I

106TH CONGRESS

1ST SESSION H. R. 1391

To require the Administrator of the Environmental Protection Agency to

establish a program under which States may be certified to carry out

voluntary environmental cleanup programs and to amend CERCLA regarding the liability of landowners and prospective purchasers.

IN THE HOUSE OF REPRESENTATIVES

APRIL 13, 1999

Mr. REGULA (for himself and Mr. MURTHA) introduced the following bill;

which was referred to the Committee on Commerce, and in addition to

the Committee on Transportation and Infrastructure, for a period to be

subsequently determined by the Speaker, in each case for consideration

of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To require the Administrator of the Environmental Protection Agency to establish a program under which States

may be certified to carry out voluntary environmental

cleanup programs and to amend CERCLA regarding the

liability of landowners and prospective purchasers.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Brownfields Reuse and

5 Real Estate Development Act’’.
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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—The Congress finds:

3 (1) Nationwide, older abandoned or under-used

4 commercial and industrial sites known as

5 ‘‘brownfields’’ are often overlooked for redevelop6 ment because of actual or potential environmental

7 contamination from past commercial or industrial

8 activities.

9 (2) The actual or potential environmental liabil10 ity associated with brownfields, including require11 ments for site assessment and cleanup, creates enor12 mous uncertainties in the redevelopment process,

13 prompting many developers to pursue cheaper, less

14 complicated development options on undeveloped

15 sites.

16 (3) Industrialized metropolitan areas and small

17 towns alike are affected adversely by these com18 peting pressures, as loss of tax revenues and job op19 portunities for community residents lead to a dete20 rioration of the urban environment, including the

21 presence of unremediated environmental contamina22 tion.

23 (4) States have created remedial action pro24 grams to allow a person to respond voluntarily to a

25 release or potential release of hazardous substances

26 at low and medium priority facilities. Such programs
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1 have flourished due to the States’ ability to stream2 line duplicative State and Federal regulatory re3 quirements and affect a timely, cost-effective, and

4 environmentally protective cleanup of sites.

5 (5) The benefits of State voluntary cleanup pro6 grams would be significantly enhanced in the context

7 of a Federal system that encourages Federal-State

8 partnerships, and provides legal finality to the clean9 up process.

10 (b) PURPOSE.—The purpose of this Act is to ensure

11 the quality of State brownfield cleanup and redevelopment

12 efforts by establishing Federal criteria for State voluntary

13 cleanup programs and to provide certainty by removing

14 the threat of Federal enforcement under Federal law dur15 ing and after the cleanup of brownfield facilities and prop16 erties.

17 SEC. 3. CERTIFICATION OF STATE VOLUNTARY CLEANUP

18 PROGRAMS.

19 (a) IN GENERAL.—Not later than one year after the

20 date of the enactment of this Act, the Administrator of

21 the Environmental Protection Agency (hereinafter in this

22 Act referred to as the ‘‘Administrator’’) shall establish,

23 and publish in the Federal Register, certification criteria

24 under subsection (d) for State programs for the voluntary

25 cleanup of eligible facilities. Upon enactment of this Act,
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1 a State may submit for review by the Administrator docu2 ments that the State deems appropriate to describe a vol3 untary response program for eligible facilities.

4 (b) CERTIFICATION OF STATE PROGRAMS.—The Ad5 ministrator shall certify a State program for the voluntary

6 cleanup of eligible facilities within 120 days after the Ad7 ministrator receives adequate documentation that the

8 State program substantially satisfies the certification cri9 teria established under subsection (d). If the Adminis10 trator takes no action with respect to certification under

11 this section within 120 days after receipt of adequate doc12 umentation from the State, the State program shall be

13 treated as certified for purposes of this Act. If the Admin14 istrator denies certification for a State program, the State

15 may, in an action brought within 60 days after the date

16 of such denial, obtain review of such denial in the United

17 States Court of Appeals for the circuit in which such State

18 is located.

