) at the time of 
                acquisition of the real property may qualify as 
                a bona fide prospective purchaser under section 
                101(40) if the person is otherwise described in 
                that section.
                    (D) Ground water.--With respect to a 
                hazardous substance from 1 or more sources that 
                are not on the property of a person that is a 
                contiguous property owner that enters ground 
                water beneath the property of the person solely 
                as a result of subsurface migration in an 
                aquifer, subparagraph (A)(iii) shall not 
                require the person to conduct ground water 
                investigations or to install ground water 
                remediation systems, except in accordance with 
                the policy of the Environmental Protection 
                Agency concerning owners of property containing 
                contaminated aquifers, dated May 24, 1995.
            (2) Effect of law.--With respect to a person 
        described in this subsection, nothing in this 
        subsection--
                    (A) limits any defense to liability that 
                may be available to the person under any other 
                provision of law; or
                    (B) imposes liability on the person that is 
                not otherwise imposed by subsection (a).
            (3) Assurances.--The Administrator may--
                    (A) issue an assurance that no enforcement 
                action under this Act will be initiated against 
                a person described in paragraph (1); and
                    (B) grant a person described in paragraph 
                (1) protection against a cost recovery or 
                contribution action under section 113(f).
    (p) Prospective Purchaser and Windfall Lien.--
            (1) Limitation on liability.--Notwithstanding 
        subsection (a)(1), a bona fide prospective purchaser 
        whose potential liability for a release or threatened 
        release is based solely on the purchaser's being 
        considered to be an owner or operator of a facility 
        shall not be liable as long as the bona fide 
        prospective purchaser does not impede the performance 
        of a response action or natural resource restoration.
            (2) Lien.--If there are unrecovered response costs 
        incurred by the United States at a facility for which 
        an owner of the facility is not liable by reason of 
        paragraph (1), and if each of the conditions described 
        in paragraph (3) is met, the United States shall have a 
        lien on the facility, or may by agreement with the 
        owner, obtain from the owner a lien on any other 
        property or other assurance of payment satisfactory to 
        the Administrator, for the unrecovered response costs.
            (3) Conditions.--The conditions referred to in 
        paragraph (2) are the following:
                    (A) Response action.--A response action for 
                which there are unrecovered costs of the United 
                States is carried out at the facility.
                    (B) Fair market value.--The response action 
                increases the fair market value of the facility 
                above the fair market value of the facility 
                that existed before the response action was 
                initiated.
            (4) Amount; duration.--A lien under paragraph (2)--
                    (A) shall be in an amount not to exceed the 
                increase in fair market value of the property 
                attributable to the response action at the time 
                of a sale or other disposition of the property;
                    (B) shall arise at the time at which costs 
                are first incurred by the United States with 
                respect to a response action at the facility;
                    (C) shall be subject to the requirements of 
                subsection (l)(3); and
                    (D) shall continue until the earlier of--
                            (i) satisfaction of the lien by 
                        sale or other means; or
                            (ii) notwithstanding any statute of 
                        limitations under section 113, recovery 
                        of all response costs incurred at the 
                        facility.

           *       *       *       *       *       *       *

SEC. 128. BROWNFIELDS REVITALIZATION FUNDING.

    (a) Definition of Eligible Entity.--In this section, the 
term ``eligible entity'' means--
            (1) a general purpose unit of local government;
            (2) a land clearance authority or other quasi-
        governmental entity that operates under the supervision 
        and control of or as an agent of a general purpose unit 
        of local government;
            (3) a government entity created by a State 
        legislature;
            (4) a regional council or group of general purpose 
        units of local government;
            (5) a redevelopment agency that is chartered or 
        otherwise sanctioned by a State;
            (6) a State; or
            (7) an Indian Tribe.
    (b) Brownfield Site Characterization and Assessment Grant 
Program.--
            (1) Establishment of program.--The Administrator 
        shall establish a program to--
                    (A) provide grants to inventory, 
                characterize, assess, and conduct planning 
                related to brownfield sites under paragraph 
                (2); and
                    (B) perform targeted site assessments at 
                brownfield sites.
