II

106TH CONGRESS

2D SESSION S. 2590

To reauthorize and amend the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.

IN THE SENATE OF THE UNITED STATES

MAY 18, 2000

Mr. VOINOVICH introduced the following bill; which was read twice and

referred to the Committee on Environment and Public Works

A BILL

To reauthorize and amend the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Brownfields Revitalization Act of 2000’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—BROWNFIELDS REVITALIZATION

Sec. 101. Brownfields.

TITLE II—STATE RESPONSE PROGRAMS
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Sec. 201. State response programs.

Sec. 202. State cost share.

TITLE III—PROPERTY CONSIDERATIONS

Sec. 301. Contiguous properties.

Sec. 302. Prospective purchasers and windfall liens.

Sec. 303. Safe harbor innocent landholders.

TITLE IV—FEDERAL ENTITIES AND FACILITIES

Sec. 401. Applicability of law; immunity.

1 TITLE I—BROWNFIELDS

2 REVITALIZATION

3 SEC. 101. BROWNFIELDS.

4 Title I of the Comprehensive Environmental Re5 sponse, Compensation, and Liability Act of 1980 (42

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

7 the following:

8 ‘‘SEC. 127. BROWNFIELDS.

9 ‘‘(a) DEFINITIONS.—In this section:

10 ‘‘(1) BROWNFIELD FACILITY.—

11 ‘‘(A) IN GENERAL.—The term ‘brownfield

12 facility’ means real property, the expansion or

13 redevelopment of which is complicated by the

14 presence or potential presence of a hazardous

15 substance.

16 ‘‘(B) EXCLUSIONS.—The term ‘brownfield

17 facility’ does not include—

18 ‘‘(i) any portion of real property that,

19 as of the date of submission of an applica20 tion for assistance under this section, is
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1 the subject of an ongoing removal under

2 this title;

3 ‘‘(ii) any portion of real property that

4 has been listed on the National Priorities

5 List or is proposed for listing as of the

6 date of the submission of an application

7 for assistance under this section;

8 ‘‘(iii) any portion of real property with

9 respect to which cleanup work is pro10 ceeding in substantial compliance with the

11 requirements of an administrative order on

12 consent, or judicial consent decree that has

13 been entered into, or a permit issued by,

14 the United States or a duly authorized

15 State under this Act, the Solid Waste Dis16 posal Act (42 U.S.C. 6901 et seq.), section

17 311 of the Federal Water Pollution Con18 trol Act (33 U.S.C. 1321), the Toxic Sub19 stances Control Act (15 U.S.C. 2601 et

20 seq.), or the Safe Drinking Water Act (42

21 U.S.C. 300f et seq.);

22 ‘‘(iv) a land disposal unit with respect

23 to which—

24 ‘‘(I) a closure notification under

25 subtitle C of the Solid Waste Disposal
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1 Act (42 U.S.C. 6921 et seq.) has been

2 submitted; and

3 ‘‘(II) closure requirements have

4 been specified in a closure plan or

5 permit; or

6 ‘‘(v) a portion of a facility, for which

7 portion assistance for response activity has

8 been obtained under subtitle I of the Solid

9 Waste Disposal Act (42 U.S.C. 6991 et

10 seq.) from the Leaking Underground Stor11 age Tank Trust Fund established under

12 section 9508 of the Internal Revenue Code

13 of 1986.

14 ‘‘(C) FACILITIES OTHER THAN

15 BROWNFIELD FACILITIES.—That a facility may

16 not be a brownfield facility within the meaning

17 of subparagraph (A) has no effect on the eligi18 bility of the facility for assistance under any

19 provision of Federal law other than this section.

20 ‘‘(2) ELIGIBLE ENTITY.—

21 ‘‘(A) IN GENERAL.—The term ‘eligible en22 tity’ means—

23 ‘‘(i) a general purpose unit of local

24 government;
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1 ‘‘(ii) a land clearance authority or

2 other quasi-governmental entity that oper3 ates under the supervision and control of

4 or as an agent of a general purpose unit

5 of local government;

6 ‘‘(iii) a government entity created by

7 a State legislature;

8 ‘‘(iv) a regional council or group of

9 general purpose units of local government;

10 ‘‘(v) a redevelopment agency that is

11 chartered or otherwise sanctioned by a

12 State;

13 ‘‘(vi) a State; and

14 ‘‘(vii) an Indian Tribe.

15 ‘‘(B) EXCLUSION.—The term ‘eligible enti16 ty’ does not include any entity that is not in

17 substantial compliance with the requirements of

18 an administrative order on consent, judicial

19 consent decree that has been entered into, or a

20 permit issued by, the United States or a duly

21 authorized State under this Act, the Solid

22 Waste Disposal Act (42 U.S.C. 6901 et seq.),

23 the Federal Water Pollution Control Act (33

24 U.S.C. 1251 et seq.), the Toxic Substances

25 Control Act (15 U.S.C. 2601 et seq.), or the
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1 Safe Drinking Water Act (42 U.S.C. 300f et

2 seq.) with respect to any portion of real prop3 erty that is the subject of the administrative

4 order on consent, judicial consent decree, or

5 permit.

6 ‘‘(3) SECRETARY.—The term ‘Secretary’ means

7 the Secretary of Housing and Urban Development.

8 ‘‘(b) BROWNFIELD SITE CHARACTERIZATION AND

9 ASSESSMENT GRANT PROGRAM.—

10 ‘‘(1) ESTABLISHMENT OF PROGRAM.—The Ad11 ministrator shall establish a program to provide

12 grants for the site characterization and assessment

13 of brownfield facilities.

