II Calendar No. 213 115th CONGRESS 1st Session S. 822 [Report No. 115–148] IN THE SENATE OF THE UNITED STATES April 4, 2017 Mr. Inhofe (for himself, Mr. Markey , Mr. Rounds , Mr. Booker , Mr. Crapo , Mr. King , Mr. Whitehouse , Mr. Carper , Mrs. Gillibrand , and Ms. Warren ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works September 7, 2017 Reported by Mr. Barrasso , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to modify provisions relating to grants, and for other purposes.

1. Short title This Act may be cited as the Brownfields Utilization, Investment, and Local Development Act of 2017 or the BUILD Act . 2. Expanded eligibility for nonprofit organizations Section 104(k)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(1) ) is amended— (1) in subparagraph (G), by striking or after the semicolon; (2) in subparagraph (H), by striking the period at the end and inserting a semicolon; and (3) by adding at the end the following: (I) an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of that Code; (J) a limited liability corporation in which all managing members are organizations described in subparagraph (I) or limited liability corporations whose sole members are organizations described in subparagraph (I); (K) a limited partnership in which all general partners are organizations described in subparagraph (I) or limited liability corporations whose sole members are organizations described in subparagraph (I); or (L) a qualified community development entity (as defined in section 45D(c)(1) of the Internal Revenue Code of 1986). . 3. Multipurpose brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) is amended— (1) by redesignating paragraphs (4) through (9) and (10) through (12) as paragraphs (5) through (10) and (13) through (15), respectively; (2) in paragraph (3)(A), in the matter preceding clause (i), by striking subject to paragraphs (4) and (5) and inserting subject to paragraphs (5) and (6) ; and (3) by inserting after paragraph (3) the following: (4) Multipurpose brownfields grants (A) In general Subject to subparagraph (D) and paragraphs (5) and (6), the Administrator shall establish a program to provide multipurpose grants to an eligible entity based on the considerations under paragraph (3)(C), to carry out inventory, characterization, assessment, planning, or remediation activities at 1 or more brownfield sites in a proposed area. (B) Grant amounts (i) Individual grant amounts Each grant awarded under this paragraph shall not exceed $950,000. (ii) Cumulative grant amounts The total amount of grants awarded for each fiscal year under this paragraph shall not exceed 15 percent of the funds made available for the fiscal year to carry out this subsection. (C) Criteria In awarding a grant under this paragraph, the Administrator shall consider the extent to which an eligible entity is able— (i) to provide an overall plan for revitalization of the 1 or more brownfield sites in the proposed area in which the multipurpose grant will be used; (ii) to demonstrate a capacity to conduct the range of eligible activities that will be funded by the multipurpose grant; and (iii) to demonstrate that a multipurpose grant will meet the needs of the 1 or more brownfield sites in the proposed area. (D) Condition As a condition of receiving a grant under this paragraph, each eligible entity shall expend the full amount of the grant not later than the date that is 3 years after the date on which the grant is awarded to the eligible entity unless the Administrator, in the discretion of the Administrator, provides an extension. . 4. Treatment of certain publicly owned brownfield sites Section 104(k)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(2) ) is amended by adding at the end the following: (C) Exemption for certain publicly owned brownfield sites Notwithstanding any other provision of law, an eligible entity that is a governmental entity may receive a grant under this paragraph for property acquired by that governmental entity prior to January 11, 2002, even if the governmental entity does not qualify as a bona fide prospective purchaser (as that term is defined in section 101(40)), so long as the eligible entity has not caused or contributed to a release or threatened release of a hazardous substance at the property. . 5. Increased funding for remediation grants Section 104(k)(3)(A)(ii) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(3)(A)(ii) ) is amended by striking $200,000 for each site to be remediated and inserting $500,000 for each site to be remediated, which limit may be waived by the Administrator, but not to exceed a total of $650,000 for each site, based on the anticipated level of contamination, size, or ownership status of the site . 