            (2) Assistance for site characterization and 
        assessment.--
                    (A) In general.--On approval of an 
                application made by an eligible entity, the 
                Administrator may make a grant to the eligible 
                entity to be used for programs to inventory, 
                characterize, assess, and conduct planning 
                related to 1 or more brownfield sites.
                    (B) Site characterization and assessment.--
                A site characterization and assessment carried 
                out with the use of a grant under subparagraph 
                (A) shall be performed in accordance with 
                section 101(35)(B).
    (c) Grants and Loans for Brownfield Remediation.--
            (1) Grants provided by the president.--Subject to 
        subsections (d) and (e), the President shall establish 
        a program to provide grants to--
                    (A) eligible entities, to be used for 
                capitalization of revolving loan funds; and
                    (B) eligible entities or nonprofit 
                organizations, where warranted, as determined 
                by the President based on considerations under 
                paragraph (3), to be used directly for 
                remediation of 1 or more brownfield sites owned 
                by the entity or organization that receives the 
                grant and in amounts not to exceed $200,000 for 
                each site to be remediated.
            (2) Loans and grants provided by eligible 
        entities.--An eligible entity that receives a grant 
        under paragraph (1)(A) shall use the grant funds to 
        provide assistance for the remediation of brownfield 
        sites in the form of--
                    (A) 1 or more loans to an eligible entity, 
                a site owner, a site developer, or another 
                person; or
                    (B) 1 or more grants to an eligible entity 
                or other nonprofit organization, where 
                warranted, as determined by the eligible entity 
                that is providing the assistance, based on 
                considerations under paragraph (3), to 
                remediate sites owned by the eligible entity or 
                nonprofit organization that receives the grant.
            (3) Considerations.--In determining whether a grant 
        under paragraph (1)(B) or (2)(B) is warranted, the 
        President or the eligible entity, as the case may be, 
        shall take into consideration--
                    (A) the extent to which a grant will 
                facilitate the creation of, preservation of, or 
                addition to a park, a greenway, undeveloped 
                property, recreational property, or other 
                property used for nonprofit purposes;
                    (B) the extent to which a grant will meet 
                the needs of a community that has an inability 
                to draw on other sources of funding for 
                environmental remediation and subsequent 
                redevelopment of the area in which a brownfield 
                site is located because of the small population 
                or low income of the community;
                    (C) the extent to which a grant will 
                facilitate the use or reuse of existing 
                infrastructure;
                    (D) the benefit of promoting the long-term 
                availability of funds from a revolving loan 
                fund for brownfield remediation; and
                    (E) such other similar factors as the 
                Administrator considers appropriate to consider 
                for the purposes of this section.
            (4) Transition.--Revolving loan funds that have 
        been established before the date of enactment of this 
        section may be used in accordance with this subsection.
    (d) General Provisions.--
            (1) Maximum grant amount.--
                    (A) Brownfield site characterization and 
                assessment.--
                            (i) In general.--A grant under 
                        subsection (b)--
                                    (I) may be awarded to an 
                                eligible entity on a community-
                                wide or site-by-site basis; and
                                    (II) shall not exceed, for 
                                any individual brownfield site 
                                covered by the grant, $200,000.
                            (ii) Waiver.--The Administrator may 
                        waive the $200,000 limitation under 
                        clause (i)(II) to permit the brownfield 
                        site to receive a grant of not to 
                        exceed $350,000, based on the 
                        anticipated level of contamination, 
                        size, or status of ownership of the 
                        site.
                    (B) Brownfield remediation.--
                            (i) Grant amount.--A grant under 
                        subsection (c)(1)(A) may be awarded to 
                        an eligible entity on a community-wide 
                        or site-by-site basis, not to exceed 
                        $1,000,000 per eligible entity.
                            (ii) Additional grant amount.--The 
                        Administrator may make an additional 
                        grant to an eligible entity described 
                        in clause (i) for any year after the 
                        year for which the initial grant is 
                        made, taking into consideration--
                                    (I) the number of sites and 
                                number of communities that are 
                                addressed by the revolving loan 
                                fund;
                                    (II) the demand for funding 
                                by eligible entities that have 
                                not previously received a grant 
                                under this section;
                                    (III) the demonstrated 
                                ability of the eligible entity 
                                to use the revolving loan fund 
                                to enhance remediation and 
                                provide funds on a continuing 
                                basis; and
                                    (IV) such other similar 
                                factors as the Administrator 
                                considers appropriate to carry 
                                out this section.