14 ‘‘(2) ASSISTANCE FOR SITE CHARACTERIZATION

15 AND ASSESSMENT AND RESPONSE ACTIONS.—

16 ‘‘(A) IN GENERAL.—On approval of an ap17 plication made by an eligible entity, the Admin18 istrator may make grants to the eligible entity

19 to be used for the site characterization and as20 sessment of 1 or more brownfield facilities.

21 ‘‘(B) SITE CHARACTERIZATION AND AS22 SESSMENT.—A site characterization and assess23 ment carried out with the use of a grant under

24 subparagraph (A)—
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1 ‘‘(i) shall be performed in accordance

2 with section 101(35)(B); and

3 ‘‘(ii) may include a process to identify

4 or inventory potential brownfield facilities.

5 ‘‘(c) BROWNFIELD REMEDIATION GRANT PRO6 GRAM.—

7 ‘‘(1) ESTABLISHMENT OF PROGRAM.—In con8 sultation with the Secretary, the Administrator shall

9 establish a program to provide grants to be used for

10 response actions (excluding site characterization and

11 assessment) at 1 or more brownfield facilities.

12 ‘‘(2) ASSISTANCE FOR RESPONSE ACTIONS.—

13 On approval of an application made by an eligible

14 entity, the Administrator, in consultation with the

15 Secretary, may make grants to the eligible entity to

16 be used for response actions (excluding site charac17 terization and assessment) at 1 or more brownfield

18 facilities.

19 ‘‘(d) GENERAL PROVISIONS.—

20 ‘‘(1) MAXIMUM GRANT AMOUNT.—

21 ‘‘(A) IN GENERAL.—The total of all grants

22 under subsections (b) and (c) shall not exceed,

23 with respect to any individual brownfield facility

24 covered by the grants, $350,000.
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1 ‘‘(B) WAIVER.—The Administrator may

2 waive the $350,000 limitation under subpara3 graph (A) based on the anticipated level of con4 tamination, size, or status of ownership of the

5 facility.

6 ‘‘(2) PROHIBITION.—

7 ‘‘(A) IN GENERAL.—No part of a grant

8 under this section may be used for payment of

9 penalties, fines, or administrative costs.

10 ‘‘(B) EXCLUSIONS.—For the purposes of

11 subparagraph (A), the term ‘administrative

12 cost’ does not include the cost of—

13 ‘‘(i) investigation and identification of

14 the extent of contamination;

15 ‘‘(ii) design and performance of a re16 sponse action; or

17 ‘‘(iii) monitoring of natural resources.

18 ‘‘(3) AUDITS.—The Inspector General of the

19 Environmental Protection Agency shall conduct such

20 reviews or audits of grants under this section as the

21 Inspector General considers necessary to carry out

22 the objectives of this section. Audits shall be con23 ducted in accordance with the auditing procedures of

24 the General Accounting Office, including chapter 75

25 of title 31, United States Code.
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1 ‘‘(4) LEVERAGING.—An eligible entity that re2 ceives a grant under this section may use the funds

3 for part of a project at a brownfield facility for

4 which funding is received from other sources, but

5 the grant shall be used only for the purposes de6 scribed in subsection (b) or (c).

7 ‘‘(5) AGREEMENTS.—Each grant made under

8 this section shall be subject to an agreement that—

9 ‘‘(A) requires the eligible entity to comply

10 with all applicable State laws (including regula11 tions);

12 ‘‘(B) requires that the eligible entity shall

13 use the grant exclusively for purposes specified

14 in subsection (b) or (c);

15 ‘‘(C) in the case of an application by an el16 igible entity under subsection (c), requires pay17 ment by the eligible entity of a matching share

18 (which may be in the form of a contribution of

19 labor, material, or services) of at least 20 per20 cent of the costs of the response action for

21 which the grant is made, is from non-Federal

22 sources of funding;

23 ‘‘(D) contains such other terms and condi24 tions as the Administrator determines to be

25 necessary to carry out this section.
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1 ‘‘(e) GRANT APPLICATIONS.—

2 ‘‘(1) SUBMISSION.—

3 ‘‘(A) IN GENERAL.—Any eligible entity

4 may submit an application to the Adminis5 trator, through a regional office of the Environ6 mental Protection Agency and in such form as

7 the Administrator may require, for a grant

8 under this section for 1 or more brownfield fa9 cilities.

10 ‘‘(B) COORDINATION.—In developing ap11 plication requirements, the Administrator shall

12 coordinate with the Secretary and other Federal

13 agencies and departments, such that eligible en14 tities under this section are made aware of

15 other available Federal resources.

16 ‘‘(C) GUIDANCE.—The Administrator shall

17 publish guidance to assist eligible entities in ob18 taining grants under this section.

19 ‘‘(2) APPROVAL.—The Administrator, in con20 sultation with the Secretary, shall make an annual

21 evaluation of each application received during the

22 prior fiscal year and make grants under this section

23 to eligible entities that submit applications during

24 the prior year and that the Administrator, in con25 sultation with the Secretary, determines have the
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1 highest rankings under the ranking criteria estab2 lished under paragraph (3).

3 ‘‘(3) RANKING CRITERIA.—The Administrator,

4 in consultation with the Secretary, shall establish a

5 system for ranking grant applications that includes

6 the following criteria:

7 ‘‘(A) The extent to which a grant will stim8 ulate the availability of other funds for environ9 mental remediation and subsequent redevelop10 ment of the area in which the brownfield facili11 ties are located.

12 ‘‘(B) The potential of the development plan

13 for the area in which the brownfield facilities

14 are located to stimulate economic development

15 of the area on completion of the cleanup, such

16 as the following:

17 ‘‘(i) The relative increase in the esti18 mated fair market value of the area as a

19 result of any necessary response action.