19 (c) FEDERAL-STATE COOPERATION AND STATE CER20 TIFICATION.—The Administrator shall cooperate with

21 States to ensure that State programs continue to meet the

22 terms of the certification issued pursuant to subsection

23 (b). The Administrator shall notify the State of any failure

24 of a certified State program to continue to meet the cer25 tification criteria established under subsection (d) and
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1 shall assist the State in remedying such deficiency. If any

2 such deficiency is substantial and is not remedied in a

3 timely manner, the Administrator may withdraw the cer4 tification. Withdrawal of certification shall not affect any

5 cleanup completed and approved by the State as of the

6 date of such withdrawal. The State may, in an action

7 brought within 60 days after such withdrawal, obtain re8 view of such withdrawal in an action brought in the United

9 States Court of Appeals for the circuit in which such State

10 is located. A withdrawal of certification shall not take ef11 fect until completion of judicial review in the United

12 States Court of Appeals or, if no action is brought seeking

13 review of such withdrawal, the date on which the period

14 to bring an action for such review has expired.

15 (d) CERTIFICATION CRITERIA.—In order for a State

16 voluntary cleanup program to be certified under this sec17 tion, the program must meet each of the following criteria:

18 (1) The program shall provide adequate oppor19 tunities for meaningful public participation. Mean20 ingful public participation shall include adequate no21 tice by the State (or a person authorized by the

22 State) to the local government of a site being ad23 dressed, as well as public involvement in relation to

24 the environmental risks posed by the sites being ad25 dressed under the program.
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1 (2) The program shall ensure that technical as2 sistance is available throughout each voluntary

3 cleanup.

4 (3) The program shall ensure that adequate re5 sources are available to ensure cleanups under the

6 program and to administer the program.

7 (4) The program shall ensure adequate over8 sight and enforcement authority.

9 (5) The program shall provide, upon completion

10 of cleanup, for documentation to be provided by the

11 State to the owner or prospective purchaser that the

12 cleanup of the eligible facility is complete.

13 (6) The program shall ensure that the cleanup

14 undertaken under the program will protect human

15 health and the environment.

16 SEC. 4. EXISTING STATE PROGRAMS.

17 Nothing in this Act is intended to impose any require18 ment on a State voluntary response program existing on

19 or after the date of the enactment of this Act. A program

20 shall not be considered to be certified under this Act un21 less the program is approved in accordance with this sec22 tion.

23 SEC. 5. LIMITATION ON FEDERAL ENFORCEMENT.

24 Neither the President nor any other person (other

25 than a State) may use any authority of the Comprehensive
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1 Environmental Response, Compensation, and Liability Act

2 of 1980 (42 U.S.C. 9601 et seq.) or of the Solid Waste

3 Disposal Act (42 U.S.C. 6901 et seq.) to commence an

4 administrative or judicial action under either of those Acts

5 with respect to any release or threatened release at any

6 eligible facility that is, or has been, the subject of a cer7 tified State voluntary response plan.

8 SEC. 6. ELIGIBLE FACILITIES.

9 (a) IN GENERAL.—For purposes of this Act, the term

10 ‘‘eligible facility’’ means an abandoned, idled or under

11 used commercial or industrial facility or property for

12 which real or perceived environmental contamination com13 plicates expansion, redevelopment, or reuse. Such term

14 shall not include any of the following:

15 (1) A facility at which an abatement action has

16 been ordered under section 106 of the Comprehen17 sive Environmental Response, Compensation, and

18 Liability Act of 1980 or under section 7003 of the

19 Solid Waste Disposal Act (unless such abatement

20 action has been completed).

21 (2) A facility that is the subject of a Federal

22 removal or remedial action under section 104 of the

23 Comprehensive Environmental Response, Compensa24 tion, and Liability Act of 1980 (42 U.S.C. 9601 et

25 seq.).
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1 (3) A facility included on the National Prior2 ities List or proposed for such inclusion in the Fed3 eral Register.