            (2) Prohibition.--
                    (A) In general.--No part of a grant or loan 
                under this section may be used for the payment 
                of--
                            (i) a penalty or fine;
                            (ii) a Federal cost-share 
                        requirement;
                            (iii) an administrative cost;
                            (iv) a response cost at a 
                        brownfield site for which the recipient 
                        of the grant or loan is potentially 
                        liable under section 107; or
                            (v) a cost of compliance with any 
                        Federal law (including a Federal law 
                        specified in section 101(39)(B)), 
                        excluding the cost of compliance with 
                        laws applicable to the cleanup.
                    (B) Exclusions.--For the purposes of 
                subparagraph (A)(iii), the term 
                ``administrative cost'' does not include the 
                cost of--
                            (i) investigation and 
                        identification of the extent of 
                        contamination;
                            (ii) design and performance of a 
                        response action; or
                            (iii) monitoring of a natural 
                        resource.
            (3) Assistance for development of local government 
        site remediation programs.--A local government that 
        receives a grant under this section may use not to 
        exceed 10 percent of the grant funds to develop and 
        implement a brownfields program that may include--
                    (A) monitoring the health of populations 
                exposed to 1 or more hazardous substances from 
                a brownfield site; and
                    (B) monitoring and enforcement of any 
                institutional control used to prevent human 
                exposure to any hazardous substance from a 
                brownfield site.
    (e) Grant Applications.--
            (1) Submission.--
                    (A) In general.--
                            (i) Application.--An eligible 
                        entity may submit to the Administrator, 
                        through a regional office of the 
                        Environmental Protection Agency and in 
                        such form as the Administrator may 
                        require, an application for a grant 
                        under this section for 1 or more 
                        brownfield sites (including information 
                        on the criteria used by the 
                        Administrator to rank applications 
                        under paragraph (3), to the extent that 
                        the information is available).
                            (ii) NCP requirements.--The 
                        Administrator may include in any 
                        requirement for submission of an 
                        application under clause (i) a 
                        requirement of the National Contingency 
                        Plan only to the extent that the 
                        requirement is relevant and appropriate 
                        to the program under this section.
                    (B) Coordination.--The Administrator shall 
                coordinate with other Federal agencies to 
                assist in making eligible entities aware of 
                other available Federal resources.
                    (C) Guidance.--The Administrator shall 
                publish guidance to assist eligible entities in 
                applying for grants under this section.
            (2) Approval.--The Administrator shall--
                    (A) at least annually, complete a review of 
                applications for grants that are received from 
                eligible entities under this section; and
                    (B) award grants under this section to 
                eligible entities that the Administrator 
                determines have the highest rankings under the 
                ranking criteria established under paragraph 
                (3).
            (3) Ranking criteria.--The Administrator shall 
        establish a system for ranking grant applications 
        received under this subsection that includes the 
        following criteria:
                    (A) The extent to which a grant will 
                stimulate the availability of other funds for 
                environmental assessment or remediation, and 
                subsequent reuse, of an area in which 1 or more 
                brownfield sites are located.
                    (B) The potential of the proposed project 
                or the development plan for an area in which 1 
                or more brownfield sites are located to 
                stimulate economic development of the area on 
                completion of the cleanup.
                    (C) The extent to which a grant would 
                address or facilitate the identification and 
                reduction of threats to human health and the 
                environment.
                    (D) The extent to which a grant would 
                facilitate the use or reuse of existing 
                infrastructure.
                    (E) The extent to which a grant would 
                facilitate the creation of, preservation of, or 
                addition to a park, a greenway, undeveloped 
                property, recreational property, or other 
                property used for nonprofit purposes.
                    (F) The extent to which a grant would meet 
                the needs of a community that has an inability 
                to draw on other sources of funding for 
                environmental remediation and subsequent 
                redevelopment of the area in which a brownfield 
                site is located because of the small population 
                or low income of the community.