20 ‘‘(ii) The demonstration by applicants

21 of the intent and ability to create new or

22 expand existing business, employment,

23 recreation, or conservation opportunities

24 on completion of any necessary response

25 action.
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1 ‘‘(iii) If commercial redevelopment is

2 planned, the estimated additional full-time

3 employment opportunities and tax revenues

4 expected to be generated by economic rede5 velopment in the area in which a

6 brownfield facility is located.

7 ‘‘(iv) The estimated extent to which a

8 grant would facilitate the identification of

9 or facilitate a reduction of health and envi10 ronmental risks.

11 ‘‘(v) The financial involvement of the

12 State and local government in any re13 sponse action planned for a brownfield fa14 cility and the extent to which the response

15 action and the proposed redevelopment is

16 consistent with any applicable State or

17 local community economic development

18 plan.

19 ‘‘(vi) The extent to which the site

20 characterization and assessment or re21 sponse action and subsequent development

22 of a brownfield facility involves the active

23 participation and support of the local com24 munity.
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1 ‘‘(vii) The extent to which the appli2 cant coordinated with the State agency.

3 ‘‘(viii) Such other factors as the Ad4 ministrator considers appropriate to carry

5 out the purposes of this section.

6 ‘‘(C) The extent to which a grant will en7 able the creation of or addition to parks, green8 ways, or other recreational property.

9 ‘‘(D) The extent to which a grant will meet

10 the needs of a community that has an inability

11 to draw on other sources of funding for environ12 mental remediation and subsequent redevelop13 ment of the area in which a brownfield facility

14 is located because of the small population or

15 low income of the community.’’.

16 TITLE II—STATE RESPONSE

17 PROGRAMS

18 SEC. 201. STATE RESPONSE PROGRAMS.

19 (a) DEFINITIONS.—Section 101 of the Comprehen20 sive Environmental Response, Compensation, and Liabil21 ity Act of 1980 (42 U.S.C. 9601) is amended by adding

22 at the end the following:

23 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

24 The term ‘bona fide prospective purchaser’ means a

25 person that acquires ownership of a facility after the
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1 date of enactment of this paragraph, or a tenant of

2 such a person, that establishes each of the following

3 by a preponderance of the evidence:

4 ‘‘(A) DISPOSAL PRIOR TO ACQUISITION.—

5 All deposition of hazardous substances at the

6 facility occurred before the person acquired the

7 facility.

8 ‘‘(B) INQUIRIES.—

9 ‘‘(i) IN GENERAL.—The person made

10 all appropriate inquiries into the previous

11 ownership and uses of the facility and the

12 facility’s real property in accordance with

13 generally accepted good commercial and

14 customary standards and practices.

15 ‘‘(ii) STANDARDS AND PRACTICES.—

16 The standards and practices referred to in

17 paragraph (35)(B)(ii) or those issued or

18 adopted by the Administrator under that

19 paragraph shall be considered to satisfy

20 the requirements of this subparagraph.

21 ‘‘(iii) RESIDENTIAL USE.—In the case

22 of property for residential or other similar

23 use purchased by a nongovernmental or

24 noncommercial entity, a facility inspection

25 and title search that reveal no basis for
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1 further investigation shall be considered to

2 satisfy the requirements of this subpara3 graph.

4 ‘‘(C) NOTICES.—The person provided all

5 legally required notices with respect to the dis6 covery or release of any hazardous substances

7 at the facility.

8 ‘‘(D) CARE.—The person exercised appro9 priate care with respect to each hazardous sub10 stance found at the facility by taking reasonable

11 steps to stop any continuing release, prevent

12 any threatened future release and prevent or

13 limit human or natural resource exposure to

14 any previously released hazardous substance.

15 ‘‘(E) COOPERATION, ASSISTANCE, AND AC16 CESS.—The person has not failed to substan17 tially comply with the requirement stated in

18 section 122(p)(2)(H) with respect to the facil19 ity.

20 ‘‘(F) NO AFFILIATION.—The person is not

21 affiliated through any familial or corporate rela22 tionship with any person that is or was a party

23 potentially responsible for response costs at the

24 facility.
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1 ‘‘(40) FACILITY SUBJECT TO STATE CLEAN2 UP.—The term ‘facility subject to State cleanup’

3 means a facility other than a facility—

4 ‘‘(A) that is listed on the National Prior5 ities List;

6 ‘‘(B) that is proposed for listing on the

7 National Priorities List, based on a determina8 tion by the Administrator published in the Fed9 eral Register that the facility qualifies for list10 ing under section 105; or

11 ‘‘(C) for which an administrative order on

12 consent or judicial consent decree requiring re13 sponse action has been entered into by the

14 United States with respect to the facility

15 under—

16 ‘‘(i) this Act;

17 ‘‘(ii) the Solid Waste Disposal Act (42

18 U.S.C. 6901 et seq.);

19 ‘‘(iii) the Federal Water Pollution

20 Control Act (33 U.S.C. 1251 et seq.);

21 ‘‘(iv) the Toxic Substances Control

22 Act (15 U.S.C. 2601 et seq.); or

23 ‘‘(v) the Safe Drinking Water Act (42

24 U.S.C. 300f et seq.).
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1 ‘‘(41) QUALIFYING STATE RESPONSE PROGRAM.—

2 The term ‘qualifying State response program’ means

3 a State program that includes the elements de4 scribed in section 128(b).’’.

5 (b) QUALIFYING STATE RESPONSE PROGRAMS.—

6 Title I of the Comprehensive Environmental Response,

7 Compensation, and Liability Act of 1980 (42 U.S.C. 9601

8 et seq.) (as amended by section 101(a)) is amended by

9 adding at the end the following:

10 ‘‘SEC. 128. QUALIFYING STATE RESPONSE PROGRAMS.