4 (4) A facility required to have a permit under

5 section 3005 of the Solid Waste Disposal Act that

6 does not have a permit under that section and does

7 not qualify for authorization to operate in interim

8 status under subsection (e) of that section.

9 (5) A land disposal unit subject to a closure re10 quirement under subtitle C of the Solid Waste Dis11 posal Act (42 U.S.C. 6921 et seq.).

12 (6) A facility that is the subject of a corrective

13 action under section 3004(u) or 3008(h) of the Solid

14 Waste Disposal Act (42 U.S.C. 5924(u) or 6928(h))

15 that has been evaluated as high priority under the

16 Environmental Protection Agency’s National Correc17 tive Action Priority System as set forth in regula18 tions under subtitle C of the Solid Waste Disposal

19 Act.

20 (7) A facility owned or operated by a depart21 ment, agency, or instrumentality of the United

22 States.

23 (b) WAIVER OF INELIGIBILITY.—Upon the applica24 tion of a State or any person authorized by the State, for

25 good cause shown, the Administrator may waive, on a
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1 case-by-case basis, the ineligibility of any facility or prop2 erty listed in paragraph (4), (5), or (6) of subsection (a).

3 SEC. 7. INNOCENT LANDOWNERS.

4 (a) AMENDMENT OF CERCLA.—Section 107 of the

5 Comprehensive Environmental Response, Compensation,

6 and Liability Act of 1980 (42 U.S.C. 9607) is amended

7 by adding at the end the following new subsection:

8 ‘‘(n) INNOCENT LANDOWNERS.—

9 ‘‘(1) CONDUCT OF ENVIRONMENTAL ASSESS10 MENT.—A person who has acquired real property

11 shall have made all appropriate inquiry within the

12 meaning of subparagraph (B) of section 101(35) if

13 he establishes that, within 180 days prior to the

14 time of acquisition, an environmental site assess15 ment of the real property was conducted which

16 meets the requirements of this subsection.

17 ‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS18 SESSMENT.—For purposes of this subsection, the

19 term ‘environmental site assessment’ means an as20 sessment conducted in accordance with the stand21 ards set forth in the American Society for Testing

22 and Materials (ASTM) Standard E1527–94, titled

23 ‘Standard Practice for Environmental Site Assess24 ments: Phase I Environmental Site Assessment

25 Process’ or with alternative standards issued by rule
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1 by the Administrator or promulgated or developed

2 by others and designated by rule by the Adminis3 trator. Before issuing or designating alternative

4 standards, the Administrator shall first conduct a

5 study of commercial and industrial practices con6 cerning environmental site assessments in the trans7 fer of real property in the United States. Any such

8 standards issued or designated by the Administrator

9 shall also be deemed to constitute commercially rea10 sonable and generally accepted standards and prac11 tices for purposes of this paragraph. In issuing or

12 designating any such standards, the Administrator

13 shall consider requirements governing each of the

14 following:

15 ‘‘(A) Interviews of owners, operators, and

16 occupants of the property to determine informa17 tion regarding the potential for contamination.

18 ‘‘(B) Review of historical sources as nec19 essary to determine previous uses and occupan20 cies of the property since the property was first

21 developed. For purposes of this subclause, the

22 term ‘historical sources’ means any of the fol23 lowing, if they are reasonably ascertainable: re24 corded chain of title documents regarding the

25 real property, including all deeds, easements,
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1 leases, restrictions, and covenants, aerial photo2 graphs, fire insurance maps, property tax files,

3 USGS 7.5 minutes topographic maps, local

4 street directories, building department records,

5 zoning/land use records, and any other sources

6 that identify past uses and occupancies of the

7 property.

