[House Report 115-419]
[From the U.S. Government Publishing Office]
115th Congress } { Rept. 115-419
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
BROWNFIELDS REAUTHORIZATION ACT OF 2017
_______
November 21, 2017.--Ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1758]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 1758) to amend the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
to modify provisions relating to brownfield remediation grants,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose of the Legislation....................................... 4
Background and Need for the Legislation.......................... 5
Hearings......................................................... 7
Legislative History and Consideration............................ 7
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 10
Advisory of Earmarks............................................. 10
Federal Mandates Statement....................................... 11
Preemption Clarification......................................... 11
Advisory Committee Statement..................................... 11
Applicability to the Legislative Branch.......................... 11
Section-by-Section Analysis of the Legislation................... 11
Changes in Existing Law Made by the Bill, as Reported............ 16
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Brownfields Reauthorization Act of
2017''.
SEC. 2. REDEVELOPMENT CERTAINTY FOR GOVERNMENTAL ENTITIES.
Section 101(20)(D) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601(20)(D)) is
amended--
(1) by striking ``ownership or control'' and all that follows
through ``by virtue'' and inserting ``ownership or control
through seizure or otherwise in connection with law enforcement
activity, or through bankruptcy, tax delinquency, abandonment,
or other circumstances in which the government acquires title
by virtue''; and
(2) by inserting ``or fails to exercise appropriate care (as
described in paragraph (40)(D)) following acquisition,'' after
``from the facility,''.
SEC. 3. PETROLEUM BROWNFIELD ENHANCEMENT.
Section 101(39)(D)(ii)(II) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601(39)(D)(ii)(II)) is amended by amending item (bb) to read as
follows:
``(bb) is a site for which there is no viable
responsible party and that is determined by the
Administrator or the State, as appropriate, to
be a site that will be assessed, investigated,
or cleaned up by a person that is not
potentially liable for cleaning up the site
under this Act or any other law pertaining to
the cleanup of petroleum products; and''.
SEC. 4. CLARIFICATION OF LEASEHOLDER INTEREST.
Section 101(40) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601(40)) is
amended--
(1) in the matter preceding subparagraph (A), by striking
``(or a tenant of a person) that acquires ownership of'' and
inserting ``who acquires ownership of, or a leasehold interest
in,'';
(2) in subparagraph (A), by inserting ``or the leasehold
interest in the facility'' before the period at the end;
(3) in subparagraph (B)--
(A) in clause (ii), by inserting ``with respect to a
person who acquires ownership of a facility. The
Administrator shall establish standards and practices
with respect to a person who acquires a leasehold
interest in a facility'' before the period at the end;
and
(B) in clause (iii), by inserting ``, or acquisition
of a leasehold interest,'' after ``time of purchase'';
(4) in subparagraph (H)(i)(II), by inserting ``, by the
instruments by which the leasehold interest in the facility is
acquired after January 11, 2002,'' after ``financed''; and
(5) by adding at the end the following:
``(I) Leaseholders.--In the case of a person holding
a leasehold interest in a facility--
``(i) the leasehold interest in the
facility--
``(I) is for a term of not less than
5 years; and
``(II) grants the person control of,
and access to, the facility; and
``(ii) the person is responsible for the
management of all hazardous substances at the
facility.''.
SEC. 5. EXPANDED ELIGIBILITY FOR NONPROFIT ORGANIZATIONS.
(a) 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).''.
(b) Conforming Amendments.--Section 104(k)(3) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9604(k)(3)) is amended--
(1) in subparagraph (A)(ii)--
(A) by striking ``or nonprofit organizations''; and
(B) by striking ``entity or organization'' and
inserting ``eligible entity''; and
(2) in subparagraph (B)(ii)--
(A) by striking ``or other nonprofit organization'';
and
(B) by striking ``or nonprofit organization''.
SEC. 6. TREATMENT OF PUBLICLY OWNED BROWNFIELD SITES.
Section 104(k) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9604) is amended--
(1) in paragraph (2), by adding at the end the following:
``(C) Exemption for certain publicly owned brownfield
sites.--Notwithstanding any other provision of law, an
eligible entity described in any of subparagraphs (A)
through (H) of paragraph (1) may receive a grant under
this paragraph for property acquired by that eligible
entity prior to January 11, 2002, even if such eligible
entity does not qualify as a bona fide prospective
purchaser, so long as the eligible entity has not
caused or contributed to a release or threatened
release of a hazardous substance at the property.'';
(2) in paragraph (3), by adding at the end the following:
``(E) Exemption for certain publicly owned brownfield
sites.--Notwithstanding any other provision of law, an
eligible entity described in any of subparagraphs (A)
through (H) of paragraph (1) may receive a grant or
loan under this paragraph for property acquired by that
eligible entity prior to January 11, 2002, even if such
eligible entity does not qualify as a bona fide
prospective purchaser, so long as the eligible entity
has not caused or contributed to a release or
threatened release of a hazardous substance at the
property.''; and
(3) in paragraph (4)(B)(iii)--
(A) by striking ``up to 25 percent of the''; and
(B) by inserting ``described in any of subparagraphs
(A) through (H) of paragraph (1)'' after ``eligible
entities''.
SEC. 7. REMEDIATION GRANT ENHANCEMENT.
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 ``$600,000 for each site to be remediated, which limit may be
waived by the Administrator, but not to exceed a total of $950,000 for
each site, based on the anticipated level of contamination, size, or
ownership status of the site''.
SEC. 8. 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 (12) as
paragraphs (5) through (13), respectively;
(2) in paragraph (3)(A), by striking ``Subject to paragraphs
(4) and (5)'' and inserting ``Subject to paragraphs (5) and
(6)'';
(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 criteria under
subparagraph (C) and the considerations under paragraph
(3)(C), to carry out inventory, characterization,
assessment, planning, or remediation activities at 1 or
more brownfield sites in an area proposed by the
eligible entity.
``(B) Grant amounts.--
``(i) Individual grant amounts.--A grant
awarded under this paragraph may not exceed
$950,000.
``(ii) Cumulative grant amounts.--The total
amount of grants awarded for each fiscal year
under this paragraph may not exceed 15 percent
of the amounts 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 the 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 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 5 years after the date on which the grant is
awarded to the eligible entity, unless the
Administrator provides an extension.''; and
(4) by striking ``(2) or (3)'' each place it appears and
inserting ``(2), (3), or (4)''.
SEC. 9. 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 8 of this Act) 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) of this paragraph), 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 5 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 of a brownfield site;
``(II) design and performance of a
response action; or
``(III) monitoring of a natural
resource.''.
SEC. 10. BROWNFIELDS FUNDING.
Paragraph (13) 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 8 of this Act) is amended to read as
follows:
``(13) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $200,000,000
for each of fiscal years 2018 through 2022.''.
SEC. 11. STATE RESPONSE PROGRAM FUNDING.
Section 128(a)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9628(a)(3)) is
amended to read as follows:
``(3) Funding.--There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of fiscal years
2018 through 2022.''.
Purpose of the Legislation
H.R. 1758, as amended, amends portions of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA or Superfund; P.L. 96-510) to reauthorize Federal
appropriations for the Environmental Protection Agency's (EPA)
brownfields program, to clarify the eligibility for brownfields
site assessment and remediation grants, and to further clarify
Federal Superfund liability for certain owners, operators, and
leaseholders of contaminated properties.
