I
104TH CONGRESS
1ST SESSION
H. R. 2178
To promote redevelopment of ‘‘brownfields’’ by providing Federal assistance
for brownfield cleanups, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 3, 1995
Mr. BROWN of Ohio (for himself, Mr. GEPHARDT, Mr. DINGELL, Mr. BORSKI,
Mr. RUSH, Mr. KLINK, Mr. MANTON, Mr. STOKES, Mr. TOWNS, and Ms.
FURSE) introduced the following bill; which was referred to the Commit-
tee on Commerce
A BILL
To promote redevelopment of ‘‘brownfields’’ by providing
Federal assistance for brownfield cleanups, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. FINDINGS.
The Congress finds that:
(1) Former industrial and commercial sites
commonly referred to as ‘‘brownfields’’, plague
urban and rural areas throughout the United States.
(2) Rural and urban communities alike suffer
from declining property values and increasing unem-
ployment rates caused by undeveloped brownfields.
(3) Community health and safety is jeopardized
by the residual toxic contamination found on former
industrial sites.
(4) Tens of thousands of sites across the coun-
try sit idle or under used because potential devel-
opers and bankers are deterred from investing in the
property due to uncertainties regarding liability for
cleanup costs.
(5) Potential site purchasers are concerned with
potential future liability for contamination discov-
ered after the purchase transaction.
(6) To promote redevelopment of brownfields,
there is a need to create financial and legal incen-
tives and to clarify the liability of purchasers and
lenders.
SEC. 2. AMENDMENT OF SUPERFUND.
The Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) is amended by adding the following new title at the
end thereof:
‘‘(B) A land clearance authority or other
quasi-governmental entity which operates under
the supervision and control of a general purpose
unit of local government or as an agent of a
general purpose unit of local government.
‘‘(C) A regional council or group of general
purpose units of local government.
‘‘(D) An Indian Tribe.
‘‘(7) The term ‘environmental remediation’ in-
cludes site characterization and assessment.
‘‘(8) The term ‘loan recipient’ means an eligible
applicant that has received a loan under this title
from the Administrator.
‘‘SEC. 602. BROWNFIELD CLEANUP ASSISTANCE PROGRAM.
‘‘(a) ESTABLISHMENT OF PROGRAM.—The Adminis-
trator shall establish a program to provide assistance for
the environmental remediation of eligible brownfield sites.
‘‘(b) 
ELIGIBLE
BROWNFIELD
SITES.—Any
brownfield site shall be eligible for assistance under this
title unless the site is one of the following:
‘‘(1) Any facility that is the subject of a
planned or an ongoing removal action under title I
of this Act.
‘‘(2) Any facility included, or proposed for in-
clusion, in the National Priorities List maintained
by the Administrator under title I of this Act.
‘‘(3) Any facility that is subject to corrective ac-
tion under section 3004(u) or 3008(h) of the Solid
Waste Disposal Act (42 U.S.C. 6924(u) or 6928(h))
at the time that an application for a grant or loan
concerning the facility is submitted under this title.
‘‘(4) Any land disposal unit with respect to
which a closure notification under subtitle C of the
Solid Waste Disposal Act (42 U.S.C. 6921 et seq.)
has been submitted and closure requirements have
been specified in a closure plan or permit.
‘‘(5) Any facility with respect to which an ad-
ministrative order on consent or judicial consent de-
cree requiring cleanup has been entered into by the
United States under the Solid Waste Disposal Act
(42 U.S.C. 6901 et seq.), the Federal Water Pollu-
tion Control Act (33 U.S.C. 1251 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.) or
title XIV of the Public Health Service Act, com-
monly known as the Safe Drinking Water Act (42
U.S.C. 300f and following).
‘‘(6) Any facility owned or operated by a de-
partment, agency, or instrumentality of the United
States.
‘‘(7) Any portion of a facility for which portion
assistance for response activities has been obtained
pursuant to subtitle I of the Solid Waste Disposal
Act (42 U.S.C. 6991 et seq.) from the Leaking Un-
derground Storage Tank Trust Fund established
under section 9508 of the Internal Revenue Code of
1986.
‘‘(c) ASSISTANCE FOR SITE CHARACTERIZATION AND
ASSESSMENT.—Upon the approval of an application made
by an eligible applicant, the Administrator may make
grants under this subsection to the applicant to be used
for the site characterization and assessment of one or
more eligible brownfield sites. Site characterizations and
assessments carried out with the use of any such grant
shall be deemed an ‘appropriate inquiry’ if performed in
accordance with generally accepted good commercial and
customary standards and practices for purposes of section
101(39)(B) of this Act.