8 ‘‘(C) Determination of the existence of re9 corded environmental cleanup liens against the

10 real property which have arisen pursuant to

11 Federal, State, or local statutes.

12 ‘‘(D) Review of reasonably ascertainable

13 Federal, State, and local government records of

14 sites or facilities that are likely to cause or con15 tribute to contamination at the real property,

16 including, as appropriate, investigation reports

17 for such sites or facilities; records of activities

18 likely to cause or contribute to contamination at

19 the real property, including landfill and other

20 disposal location records, underground storage

21 tank records, hazardous waste handler and gen22 erator records and spill reporting records; and

23 such other reasonably ascertainable Federal,

24 State, and local government environmental

25 records which could reflect incidents or activi-
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1 ties which are likely to cause or contribute to

2 contamination at the real property.

3 ‘‘(E) A visual site inspection of the real

4 property and all facilities and improvements on

5 the real property and a visual inspection of im6 mediately adjacent properties, including an in7 vestigation of any hazardous substance use,

8 storage, treatment, and disposal practices on

9 the property.

10 ‘‘(F) Any specialized knowledge or experi11 ence on the part of the defendant.

12 ‘‘(G) The relationship of the purchase

13 price to the value of the property if

14 uncontaminated.

15 ‘‘(H) Commonly known or reasonably as16 certainable information about the property.

17 ‘‘(I) The obviousness of the presence or

18 likely presence of contamination at the prop19 erty, and the ability to detect such contamina20 tion by appropriate investigation.

21 A record shall be considered to be ‘reasonably ascer22 tainable’ for purposes of this paragraph if a copy or

23 reasonable facsimile of the record is publicly avail24 able by request (within reasonable time and cost

25 constraints) and the record is practically reviewable.
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1 ‘‘(3) MAINTENANCE OF INFORMATION.—No

2 presumption shall arise under paragraph (1) unless

3 the defendant has maintained a compilation of the

4 information reviewed and gathered in the course of

5 the environmental site assessment.

6 ‘‘(4) DEFINITION OF CONTAMINATION.—For

7 the purposes of this subsection and section 101(35),

8 the term ‘contamination’ means an existing release,

9 a past release, or the material threat of a release of

10 a hazardous substance, other than de minimis condi11 tions that generally do not present a material risk

12 of harm to public health or welfare or the environ13 ment.’’.

14 (b) CROSS REFERENCE.—Section 101(35)(B) (42

15 U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all

16 appropriate inquiry’’ the following: ‘‘(as specified in sec17 tion 107(n))’’.

18 SEC. 8. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.

19 Section 107 of the Comprehensive Environmental Re20 sponse, Compensation, and Liability Act of 1980 (42

21 U.S.C. 9607) is amended by after subsection (n) the fol22 lowing new subsections:

23 ‘‘(o) BONA FIDE PROSPECTIVE PURCHASER.—(1)

24 Notwithstanding paragraphs (1) through (4) of subsection

25 (a), a person who does not impede the performance of a
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1 response action or natural resource restoration at a facil2 ity shall not be liable to the extent liability at such facility

3 is based solely on paragraph (1) of subsection (a) for a

4 release or threat of release from the facility, and the per5 son is a bona fide prospective purchaser of the facility.

6 ‘‘(2) For purposes of this subsection, the term ‘bona

7 fide prospective purchaser’ means a person who acquires

8 ownership of a facility after the date of enactment of this

9 subsection, or a tenant of such a person, who can establish

10 each of the following by a preponderance of the evidence:

11 ‘‘(A) All active disposal of hazardous substances

12 at the facility occurred before that person acquired

13 the facility.

14 ‘‘(B) The person made all appropriate inquiry

15 into the previous ownership and uses of the facility

16 and its real property in accordance with generally

17 accepted commercial and customary standards and

18 practices. Standards described in section 107(n)(2)

19 (relating to innocent landowners) shall satisfy the

20 requirements of this subparagraph. In the case of

21 property for residential or other similar use, pur22 chased by a nongovernmental or noncommercial enti23 ty, a site inspection and title search that reveal no

24 basis for further investigation satisfy the require25 ments of this subparagraph.
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1 ‘‘(C) The person provided all legally required

2 notices with respect to the discovery or release of

3 any hazardous substances at the facility.