Background and Need for the Legislation
Brownfields are properties where expansion, redevelopment,
or reuse may be complicated by the presence or potential
presence of a hazardous substance, pollutant, or contaminant.
Types of brownfields include inactive factories, gas stations,
salvage yards, or abandoned warehouses. Brownfields can drive
down property values, provide little or no tax revenue, and
contribute to community blight. There are estimated to be
450,000 to one million brownfields sites in the United States.
Brownfields cleanup and redevelopment can protect public
health, promote economic development, revitalize neighborhoods,
enable the creation of public parks and open space, and
preserve existing properties, including undeveloped green
spaces.
Prior to enactment of the Small Business Liability Relief
and Brownfields Revitalization Act, many potential lenders,
investors, and developers were reluctant to become involved
with brownfields sites because they feared liability through
laws such as CERCLA. This uncertainty over liability protection
and standards for cleanup was identified as a hindrance to the
cleanup and potential redevelopment of brownfields. Instead,
investors too often turned to green spaces on the outskirts of
cities (greenfields) for new development opportunities. This
tends to encourage sprawl.
The EPA began to issue demonstration grants for brownfield
assessments in 1995. However, at that time there was no
specific authority for a comprehensive brownfields program to
encourage the cleanup and redevelopment of these contaminated
sites, so that municipalities could realize the economic,
environmental, and social benefits of reclaimed land.
In 2001, Congress created specific authority to address
brownfields with the Brownfields Revitalization and
Environmental Restoration Act of 2001, which was title II of
the Small Business Liability Relief and Brownfields
Revitalization Act (P.L. 107-118). This legislation amended
CERCLA to authorize funding through EPA for brownfields
assessment and cleanup grants, provided targeted liability
protections, and established a new grant program to support
State and tribal voluntary cleanup programs. The authorization
for brownfield grants under this law expired at the end of
fiscal year 2006.
The Brownfields Revitalization and Environmental
Restoration Act provided grant authority totaling $250 million
annually. This included $200 million annually for assessment,
cleanup, revolving loan funds, research, and job training. Of
that amount, $50 million, or 25 percent of appropriated funds
if less than the fully authorized level, is set aside for
assessment and cleanup of petroleum contaminated sites.
Assessment grants are limited to $200,000 per site except in
some cases, where due to size or anticipated contamination
level, the limit is $350,000. The cleanup grants can be used to
capitalize a revolving loan fund or used directly to remediate
sites.
Of the total $250 million that was authorized for each
year, $50 million is for State and tribal response programs.
States may use this assistance to establish or enhance their
response programs, capitalize existing revolving loan programs,
and develop risk-sharing pools, indemnity pools, or insurance
mechanisms to provide financing for remediation activities.
The law also provides protection from Superfund liability
for certain owners of property contaminated by a source on
contiguous property and for bona fide prospective purchasers of
property which may be contaminated. The Brownfields
Revitalization and Environmental Restoration Act clarified
Superfund's ``innocent landowner'' defense against liability
for a person who unknowingly purchased contaminated land,
provided the person made ``all appropriate inquiry'' prior to
the transaction. The brownfields law clarifies what constitutes
``all appropriate inquiry.''
The Brownfields Program has been well received by the EPA,
States, communities, investors, and developers. Through fiscal
year 2017, each EPA Brownfields Program dollar expended
leveraged between $16 and $17 in other public and private
funding. EPA is often just one of several funding sources for
brownfields assessment and cleanup. These grants are used in
conjunction with funding from state, local, private, and other
federal sources to address brownfield sites. As of August 2017,
this investment has leveraged $24.2 billion in cleanup and
redevelopment dollars. The program has resulted in the
assessment of more than 27,000 properties and readied nearly
68,600 acres of land for reuse.
Additionally, the program creates jobs and revenue for
municipalities by redeveloping land for a variety of new uses
including commercial and residential development, as well as
recreation and educational facilities. In fiscal year 2017, the
goal of the program is to successfully complete 130 cleanups,
128 of which have been accomplished as of August 9, 2017, and
to conduct 1,400 assessments, 1,367 of which have been
accomplished as of August 9, 2017. Given the estimated number
of remaining Brownfield sites, further job creation and
revenues can be expected in communities all across the country.
Since the start of the program more than 126,400 jobs have been
leveraged. Under the Environmental Workforce Development and
Job Training Program, more than 16,400 individuals have
completed training, and of those, more than 12,070 individuals
have been placed in full-time employment with an average
starting hourly wage of $14.16. This equates to a cumulative
job placement rate of over 73 percent of graduates.
Property owners in areas surrounding brownfields have also
enjoyed the benefits of this program. A 2015 study concluded
that cleaning up brownfield properties leads to residential
property value increases of 5-15.2 percent.\1\ This program
also incentivizes local engagement and success by leveraging
other public and private funding which leads to more successful
projects and community benefits.
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\1\Haninger, K., L. Ma, and C. Timmins. 2017. The Value of
Brownfield Remediation. Journal of the Association of Environmental and
Resource Economists, 4(1): 197-241.
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Though its authorization has expired, Congress continues to
provide funding for the Brownfields Program. In fiscal year
2016 the Brownfields Programs received $162.1 million
(including $88.8 million for brownfields site assessment and
cleanup grants and $48.5 million for State-Tribal Program
grants) and in fiscal year 2017 it received $153.0 million
(including $80 million for brownfields site assessment and
cleanup grants and $47.7 million for State-Tribal Program
grants). The President's fiscal year 2018 request for the
brownfield program was $118.4 million (including $69 million
for brownfields site assessment and cleanup grants and $33.4
million for State-Tribal Program grants). In the Brownfields
assessment, Revolving Loan Fund and cleanup (ARC) grant
competition, the EPA only has resources to fund about one-third
of eligible projects. EPA typically receives between 800-900
proposals, and is only able to fund between 200-300 resulting
in many good projects going unfunded.
In fiscal year 2017, the EPA provided a total of $115.6
million for more than 480 grants to 167 communities including
direct funding to 50 states, 110 tribes and four territories.
The program also funded technical assistance for communities to
address their brownfields challenges and performed site
assessments through EPA-directed Targeted Brownfields
Assessments (TBAs) for communities without the capacity to
manage a brownfield grant.
Hearings
On March 28, 2017, the House Committee on Transportation
and Infrastructure Subcommittee on Water Resources and
Environment held an oversight hearing on ``Building a 21st
Century Infrastructure for America: Revitalizing American
Communities through the Brownfields Program.'' The Subcommittee
received testimony from representatives from a state
brownfields agency, two mayors, a city councilman, a county
chairman, and a real estate investment expert.
The Subcommittee also held oversight hearings during
previous Congresses. On July 22, 2015, the Subcommittee held an
oversight hearing on ``Helping Revitalize American Communities
Through the Brownfields Program.'' The Subcommittee received
testimony from a representative from the Environmental
Protection Agency, a State brownfields agency, a municipal
official, environmental engineering firms, and an environmental
consultant.
On February 14, 2008, the Subcommittee held an oversight
hearing on ``Revitalization of the Environmental Protection
Agency's Brownfield's Program.'' The Subcommittee received
testimony from a representative from the Environmental
Protection Agency, three representatives of local governments,
representatives from insurance and investment industries, an
academic, and a representative from a building association.