‘‘(d) ASSISTANCE
FOR ENVIRONMENTAL REMEDI-
ATION.—Upon the approval of an application made by an
eligible applicant, the Administrator may make interest
free loans under this subsection to such applicant to be
used for environmental remediation (including site charac-
terization and assessment) at one or more eligible
brownfield sites. Such environmental remediation shall be
for purposes of making such site or sites available for
manufacturing, business, or other commercial or residen-
tial purposes. A loan under this section may be used by
the loan recipient for environmental remediation carried
out by the loan recipient or by other entities at the eligible
brownfield site or sites and for providing technical assist-
ance related to such environmental remediation. Such
loans may also be used by the loan recipient to make loans
and issue loan guarantees to prospective purchasers or de-
velopers of eligible brownfield sites to be used for environ-
mental remediation at the sites. Any such loans made by
the loan recipient may be repayable to a revolving fund
and used to make additional loans to prospective pur-
chasers or developers to be used for brownfield redevelop-
ment, including environmental remediation and related
technical assistance. A loan recipient may charge interest
on such loan and use such interest for brownfield redevel-
opment, including environmental remediation and related
technical assistance or for capitalizing or administering a
revolving loan fund.
‘‘(e) HAZARDOUS SUBSTANCE SUPERFUND.—Not-
withstanding section 111 of this Act or any provision of
the Superfund Amendments and Reauthorization Act of
1986, from the amounts available in the Hazardous Sub-
stance Superfund established under subchapter A of chap-
ter 98 of the Internal Revenue Code of 1986, in each of
the first 3 fiscal years commencing after the enactment
of this title—
‘‘(1) $15,000,000 are authorized to be appro-
priated from the Hazardous Substance Superfund to
be used for making grants under subsection (c); and
‘‘(2) $30,000,000 are authorized to be appro-
priated from the Hazardous Substance Superfund to
be used for making loans under subsection (d).
All loans made under subsection (d) shall be subject to
an agreement by the recipient to repay the full amount
of the loan to the United States within 10 years after the
date on which the loan is made. Such repayments shall
be deposited in, and credited to, the Hazardous Substance
Superfund.
‘‘(f) SUNSET.—No amount shall be available from the
Hazardous Substance Superfund for purposes of this title
after the third year after the date of enactment of this
title.
‘‘(g) PROHIBITION.—No portion of any assistance
provided under this section to an eligible applicant may
be used for payment of penalties or fines. No portion of
any grant provided under this section to an eligible appli-
cant may be used for administrative costs.
‘‘(h) AUDITS.—The Inspector General of the Envi-
ronmental Protection Agency shall audit all grants and
loans made under this section to insure that all funds are
used for the purposes set forth in this section and that
all loans under subsection (d) are repaid in accordance
with subsection (e).
‘‘(i) AGREEMENTS.—Each grant and each loan made
under this section shall be subject to an agreement which
requires the following:
‘‘(1) The agreement shall require the applicant
to comply with all applicable State laws (including
regulations).
‘‘(2) The agreement shall require that the ap-
plicant shall use the grant or loan exclusively for
purposes specified in subsection (c) or (d), as the
case may be.
‘‘(3) The agreement shall contain such other
terms and conditions that the Administrator deter-
mines necessary to protect the financial interests of
the United States and to carry out the purposes of
this title.
‘‘(j) LEVERAGING.—The recipient of any assistance
under this section may use the assistance for part of a
project at an eligible brownfield site or sites which receives
funding from other sources, except that such assistance
may only be used for the purposes described in subsection
(c) or (d), as the case may be.
‘‘SEC. 603. APPLICATIONS FOR ASSISTANCE.
‘‘(a) IN GENERAL.—Any eligible applicant may sub-
mit an application to the Administrator for a grant or
loan, or both under this title for one or more eligible
brownfield sites. An application may be submitted to the
Administrator through any Regional Office of the Envi-
ronmental Protection Agency. The application shall be in
such form as the Administrator determines appropriate.
‘‘(b) APPLICATION REQUIREMENTS.—An application
for assistance under this title shall, at a minimum, include
each of the following:
‘‘(1) 
An 
identification 
of 
each 
eligible
brownfield site for which assistance is sought and a
description of the redevelopment plan for the area or
areas in which each such site is located. Such de-
scription shall include a description of the nature
and extent of any known or suspected environmental
contamination within the area.
‘‘(2) An analysis that demonstrates the poten-
tial of the grant to stimulate economic development
on completion of the environmental remediation.
tions. The ranking system shall include the following cri-
teria:
‘‘(1) The extent to which the assistance will
stimulate the availability of other funds for environ-
mental remediation and subsequent redevelopment of
the area in which the eligible brownfield sites are lo-
cated.
