a greenway, undeveloped property,
recreational property, or other prop-
erty used for nonprofit purposes.
‘‘(C) EXCLUSIONS.—The term ‘eligible re-
sponse site’ does not include—
‘‘(i) 
a 
facility 
for 
which 
the
President—
‘‘(I) conducts or has conducted a
preliminary assessment or site inspec-
tion; 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 determina-
tion that no further Federal action
will be taken; or
‘‘(ii) facilities that the President de-
termines warrant particular consideration
as identified by regulation, such as sites
posing a threat to a sole-source drinking
water aquifer or a sensitive ecosystem.’’.
(b) STATE RESPONSE PROGRAMS.—Title I of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) is
amended by adding at the end the following:
‘‘SEC. 128. STATE RESPONSE PROGRAMS.
‘‘(a) ASSISTANCE TO STATES.—
‘‘(1) IN GENERAL.—
‘‘(A) STATES.—The Administrator may
award a grant to a State or Indian tribe that—
‘‘(i) has a response program that in-
cludes each of the elements, or is taking
reasonable steps to include each of the ele-
ments, listed in paragraph (2); or
‘‘(ii) is a party to a memorandum of
agreement with the Administrator for vol-
untary response programs.
‘‘(B) USE OF GRANTS BY STATES.—
‘‘(i) IN GENERAL.—A State or Indian
tribe may use a grant under this sub-
section to establish or enhance the re-
sponse program of the State or Indian
tribe.
‘‘(ii) ADDITIONAL USES.—In addition
to the uses under clause (i), a State or In-
dian tribe may use a grant under this sub-
section to—
‘‘(I) capitalize a revolving loan
fund for brownfield remediation under
section 104(k)(3); or
‘‘(II) purchase insurance or de-
velop a risk sharing pool, an indem-
nity 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 para-
graph (1)(A)(i) are the following:
‘‘(A) Timely survey and inventory of
brownfield sites in the State.
‘‘(B) Oversight and enforcement authori-
ties 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 re-
sponse action fails to complete the nec-
essary response activities, including oper-
ation and maintenance or long-term moni-
toring activities, the necessary response ac-
tivities are completed.
‘‘(C) Mechanisms and resources to provide
meaningful opportunities for public participa-
tion, including—
‘‘(i) public access to documents that
the State, Indian tribe, or party con-
ducting the cleanup is relying on or devel-
oping in making cleanup decisions or con-
ducting site activities;
‘‘(ii) prior notice and opportunity for
comment on proposed cleanup plans and
site activities; and
‘‘(iii) a mechanism by which—
‘‘(I) a person that is or may be
affected by a release or threatened re-
lease of a hazardous substance, pollut-
ant, or contaminant at a brownfield
site located in the community in which
the person works or resides may re-
quest the conduct of a site assess-
ment; and
‘‘(II) an appropriate State offi-
cial shall consider and appropriately
respond to a request under subclause
(I).
‘‘(D) Mechanisms for approval of a clean-
up 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 re-
sponse action indicating that the response is
complete.
‘‘(3) FUNDING.—There is authorized to be ap-
propriated to carry out this subsection $50,000,000
for each of fiscal years 2002 through 2006.
‘‘(b) ENFORCEMENT IN CASES OF A RELEASE SUB-
JECT 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, pollut-
ant, or contaminant; and
‘‘(ii) a person is conducting or has
completed a response action regarding the
specific release that is addressed by the re-
sponse action that is in compliance with
the State program that specifically governs
response actions for the protection of pub-
lic health and the environment;
the President may not use authority under this
Act to take an administrative or judicial en-
forcement action under section 106(a) or to
take a judicial enforcement action to recover re-
sponse costs under section 107(a) against the
person regarding the specific release that is ad-
dressed by the response action.
‘‘(B) EXCEPTIONS.—The President may
bring an administrative or judicial enforcement
action under this Act during or after completion
of a response action described in subparagraph
(A) with respect to a release or threatened re-
lease at an eligible response site described in
that subparagraph if—
‘‘(i) the State requests that the Presi-
dent 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 contami-
nation has migrated or is likely to migrate
onto property subject to the jurisdiction,
custody, or control of a department, agen-
cy, 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 re-
lease 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, after con-
sultation with the State, determines that
information, that on the earlier of the date
on which cleanup was approved or com-
pleted, was not known by the State, as re-
corded in documents prepared or relied on
in selecting or conducting the cleanup, has
been discovered regarding the contamina-
tion or conditions at a facility such that
the contamination or conditions at the fa-
cility present a threat requiring further re-
mediation to protect public health or wel-
fare or the environment. Consultation with
the State shall not limit the ability of the
Administrator to make this determination.