On June 8, 2006, the Subcommittee held an oversight hearing
on ``Reauthorization of the Brownfields Program: Successes and
Future Challenges'' The Subcommittee received testimony from a
representative from the Environmental Protection Agency, two
representatives of state brownfields agencies, an academic, and
a real estate investment expert.
A legislative hearing was not held on H.R. 1758 in the
115th Congress.
Legislative History and Consideration
On March 28, 2017, Congresswoman Elizabeth H. Esty (D-CT)
introduced H.R. 1758, a bill to amend the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
to modify provisions relating to brownfield remediation grants
and for other purposes.
On July 27, 2017, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 1758, and
ordered the bill, as amended, reported favorably to the House
by voice vote with a quorum present.
Congressman John Katko (R-NY) offered an amendment that
clarifies liability for governmental entities who acquire sites
by virtue of their sovereignty, removes the provision that
required ranking of petroleum sites within a state prior to
receiving brownfields funding, and clarifies leaseholder
participation within the brownfields program. The amendment
also allows for remediation grants to go to pre-2002 brownfield
sites, changes the grant amounts for remediation grants,
changes the time limit for expenditure of a multipurpose grant,
and reauthorizes the program at current authorization levels
for fiscal years 2018-2022. The amendment was adopted by voice
vote with a quorum present.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires each committee report to include the
total number of votes cast for and against on each record vote
on a motion to report and on any amendment offered to the
measure or matter, and the names of those members voting for
and against. There were no record votes taken in connection
with consideration of H.R. 1758, or ordering the bill reported.
A motion to order H.R. 1758, as amended, reported favorably to
the House was agreed to by voice vote with a quorum present.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the enclosed cost estimate for H.R. 1758, as amended,
from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 4, 2017.
Hon. Bill Shuster,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1758, the
Brownfields Reauthorization Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Keith Hall, Director.
Enclosure.
H.R. 1758--Brownfields Reauthorization Act of 2017
H.R. 1758 would authorize the appropriation of $250 million
annually over the 2018-2022 period for the Environmental
Protection Agency (EPA) to provide grants to clean up
brownfields and support state brownfield programs. (Brownfields
are properties where the presence, or potential presence, of a
hazardous substance complicates the expansion or redevelopment
of the property.) Assuming appropriation of the authorized
amounts, CBO estimates that implementing H.R. 1758 would cost
$958 million over the 2018-2022 period; the remainder would be
spent in years after 2022.
Enacting H.R. 1758 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1758 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1758 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1758 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2017-22022
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Cleanup Grants:
Authorization Level................. 0 200 200 200 200 200 1,000
Estimated Outlays................... 0 68 142 172 186 194 762
State Response Program Grants:
Authorization Level................. 0 50 50 50 50 50 250
Estimated Outlays................... 0 3 43 50 50 50 196
Total Increases:
Authorization Level............. 0 250 250 250 250 0 1,250
Estimated Outlays............... 0 71 185 222 236 244 958
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
1758 will be enacted near the end of fiscal year 2017, that the
specified amounts will be appropriated in each year starting in
2018, and that outlays will follow historical spending patterns
for the brownfields program. The Congress provided $126 million
for brownfields grant programs in 2017.
Pay-As-You-Go considerations: None.
Increase in long-term deficit and direct spending: CBO
estimates that enacting H.R. 1758 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Intergovernmental and private-sector impact: H.R. 1758
contains no intergovernmental or private-sector mandates as
defined in UMRA. The bill would benefit state, local, and
tribal governments by authorizing federal grants for brownfield
cleanup activities and programs. Any costs those governments
might incur, including matching contributions, would result
from participating in a voluntary federal program.
Previous CBO estimate: On July 21, 2017, CBO transmitted a
cost estimate for H.R. 3017, the Brownfields Enhancement,
Economic Redevelopment, and Reauthorization Act of 2017, as
ordered reported by the House Committee on Energy and Commerce
on June 28, 2017. H.R. 3017 is similar to H.R. 1758. However,
CBO's estimated costs for H.R. 1758 are higher because H.R.
1758 would authorize appropriations through 2022, whereas H.R.
3017 would authorize appropriations through 2021.
Estimate prepared by: Federal costs: Jon Sperl; Impact on
state, local, and tribal governments: Jon Sperl; Impact on the
private sector: Amy Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goal and objective of this legislation is to
reauthorize the Brownfields Program.
Advisory of Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. No
provision in the bill includes an earmark, limited tax benefit,
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of
rule XXI.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1758, as amended, establishes or reauthorizes a program
of the federal government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rulemakings
Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017),
the Committee estimates that enacting H.R. 1758, as amended,
does not specifically direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Mandates Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (Public Law 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 1758, as amended,
does not preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act are created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section states that the act may be cited as the
``Brownfields Reauthorization Act of 2017''.
Section 2. Redevelopment certainty for governmental entities
This section amends section 101(20)(D) of CERCLA to clarify
liability for governmental entities who acquire property by
virtue of their function as a sovereign.
Section 2 clarifies the liability of State and local
governments that acquire ownership or control of property
through seizure, law enforcement activity, bankruptcy, tax
delinquency, abandonment, or other circumstances in which the
government acquires ownership or control by virtue of its
function as sovereign under specific circumstances. This
clarification builds on the existing statutory third-party
defense for State and local governments, found in section
101(35)(A)(ii) of CERCLA. The Committee received testimony from
the Environmental Protection Agency on the existing
preconditions for State and local governments to avail
themselves of this third-party defense, including the
requirement that the governmental entity asserting the defense
exercise due care with respect to hazardous substances at the
property, that the property was acquired by the governmental
entity after the disposal or placement of the hazardous
substances on, in or at the facility, and that the governmental
entity provides full cooperation, assistance, and facility
access to persons authorized to conduct response actions at the
facility. The Committee intends that these prerequisite
requirements carry forward to State or local governmental
entities seeking to avail themselves of the liability exemption
in this amended provision.
State and local governments that acquire brownfields
properties voluntarily must continue to comply with the
requirements established under CERCLA for bona fide prospective
purchasers, innocent landowners, or contiguous property owners.
Section 3. Petroleum brownfield enhancement
This section amends section 101(39)(D)(ii)(II)(bb) of
CERCLA to remove the requirement that the Administrator or a
State first evaluate whether potential brownfields sites
contaminated by petroleum or a petroleum product are of
``relatively low risk, as compared with other petroleum-only
sites in the State'' before they are eligible to receiving
funding under the brownfields program. The provision created
additional steps for accessing brownfields funds for petroleum
sites. The Committee is not aware of any quantifiable benefit
of this provision related to the protection of public health or
the assessment and cleanup of brownfield sites, and believes
that removing this requirement should help accelerate the
assessment and cleanup of petroleum-related brownfields sites.
The Committee has also received stakeholder input related
to the statutory requirement that no viable responsible party
be associated with petroleum-related brownfields sites. The
Committee continues to support this provision; however, the
Committee urges the Agency to look at Agency policy and work
towards making sure this requirement does not unreasonably
delay the assessment and cleanup of petroleum-related sites.
Section 4. Clarification of leaseholder interest
This section amends section 101(40) of CERCLA to clarify
that leaseholders can qualify as a bona fide prospective
purchaser for purposes of brownfields cleanup. Leaseholders
must still undertake ``all appropriate inquiry'' and comply
with all of the due care requirements that extend to any other
bona fide prospective purchaser. Section 4 further clarifies
the definition of a leaseholder.