11 ‘‘(a) ASSISTANCE TO STATES.—The Administrator

12 shall provide grants to States to establish and expand

13 qualifying State response programs that include the ele14 ments listed in subsection (b).

15 ‘‘(b) ELEMENTS.—The elements of a qualifying State

16 response program are the following:

17 ‘‘(1) Oversight and enforcement authorities or

18 other mechanisms that are adequate to ensure

19 that—

20 ‘‘(A) response actions will protect human

21 health and the environment and be conducted

22 in accordance with applicable Federal and State

23 law; and

24 ‘‘(B) in the case of a voluntary response

25 action, if the person conducting the voluntary
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1 response action fails to complete the necessary

2 response activities, including operation and

3 maintenance or long-term monitoring activities,

4 the response activities will be completed as nec5 essary to protect human health and the environ6 ment.

7 ‘‘(2) Adequate opportunities for public partici8 pation, including prior notice and opportunity for

9 comment in appropriate circumstances, in selecting

10 response actions.

11 ‘‘(3) Mechanisms for approval of a response ac12 tion plan, or a requirement for certification or simi13 lar documentation from the State to the person con14 ducting a response action indicating that the re15 sponse is complete.

16 ‘‘(c) ENFORCEMENT IN CASES OF A RELEASE SUB17 JECT TO A STATE PLAN.—

18 ‘‘(1) ENFORCEMENT.—

19 ‘‘(A) IN GENERAL.—Except as provided in

20 subparagraph (B), in the case of a release or

21 threatened release of a hazardous substance at

22 a facility subject to State cleanup, neither the

23 President nor any other person, except the

24 State, may use any authority under this Act to

25 take an administrative or enforcement action
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1 against any person regarding any matter that is

2 within the scope of a response action—

3 ‘‘(i) that is being conducted or has

4 been completed under State law; or

5 ‘‘(ii) at a site, the cleanup of which

6 shall be subject to State oversight.

7 ‘‘(B) EXCEPTIONS.—The President may

8 bring an enforcement action under this Act

9 with respect to a facility described in subpara10 graph (A) if—

11 ‘‘(i) the enforcement action is author12 ized under section 104;

13 ‘‘(ii) the State requests that the Presi14 dent provide assistance in the performance

15 of a response action and that the enforce16 ment bar in subparagraph (A) be lifted;

17 ‘‘(iii) at a facility at which response

18 activities are ongoing the Administrator—

19 ‘‘(I) makes a written determina20 tion that the State is unwilling or un21 able to take appropriate action, after

22 the Administrator has provided the

23 Governor notice and an opportunity to

24 cure; and
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1 ‘‘(II) the Administrator deter2 mines that the release or threat of re3 lease constitutes a public health or en4 vironmental emergency under section

5 104(a)(4);

6 ‘‘(iv) the Administrator determines

7 that contamination has migrated across a

8 State line, resulting in the need for further

9 response action to protect human health or

10 the environment; or

11 ‘‘(v) in the case of a facility at which

12 all response actions have been completed,

13 the Administrator—

14 ‘‘(I) makes a written determina15 tion that the State is unwilling or un16 able to take appropriate action, after

17 the Administrator has provided the

18 Governor notice and an opportunity to

19 cure; and

20 ‘‘(II) makes a written determina21 tion that the facility presents a sub22 stantial risk that requires further re23 mediation to protect human health or

24 the environment, as evidenced by—
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1 ‘‘(aa) newly discovered infor2 mation regarding contamination

3 at the facility;

4 ‘‘(bb) the discovery that

5 fraud was committed in dem6 onstrating attainment of stand7 ards at the facility;

8 ‘‘(cc) the failure of the rem9 edy to prepare a site for the in10 tended use of the site;

11 ‘‘(dd) a structural failure of

12 the remedy; or

13 ‘‘(ee) a change in land use

14 giving rise to a clear threat of ex15 posure to which a State is unwill16 ing to respond.

17 ‘‘(C) EPA NOTIFICATION.—

18 ‘‘(i) IN GENERAL.—In the case of a

19 facility at which there is a release or

20 threatened release of a hazardous sub21 stance, pollutant, or contaminant and for

22 which the Administrator intends to under23 take an administrative or enforcement ac24 tion, the Administrator, prior to taking the

25 administrative or enforcement action, shall
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1 notify the State of the action the Adminis2 trator intends to take and wait for a pe3 riod of 30 days for an acknowledgment

4 from the State under clause (ii).

5 ‘‘(ii) STATE RESPONSE.—Not later

6 than 30 days after receiving a notice from

7 the Administrator under clause (i), the

8 State shall notify the Administrator if the

9 facility contains a site, the cleanup of

10 which—

11 ‘‘(I) is being conducted or has

12 been completed under State law; or

13 ‘‘(II) shall be subject to State

14 oversight.

15 ‘‘(iii) PUBLIC HEALTH OR ENVIRON16 MENTAL EMERGENCY.—If the Adminis17 trator finds that a release or threatened

18 release constitutes a public health or envi19 ronmental emergency under section

20 104(a)(4), the Administrator may take ap21 propriate action immediately after giving

22 notification under clause (i) without wait23 ing for State acknowledgment.

24 ‘‘(2) COST OR DAMAGE RECOVERY ACTIONS.—

25 Paragraph (1) shall not apply to an action brought
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1 by a State, Indian Tribe, or general purpose unit of

2 local government for the recovery of costs or dam3 ages under this Act.