                    (G) The extent to which the applicant is 
                eligible for funding from other sources.
                    (H) The extent to which a grant will 
                further the fair distribution of funding 
                between urban and nonurban areas.
                    (I) The extent to which the grant provides 
                for involvement of the local community in the 
                process of making decisions relating to cleanup 
                and future use of a brownfield site.
    (f) Implementation of Brownfields Programs.--
            (1) Establishment of program.--The Administrator 
        may provide, or fund eligible entities or nonprofit 
        organizations to provide, training, research, and 
        technical assistance to individuals and organizations, 
        as appropriate, to facilitate the inventory of 
        brownfield sites, site assessments, remediation of 
        brownfield sites, community involvement, or site 
        preparation.
            (2) Funding restrictions.--The total Federal funds 
        to be expended by the Administrator under this 
        subsection shall not exceed 15 percent of the total 
        amount appropriated to carry out this section in any 
        fiscal year.
    (g) Audits.--
            (1) In general.--The Inspector General of the 
        Environmental Protection Agency shall conduct such 
        reviews or audits of grants and loans under this 
        section as the Inspector General considers necessary to 
        carry out this section.
            (2) Procedure.--An audit under this paragraph shall 
        be conducted in accordance with the auditing procedures 
        of the General Accounting Office, including chapter 75 
        of title 31, United States Code.
            (3) Violations.--If the Administrator determines 
        that a person that receives a grant or loan under this 
        section has violated or is in violation of a condition 
        of the grant, loan, or applicable Federal law, the 
        Administrator may--
                    (A) terminate the grant or loan;
                    (B) require the person to repay any funds 
                received; and
                    (C) seek any other legal remedies available 
                to the Administrator.
    (h) Leveraging.--An eligible entity that receives a grant 
under this section may use the grant funds for a portion of a 
project at a brownfield site for which funding is received from 
other sources if the grant funds are used only for the purposes 
described in subsection (b) or (c).
    (i) Agreements.--Each grant or loan made under this section 
shall--
            (1) include a requirement of the National 
        Contingency Plan only to the extent that the 
        requirement is relevant and appropriate to the program 
        under this section, as determined by the Administrator; 
        and
            (2) be subject to an agreement that--
                    (A) requires the recipient to--
                            (i) comply with all applicable 
                        Federal and State laws; and
                            (ii) ensure that the cleanup 
                        protects human health and the 
                        environment;
                    (B) requires that the recipient use the 
                grant or loan exclusively for purposes 
                specified in subsection (b) or (c), as 
                applicable;
                    (C) in the case of an application by an 
                eligible entity under subsection (c)(1), 
                requires the eligible entity to pay a matching 
                share (which may be in the form of a 
                contribution of labor, material, or services) 
                of at least 20 percent, from non-Federal 
                sources of funding, unless the Administrator 
                determines that the matching share would place 
                an undue hardship on the eligible entity; and
                    (D) contains such other terms and 
                conditions as the Administrator determines to 
                be necessary to carry out this section.
    (j) Facility Other Than Brownfield Site.--The fact that a 
facility may not be a brownfield site within the meaning of 
section 101(39)(A) has no effect on the eligibility of the 
facility for assistance under any other provision of Federal 
law.
    (k) Funding.--There is authorized to be appropriated to 
carry out this section $150,000,000 for each of fiscal years 
2002 through 2006.

SEC. 129. STATE RESPONSE PROGRAMS.

    (a) Assistance to States.--
            (1) In general.--
                    (A) States.--The Administrator may award a 
                grant to a State or Indian tribe that--
                            (i) has a response program that 
                        includes each of the elements, or is 
                        taking reasonable steps to include each 
                        of the elements, listed in paragraph 
                        (2); or
                            (ii) is a party to a memorandum of 
                        agreement with the Administrator for 
                        voluntary response programs.
                    (B) Use of grants by states.--
                            (i) In general.--A State or Indian 
                        tribe may use a grant under this 
                        subsection to establish or enhance the 
                        response program of the State or Indian 
                        tribe.