4 ‘‘(D) The person exercised appropriate care

5 with respect to hazardous substances found at the

6 facility by taking reasonable steps to stop on-going

7 releases, prevent threatened future releases of haz8 ardous substances, and prevent or limit human or

9 natural resource exposure to hazardous substances

10 previously released into the environment.

11 ‘‘(E) The person provides full cooperation, as12 sistance, and facility access to persons authorized to

13 conduct response actions at the facility, including

14 the cooperation and access necessary for the installa15 tion, integrity, operation, and maintenance of any

16 complete or partial response action at the facility.

17 ‘‘(F) The person is not affiliated with any other

18 person liable for response costs at the facility,

19 through any direct or indirect familial relationship,

20 or any contractual, corporate, or financial relation21 ship other than that created by the instruments by

22 which title to the facility is conveyed or financed.

23 ‘‘(p) PROSPECTIVE PURCHASER AND WINDFALL

24 LIEN.—(1) In any case in which there are unrecovered

25 response costs at a facility for which an owner of the facil-
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1 ity is not liable by reason of section 107(o), and the condi2 tions described in paragraph (2) are met, the United

3 States shall have a lien upon such facility for such unre4 covered costs. Such lien—

5 ‘‘(A) shall not exceed the increase in fair mar6 ket value of the property attributable to the response

7 action at the time of a subsequent sale or other dis8 position of property;

9 ‘‘(B) shall arise at the time costs are first in10 curred by the United States with respect to a re11 sponse action at the facility;

12 ‘‘(C) shall be subject to the requirements for

13 notice and validity established in paragraph (3) of

14 subsection (l); and

15 ‘‘(D) shall continue until the earlier of satisfac16 tion of the lien or recovery of all response costs in17 curred at the facility.

18 ‘‘(2) The conditions referred to in paragraph (1) are

19 the following:

20 ‘‘(A) A response action for which there are un21 recovered costs is carried out at the facility.

22 ‘‘(B) Such response action increases the fair

23 market value of the facility above the fair market

24 value of the facility that existed within 6 months be25 fore the response action was taken.
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1 ‘‘(3) No lien under this section shall arise—

2 ‘‘(A) with respect to property for which the

3 property owner preceding the first bona fide pro4 spective purchaser is not a liable party or has re5 solved its liability under this Act, or

6 ‘‘(B) where an environmental assessment gives

7 the bona fide prospective purchaser no knowledge or

8 reason to know of the release of hazardous sub9 stances.’’.

10 SEC. 9. CONTIGUOUS PROPERTIES.

11 Section 107 of the Comprehensive Environmental Re12 sponse, Compensation, and Liability Act of 1980 (42

13 U.S.C. 9607) is further amended by adding at the end

14 the following new subsection:

15 ‘‘(q) CONTIGUOUS PROPERTIES.—A person (other

16 than the United States or a department, agency, or instru17 mentality of the United States) who owns or operates real

18 property that is contiguous to or otherwise similarly situ19 ated with respect to real property on which there has been

20 a release or threatened release of a hazardous substance

21 and that is or may be contaminated by such release shall

22 not be liable under subsection (a)(1) or (2) by reason of

23 such ownership or operation solely by reason of such con24 tamination if such person—
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1 ‘‘(A) did not cause, contribute, or consent to

2 the release or threatened release; and

3 ‘‘(B) provides full cooperation, assistance, and

4 facility access to persons authorized to conduct re5 sponse actions at the facility.

6 The President may issue an assurance of no enforcement

7 action under this Act to any such person and may grant

8 any such person protection against cost recovery and con9 tribution actions pursuant to section 113(f)(2). Such per10 son may also petition the President to exclude from the

11 description of a National Priorities List site such contig12 uous real property, if such property is or may be contami13 nated solely by ground water that flows under such prop14 erty and is not used as a source of drinking water. The

15 President may grant such a petition pursuant to such pro16 cedures as he deems appropriate.’’.

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