‘‘(2) The potential of the development plan for
the area in which the eligible brownfield sites are lo-
cated to stimulate economic development of the area
on completion of the environmental remediation,
such as the following:
‘‘(A) The relative increase in the estimated
fair market value of the area as a result of the
environmental remediation.
‘‘(B) The potential of the assistance to cre-
ate new, or expand existing, business and em-
ployment opportunities (particularly full-time
employment opportunities) upon completion of
the environmental remediation.
‘‘(C) The estimated additional tax revenues
expected to be generated by economic redevelop-
ment in the area in which the brownfield site is
located.
‘‘(3) The estimated extent to which the assist-
ance would facilitate the identification of, or reduc-
tion of, health and environmental risks.
‘‘(4) The financial involvement of State and
local governments in the environmental remediation
proposed at the eligible brownfield site or sites con-
cerned and the extent to which such remediation and
the proposed redevelopment is consistent with any
applicable State or local community economic devel-
opment plan.
‘‘(5) The extent to which the site characteriza-
tion and assessment or the remediation and subse-
quent development of the eligible brownfield site or
sites involves the active participation and support of
the local community.
‘‘(6) Such other factors as the Administrator
considers relevant to carry out the purposes of this
title.’’.
SEC. 3. LENDER LIABILITY.
(a) LENDER LIABILITY RULE.—Effective on the date
of enactment of this section, the final rule issued by the
Administrator of the Environmental Protection Agency on
April 29, 1992 (57 Fed. Reg. 18344), shall be deemed
to have been validly issued pursuant to the authority of
the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, and to have been effective
according to the final rule’s terms. No additional adminis-
trative or judicial proceedings shall be necessary with re-
spect to such final rule.
(b) JUDICIAL
REVIEW.—Notwithstanding section
113(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, no court shall
have jurisdiction to review the final rule issued by the Ad-
ministrator of the Environmental Protection Agency on
April 29, 1992 (57 Fed. Reg. 18344).
(c) DELEGATION.—Nothing in this subsection shall
be construed to limit the authority of the President or his
delegate to amend the final rule issued by the Adminis-
trator of the Environmental Protection Agency on April
29, 1992 (57 Fed. Reg. 18344), in accordance issued by
the Administrator of the Environmental Protection Agen-
cy on April 29, 1992 (57 Fed. Reg. 18344), in accordance
with applicable provisions of law.
SEC. 4. PURCHASER LIABILITY.
The Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 is amended as fol-
lows:
(1) Section 101 is amended by adding the fol-
lowing after paragraph (38):
‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—
The term ‘bona fide prospective purchaser’ means a
person who acquires ownership of a facility after the
date of enactment of this paragraph, or a tenant of
such a person, who can establish each of the follow-
ing by a preponderance of the evidence:
‘‘(A) All active disposal of hazardous sub-
stances at the facility occurred before that per-
son acquired the facility.
‘‘(B) The person made all appropriate in-
quiry into the previous ownership and uses of
the facility and its real property in accordance
with generally accepted good commercial and
customary standards and practices. In the case
of property for residential or other similar use,
purchased by a nongovernmental or non-
commercial entity, a site inspection and title
search that reveal no basis for further inves-
tigation satisfy the requirements of this sub-
paragraph.
‘‘(C) The person provided all legally re-
quired notices with respect to the discovery or
release of any hazardous substances at the fa-
cility.
‘‘(D) The person exercised appropriate
care with respect to hazardous substances
found at the facility by taking reasonable steps
to stop on-going releases, prevent threatened
future releases of hazardous substances, and
prevent or limit human or natural resource ex-
posure to hazardous substances previously re-
leased into the environment.
‘‘(E) The person provides full cooperation,
assistance, and facility access to persons au-
thorized to conduct response actions at the fa-
cility, including the cooperation and access nec-
essary for the installation, integrity, operation,
and maintenance of any complete or partial re-
sponse action at the facility.
‘‘(F) The person is not affiliated with any
other person liable for response costs at the fa-
cility, through any direct or indirect familial re-
lationship, or any contractual, corporate, or fi-
nancial relationship other than that created by
the instruments by which title to the facility is
conveyed or financed.’’.
(2) Section 107 is amended by adding the fol-
lowing new subsections after subsection (m):
‘‘(n) BONA FIDE PROSPECTIVE PURCHASERS.—Not-
withstanding subsection (a), a person who is a bona fide
prospective purchaser of a facility and who does not im-
pede the performance of a response action or natural re-
source restoration at a facility shall not be liable under
this section to the extent liability at such facility is based
solely on paragraph (1) of subsection (a) for a release or
threat of release from the facility. Not later than 18
months after the enactment of this subsection, the Admin-
istrator shall issue guidelines explaining the criteria by
which a person may qualify as a bona fide purchaser. Such
guidelines shall be readily available to the public.