Section 5. Expanded eligibility for nonprofit organizations
This section amends section 104(k) of CERCLA to add non-
profit organizations, limited liability corporations and
limited partnerships in which all managing members or partners
are nonprofit organizations, and qualified community
development entities (as defined in section 45D(c)(1) of title
26 United States Code) to the definition of eligible entities
for brownfields grants.
Section 6. Treatment of publicly owned brownfield sites
This section amends section 104(k) of CERCLA to clarify
eligibility of governmental entities to receive a brownfields
site characterization and assessment grant or a remediation
grant for properties acquired by such entities prior to January
11, 2002. It also deletes the prohibition on limiting the
overall grant amounts for pre-2002 sites.
Current law generally prohibits any portion of a
brownfields grant or loan authorized under section 104(k) of
CERCLA from being used at a brownfields site for which the
recipient of the grant or loan is potentially liable under
section 107 of CERCLA. Accordingly, governmental entities that
voluntarily acquired brownfields sites prior to the enactment
of the brownfields law (on January 11, 2002) were often
prohibited from using brownfields grants or loans to
characterize, assess, or clean up these sites unless they also
complied with an existing Superfund liability exemption, such
as for bona fide prospective purchasers, innocent landowners,
or contiguous property owners.
To address this concern, in 2005, Congress amended section
104(k) of CERCLA to include a limited exception from the
general prohibition against governmental entities that were
also responsible parties using brownfields site assessment or
remediation grants for sites owned by such entities. Section
1956 of Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (Public Law 109-59) authorized
the Administrator to use up to 25 percent of brownfields
assessment and remediation grants or loans to ``eligible
entities that satisfy all of the elements set forth in section
9601(40) of this title to qualify as a bona fide prospective
purchaser, except that the date of acquisition of the property
was on or before January 11, 2002.'' (42 U.S.C.
9604(k)(4)(B)(iii).)
The Committee received testimony from governmental eligible
entities requesting further clarification on the eligibility
for brownfields site assessment and remediation grants for
properties owned by such entities that were acquired prior to
January 11, 2002. Specifically, governmental entities requested
additional clarification to address the requirement of section
101(40)(B) of CERCLA related to the requirement that bona fide
prospective purchasers made ``all appropriate inquiries into
the previous ownership and uses of the facility'' prior to
purchasing the site. Because no ``all appropriate inquiry''
standard existed prior to January 11, 2002, the only clear way
to comply with this requirement has been to be able to show a
Phase I environmental assessment was undertaken before
acquisition of the property. This has created challenges for
some of the most proactive brownfields redevelopment localities
who have been acquiring properties for environmental
restoration and community revitalization since long before the
brownfields law existed. A property that was acquired in the
1970's or 1980's would not necessarily have done a Phase I
assessment if the site was acquired for community development
and blight removal purposes, or if the site was acquired in a
way where access to the site would have been impossible prior
to acquisition. Additionally, the assessments may have been
performed, but finding records for some of these older sites
might be difficult or impossible.
Section 6 is intended to provide additional clarification
and to explicitly authorize governmental eligible entities to
apply for and utilize brownfields assessment and remediation
grants authorized under section 104(k) of CERCLA for properties
acquired by such entities prior to January 11, 2002 and
continue to be owned by such entities, provided that the
governmental entity has not caused or contributed to a release
or threatened release of a hazardous substance at the property.
The amendments made by this section do not affect the potential
Superfund liability of a governmental eligible entity for sites
acquired by such entity prior to January 11, 2002. The
amendments made by this section address only the ability of a
governmental eligible entity to apply for and utilize
brownfields site assessment and remediation grants for
properties acquired by such entity prior to January 11, 2002
and that continue to be owned by such entity.
Additionally, this section removes the 25 percent limit on
pre-2002 grants for entities that meet all of the elements for
a bona fide prospective purchaser, except that they were
acquired before January 11, 2002. The Committee intends this
change to assist the Agency with its internal record keeping,
especially as it implements the multipurpose grants in section
8. The deletion here is not meant to have more funds go to pre-
2002 brownfield sites.
Section 7. Remediation of grant enhancement
This section amends section 104(k)(3)(A)(ii) by striking
``$200,000 for each site to be remediated'' and inserting
``$600,000 for each site to be remediated, which limit may be
waived by the Administrator, but not to exceed a total of
$950,000 for each site, based on the anticipated level of
contamination, size, or ownership status of the site''.
Section 7 allows EPA to issue larger remediation grants.
The Committee heard from multiple stakeholders that in light of
inflation and the increasing complexity of some brownfields
sites, the current grant level maximum of $200,000 is no longer
sufficient to overcome the cleanup barriers to successful
redevelopment for many sites. Increasing the grant amounts
should enable EPA to facilitate the successful cleanup of more
complicated brownfield sites.
By increasing the maximum dollar amount of grants that EPA
may issue, the Committee does not intend to fund fewer clean
ups, but rather to adjust for the increased costs of doing
cleanups, as the cost of projects has increased over time. The
Committee also intends to help address more complicated sites.
Section 8. Multipurpose brownfield grants
This section amends section 104(k) of CERCLA and inserts a
new paragraph (4) to establish multipurpose grants. These
multipurpose grants will be provided to an eligible entity who
can provide an overall plan for the revitalization of one or
more brownfield sites in the proposed area in which the
multipurpose grant will be used, demonstrate the capacity to
conduct the range of activities funded by the grant, and
demonstrate that the grant will meet the needs of the one or
more brownfield sites in the area proposed by the eligible
entity. The grants will be used for inventory,
characterization, assessment, planning, or remediation
activities at one or more brownfield sites in the area. The
eligible entity shall have up to five years to expend all of
the grant money, unless the Administrator provides an
extension, and grants shall not exceed $950,000. Multipurpose
grants shall not exceed 15 percent of the overall amount for
assessment and remediation grants made available for each
fiscal year.
Under the current brownfields law, eligible entities must
apply separately for assessment and cleanup grants.
Additionally, eligible entities can only apply once a year for
federal assessment, they can only apply for site specific
grants, and they can only apply for a cleanup grant once the
assessment has been completed.
While this has been successful, the current system has had
the unintended consequence of causing delays in cleanup, making
it difficult for recipients to respond to real estate market
demands in a timely fashion. The delays have led to developers
moving on from brownfields sites and investing in greenfields
rather than waiting for the brownfield assessment and clean up
to be completed. As a result, developers and communities across
the Nation lose out on an opportunity for reinvestment.
Section 8 will allow EPA to give a portion of grants to
communities for community-wide application, rather than just
site specific application. Grant recipients will be able to use
the grants for both assessment and cleanup. Communities will
identify the area in which they would like to use the
multipurpose grant and the grant may be used for any
brownfields activity at sites within that area. The Committee
intends these grants to be flexible, giving communities the
ability to address both large and small sites within a given
area, and to allow communities to move from site assessment to
cleanup in a more expedient way.
The Committee does not expect multipurpose grants to be
used solely at one large cleanup site. The Committee has set
multipurpose grant amounts and the maximum allowable grant
amounts under remediation grants at the same level, so that for
a large cleanup, the Administrator may waive the $600,000 limit
established in section 7, and issue a grant up to the maximum
allowable $950,000, and reserve multipurpose grants for areas
with a need for both assessment and cleanup activities, or with
multiple brownfields sites.
