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 re-
garding 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 con-
cerned
A BILL
To require the Administrator of the Environmental Protec-
tion 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Brownfields Reuse and
Real Estate Development Act’’.
SEC. 2. FINDINGS AND PURPOSE.
(a) FINDINGS.—The Congress finds:
(1) Nationwide, older abandoned or under-used
commercial 
and 
industrial 
sites 
known 
as
‘‘brownfields’’ are often overlooked for redevelop-
ment because of actual or potential environmental
contamination from past commercial or industrial
activities.
(2) The actual or potential environmental liabil-
ity associated with brownfields, including require-
ments for site assessment and cleanup, creates enor-
mous uncertainties in the redevelopment process,
prompting many developers to pursue cheaper, less
complicated development options on undeveloped
sites.
(3) Industrialized metropolitan areas and small
towns alike are affected adversely by these com-
peting pressures, as loss of tax revenues and job op-
portunities for community residents lead to a dete-
rioration of the urban environment, including the
presence of unremediated environmental contamina-
tion.
(4) States have created remedial action pro-
grams to allow a person to respond voluntarily to a
release or potential release of hazardous substances
at low and medium priority facilities. Such programs
have flourished due to the States’ ability to stream-
line duplicative State and Federal regulatory re-
quirements and affect a timely, cost-effective, and
environmentally protective cleanup of sites.
(5) The benefits of State voluntary cleanup pro-
grams would be significantly enhanced in the context
of a Federal system that encourages Federal-State
partnerships, and provides legal finality to the clean-
up process.
(b) PURPOSE.—The purpose of this Act is to ensure
the quality of State brownfield cleanup and redevelopment
efforts by establishing Federal criteria for State voluntary
cleanup programs and to provide certainty by removing
the threat of Federal enforcement under Federal law dur-
ing and after the cleanup of brownfield facilities and prop-
erties.
SEC. 3. CERTIFICATION OF STATE VOLUNTARY CLEANUP
PROGRAMS.
(a) IN GENERAL.—Not later than one year after the
date of the enactment of this Act, the Administrator of
the Environmental Protection Agency (hereinafter in this
Act referred to as the ‘‘Administrator’’) shall establish,
and publish in the Federal Register, certification criteria
under subsection (d) for State programs for the voluntary
cleanup of eligible facilities. Upon enactment of this Act,
a State may submit for review by the Administrator docu-
ments that the State deems appropriate to describe a vol-
untary response program for eligible facilities.
(b) CERTIFICATION OF STATE PROGRAMS.—The Ad-
ministrator shall certify a State program for the voluntary
cleanup of eligible facilities within 120 days after the Ad-
ministrator receives adequate documentation that the
State program substantially satisfies the certification cri-
teria established under subsection (d). If the Adminis-
trator takes no action with respect to certification under
this section within 120 days after receipt of adequate doc-
umentation from the State, the State program shall be
treated as certified for purposes of this Act. If the Admin-
istrator denies certification for a State program, the State
may, in an action brought within 60 days after the date
of such denial, obtain review of such denial in the United
States Court of Appeals for the circuit in which such State
is located.
(c) FEDERAL-STATE COOPERATION AND STATE CER-
TIFICATION.—The Administrator shall cooperate with
States to ensure that State programs continue to meet the
terms of the certification issued pursuant to subsection
(b). The Administrator shall notify the State of any failure
of a certified State program to continue to meet the cer-
tification criteria established under subsection (d) and
shall assist the State in remedying such deficiency. If any
such deficiency is substantial and is not remedied in a
timely manner, the Administrator may withdraw the cer-
tification. Withdrawal of certification shall not affect any
cleanup completed and approved by the State as of the
date of such withdrawal. The State may, in an action
brought within 60 days after such withdrawal, obtain re-
view of such withdrawal in an action brought in the United
States Court of Appeals for the circuit in which such State
is located. A withdrawal of certification shall not take ef-
fect until completion of judicial review in the United
States Court of Appeals or, if no action is brought seeking
review of such withdrawal, the date on which the period
to bring an action for such review has expired.
(d) CERTIFICATION CRITERIA.—In order for a State
voluntary cleanup program to be certified under this sec-
tion, the program must meet each of the following criteria:
(1) The program shall provide adequate oppor-
tunities for meaningful public participation. Mean-
ingful public participation shall include adequate no-
tice by the State (or a person authorized by the
State) to the local government of a site being ad-
dressed, as well as public involvement in relation to
the environmental risks posed by the sites being ad-
dressed under the program.
(2) The program shall ensure that technical as-
sistance is available throughout each voluntary
cleanup.
(3) The program shall ensure that adequate re-
sources are available to ensure cleanups under the
program and to administer the program.
(4) The program shall ensure adequate over-
sight and enforcement authority.
(5) The program shall provide, upon completion
of cleanup, for documentation to be provided by the
State to the owner or prospective purchaser that the
cleanup of the eligible facility is complete.