4 ‘‘(3) SAVINGS PROVISION.—

5 ‘‘(A) EXISTING AGREEMENTS.—A memo6 randum of agreement, memorandum of under7 standing, or similar agreement between the

8 President and a State or Indian tribe defining

9 Federal and State or tribal response action re10 sponsibilities that was in effect as of the date

11 of enactment of this section with respect to a

12 facility to which paragraph (1)(C) does not

13 apply shall remain effective until the agreement

14 expires in accordance with the terms of the

15 agreement.

16 ‘‘(B) NEW AGREEMENTS.—Nothing in this

17 subsection precludes the President from enter18 ing into an agreement with a State or Indian

19 tribe regarding responsibility at a facility to

20 which paragraph (1)(C) does not apply.’’.

21 SEC. 202. STATE COST SHARE.

22 Section 104(c) of the Comprehensive Environmental

23 Response, Compensation, and Liability Act of 1980 (42

24 U.S.C. 9604(c)) is amended—
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1 (1) by striking ‘‘(c)(1) Unless’’ and inserting

2 the following:

3 ‘‘(c) MISCELLANEOUS LIMITATIONS AND REQUIRE4 MENTS.—

5 ‘‘(1) CONTINUANCE OF OBLIGATIONS FROM

6 FUND.—Unless’’;

7 (2) in paragraph (1), by striking ‘‘taken obliga8 tions’’ and inserting ‘‘taken, obligations’’;

9 (3) by striking ‘‘(2) The President’’ and insert10 ing the following:

11 ‘‘(2) CONSULTATION.—The President’’; and

12 (4) by striking paragraph (3) and inserting the

13 following:

14 ‘‘(3) STATE COST SHARE.—

15 ‘‘(A) IN GENERAL.—The Administrator

16 shall not provide any funding for remedial ac17 tion under this section unless the State in

18 which the release occurs first enters into a con19 tract or cooperative agreement with the Admin20 istrator that provides assurances that the State

21 will pay, in cash or through in-kind contribu22 tions, 10 percent of—

23 ‘‘(i) the remedial action costs; and

24 ‘‘(ii) operation and maintenance costs.
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1 ‘‘(B) ACTIVITIES WITH RESPECT TO

2 WHICH STATE COST SHARE IS REQUIRED.—No

3 State cost share shall be required except for re4 medial actions under this section.

5 ‘‘(C) INDIAN TRIBES.—The requirements

6 of this paragraph shall not apply in the case of

7 remedial action to be taken on land or water—

8 ‘‘(i) held by an Indian Tribe;

9 ‘‘(ii) held by the United States in

10 trust for an Indian Tribe;

11 ‘‘(iii) held by a member of an Indian

12 Tribe (if the land or water is subject to a

13 trust restriction on alienation); or

14 ‘‘(iv) within the borders of an Indian

15 reservation.’’.

16 TITLE III—PROPERTY

17 CONSIDERATIONS

18 SEC. 301. CONTIGUOUS PROPERTIES.

19 (a) IN GENERAL.—Section 107 of the Comprehensive

20 Environmental Response, Compensation, and Liability Act

21 of 1980 (42 U.S.C. 9607) is amended by adding at the

22 end the following:

23 ‘‘(o) CONTIGUOUS PROPERTIES.—

24 ‘‘(1) NOT CONSIDERED TO BE AN OWNER OR

25 OPERATOR.—
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1 ‘‘(A) IN GENERAL.—A person that owns or

2 operates real property that is contiguous to or

3 otherwise similarly situated with respect to real

4 property on which there has been a release or

5 threatened release of a hazardous substance

6 and that is or may be contaminated by the re7 lease shall not be considered to be an owner or

8 operator of a vessel or facility under paragraph

9 (1) or (2) of subsection (a) solely by reason of

10 the contamination if—

11 ‘‘(i) the person did not cause, con12 tribute, or consent to the release or threat13 ened release;

14 ‘‘(ii) the person is not affiliated

15 through any familial or corporate relation16 ship with any person that is or was a party

17 potentially responsible for response costs at

18 the facility; and

19 ‘‘(iii) the person exercised appropriate

20 care with respect to each hazardous sub21 stance found at the facility by taking rea22 sonable steps to stop any continuing re23 lease, prevent any threatened future re24 lease and prevent or limit human or nat-
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1 ural resource exposure to any previously

2 released hazardous substance.

3 ‘‘(B) GROUND WATER.—With respect to

4 hazardous substances in ground water beneath

5 a person’s property solely as a result of sub6 surface migration in an aquifer from a source

7 or sources outside the property, appropriate

8 care shall not require the person to conduct

9 ground water investigations or to install ground

10 water remediation systems.

11 ‘‘(2) COOPERATION, ASSISTANCE, AND AC12 CESS.—A party described in paragraph (1) may be

13 considered an owner or operator of a vessel or facil14 ity under paragraph (1) or (2) of subsection (a) if

15 the party has failed to substantially comply with the

16 requirement stated in section 122(p)(2)(H) with re17 spect to the facility.

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

19 ‘‘(A) issue an assurance that no enforce20 ment action under this Act will be initiated

21 against a person described in paragraph (1);

22 and

23 ‘‘(B) grant a person described in para24 graph (1) protection against a cost recovery or

25 contribution action under section 113(f).’’.
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1 (b) NATIONAL PRIORITIES LIST.—

2 (1) IN GENERAL.—Section 105 of the Com3 prehensive Environmental Response, Compensation,

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

5 amended—

6 (A) in subsection (a)(8)—

7 (i) in subparagraph (B), by inserting

8 ‘‘and’’ after the semicolon at the end; and

9 (ii) by adding at the end the fol10 lowing:

11 ‘‘(C) provision that in listing a facility on the

12 National Priorities List, the Administrator shall

13 not—

14 ‘‘(i) list the facility unless the Adminis15 trator first obtains concurrence for the listing