                            (ii) Additional uses.--In addition 
                        to the uses under clause (i), a State 
                        or Indian tribe may use a grant under 
                        this subsection to--
                                    (I) capitalize a revolving 
                                loan fund for brownfield 
                                remediation under section 
                                128(c); or
                                    (II) develop a risk sharing 
                                pool, an indemnity pool, or 
                                insurance mechanism to provide 
                                financing for response actions 
                                under a State response program.
            (2) Elements.--The elements of a State or Indian 
        tribe response program referred to in paragraph 
        (1)(A)(i) are the following:
                    (A) Timely survey and inventory of 
                brownfield sites in the State.
                    (B) Oversight and enforcement authorities 
                or other mechanisms, and resources, that are 
                adequate to ensure that--
                            (i) a response action will--
                                    (I) protect human health 
                                and the environment; and
                                    (II) be conducted in 
                                accordance with applicable 
                                Federal and State law; and
                            (ii) if the person conducting the 
                        response action fails to complete the 
                        necessary response activities, 
                        including operation and maintenance or 
                        long-term monitoring activities, the 
                        necessary response activities are 
                        completed.
                    (C) Mechanisms and resources to provide 
                meaningful opportunities for public 
                participation, including--
                            (i) public access to documents that 
                        the State, Indian tribe, or party 
                        conducting the cleanup is relying on or 
                        developing in making cleanup decisions 
                        or conducting site activities; and
                            (ii) prior notice and opportunity 
                        for comment on proposed cleanup plans 
                        and site activities.
                    (D) Mechanisms for approval of a cleanup 
                plan, and a requirement for verification by and 
                certification or similar documentation from the 
                State, an Indian tribe, or a licensed site 
                professional to the person conducting a 
                response action indicating that the response is 
                complete.
            (3) Funding.--There is authorized to be 
        appropriated to carry out this subsection $50,000,000 
        for each of fiscal years 2002 through 2006.
    (b) Enforcement in Cases of a Release Subject to State 
Program.--
            (1) Enforcement.--
                    (A) In general.-- Except as provided in 
                subparagraph (B) and subject to subparagraph 
                (C), in the case of an eligible response site 
                at which--
                            (i) there is a release or 
                        threatened release of a hazardous 
                        substance, pollutant, or contaminant; 
                        and
                            (ii) a person is conducting or has 
                        completed a response action regarding 
                        the specific release that is addressed 
                        by the response action that is in 
                        compliance with the State program that 
                        specifically governs response actions 
                        for the protection of public health and 
                        the environment;
                the President may not use authority under this 
                Act to take an administrative or judicial 
                enforcement action under section 106(a) or to 
                take a judicial enforcement action to recover 
                response costs under section 107(a) against the 
                person regarding the specific release that is 
                addressed by the response action.
                    (B) Exceptions.--The President may bring an 
                administrative or judicial enforcement action 
                under this Act during or after completion of a 
                response action described in subparagraph (A) 
                with respect to a release or threatened release 
                at an eligible response site described in that 
                subparagraph if--
                            (i) the State requests that the 
                        President provide assistance in the 
                        performance of a response action;
                            (ii) the Administrator determines 
                        that contamination has migrated or will 
                        migrate across a State line, resulting 
                        in the need for further response action 
                        to protect human health or the 
                        environment, or the President 
                        determines that contamination has 
                        migrated or is likely to migrate onto 
                        property subject to the jurisdiction, 
                        custody, or control of a department, 
                        agency, or instrumentality of the 
                        United States and may impact the 
                        authorized purposes of the Federal 
                        property;
                            (iii) after taking into 
                        consideration the response activities 
                        already taken, the Administrator 
                        determines that--
                                    (I) a release or threatened 
                                release may present an imminent 
                                and substantial endangerment to 
                                public health or welfare or the 
                                environment; and
                                    (II) additional response 
                                actions are likely to be 
                                necessary to address, prevent, 
                                limit, or mitigate the release 
                                or threatened release; or
                            (iv) the Administrator determines 
                        that information, that on the earlier 
                        of the date on which cleanup was 
                        approved or completed, was not known by 
                        the State, as recorded in documents 
                        prepared or relied on in selecting or 
                        conducting the cleanup, has been 
                        discovered regarding the contamination 
                        or conditions at a facility such that 
                        the contamination or conditions at the 
                        facility present a threat requiring 
                        further remediation to protect public 
                        health or welfare or the environment.