‘‘(C) PUBLIC RECORD.—The limitations on
the authority of the President under subpara-
graph (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 ac-
tions 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 suit-
able for unrestricted use and, if not, shall iden-
tify the institutional controls relied on in the
remedy. Each State and tribe receiving finan-
cial assistance under subsection (a) shall main-
tain 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 re-
lease 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 Adminis-
trator shall—
‘‘(I) notify the State of the action
the Administrator intends to take;
and
‘‘(II)(aa) wait 48 hours for a
reply from the State under clause (ii);
or
‘‘(bb) if the State fails to reply to
the notification or if the Adminis-
trator 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 re-
sponse 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 re-
lease, any actions that are planned.
‘‘(iii) IMMEDIATE FEDERAL ACTION.—
The Administrator may take action imme-
diately after giving notification under
clause (i) without waiting for a State reply
under clause (ii) if the Administrator de-
termines 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 dem-
onstrating that enforcement action is permitted
under subparagraph (B).
‘‘(2) SAVINGS PROVISION.—
‘‘(A) COSTS INCURRED PRIOR TO LIMITA-
TIONS.—Nothing in paragraph (1) precludes
the President from seeking to recover costs in-
curred prior to the date of enactment of this
section or during a period in which the limita-
tions 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 implemen-
tation by the President of statutory au-
thorities.
‘‘(3) EFFECTIVE
DATE.—This subsection ap-
plies only to response actions conducted after Feb-
ruary 15, 2001.
‘‘(c) EFFECT ON FEDERAL LAWS.—Nothing in this
section affects any liability or response authority under
any Federal law, including—
‘‘(1) this Act, except as provided in subsection
(b);
‘‘(2) the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.);
‘‘(3) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
‘‘(4) the Toxic Substances Control Act (15
U.S.C. 2601 et seq.); and
‘‘(5) the Safe Drinking Water Act (42 U.S.C.
300f et seq.).’’.
SEC. 232. ADDITIONS TO NATIONAL PRIORITIES LIST.
Section 105 of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (42
U.S.C. 9605) is amended by adding at the end the fol-
lowing:
‘‘(h) NPL DEFERRAL.—
‘‘(1) DEFERRAL TO STATE VOLUNTARY CLEAN-
UPS.—At the request of a State and subject to para-
graphs (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 con-
ducting a response action at the eligible re-
sponse site—
‘‘(i) in compliance with a State pro-
gram that specifically governs response ac-
tions for the protection of public health
and the environment; and
‘‘(ii) that will provide long-term pro-
tection of human health and the environ-
ment; or
‘‘(B) the State is actively pursuing an
agreement to perform a response action de-
scribed 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 eligi-
ble response site on the National Priorities List, the
President determines that the State or other party
is not making reasonable progress toward com-
pleting a response action at the eligible response
site, the President may list the eligible response site
on the National Priorities List.
‘‘(3) CLEANUP AGREEMENTS.—With respect to
an eligible response site under paragraph (1)(B), if,
after the last day of the 1-year period beginning on
the date on which the President proposes to list the
eligible response site on the National Priorities List,
an agreement described in paragraph (1)(B) has not
been reached, the President may defer the listing of
the eligible response site on the National Priorities
List for an additional period of not to exceed 180
days if the President determines deferring the listing
would be appropriate based on—
‘‘(A) the complexity of the site;
‘‘(B) substantial progress made in negotia-
tions; and
‘‘(C) other appropriate factors, as deter-
mined by the President.
‘‘(4) EXCEPTIONS.—The President may decline
to defer, or elect to discontinue a deferral of, a list-
ing of an eligible response site on the National Pri-
orities List if the President determines that—
‘‘(A) deferral would not be appropriate be-
cause 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 Con-
tingency 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.’’.
Passed the House of Representatives December 20
(legislative day, December 19), 2001.
Attest:
Clerk.
107TH CONGRESS
1ST SESSION
H. R. 2869
AN ACT
To provide certain relief for small businesses from
liability under the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980, and to amend such Act to promote the
cleanup and reuse of brownfields, to provide fi-
nancial assistance for brownfields revitalization,
to enhance State response programs, and for
other purposes.