16 from the Governor of the State in which the fa17 cility is located; and

18 ‘‘(ii) include in a listing any parcel of real

19 property at which no release has actually oc20 curred, but to which a released hazardous sub21 stance, pollutant, or contaminant has migrated

22 in ground water that has moved through sub23 surface strata from another parcel of real estate

24 at which the release actually occurred, unless—
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1 ‘‘(I) the ground water is in use as a

2 public drinking water supply or was in

3 such use at the time of the release; and

4 ‘‘(II) the owner or operator of the fa5 cility is liable, or is affiliated with any

6 other person that is liable, for any re7 sponse costs at the facility, through any di8 rect or indirect familial relationship, or any

9 contractual, corporate, or financial rela10 tionship other than that created by the in11 struments by which title to the facility is

12 conveyed or financed.’’; and

13 (B) by adding at the end the following:

14 ‘‘(h) LISTING OF PARTICULAR PARCELS.—

15 ‘‘(1) DEFINITION.—In subsection (a)(8)(C) and

16 paragraph (2) of this subsection, the term ‘parcel of

17 real property’ means a parcel, lot, or tract of land

18 that has a separate legal description from that of

19 any other parcel, lot, or tract of land the legal de20 scription and ownership of which has been recorded

21 in accordance with the law of the State in which it

22 is located.

23 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in

24 subsection (a)(8)(C) limits the Administrator’s au25 thority under section 104 to obtain access to and
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1 undertake response actions at any parcel of real

2 property to which a released hazardous substance,

3 pollutant, or contaminant has migrated in the

4 ground water.’’.

5 (2) REVISION OF NATIONAL PRIORITIES LIST.—

6 Not later than 180 days after the date of enactment

7 of this Act, the President shall revise the National

8 Priorities List to conform with the amendments

9 made by paragraph (1).

10 (c) CONFORMING AMENDMENT.—Section 107(a) of

11 the Comprehensive Environmental Response, Compensa12 tion, and Liability Act of 1980 (42 U.S.C. 9607) is

13 amended by striking ‘‘of this section’’ and inserting ‘‘and

14 the exemptions and limitations stated in this section’’.

15 SEC. 302. PROSPECTIVE PURCHASERS AND WINDFALL

16 LIENS.

17 Section 107 of the Comprehensive Environmental Re18 sponse, Compensation, and Liability Act of 1980 (42

19 U.S.C. 9607) (as amended by section 301(a)) is amended

20 by adding at the end the following:

21 ‘‘(p) PROSPECTIVE PURCHASER AND WINDFALL

22 LIEN.—

23 ‘‘(1) LIMITATION ON LIABILITY.—Notwith24 standing subsection (a), a bona fide prospective pur25 chaser whose potential liability for a release or
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1 threatened release is based solely on the purchaser’s

2 being considered to be an owner or operator of a

3 facility shall not be liable as long as the bona fide

4 prospective purchaser does not impede the perform5 ance of a response action or natural resource res6 toration.

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

8 costs at a facility for which an owner of the facility

9 is not liable by reason of subsection (n)(1) and each

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

11 the United States shall have a lien on the facility,

12 or may obtain from appropriate responsible party a

13 lien on any other property or other assurances of

14 payment satisfactory to the Administrator, for such

15 unrecovered costs.

16 ‘‘(3) CONDITIONS.—The conditions referred to

17 in paragraph (1) are the following:

18 ‘‘(A) RESPONSE ACTION.—A response ac19 tion for which there are unrecovered costs is

20 carried out at the facility.

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

22 action increases the fair market value of the fa23 cility above the fair market value of the facility

24 that existed 180 days before the response action

25 was initiated.
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1 ‘‘(C) SALE.—A sale or other disposition of

2 all or a portion of the facility has occurred.

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

4 ‘‘(A) shall not exceed the increase in fair

5 market value of the property attributable to the

6 response action at the time of a subsequent sale

7 or other disposition of the property;

8 ‘‘(B) shall arise at the time at which costs

9 are first incurred by the United States with re10 spect to a response action at the facility;

11 ‘‘(C) shall be subject to the requirements

12 of subsection (l)(3); and

13 ‘‘(D) shall continue until the earlier of sat14 isfaction of the lien or recovery of all response

15 costs incurred at the facility.’’.

16 SEC. 303. SAFE HARBOR INNOCENT LANDHOLDERS.

17 (a) AMENDMENT.—Section 101(35) of the Com18 prehensive Environmental Response, Compensation, and

19 Liability Act of 1980 (42 U.S.C. 9601(35)) is amended—

20 (1) in subparagraph (A)—

21 (A) in the matter that precedes clause (i),

22 by striking ‘‘deeds or’’ and inserting ‘‘deeds,

23 easements, leases, or’’; and

24 (B) in the matter that follows clause (iii)—
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1 (i) by striking ‘‘he’’ and inserting ‘‘the

2 defendant’’; and

3 (ii) by striking the period at the end

4 and inserting ‘‘, has provided full coopera5 tion, assistance, and facility access to the

6 persons that are responsible for response

7 actions at the facility, including the co8 operation and access necessary for the in9 stallation, integrity, operation, and mainte10 nance of any complete or partial response

11 action at the facility, and has taken no ac12 tion that impeded the effectiveness or in13 tegrity of any institutional control em14 ployed under section 121 at the facility.’’;

15 and

16 (2) by striking subparagraph (B) and inserting

17 the following:

18 ‘‘(B) REASON TO KNOW.—

19 ‘‘(i) ALL APPROPRIATE INQUIRIES.—

20 To establish that the defendant had no

21 reason to know of the matter described in

22 subparagraph (A)(i), the defendant must

23 show that—

24 ‘‘(I) at or prior to the date on

25 which the defendant acquired the fa-
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1 cility, the defendant undertook all ap2 propriate inquiries into the previous

3 ownership and uses of the facility in

4 accordance with generally accepted

5 good commercial and customary

6 standards and practices; and

7 ‘‘(II) the defendant exercised ap8 propriate care with respect to each

9 hazardous substance found at the fa10 cility by taking reasonable steps to

11 stop any continuing release, prevent

12 any threatened future release and pre13 vent or limit human or natural re14 source exposure to any previously re15 leased hazardous substance.