Section 9. Administrative costs for grant recipients
This section amends paragraph 5 of section 104(k) of
CERCLA, as re-designated by section 8 of this act, to allow for
up to five percent of a grant amount to be used for
administrative costs. It prohibits administrative costs from
including investigation and identification of the extent of the
contamination at a brownfields site, design and performance of
a response action, or monitoring of a natural resource.
Section 9 removes the statutory prohibition of grantees
using assessment, cleanup, or revolving loan fund grants for
reasonable administrative costs. The Committee heard from
numerous stakeholders that this prohibition makes it difficult
for local governments, community organizations, and other grant
recipients to effectively implement their cleanup programs and
projects. Additionally, this prohibition has been noted as
being a barrier to local organizations using brownfields
funding in small, rural, and disadvantaged communities. This
change brings brownfields grants in line with most other EPA
programs by allowing up to 5 percent of grant amounts to be
used to cover these costs.
Section 10. Brownfields funding
This section amends paragraph 13, as re-designated by
section 8 of this act, of section 104(k) of CERCLA to authorize
$200,000,000 in Federal appropriations for each of the fiscal
years 2018 through 2022. This amendment would also repeal the
provision of existing law that requires 25 percent of annual
site characterization, assessment, and remediation grant funds
be allocated to sites contaminated by petroleum or a petroleum
product.
Section 11. State response programs
This section amends section 128(a)(3) of CERCLA to
authorize $50,000,000 in Federal appropriations for each of the
fiscal years 2018 through 2022.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
H.R. 1758, as amended, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980
* * * * * * *
TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
definitions
Sec. 101. For purpose of this title--
(1) The term ``act of God'' means an unanticipated
grave natural disaster or other natural phenomenon of
an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or
avoided by the exercise of due care or foresight.
(2) The term ``Administrator'' means the
Administrator of the United States Environmental
Protection Agency.
(3) The term ``barrel'' means forty-two United States
gallons at sixty degrees Fahrenheit.
(4) The term ``claim'' means a demand in writing for
a sum certain.
(5) The term ``claimant'' means any person who
presents a claim for compensation under this Act.
(6) The term ``damages'' means damages for injury or
loss of natural resources as set forth in section
107(a) or 111(b) of this Act.
(7) The term ``drinking water supply'' means any raw
or finished water source that is or may be used by a
public water system (as defined in the Safe Drinking
Water Act) or as drinking water by one or more
individuals.
(8) The term ``environment'' means (A) the navigable
waters, the waters of the contiguous zone, and the
ocean waters of which the natural resources are under
the exclusive management authority of the United States
under the Fishery Conservation and Management Act of
1976, and (B) any other surface water, ground water,
drinking water supply, land surface or subsurface
strata, or ambient air within the United States or
under the jurisdiction of the United States.
(9) The term ``facility'' means (A) any building,
structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned
treatment works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be
located; but does not include any consumer product in
consumer use or any vessel.
(10) The term ``federally permitted release'' means
(A) discharges in compliance with a permit under
section 402 of the Federal Water Pollution Control Act,
(B) discharges resulting from circumstances identified
and reviewed and made part of the public record with
respect to a permit issued or modified under section
402 of the Federal Water Pollution Control Act and
subject to a condition of such permit, (C) continuous
or anticipated intermittent discharges from a point
source, identified in a permit or permit application
under section 402 of the Federal Water Pollution
Control Act, which are caused by events occurring
within the scope of relevant operating or treatment
systems, (D) discharges in compliance with a legally
enforceable permit under section 404 of the Federal
Water Pollution Control Act, (E) releases in compliance
with a legally enforceable final permit issued pursuant
to section 3005 (a) through (d) of the Solid Waste
Disposal Act from a hazardous waste treatment, storage,
or disposal facility when such permit specifically
identifies the hazardous substances and makes such
substances subject to a standard of practice, control
procedure or bioassay limitation or condition, or other
control on the hazardous substances in such releases,
(F) any release in compliance with a legally
enforceable permit issued under section 102 of section
103 of the Marine Protection, Research, and Sanctuaries
Act of 1972, (G) any injection of fluids authorized
under Federal underground injection control programs or
State programs submitted for Federal approval (and not
disapproved by the Administrator of the Environmental
Protection Agency) pursuant to part C of the Safe
Drinking Water Act, (H) any emission into the air
subject to a permit or control regulation under section
111, section 112, title I part C, title I part D, or
State implementation plans submitted in accordance with
section 110 of the Clean Air Act (and not disapproved
by the Administrator of the Environmental Protection
Agency), including any schedule or waiver granted,
promulgated, or approved under these sections, (I) any
injection of fluids or other materials authorized under
applicable State law (i) for the purpose of stimulating
or treating wells for the production of crude oil,
natural gas, or water, (ii) for the purpose of
secondary, tertiary, or other enhanced recovery of
crude oil or natural gas, or (iii) which are brought to
the surface in conjunction with the production of crude
oil or natural gas and which are reinjected, (J) the
introduction of any pollutant into a publicly owned
treatment works when such pollutant is specified in and
in compliance with applicable pretreatment standards of
section 307 (b) or (c) of the Clean Water Act and
enforceable requirements in a pretreatment program
submitted by a State or municipality for Federal
approval under section 402 of such Act, and (K) any
release of source, special nuclear, or byproduct
material, as those terms are defined in the Atomic
Energy Act of 1954, in compliance with a legally
enforceable license, permit, regulation, or order
issued pursuant to the Atomic Energy Act of 1954.
(11) The term ``Fund'' or ``Trust Fund'' means the
Hazardous Substance Response Fund established by
section 221 of this Act or, in the case of a hazardous
waste disposal facility for which liability has been
transferred under section 107(k) of this Act, the Post-
closure Liability Fund established by section 232 of
this Act.
(12) The term ``ground water'' means water in a
saturated zone or stratum beneath the surface of land
or water.
(13) The term ``guarantor'' means any person, other
than the owner or operator, who provides evidence of
financial responsibility for an owner or operator under
this Act.
(14) The term ``hazardous substance'' means (A) any
substance designated pursuant to section 311(b)(2)(A)
of the Federal Water Pollution Control Act, (B) any
element, compound, mixture, solution, or substance
designated pursuant to section 102 of this Act, (C) any
hazardous waste having the characteristics identified
under or listed pursuant to section 3001 of the Solid
Waste Disposal Act (but not including any waste the
regulation of which under the Solid Waste Disposal Act
has been suspended by Act of Congress), (D) any toxic
pollutant listed under section 307(a) of the Federal
Water Pollution Control Act, (E) any hazardous air
pollutant listed under section 112 of the Clean Air
Act, and (F) any imminently hazardous chemical
substance or mixture with respect to which the
Administrator has taken action pursuant to section 7 of
the Toxic Substances Control Act. The term does not
include petroleum, including crude oil or any fraction
thereof which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs
(A) through (F) of this paragraph, and the term does
not include natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas).
(15) The term ``navigable waters'' or ``navigable
waters of the United States'' means the waters of the
United States, including the territorial seas.
(16) The term ``natural resources'' means land, fish,
wildlife, biota, air, water, ground water, drinking
water supplies, and other such resources belonging to,
managed by, held in trust by, appertaining to, or
otherwise controlled by the United States (including
the resources of the fishery conservation zone
established by the Fishery Conservation and Management
Act of 1976), any State, local government, or any
foreign government, any Indian tribe, or, if such
resources are subject to a trust restriction or
alienation, any member of an Indian tribe.