‘‘(o) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—(1) In any case in which there are unrecovered
response costs at a facility for which an owner of the facil-
ity is not liable by reason of subsection (n), and the condi-
tions described in paragraph (2) are met, the United
States shall have a lien upon such facility for such unre-
covered costs. Such lien—
‘‘(A) shall not exceed the increase in fair mar-
ket value of the property attributable to the response
action at the time of a subsequent sale or other dis-
position of property;
‘‘(B) shall arise at the time costs are first in-
curred by the United States with respect to a re-
sponse action at the facility;
‘‘(C) shall be subject to the requirements for
notice and validity established in paragraph (3) of
subsection (l); and
‘‘(D) shall continue until the earlier of satisfac-
tion of the lien or recovery of all response costs in-
curred at the facility.
‘‘(2) The conditions referred to in paragraph (1) are
the following:
‘‘(A) A response action for which there are un-
recovered costs is carried out at the facility.
‘‘(B) Such response action increases the fair
market value of the facility above the fair market
value of the facility that existed within six months
before the response action was taken.
‘‘(3) No lien under this section shall arise (A) with
respect to property for which the property owner preceding
the first bona fide prospective purchaser is not a liable
party or has resolved its liability under this Act, or (B)
where an audit or inquiry by an environmental profes-
sional gives the bona fide prospective purchaser no knowl-
edge or reason to know of the release of hazardous sub-
stances.’’.
SEC. 5. FIDUCIARIES.
(a) LIABILITY.—Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.) is amended by adding
the following at the end thereof:
‘‘(p) FIDUCIARIES.—(1) The personal obligations and
liabilities under subsection (a)(1) of this section with re-
spect to a vessel or facility of a person who is a fiduciary
with respect to such vessel or facility shall be limited to
the extent to which the assets held in a fiduciary capacity
are sufficient to indemnify such person, unless—
‘‘(A) the obligations and liabilities would have
arisen even if such person had not served as fidu-
ciary;
‘‘(B) such fiduciary’s own failure to exercise
due care with respect to a vessel or facility caused
or contributed to the release of hazardous sub-
stances following establishment of the trust, estate,
or fiduciary relationship;
‘‘(C) the fiduciary had a role in establishing the
trust, estate, or fiduciary relationship, and such
trust, estate, or fiduciary relationship has no objec-
tively reasonable or substantial purpose apart from
the avoidance or limitation of liability under this
Act;
‘‘(D) the fiduciary has not complied with such
other requirements as the Administrator may set
forth by regulation;
‘‘(E) the trust, estate or fiduciary relationship
was not created as part of, or to facilitate, one or
more estate plans or pursuant to the incapacity of
a natural person;
‘‘(F) the trust, estate, or fiduciary relationship
was organized for the primary purpose of, or is en-
gaged in, actively carrying on a trade or business for
profit;
‘‘(G) the person acts in a capacity other than
a fiduciary capacity, and directly or indirectly bene-
fits from a trust or fiduciary relationship; or
‘‘(H) the person is a beneficiary and fiduciary
with respect to the same fiduciary estate, and as a
fiduciary, receives benefits exceeding customary or
reasonable compensation and incidental benefits that
are permitted under other applicable law.
‘‘(2) A fiduciary shall not be personally liable for un-
dertaking or directing another to undertake a response ac-
tion under subsection (d)(1).
‘‘(3) Except to the extent provided in paragraphs (1)
and (2), a fiduciary shall be liable under this section with
respect to a vessel or facility to the same extent as any
other person and shall be personally subject to the obliga-
tions and liabilities under this section to the same extent
as if the vessel or facility were held by the fiduciary free
of trust.’’.
(b) DEFINITION.—Section 101 of such Act is amend-
ed by adding after paragraph (39) the following new para-
graph:
‘‘(40) FIDUCIARY.—(A) Except as provided in
subparagraph (B), the term ‘fiduciary’ means a per-
son who owns or controls property—
‘‘(i) as a fiduciary within the meaning of
section 3(31) of the Employee Retirement In-
come Security Act of 1974, or as a trustee, ex-
ecutor, administrator, custodian, guardian, con-
servator, or receiver acting for the exclusive
benefit of another person; and
‘‘(ii) who has not previously owned or oper-
ated the property in a nonfiduciary capacity.
‘‘(B) The term ‘fiduciary’ does not include any
person described in subparagraph (A)—
‘‘(i) who acquires ownership or control of
property to avoid the liability of such person or
any other person under this Act; or
‘‘(ii) who owns or controls property on be-
half of or for the benefit of a holder of a secu-
rity interest.’’.
Æ
HR 2178 IH——2