16 ‘‘(ii) STANDARDS AND PRACTICES.—

17 The Administrator shall by regulation es18 tablish as standards and practices for the

19 purpose of clause (i)—

20 ‘‘(I) the American Society for

21 Testing and Materials (ASTM) Stand22 ard E1527–94, entitled ‘Standard

23 Practice for Environmental Site As24 sessments: Phase I Environmental

25 Site Assessment Process’; or
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1 ‘‘(II) alternative standards and

2 practices under clause (iii).

3 ‘‘(iii) ALTERNATIVE STANDARDS AND

4 PRACTICES.—

5 ‘‘(I) IN GENERAL.—The Admin6 istrator may by regulation issue alter7 native standards and practices or des8 ignate standards developed by other

9 organizations than the American Soci10 ety for Testing and Materials after

11 conducting a study of commercial and

12 industrial practices concerning the

13 transfer of real property in the United

14 States.

15 ‘‘(II) CONSIDERATIONS.—In

16 issuing or designating alternative

17 standards and practices under sub18 clause (I), the Administrator shall

19 consider including each of the fol20 lowing:

21 ‘‘(aa) The results of an in22 quiry by an environmental pro23 fessional.

24 ‘‘(bb) Interviews with past

25 and present owners, operators,
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1 and occupants of the facility and

2 the facility’s real property for the

3 purpose of gathering information

4 regarding the potential for con5 tamination at the facility and the

6 facility’s real property.

7 ‘‘(cc) Reviews of historical

8 sources, such as chain of title

9 documents, aerial photographs,

10 building department records, and

11 land use records to determine

12 previous uses and occupancies of

13 the real property since the prop14 erty was first developed.

15 ‘‘(dd) Searches for recorded

16 environmental cleanup liens, filed

17 under Federal, State, or local

18 law, against the facility or the fa19 cility’s real property.

20 ‘‘(ee) Reviews of Federal,

21 State, and local government

22 records (such as waste disposal

23 records), underground storage

24 tank records, and hazardous

25 waste handling, generation, treat-
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1 ment, disposal, and spill records,

2 concerning contamination at or

3 near the facility or the facility’s

4 real property.

5 ‘‘(ff) Visual inspections of

6 the facility and facility’s real

7 property and of adjoining prop8 erties.

9 ‘‘(gg) Specialized knowledge

10 or experience on the part of the

11 defendant.

12 ‘‘(hh) The relationship of

13 the purchase price to the value of

14 the property if the property was

15 uncontaminated.

16 ‘‘(ii) Commonly known or

17 reasonably ascertainable informa18 tion about the property.

19 ‘‘(jj) The degree of obvious20 ness of the presence or likely

21 presence of contamination at the

22 property, and the ability to detect

23 such contamination by appro24 priate investigation.
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1 ‘‘(iv) SITE INSPECTION AND TITLE

2 SEARCH.—In the case of property for resi3 dential use or other similar use purchased

4 by a nongovernmental or noncommercial

5 entity, a facility inspection and title search

6 that reveal no basis for further investiga7 tion shall be considered to satisfy the re8 quirements of this subparagraph.’’.

9 (b) STANDARDS AND PRACTICES.—

10 (1) ESTABLISHMENT BY REGULATION.—The

11 Administrator of the Environmental Protection

12 Agency shall issue the regulation required by section

13 101(35)(B)(ii) of the Comprehensive Environmental

14 Response, Compensation, and Liability Act of 1980

15 (as added by subsection (a)) not later than 1 year

16 after the date of enactment of this Act.

17 (2) INTERIM STANDARDS AND PRACTICES.—

18 Until the Administrator issues the regulation de19 scribed in paragraph (1), in making a determination

20 under section 101(35)(B)(i) of the Comprehensive

21 Environmental Response, Compensation, and Liabil22 ity Act of 1980 (as added by subsection (a)), there

23 shall be taken into account—

24 (A) any specialized knowledge or experi25 ence on the part of the defendant;
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1 (B) the relationship of the purchase price

2 to the value of the property if the property was

3 uncontaminated;

4 (C) commonly known or reasonably ascer5 tainable information about the property;

6 (D) the degree of obviousness of the pres7 ence or likely presence of contamination at the

8 property; and

9 (E) the ability to detect the contamination

10 by appropriate investigation.

11 TITLE IV—FEDERAL ENTITIES

12 AND FACILITIES

13 SEC. 401. APPLICABILITY OF LAW; IMMUNITY.

14 Section 120 of the Comprehensive Environmental Re15 sponse, Compensation, and Liability Act of 1980 (42

16 U.S.C. 9620) is amended—

17 (1) by striking the section heading and insert18 ing the following:

19 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’;

20 (2) in subsection (a)—

21 (A) by striking paragraph (1) and insert22 ing the following:

23 ‘‘(1) IN GENERAL.—
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1 ‘‘(A) DEFINITION OF SERVICE CHARGES.—

2 In this paragraph, the term ‘service charge’

3 includes—

4 ‘‘(i) a fee or charge assessed in con5 nection with—

6 ‘‘(I) the processing or issuance of

7 a permit, renewal of a permit, or

8 amendment of a permit;

9 ‘‘(II) review of a plan, study, or

10 other document; or

11 ‘‘(III) inspection or monitoring of

12 a facility; and

13 ‘‘(ii) any other charge that is assessed

14 in connection with a State, interstate, or

15 local response program.