6. Allowing administrative costs for grant recipients Paragraph (5) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended— (1) in subparagraph (B)— (A) in clause (i)— (i) by striking subclause (III); and (ii) by redesignating subclauses (IV) and (V) as subclauses (III) and (IV), respectively; (B) by striking clause (ii); (C) by redesignating clause (iii) as clause (ii); and (D) in clause (ii) (as redesignated by subparagraph (C)), by striking Notwithstanding clause (i)(IV) and inserting Notwithstanding clause (i)(III) ; and (2) by adding at the end the following: (E) Administrative costs (i) In general An eligible entity may use up to 8 percent of the amounts made available under a grant or loan under this subsection for administrative costs. (ii) Restriction For purposes of clause (i), the term administrative costs does not include— (I) investigation and identification of the extent of contamination; (II) design and performance of a response action; or (III) monitoring of a natural resource. . 7. Small community technical assistance grants Paragraph (7)(A) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended— (1) by striking The Administrator may provide, and inserting the following: (i) Definitions In this subparagraph: (I) Disadvantaged area The term disadvantaged area means an area with an annual median household income that is less than 80 percent of the statewide annual median household income, as determined by the latest available decennial census. (II) Small community The term small community means a community with a population of not more than 15,000 individuals, as determined by the latest available decennial census. (ii) Establishment of program The Administrator shall establish a program to provide grants that provide, ; and (2) by adding at the end the following: (iii) Small or disadvantaged community recipients (I) In general Subject to subclause (II), in carrying out the program under clause (ii), the Administrator shall use not more than $600,000 of the amounts made available to carry out this paragraph to provide grants to States that receive amounts under section 128(a) to assist small communities, Indian tribes, rural areas, or disadvantaged areas in achieving the purposes described in clause (ii). (II) Limitation Each grant awarded under subclause (I) shall be not more than $7,500. . 8. Waterfront brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) is amended by inserting after paragraph (10) (as redesignated by section 3(1)) the following: (11) Waterfront brownfield sites (A) Definition of waterfront brownfield site In this paragraph, the term waterfront brownfield site means a brownfield site that is adjacent to a body of water or a federally designated floodplain. (B) Requirements In providing grants under this subsection, the Administrator shall— (i) take into consideration whether the brownfield site to be served by the grant is a waterfront brownfield site; and (ii) give consideration to waterfront brownfield sites. . 9. Clean energy brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as amended by section 8) is amended by inserting after paragraph (11) the following: (12) Clean energy projects at brownfield sites (A) Definition of clean energy project In this paragraph, the term clean energy project means— (i) a facility that generates renewable electricity from wind, solar, or geothermal energy; and (ii) any energy efficiency improvement project at a facility, including combined heat and power and district energy. (B) Establishment The Administrator shall establish a program to provide grants— (i) to eligible entities to carry out inventory, characterization, assessment, plan­ning, feasibility analysis, design, or remediation activities to locate a clean energy project at 1 or more brownfield sites; and (ii) to capitalize a revolving loan fund for the purposes described in clause (i). (C) Maximum amount A grant under this paragraph shall not exceed $500,000. . 10. Targeted funding for States Paragraph (15) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended by adding at the end the following: (C) Targeted funding Of the amounts made available under subparagraph (A) for a fiscal year, the Administrator may use not more than $2,000,000 to provide grants to States for purposes authorized under section 128(a), subject to the condition that each State that receives a grant under this subparagraph shall have used at least 50 percent of the amounts made available to that State in the previous fiscal year to carry out assessment and remediation activities under section 128(a). . 11. Authorization of appropriations (a) Brownfields revitalization funding Paragraph (15)(A) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended by striking 2006 and inserting 2020 . (b) State response programs Section 128(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9628(a)(3) ) is amended by striking 2006 and inserting 2020 .