                    (C) Public record.--The limitations on the 
                authority of the President under subparagraph 
                (A) apply only at sites in States that 
                maintain, update not less than annually, and 
                make available to the public a record of sites, 
                by name and location, at which response actions 
                have been completed in the previous year and 
                are planned to be addressed under the State 
                program that specifically governs response 
                actions for the protection of public health and 
                the environment in the upcoming year. The 
                public record shall identify whether or not the 
                site, on completion of the response action, 
                will be suitable for unrestricted use and, if 
                not, shall identify the institutional controls 
                relied on in the remedy. Each State and tribe 
                receiving financial assistance under subsection 
                (a) shall maintain and make available to the 
                public a record of sites as provided in this 
                paragraph.
                    (D) EPA notification.--
                            (i) In general.--In the case of an 
                        eligible response site at which there 
                        is a release or threatened release of a 
                        hazardous substance, pollutant, or 
                        contaminant and for which the 
                        Administrator intends to carry out an 
                        action that may be barred under 
                        subparagraph (A), the Administrator 
                        shall--
                                    (I) notify the State of the 
                                action the Administrator 
                                intends to take; and
                                    (II)(aa) wait 48 hours for 
                                a reply from the State under 
                                clause (ii); or
                                    (bb) if the State fails to 
                                reply to the notification or if 
                                the Administrator makes a 
                                determination under clause 
                                (iii), take immediate action 
                                under that clause.
                            (ii) State reply.--Not later than 
                        48 hours after a State receives notice 
                        from the Administrator under clause 
                        (i), the State shall notify the 
                        Administrator if--
                                    (I) the release at the 
                                eligible response site is or 
                                has been subject to a cleanup 
                                conducted under a State 
                                program; and
                                    (II) the State is planning 
                                to abate the release or 
                                threatened release, any actions 
                                that are planned.
                            (iii) Immediate federal action.--
                        The Administrator may take action 
                        immediately after giving notification 
                        under clause (i) without waiting for a 
                        State reply under clause (ii) if the 
                        Administrator determines that 1 or more 
                        exceptions under subparagraph (B) are 
                        met.
                    (E) Report to congress.--Not later than 90 
                days after the date of initiation of any 
                enforcement action by the President under 
                clause (ii), (iii), or (iv) of subparagraph 
                (B), the President shall submit to Congress a 
                report describing the basis for the enforcement 
                action, including specific references to the 
                facts demonstrating that enforcement action is 
                permitted under subparagraph (B).
            (2) Savings provision.--
                    (A) Costs incurred prior to limitations.--
                Nothing in paragraph (1) precludes the 
                President from seeking to recover costs 
                incurred prior to the date of enactment of this 
                section or during a period in which the 
                limitations of paragraph (1)(A) were not 
                applicable.
                    (B) Effect on agreements between states and 
                epa.--Nothing in paragraph (1)--
                            (i) modifies or otherwise affects a 
                        memorandum of agreement, memorandum of 
                        understanding, or any similar agreement 
                        relating to this Act between a State 
                        agency or an Indian tribe and the 
                        Administrator that is in effect on or 
                        before the date of enactment of this 
                        section (which agreement shall remain 
                        in effect, subject to the terms of the 
                        agreement); or
                            (ii) limits the discretionary 
                        authority of the President to enter 
                        into or modify an agreement with a 
                        State, an Indian tribe, or any other 
                        person relating to the implementation 
                        by the President of statutory 
                        authorities.
            (3) Effective date.--This subsection applies only 
        to response actions conducted after February 15, 2001.
    (c) Effect on Federal Laws.--Nothing in this section 
affects any liability or response authority under any Federal 
law, including--
            (1) this Act, except as provided in subsection (b);
            (2) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
        seq.);
            (3) the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.);
            (4) the Toxic Substances Control Act (15 U.S.C. 
        2601 et seq.); and
            (5) the Safe Drinking Water Act (42 U.S.C. 300f et 
        seq.).

                                  
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