(17) The term ``offshore facility'' means any
facility of any kind located in, on, or under, any of
the navigable waters of the United States, and any
facility of any kind which is subject to the
jurisdiction of the United States and is located in,
on, or under any other waters, other than a vessel or a
public vessel.
(18) The term ``onshore facility'' means any facility
(including, but not limited to, motor vehicles and
rolling stock) of any kind located in, on, or under,
any land or nonnavigable waters within the United
States.
(19) The term ``otherwise subject to the jurisdiction
of the United States'' means subject to the
jurisdiction of the United States by virtue of United
States citizenship, United States vessel documentation
or numbering, or as provided by international agreement
to which the United States is a party.
(20)(A) The term ``owner or operator'' means (i) in
the case of a vessel, any person owning, operating, or
chartering by demise, such vessel, (ii) in the case of
an onshore facility or an offshore facility, any person
owning or operating such facility, and (iii) in the
case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax
delinquency, abandonment, or similar means to a unit of
State or local government, any person who owned,
operated, or otherwise controlled activities at such
facility immediately beforehand. Such term does not
include a person, who, without participating in the
management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in
the vessel or facility.
(B) In the case of a hazardous substance which has
been accepted for transportation by a common or
contract carrier and except as provided in section
107(a) (3) or (4) of this Act, (i) the term ``owner or
operator'' shall mean such common carrier or other bona
fide for hire carrier acting as an independent
contractor during such transportation, (ii) the shipper
of such hazardous substance shall not be considered to
have caused or contributed to any release during such
transportation which resulted solely from circumstances
or conditions beyond his control.
(C) In the case of a hazardous substance which has
been delivered by a common or contract carrier to a
disposal or treatment facility and except as provided
in section 107(a) (3) or (4) (i) the term ``owner or
operator'' shall not include such common or contract
carrier, and (ii) such common or contract carrier shall
not be considered to have caused or contributed to any
release at such disposal or treatment facility
resulting from circumstances or conditions beyond its
control.
(D) The term ``owner or operator'' does not include a
unit of State or local government which acquired
[ownership or control involuntarily through seizure or
otherwise in connection with law enforcement activity
through bankruptcy, tax delinquency, abandonment, or
other circumstances in which the government
involuntarily acquires title by virtue] ownership or
control through seizure or otherwise in connection with
law enforcement activity, or through bankruptcy, tax
delinquency, abandonment, or other circumstances in
which the government acquires title by virtue of its
function as sovereign. The exclusion provided under
this paragraph shall not apply to any State or local
government which has caused or contributed to the
release or threatened release of a hazardous substance
from the facility, or fails to exercise appropriate
care (as described in paragraph (40)(D)) following
acquisition, and such a State or local government shall
be subject to the provisions of this Act in the same
manner and to the same extent, both procedurally and
substantively, as any nongovernmental entity, including
liability under section 107.
(E) Exclusion of lenders not participants in
management.--
(i) Indicia of ownership to protect
security.--The term ``owner or
operator'' does not include a person
that is a lender that, without
participating in the management of a
vessel or facility, holds indicia of
ownership primarily to protect the
security interest of the person in the
vessel or facility.
(ii) Foreclosure.--The term ``owner
or operator'' does not include a person
that is a lender that did not
participate in management of a vessel
or facility prior to foreclosure,
notwithstanding that the person--
(I) forecloses on the vessel
or facility; and
(II) after foreclosure,
sells, re-leases (in the case
of a lease finance
transaction), or liquidates the
vessel or facility, maintains
business activities, winds up
operations, undertakes a
response action under section
107(d)(1) or under the
direction of an on-scene
coordinator appointed under the
National Contingency Plan, with
respect to the vessel or
facility, or takes any other
measure to preserve, protect,
or prepare the vessel or
facility prior to sale or
disposition,
if the person seeks to sell, re-lease
(in the case of a lease finance
transaction), or otherwise divest the
person of the vessel or facility at the
earliest practicable, commercially
reasonable time, on commercially
reasonable terms, taking into account
market conditions and legal and
regulatory requirements.
(F) Participation in management.--For
purposes of subparagraph (E)--
(i) the term ``participate in
management''--
(I) means actually
participating in the management
or operational affairs of a
vessel or facility; and
(II) does not include merely
having the capacity to
influence, or the unexercised
right to control, vessel or
facility operations;
(ii) a person that is a lender and
that holds indicia of ownership
primarily to protect a security
interest in a vessel or facility shall
be considered to participate in
management only if, while the borrower
is still in possession of the vessel or
facility encumbered by the security
interest, the person--
(I) exercises decisionmaking
control over the environmental
compliance related to the
vessel or facility, such that
the person has undertaken
responsibility for the
hazardous substance handling or
disposal practices related to
the vessel or facility; or
(II) exercises control at a
level comparable to that of a
manager of the vessel or
facility, such that the person
has assumed or manifested
responsibility--
(aa) for the overall
management of the
vessel or facility
encompassing day-to-day
decisionmaking with
respect to
environmental
compliance; or
(bb) over all or
substantially all of
the operational
functions (as
distinguished from
financial or
administrative
functions) of the
vessel or facility
other than the function
of environmental
compliance;
(iii) the term ``participate in
management'' does not include
performing an act or failing to act
prior to the time at which a security
interest is created in a vessel or
facility; and
(iv) the term ``participate in
management'' does not include--
(I) holding a security
interest or abandoning or
releasing a security interest;
(II) including in the terms
of an extension of credit, or
in a contract or security
agreement relating to the
extension, a covenant,
warranty, or other term or
condition that relates to
environmental compliance;
(III) monitoring or enforcing
the terms and conditions of the
extension of credit or security
interest;
(IV) monitoring or
undertaking 1 or more
inspections of the vessel or
facility;
(V) requiring a response
action or other lawful means of
addressing the release or
threatened release of a
hazardous substance in
connection with the vessel or
facility prior to, during, or
on the expiration of the term
of the extension of credit;
(VI) providing financial or
other advice or counseling in
an effort to mitigate, prevent,
or cure default or diminution
in the value of the vessel or
facility;
(VII) restructuring,
renegotiating, or otherwise
agreeing to alter the terms and
conditions of the extension of
credit or security interest,
exercising forbearance;
(VIII) exercising other
remedies that may be available
under applicable law for the
breach of a term or condition
of the extension of credit or
security agreement; or
(IX) conducting a response
action under section 107(d) or
under the direction of an on-
scene coordinator appointed
under the National Contingency
Plan,
if the actions do not rise to the level
of participating in management (within
the meaning of clauses (i) and (ii)).
(G) Other terms.--As used in this Act:
(i) Extension of credit.--The term
``extension of credit'' includes a
lease finance transaction--
(I) in which the lessor does
not initially select the leased
vessel or facility and does not
during the lease term control
the daily operations or
maintenance of the vessel or
facility; or
(II) that conforms with
regulations issued by the
appropriate Federal banking
agency or the appropriate State
bank supervisor (as those terms
are defined in section 3 of the
Federal Deposit Insurance Act
(12 U.S.C. 1813) or with
regulations issued by the
National Credit Union
Administration Board, as
appropriate.