1. Short title This Act may be cited as the Brownfields Utilization, Investment, and Local Development Act of 2017 or the BUILD Act . 2. Expanded eligibility for nonprofit organizations Section 104(k)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(1) ) is amended— (1) in subparagraph (G), by striking or after the semicolon; (2) in subparagraph (H), by striking the period at the end and inserting a semicolon; and (3) by adding at the end the following: (I) an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of that Code; (J) a limited liability corporation in which all managing members are organizations described in subparagraph (I) or limited liability corporations whose sole members are organizations described in subparagraph (I); (K) a limited partnership in which all general partners are organizations described in subparagraph (I) or limited liability corporations whose sole members are organizations described in subparagraph (I); or (L) a qualified community development entity (as defined in section 45D(c)(1) of the Internal Revenue Code of 1986). . 3. Multipurpose brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) is amended— (1) by redesignating paragraphs (4) through (9) and (10) through (12) as paragraphs (5) through (10) and (13) through (15), respectively; (2) in paragraph (3)(A), in the matter preceding clause (i), by striking subject to paragraphs (4) and (5) and inserting subject to paragraphs (5) and (6) ; and (3) by inserting after paragraph (3) the following: (4) Multipurpose brownfields grants (A) In general Subject to subparagraph (D) and paragraphs (5) and (6), the Administrator shall establish a program to provide multipurpose grants to an eligible entity based on the considerations under paragraph (3)(C), to carry out inventory, characterization, assessment, planning, or remediation activities at 1 or more brownfield sites in a proposed area. (B) Grant amounts (i) Individual grant amounts Each grant awarded under this paragraph shall not exceed $950,000. (ii) Cumulative grant amounts The total amount of grants awarded for each fiscal year under this paragraph shall not exceed 15 percent of the funds made available for the fiscal year to carry out this subsection. (C) Criteria In awarding a grant under this paragraph, the Administrator shall consider the extent to which an eligible entity is able— (i) to provide an overall plan for revitalization of the 1 or more brownfield sites in the proposed area in which the multipurpose grant will be used; (ii) to demonstrate a capacity to conduct the range of eligible activities that will be funded by the multipurpose grant; and (iii) to demonstrate that a multipurpose grant will meet the needs of the 1 or more brownfield sites in the proposed area. (D) Condition As a condition of receiving a grant under this paragraph, each eligible entity shall expend the full amount of the grant not later than the date that is 3 years after the date on which the grant is awarded to the eligible entity unless the Administrator, in the discretion of the Administrator, provides an extension. . 4. Treatment of certain publicly owned brownfield sites Section 104(k)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(2) ) is amended by adding at the end the following: (C) Exemption for certain publicly owned brownfield sites Notwithstanding any other provision of law, an eligible entity that is a governmental entity may receive a grant under this paragraph for property acquired by that governmental entity prior to January 11, 2002, even if the governmental entity does not qualify as a bona fide prospective purchaser (as that term is defined in section 101(40)), so long as the eligible entity has not caused or contributed to a release or threatened release of a hazardous substance at the property. . 5. Increased funding for remediation grants Section 104(k)(3)(A)(ii) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k)(3)(A)(ii) ) is amended by striking $200,000 for each site to be remediated and inserting $500,000 for each site to be remediated, which limit may be waived by the Administrator, but not to exceed a total of $650,000 for each site, based on the anticipated level of contamination, size, or ownership status of the site . 6. Allowing administrative costs for grant recipients Paragraph (5) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended— (1) in subparagraph (B)— (A) in clause (i)— (i) by striking subclause (III); and (ii) by redesignating subclauses (IV) and (V) as subclauses (III) and (IV), respectively; (B) by striking clause (ii); (C) by redesignating clause (iii) as clause (ii); and (D) in clause (ii) (as redesignated by subparagraph (C)), by striking Notwithstanding clause (i)(IV) and inserting Notwithstanding clause (i)(III) ; and (2) by adding at the end the following: (E) Administrative costs (i) In general An eligible entity may use up to 8 percent of the amounts made available under a grant or loan under this subsection for administrative costs. (ii) Restriction For purposes of clause (i), the term administrative costs does not include— (I) investigation and identification of the extent of contamination; (II) design and performance of a response action; or (III) monitoring of a natural resource. . 