(6) The program shall ensure that the cleanup
undertaken under the program will protect human
health and the environment.
SEC. 4. EXISTING STATE PROGRAMS.
Nothing in this Act is intended to impose any require-
ment on a State voluntary response program existing on
or after the date of the enactment of this Act. A program
shall not be considered to be certified under this Act un-
less the program is approved in accordance with this sec-
tion.
SEC. 5. LIMITATION ON FEDERAL ENFORCEMENT.
Neither the President nor any other person (other
than a State) may use any authority of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.) or of the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) to commence an
administrative or judicial action under either of those Acts
with respect to any release or threatened release at any
eligible facility that is, or has been, the subject of a cer-
tified State voluntary response plan.
SEC. 6. ELIGIBLE FACILITIES.
(a) IN GENERAL.—For purposes of this Act, the term
‘‘eligible facility’’ means an abandoned, idled or under
used commercial or industrial facility or property for
which real or perceived environmental contamination com-
plicates expansion, redevelopment, or reuse. Such term
shall not include any of the following:
(1) A facility at which an abatement action has
been ordered under section 106 of the Comprehen-
sive Environmental Response, Compensation, and
Liability Act of 1980 or under section 7003 of the
Solid Waste Disposal Act (unless such abatement
action has been completed).
(2) A facility that is the subject of a Federal
removal or remedial action under section 104 of the
Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
(3) A facility included on the National Prior-
ities List or proposed for such inclusion in the Fed-
eral Register.
(4) A facility required to have a permit under
section 3005 of the Solid Waste Disposal Act that
does not have a permit under that section and does
not qualify for authorization to operate in interim
status under subsection (e) of that section.
(5) A land disposal unit subject to a closure re-
quirement under subtitle C of the Solid Waste Dis-
posal Act (42 U.S.C. 6921 et seq.).
(6) A facility that is the subject of a corrective
action under section 3004(u) or 3008(h) of the Solid
Waste Disposal Act (42 U.S.C. 5924(u) or 6928(h))
that has been evaluated as high priority under the
Environmental Protection Agency’s National Correc-
tive Action Priority System as set forth in regula-
tions under subtitle C of the Solid Waste Disposal
Act.
(7) A facility owned or operated by a depart-
ment, agency, or instrumentality of the United
States.
(b) WAIVER OF INELIGIBILITY.—Upon the applica-
tion of a State or any person authorized by the State, for
good cause shown, the Administrator may waive, on a
case-by-case basis, the ineligibility of any facility or prop-
erty listed in paragraph (4), (5), or (6) of subsection (a).
SEC. 7. INNOCENT LANDOWNERS.
(a) AMENDMENT OF CERCLA.—Section 107 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607) is amended
by adding at the end the following new subsection:
‘‘(n) INNOCENT LANDOWNERS.—
‘‘(1) CONDUCT
OF
ENVIRONMENTAL
ASSESS-
MENT.—A person who has acquired real property
shall have made all appropriate inquiry within the
meaning of subparagraph (B) of section 101(35) if
he establishes that, within 180 days prior to the
time of acquisition, an environmental site assess-
ment of the real property was conducted which
meets the requirements of this subsection.
‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS-
SESSMENT.—For purposes of this subsection, the
term ‘environmental site assessment’ means an as-
sessment conducted in accordance with the stand-
ards set forth in the American Society for Testing
and Materials (ASTM) Standard E1527–94, titled
‘Standard Practice for Environmental Site Assess-
ments: Phase I Environmental Site Assessment
Process’ or with alternative standards issued by rule
by the Administrator or promulgated or developed
by others and designated by rule by the Adminis-
trator. Before issuing or designating alternative
standards, the Administrator shall first conduct a
study of commercial and industrial practices con-
cerning environmental site assessments in the trans-
fer of real property in the United States. Any such
standards issued or designated by the Administrator
shall also be deemed to constitute commercially rea-
sonable and generally accepted standards and prac-
tices for purposes of this paragraph. In issuing or
designating any such standards, the Administrator
shall consider requirements governing each of the
following:
‘‘(A) Interviews of owners, operators, and
occupants of the property to determine informa-
tion regarding the potential for contamination.
‘‘(B) Review of historical sources as nec-
essary to determine previous uses and occupan-
cies of the property since the property was first
developed. For purposes of this subclause, the
term ‘historical sources’ means any of the fol-
lowing, if they are reasonably ascertainable: re-
corded chain of title documents regarding the
real property, including all deeds, easements,
leases, restrictions, and covenants, aerial photo-
graphs, fire insurance maps, property tax files,
USGS 7.5 minutes topographic maps, local
street directories, building department records,
zoning/land use records, and any other sources
that identify past uses and occupancies of the
property.
‘‘(C) Determination of the existence of re-
corded environmental cleanup liens against the
real property which have arisen pursuant to
Federal, State, or local statutes.