(ii) Financial or administrative
function.--The term ``financial or
administrative function'' includes a
function such as that of a credit
manager, accounts payable officer,
accounts receivable officer, personnel
manager, comptroller, or chief
financial officer, or a similar
function.
(iii) Foreclosure; foreclose.--The
terms ``foreclosure'' and ``foreclose''
mean, respectively, acquiring, and to
acquire, a vessel or facility through--
(I)(aa) purchase at sale
under a judgment or decree,
power of sale, or nonjudicial
foreclosure sale;
(bb) a deed in lieu of
foreclosure, or similar
conveyance from a trustee; or
(cc) repossession,
if the vessel or facility was security
for an extension of credit previously
contracted;
(II) conveyance pursuant to
an extension of credit
previously contracted,
including the termination of a
lease agreement; or
(III) any other formal or
informal manner by which the
person acquires, for subsequent
disposition, title to or
possession of a vessel or
facility in order to protect
the security interest of the
person.
(iv) Lender.--The term ``lender''
means--
(I) an insured depository
institution (as defined in
section 3 of the Federal
Deposit Insurance Act (12
U.S.C. 1813));
(II) an insured credit union
(as defined in section 101 of
the Federal Credit Union Act
(12 U.S.C. 1752));
(III) a bank or association
chartered under the Farm Credit
Act of 1971 (12 U.S.C. 2001 et
seq.);
(IV) a leasing or trust
company that is an affiliate of
an insured depository
institution;
(V) any person (including a
successor or assignee of any
such person) that makes a bona
fide extension of credit to or
takes or acquires a security
interest from a nonaffiliated
person;
(VI) the Federal National
Mortgage Association, the
Federal Home Loan Mortgage
Corporation, the Federal
Agricultural Mortgage
Corporation, or any other
entity that in a bona fide
manner buys or sells loans or
interests in loans;
(VII) a person that insures
or guarantees against a default
in the repayment of an
extension of credit, or acts as
a surety with respect to an
extension of credit, to a
nonaffiliated person; and
(VIII) a person that provides
title insurance and that
acquires a vessel or facility
as a result of assignment or
conveyance in the course of
underwriting claims and claims
settlement.
(v) Operational function.--The term
``operational function'' includes a
function such as that of a facility or
plant manager, operations manager,
chief operating officer, or chief
executive officer.
(vi) Security interest.--The term
``security interest'' includes a right
under a mortgage, deed of trust,
assignment, judgment lien, pledge,
security agreement, factoring
agreement, or lease and any other right
accruing to a person to secure the
repayment of money, the performance of
a duty, or any other obligation by a
nonaffiliated person.
(21) The term ``person'' means an individual, firm,
corporation, association, partnership, consortium,
joint venture, commercial entity, United States
Government, State, municipality, commission, political
subdivision of a State, or any interstate body.
(22) The term ``release'' means any spilling,
leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or
disposing into the environment (including the
abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous
substance or pollutant or contaminant), but excludes
(A) any release which results in exposure to persons
solely within a workplace, with respect to a claim
which such persons may assert against the employer of
such persons, (B) emissions from the engine exhaust of
a motor vehicle, rolling stock, aircraft, vessel, or
pipeline pumping station engine, (C) release of source,
byproduct, or special nuclear material from a nuclear
incident, as those terms are defined in the Atomic
Energy Act of 1954, if such release is subject to
requirements with respect to financial protection
established by the Nuclear Regulatory Commission under
section 170 of such Act, or, for the purposes of
section 104 of this title or any other response action,
any release of source byproduct, or special nuclear
material from any processing site designated under
section 102(a)(1) or 302(a) of the Uranium Mill
Tailings Radiation Control Act of 1978, and (D) the
normal application of fertilizer.
(23) The terms ``remove'' or ``removal'' means the
cleanup or removal of released hazardous substances
from the environment, such actions as may be necessary
taken in the event of the threat of release of
hazardous substances into the environment, such actions
as may be necessary to monitor, assess, and evaluate
the release or threat of release of hazardous
substances, the disposal of removed material, or the
taking of such other actions as may be necessary to
prevent, minimize, or mitigate damage to the public
health or welfare or to the environment, which may
otherwise result from a release or threat of release.
The term includes, in addition, without being limited
to, security fencing or other measures to limit access,
provision of alternative water supplies, temporary
evacuation and housing of threatened individuals not
otherwise provided for, action taken under section
104(b) of this Act, and any emergency assistance which
may be provided under the Disaster Relief and Emergency
Assistance Act.
(24) The terms ``remedy'' or ``remedial action''
means those actions consistent with permanent remedy
taken instead of or in addition to removal actions in
the event of a release or threatened release of a
hazardous substance into the environment, to prevent or
minimize the release of hazardous substances so that
they do not migrate to cause substantial danger to
present or future public health or welfare or the
environment. The term includes, but is not limited to,
such actions at the location of the release as storage,
confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization,
cleanup of released hazardous substances and associated
contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging
or excavations, repair or replacement of leaking
containers, collection of leachate and runoff, onsite
treatment or incineration, provision of alternative
water supplies, and any monitoring reasonably required
to assure that such actions protect the public health
and welfare and the environment. The term includes the
costs of permanent relocation of residents and
businesses and community facilities where the President
determines that, alone or in combination with other
measures, such relocation is more cost-effective than
and environmentally preferable to the transportation,
storage, treatment, destruction, or secure disposition
offsite of hazardous substances, or may otherwise be
necessary to protect the public health or welfare; the
term includes offsite transport and offsite storage,
treatment, destruction, or secure disposition of
hazardous substances and associated contaminated
materials.
(25) The terms ``respond'' or ``response'' means
remove, removal, remedy, and remedial action;, all such
terms (including the terms ``removal'' and ``remedial
action'') include enforcement activities related
thereto.
(26) The terms ``transport'' or ``transportation''
means the movement of a hazardous substance by any
mode, including a hazardous liquid pipeline facility
(as defined in section 60101(a) of title 49, United
States Code), and in the case of a hazardous substance
which has been accepted for transportation by a common
or contract carrier, the term ``transport'' or
``transportation'' shall include any stoppage in
transit which is temporary, incidental to the
transportation movement, and at the ordinary operating
convenience of a common or contract carrier, and any
such stoppage shall be considered as a continuity of
movement and not as the storage of a hazardous
substance.
(27) The terms ``United States'' and ``State''
include the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands,
the Commonwealth of the Northern Marianas, and any
other territory or possession over which the United
States has jurisdiction.
(28) The term ``vessel'' means every description of
watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on
water.
(29) The terms ``disposal'', ``hazardous waste'', and
``treatment'' shall have the meaning provided in
section 1004 of the Solid Waste Disposal Act.
(30) The terms ``territorial sea'' and ``contiguous
zone'' shall have the meaning provided in section 502
of the Federal Water Pollution Control Act.
(31) The term ``national contingency plan'' means the
national contingency plan published under section
311(c) of the Federal Water Pollution Control Act or
revised pursuant to section 105 of this Act.
(32) The terms ``liable'' or ``liability'' under this
title shall be construed to be the standard of
liability which obtains under section 311 of the
Federal Water Pollution Control Act.