7. Small community technical assistance grants Paragraph (7)(A) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended— (1) by striking The Administrator may provide, and inserting the following: (i) Definitions In this subparagraph: (I) Disadvantaged area The term disadvantaged area means an area with an annual median household income that is less than 80 percent of the statewide annual median household income, as determined by the latest available decennial census. (II) Small community The term small community means a community with a population of not more than 15,000 individuals, as determined by the latest available decennial census. (ii) Establishment of program The Administrator shall establish a program to provide grants that provide, ; and (2) by adding at the end the following: (iii) Small or disadvantaged community recipients (I) In general Subject to subclause (II), in carrying out the program under clause (ii), the Administrator shall use not more than $600,000 of the amounts made available to carry out this paragraph to provide grants to States that receive amounts under section 128(a) to assist small communities, Indian tribes, rural areas, or disadvantaged areas in achieving the purposes described in clause (ii). (II) Limitation Each grant awarded under subclause (I) shall be not more than $7,500. . 8. Waterfront brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) is amended by inserting after paragraph (10) (as redesignated by section 3(1)) the following: (11) Waterfront brownfield sites (A) Definition of waterfront brownfield site In this paragraph, the term waterfront brownfield site means a brownfield site that is adjacent to a body of water or a federally designated floodplain. (B) Requirements In providing grants under this subsection, the Administrator shall— (i) take into consideration whether the brownfield site to be served by the grant is a waterfront brownfield site; and (ii) give consideration to waterfront brownfield sites. . 9. Clean energy brownfields grants Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as amended by section 8) is amended by inserting after paragraph (11) the following: (12) Clean energy projects at brownfield sites (A) Definition of clean energy project In this paragraph, the term clean energy project means— (i) a facility that generates renewable electricity from wind, solar, or geothermal energy; and (ii) any energy efficiency improvement project at a facility, including combined heat and power and district energy. (B) Establishment The Administrator shall establish a program to provide grants— (i) to eligible entities to carry out inventory, characterization, assessment, plan­ning, feasibility analysis, design, or remediation activities to locate a clean energy project at 1 or more brownfield sites; and (ii) to capitalize a revolving loan fund for the purposes described in clause (i). (C) Maximum amount A grant under this paragraph shall not exceed $500,000. . 10. Targeted funding for States Paragraph (15) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended by adding at the end the following: (C) Targeted funding Of the amounts made available under subparagraph (A) for a fiscal year, the Administrator may use not more than $2,000,000 to provide grants to States for purposes authorized under section 128(a), subject to the condition that each State that receives a grant under this subparagraph shall have used at least 50 percent of the amounts made available to that State in the previous fiscal year to carry out assessment and remediation activities under section 128(a). . 11. Clarification of owner or operator (a) Acquisition by State or local government as sovereign (1) Owner or operator Section 101(20) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601(20) ) is amended— (A) in subparagraph (A), in the first sentence, by striking due to bankruptcy and all that follows through local government, and inserting to a unit of State or local government through seizure or otherwise in connection with law enforcement activity; through bankruptcy, tax delinquency, abandonment, or escheat; through any other involuntary transfer or acquisition; through the exercise of eminent domain authority by purchase or condemnation; or through other circumstances in which the unit of State or local government acquires title by virtue of its function as a sovereign, ; (B) in subparagraph (C), by striking section 107(a)(3) or (4) and inserting paragraph (3) or (4) of section 107(a), ; and (C) in subparagraph (D), in the first sentence, by striking which acquired and all that follows through by virtue and inserting that acquired ownership or control through seizure or otherwise in connection with law enforcement activity; through bankruptcy, tax delinquency, abandonment, or escheat; through any other involuntary transfer or acquisition; through the exercise of eminent domain authority by purchase or condemnation; or through other circumstances in which the government acquires title by virtue . (2) Contractual relationship Section 101(35)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601(35)(A) ) is amended— (A) in the matter preceding clause (i), by striking clause (i), (ii), or (iii) and inserting clause (i) or (ii) ; (B) by striking clause (ii); and (C) by redesignating clause (iii) as clause (ii). (b) Alaska Native village and Native Corporation relief Section 101(20) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601(20) ) is amended— (1) by redesignating subparagraphs (E) through (G) as subparagraphs (F) through (H), respectively, and indenting