‘‘(D) Review of reasonably ascertainable
Federal, State, and local government records of
sites or facilities that are likely to cause or con-
tribute to contamination at the real property,
including, as appropriate, investigation reports
for such sites or facilities; records of activities
likely to cause or contribute to contamination at
the real property, including landfill and other
disposal location records, underground storage
tank records, hazardous waste handler and gen-
erator records and spill reporting records; and
such other reasonably ascertainable Federal,
State, and local government environmental
records which could reflect incidents or activi-
ties which are likely to cause or contribute to
contamination at the real property.
‘‘(E) A visual site inspection of the real
property and all facilities and improvements on
the real property and a visual inspection of im-
mediately adjacent properties, including an in-
vestigation of any hazardous substance use,
storage, treatment, and disposal practices on
the property.
‘‘(F) Any specialized knowledge or experi-
ence on the part of the defendant.
‘‘(G) The relationship of the purchase
price 
to 
the 
value 
of 
the 
property 
if
uncontaminated.
‘‘(H) Commonly known or reasonably as-
certainable information about the property.
‘‘(I) The obviousness of the presence or
likely presence of contamination at the prop-
erty, and the ability to detect such contamina-
tion by appropriate investigation.
A record shall be considered to be ‘reasonably ascer-
tainable’ for purposes of this paragraph if a copy or
reasonable facsimile of the record is publicly avail-
able by request (within reasonable time and cost
constraints) and the record is practically reviewable.
‘‘(3) MAINTENANCE
OF
INFORMATION.—No
presumption shall arise under paragraph (1) unless
the defendant has maintained a compilation of the
information reviewed and gathered in the course of
the environmental site assessment.
‘‘(4) DEFINITION
OF
CONTAMINATION.—For
the purposes of this subsection and section 101(35),
the term ‘contamination’ means an existing release,
a past release, or the material threat of a release of
a hazardous substance, other than de minimis condi-
tions that generally do not present a material risk
of harm to public health or welfare or the environ-
ment.’’.
(b) CROSS REFERENCE.—Section 101(35)(B) (42
U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all
appropriate inquiry’’ the following: ‘‘(as specified in sec-
tion 107(n))’’.
SEC. 8. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.
Section 107 of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (42
U.S.C. 9607) is amended by after subsection (n) the fol-
lowing new subsections:
‘‘(o) BONA FIDE PROSPECTIVE PURCHASER.—(1)
Notwithstanding paragraphs (1) through (4) of subsection
(a), a person who does not impede the performance of a
response action or natural resource restoration at a facil-
ity shall not be liable 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, and the per-
son is a bona fide prospective purchaser of the facility.
‘‘(2) For purposes of this subsection, the term ‘bona
fide prospective purchaser’ means a person who acquires
ownership of a facility after the date of enactment of this
subsection, or a tenant of such a person, who can establish
each of the following by a preponderance of the evidence:
‘‘(A) All active disposal of hazardous substances
at the facility occurred before that person acquired
the facility.
‘‘(B) The person made all appropriate inquiry
into the previous ownership and uses of the facility
and its real property in accordance with generally
accepted commercial and customary standards and
practices. Standards described in section 107(n)(2)
(relating to innocent landowners) shall satisfy the
requirements of this subparagraph. In the case of
property for residential or other similar use, pur-
chased by a nongovernmental or noncommercial enti-
ty, a site inspection and title search that reveal no
basis for further investigation satisfy the require-
ments of this subparagraph.
ity is not liable by reason of section 107(o), 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 6 months be-
fore 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 pro-
spective purchaser is not a liable party or has re-
solved its liability under this Act, or
‘‘(B) where an environmental assessment gives
the bona fide prospective purchaser no knowledge or
reason to know of the release of hazardous sub-
stances.’’.
SEC. 9. CONTIGUOUS PROPERTIES.
Section 107 of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (42
U.S.C. 9607) is further amended by adding at the end
the following new subsection:
‘‘(q) CONTIGUOUS PROPERTIES.—A person (other
than the United States or a department, agency, or instru-
mentality of the United States) who owns or operates real
property that is contiguous to or otherwise similarly situ-
ated with respect to real property on which there has been
a release or threatened release of a hazardous substance
and that is or may be contaminated by such release shall
not be liable under subsection (a)(1) or (2) by reason of
such ownership or operation solely by reason of such con-
tamination if such person—
‘‘(A) did not cause, contribute, or consent to
the release or threatened release; and
‘‘(B) provides full cooperation, assistance, and
facility access to persons authorized to conduct re-
sponse actions at the facility.
The President may issue an assurance of no enforcement
action under this Act to any such person and may grant
any such person protection against cost recovery and con-
tribution actions pursuant to section 113(f)(2). Such per-
son may also petition the President to exclude from the
description of a National Priorities List site such contig-
uous real property, if such property is or may be contami-
nated solely by ground water that flows under such prop-
erty and is not used as a source of drinking water. The
President may grant such a petition pursuant to such pro-
cedures as he deems appropriate.’’.
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