89–010

Calendar No. 19

107TH CONGRESS REPORT

1st Session " ! SENATE 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

REPORT

[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 disproporVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 S350.RPT SENVIR1 PsN: SENVIR1
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tionately 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

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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

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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

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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;

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• 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

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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. SecVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 S350.RPT SENVIR1 PsN: SENVIR1
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tion 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.

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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

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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

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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.

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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

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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

14

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

15

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.

16

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:

17

(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 adVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6601 S350.RPT SENVIR1 PsN: SENVIR1
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ditional 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

19

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.

20

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 ConVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 S350.RPT SENVIR1 PsN: SENVIR1
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ference 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.

22

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.

23

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.

24

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-thannormal incidence of disease would help to fill in the gaps in our understanding, while at the same time minimizing additional human

25

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 enviVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00025 Fmt 6602 Sfmt 6602 S350.RPT SENVIR1 PsN: SENVIR1
26

ronmental 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

27

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

28

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,

29

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:

30

‘‘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.

31

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

32

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.

33

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules

of the Senate, changes in existing law made by the bill as reported

are shown as follows: Existing law proposed to be omitted is enclosed in øblack brackets¿, new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

COMPREHENSIVE ENVIRONMENTAL RESPONSE,

COMPENSATION, AND LIABILITY ACT OF 1980

‘‘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, ødeeds 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 øhe¿ the defendant has satisfied the requirements of section 107(b)(3) (a) and (b)ø.¿, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including

the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land

use restrictions established or relied on in connection with the

response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action.

ø(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

34

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.

35

(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

36

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

37

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

38

(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

39

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 reVerDate 11-MAY-2000 20:34 Mar 12, 2001 Jkt 089010 PO 00000 Frm 00039 Fmt 6602 Sfmt 6602 S350.RPT SENVIR1 PsN: SENVIR1
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sponse 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

41

(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

42

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;

43

(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

44

(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

45

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

46

(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.

47

(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—

48

(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.

49

(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

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lease 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—

51

(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—

52

(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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