appropriately; (2) by inserting after subparagraph (D) the following: (E) Exclusion of certain Alaska Native villages and Native Corporations (i) In general The term owner or operator does not include— (I) a Native village or Native Corporation (as those terms are defined in section 3 of the Alaska Native Claims Settlement Act ( 43 U.S.C. 1602 )) that received a contaminated facility from the United States Government under that Act ( 43 U.S.C. 1601 et seq.); or (II) a successor in interest to a contaminated facility referred to in subclause (I) that was conveyed to the successor in interest under section 14(c) of that Act ( 43 U.S.C. 1613(c) ). (ii) Applicability Clause (i) does not apply to any Native village, Native Corporation, or successor in interest that has caused or contributed to the release or threatened release of a hazardous substance from a contaminated facility referred to in that clause. (iii) Liability Any Native village, Native Corporation, or successor in interest that causes or contributes to the release or threatened release of a hazardous substance from a contaminated facility referred to in clause (i) shall be subject to the provisions of this Act in the same manner and to the same extent, procedurally and substantively, as any nongovernmental entity, including liability under section 107. ; (3) in subparagraph (G) (as so redesignated), in the matter preceding clause (i), by striking subparagraph (E) and inserting subparagraph (F) ; and (4) in clause (i)(II) of subparagraph (H) (as so redesignated), by striking 1813) and inserting 1813)) . (c) Prospective purchasers and lessees (1) Bona fide prospective purchaser Section 101(40) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601(40) ) is amended— (A) in subparagraph (B)— (i) by redesignating clauses (i) through (iii) as subclauses (I) through (III), respectively, and indenting appropriately; (ii) in subclause (I) (as so redesignated), by striking clauses (ii) and (iii) and inserting subclauses (II) and (III) ; (iii) in subclause (II) (as so redesignated), by striking subparagraph and inserting clause ; and (iv) in subclause (III) (as so redesignated), by striking subparagraph and inserting clause ; (B) in subparagraph (D), by redesignating clauses (i) through (iii) as subclauses (I) through (III), respectively, and indenting appropriately; (C) in subparagraph (F), by redesignating clauses (i) and (ii) as subclauses (I) and (II), respectively, and indenting appropriately; (D) in subparagraph (H)— (i) in clause (i)— (I) in subclause (II), by inserting , by a tenancy, by the instruments by which a leasehold interest in the facility is created, after financed ; and (II) by redesignating subclauses (I) and (II) as items (aa) and (bb), respectively, and indenting appropriately; and (ii) by redesignating clauses (i) and (ii) as subclauses (I) and (II), respectively, and indenting appropriately; (E) by redesignating subparagraphs (B) through (H) as clauses (ii) through (viii), respectively, and indenting appropriately; (F) by striking the paragraph designation and heading and all that follows through All disposal of in subparagraph (A) and inserting the following: (40) Bona fide prospective purchaser (A) In general The term bona fide prospective purchaser means— (i) a person that— (I) after January 11, 2002, acquires ownership of a facility; and (II) establishes by a preponderance of the evidence each of the criteria described in clauses (i) through (viii) of subparagraph (B); (ii) a tenant of a person described in clause (i); (iii) a tenant of a person that— (I) formerly met the criteria described in clause (i) but no longer meets that criteria due to a factor unrelated to any action of the tenant; and (II) establishes by a preponderance of the evidence each of the criteria described in clauses (i), (iii), (iv), (v), (vi), (vii), and (viii) of subparagraph (B); and (iv) a person that— (I) holds a leasehold interest in a facility; and (II) establishes by a preponderance of the evidence each of the criteria described in clauses (i) through (viii) of subparagraph (B). (B) Criteria The criteria described in this subparagraph are as follows: (i) Disposal prior to acquisition All disposal of ; and (G) by adding at the end the following: (C) Special rule With respect to a facility, in any case in which the ownership or operational control held by a person is established by a tenancy or lease, the person shall be considered to be a bona fide prospective purchaser only if the person establishes by a preponderance of the evidence that the tenancy or lease is not designed to avoid liability under this Act by any person that— (i) does not meet the criteria applicable to that person under subparagraph (B); or (ii) is liable under paragraph (3) or (4) of section 107(a). . (2) Limitation on liability Section 107(r)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9607(r)(1) ) is amended by striking purchaser's and inserting bona fide prospective purchaser . 12. Authorization of appropriations (a) Brownfields revitalization funding Paragraph (15)(A) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9604(k) ) (as redesignated by section 3(1)) is amended by striking 2006 and inserting 2020 . (b) State response programs Section 128(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9628(a)(3) ) is amended by striking 2006 and inserting 2020 .

September 7, 2017 Reported with an amendment