16 ‘‘(B) APPLICATION OF FEDERAL, STATE,

17 INTERSTATE, AND LOCAL LAW.—

18 ‘‘(i) IN GENERAL.—Each department,

19 agency, and instrumentality of the execu20 tive, legislative, or judicial branch of the

21 United States shall be subject to and shall

22 comply with this Act and all other Federal,

23 State, interstate, and local substantive and

24 procedural requirements and other provi25 sions of law relating to a response action
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1 or restoration action or the management of

2 a hazardous waste, pollutant, or contami3 nant in the same manner, and to the same

4 extent, as any nongovernmental entity is

5 subject to those provisions of law.

6 ‘‘(ii) PROVISIONS INCLUDED.—The

7 provisions of law referred to in clause (i)

8 include—

9 ‘‘(I) a permit requirement;

10 ‘‘(II) a reporting requirement;

11 ‘‘(III) a provision authorizing in12 junctive relief (including such sanc13 tions as a court may impose to en14 force injunctive relief);

15 ‘‘(IV) sections 106 and 107 and

16 similar provisions of Federal, State,

17 or local law relating to enforcement

18 and liability for cleanup, reimburse19 ment of response costs, contribution,

20 and payment of damages;

21 ‘‘(V) a requirement to pay rea22 sonable service charges; and

23 ‘‘(VI) all administrative orders

24 and all civil and administrative pen25 alties and fines, regardless of whether
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1 the penalties or fines are punitive or

2 coercive in nature or are imposed for

3 an isolated, intermittent, or con4 tinuing violation.

5 ‘‘(C) WAIVER OF IMMUNITY.—

6 ‘‘(i) IN GENERAL.—The United States

7 waives any immunity applicable to the

8 United States with respect to any provision

9 of law described in subparagraph (B).

10 ‘‘(ii) LIMITATION.—The waiver of sov11 ereign immunity under clause (i) does not

12 apply to the extent that a State law would

13 apply any standard or requirement to the

14 Federal department, agency, or instrumen15 tality in a manner that is more stringent

16 than the manner in which the standard or

17 requirement would apply to any other per18 son.

19 ‘‘(D) CIVIL AND CRIMINAL LIABILITY.—

20 ‘‘(i) INJUNCTIVE RELIEF.—Neither

21 the United States nor any agent, employee,

22 or officer of the United States shall be im23 mune or exempt from any process or sanc24 tion of any Federal or State court with re25 spect to the enforcement of injunctive re-
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1 lief referred to in subparagraph

2 (B)(ii)(III).

3 ‘‘(ii) NO PERSONAL LIABILITY FOR

4 CIVIL PENALTY.—No agent, employee, or

5 officer of the United States shall be per6 sonally liable for any civil penalty under

7 any Federal or State law relating to a re8 sponse action or to management of a haz9 ardous substance, pollutant, or contami10 nant with respect to any act or omission

11 within the scope of the official duties of

12 the agent, employee, or officer.

13 ‘‘(iii) CRIMINAL LIABILITY.—An

14 agent, employee, or officer of the United

15 States shall be subject to any criminal

16 sanction (including a fine or imprison17 ment) under any Federal or State law re18 lating to a response action or to manage19 ment of a hazardous substance, pollutant,

20 or contaminant, but no department, agen21 cy, or instrumentality of the executive, leg22 islative, or judicial branch of the United

23 States shall be subject to any such sanc24 tion.

25 ‘‘(E) ENFORCEMENT.—
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1 ‘‘(i) ABATEMENT ACTIONS.—The Ad2 ministrator may issue an order under sec3 tion 106 to any department, agency, or in4 strumentality of the executive, legislative,

5 or judicial branch of the United States.

6 The Administrator shall initiate an admin7 istrative enforcement action against such a

8 department, agency, or instrumentality in

9 the same manner and under the same cir10 cumstances as an action would be initiated

11 against any other person.

12 ‘‘(ii) CONSULTATION.—No adminis13 trative order issued to a department, agen14 cy, or instrumentality of the United States

15 shall become final until the department,

16 agency, or instrumentality has had the op17 portunity to confer with the Administrator.

18 ‘‘(iii) USE OF PENALTIES AND

19 FINES.—Unless a State law in effect on

20 the date of enactment of this clause re21 quires the funds to be used in a different

22 manner, all funds collected by a State from

23 the Federal Government as penalties or

24 fines imposed for violation of a provision of

25 law referred to in subparagraph (B) shall
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1 be used by the State only for projects de2 signed to improve or protect the environ3 ment or to defray the costs of environ4 mental protection or enforcement.

5 ‘‘(F) CONTRIBUTION.—A department,

6 agency, or instrumentality of the United States

7 shall have the right to contribution under sec8 tion 113 if the department, agency, or instru9 mentality resolves its liability under this Act.’’;

10 (B) in the second sentence of paragraph

11 (3), by inserting ‘‘(other than the indemnifica12 tion requirements of section 119)’’ after ‘‘re13 sponsibility’’; and

14 (C) by striking paragraph (4); and

15 (2) in subsection (e), by adding at the end the

16 following:

17 ‘‘(7) STATE REQUIREMENTS.—Notwithstanding

18 any other provision of this Act, an interagency

19 agreement under this section shall not impair or di20 minish the authority of a State, political subdivision

21 of a State, or any other person or the jurisdiction

22 of any court to enforce compliance with require23 ments of State or Federal law, unless those require24 ments have been specifically addressed in the agree25 ment or waived without objection after notice to the
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1 State before or on the date on which the response

2 action is selected.’’.

Æ