(33) The term ``pollutant or contaminant'' shall
include, but not be limited to, any element, substance,
compound, or mixture, including disease-causing agents,
which after release into the environment and upon
exposure, ingestion, inhalation, or assimilation into
any organism, either directly from the environment or
indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease,
behavioral abnormalities, cancer, genetic mutation,
physiological malfunctions (including malfunctions in
reproduction) or physical deformations, in such
organisms or their offspring; except that the term
``pollutant or contaminant'' shall not include
petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs
(A) through (F) of paragraph (14) and shall not include
natural gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas and such
synthetic gas).
(34) The term ``alternative water supplies''
includes, but is not limited to, drinking water and
household water supplies.
(35)(A) The term ``contractual relationship'', for
the purpose of section 107(b)(3) includes, but is not
limited to, land contracts, deeds, easements, leases,
or other instruments transferring title or possession,
unless the real property on which the facility
concerned is located was acquired by the defendant
after the disposal or placement of the hazardous
substance on, in, or at the facility, and one or more
of the circumstances described in clause (i), (ii), or
(iii) is also established by the defendant by a
preponderance of the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had no
reason to know that any hazardous substance
which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent
domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that the defendant has
satisfied the requirements of section 107(b)(3) (a) and
(b), provides full cooperation, assistance, and
facility access to the persons that are authorized to
conduct response actions at the facility (including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete
or partial response action at the facility), is in
compliance with any land use restrictions established
or relied on in connection with the response action at
a facility, and does not impede the effectiveness or
integrity of any institutional control employed at the
facility in connection with a response action.
(B) Reason to know.--
(i) All appropriate inquiries.--To
establish that the defendant had no
reason to know of the matter described
in subparagraph (A)(i), the defendant
must demonstrate to a court that--
(I) on or before the date on
which the defendant acquired
the facility, the defendant
carried out all appropriate
inquiries, as provided in
clauses (ii) and (iv), into the
previous ownership and uses of
the facility in accordance with
generally accepted good
commercial and customary
standards and practices; and
(II) the defendant took
reasonable steps to--
(aa) stop any
continuing release;
(bb) prevent any
threatened future
release; and
(cc) prevent or limit
any human,
environmental, or
natural resource
exposure to any
previously released
hazardous substance.
(ii) Standards and practices.--Not
later than 2 years after the date of
the enactment of the Brownfields
Revitalization and Environmental
Restoration Act of 2001, the
Administrator shall by regulation
establish standards and practices for
the purpose of satisfying the
requirement to carry out all
appropriate inquiries under clause (i).
(iii) Criteria.--In promulgating
regulations that establish the
standards and practices referred to in
clause (ii), the Administrator shall
include each of the following:
(I) The results of an inquiry
by an environmental
professional.
(II) Interviews with past and
present owners, operators, and
occupants of the facility for
the purpose of gathering
information regarding the
potential for contamination at
the facility.
(III) Reviews of historical
sources, such as chain of title
documents, aerial photographs,
building department records,
and land use records, to
determine previous uses and
occupancies of the real
property since the property was
first developed.
(IV) Searches for recorded
environmental cleanup liens
against the facility that are
filed under Federal, State, or
local law.
(V) Reviews of Federal,
State, and local government
records, waste disposal
records, underground storage
tank records, and hazardous
waste handling, generation,
treatment, disposal, and spill
records, concerning
contamination at or near the
facility.
(VI) Visual inspections of
the facility and of adjoining
properties.
(VII) Specialized knowledge
or experience on the part of
the defendant.
(VIII) The relationship of
the purchase price to the value
of the property, if the
property was not contaminated.
(IX) Commonly known or
reasonably ascertainable
information about the property.
(X) The degree of obviousness
of the presence or likely
presence of contamination at
the property, and the ability
to detect the contamination by
appropriate investigation.
(iv) Interim standards and
practices.--
(I) Property purchased before
may 31, 1997.--With respect to
property purchased before May
31, 1997, in making a
determination with respect to a
defendant described in clause
(i), a court shall take into
account--
(aa) any specialized
knowledge or experience
on the part of the
defendant;
(bb) the relationship
of the purchase price
to the value of the
property, if the
property was not
contaminated;
(cc) commonly known
or reasonably
ascertainable
information about the
property;
(dd) the obviousness
of the presence or
likely presence of
contamination at the
property; and
(ee) the ability of
the defendant to detect
the contamination by
appropriate inspection.
(II) Property purchased on or
after may 31, 1997.--With
respect to property purchased
on or after May 31, 1997, and
until the Administrator
promulgates the regulations
described in clause (ii), the
procedures of the American
Society for Testing and
Materials, including the
document known as ``Standard
E1527-97'', entitled ``Standard
Practice for Environmental Site
Assessment: Phase 1
Environmental Site Assessment
Process'', shall satisfy the
requirements in clause (i).
(v) Site inspection and title
search.--In the case of property for
residential use or other similar use
purchased by a nongovernmental or
noncommercial entity, a facility
inspection and title search that reveal
no basis for further investigation
shall be considered to satisfy the
requirements of this subparagraph.
(C) Nothing in this paragraph or in section 107(b)(3)
shall diminish the liability of any previous owner or
operator of such facility who would otherwise be liable
under this Act. Notwithstanding this paragraph, if the
defendant obtained actual knowledge of the release or
threatened release of a hazardous substance at such
facility when the defendant owned the real property and
then subsequently transferred ownership of the property
to another person without disclosing such knowledge,
such defendant shall be treated as liable under section
107(a)(1) and no defense under section 107(b)(3) shall
be available to such defendant.
(D) Nothing in this paragraph shall affect the
liability under this Act of a defendant who, by any act
or omission, caused or contributed to the release or
threatened release of a hazardous substance which is
the subject of the action relating to the facility.
(36) The term ``Indian tribe'' means any Indian
tribe, band, nation, or other organized group or
community, including any Alaska Native village but not
including any Alaska Native regional or village
corporation, which is recognized as eligible for the
special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term ``service station dealer'' means any
person--
(i) who owns or operates a motor vehicle
service station, filling station, garage, or
similar retail establishment engaged in the
business of selling, repairing, or servicing
motor vehicles, where a significant percentage
of the gross revenue of the establishment is
derived from the fueling, repairing, or
servicing of motor vehicles, and
(ii) who accepts for collection,
accumulation, and delivery to an oil recycling
facility, recycled oil that (I) has been
removed from the engine of a light duty motor
vehicle or household appliances by the owner of
such vehicle or appliances, and (II) is
presented, by such owner, to such person for
collection, accumulation, and delivery to an
oil recycling facility.
(B) For purposes of section 114(c), the term
``service station dealer'' shall, notwithstanding the
provisions of subparagraph (A), include any government
agency that establishes a facility solely for the
purpose of accepting recycled oil that satisfies the
criteria set forth in subclauses (I) and (II) of
subparagraph (A)(ii), and, with respect to recycled oil
that satisfies the criteria set forth in subclauses (I)
and (II), owners or operators of refuse collection
services who are compelled by State law to collect,
accumulate, and deliver such oil to an oil recycling
facility.
(C) The President shall promulgate regulations
regarding the determination of what constitutes a
significant percentage of the gross revenues of an
establishment for purposes of this paragraph.
(38) The term ``incineration vessel'' means any
vessel which carries hazardous substances for the
purpose of incineration of such substances, so long as
such substances or residues of such substances are on
board.
(39) Brownfield site.--
(A) In general.--The term ``brownfield site''
means real property, the expansion,
redevelopment, or reuse of which may be
complicated by the presence or potential
presence of a hazardous substance, pollutant,
or contaminant.
(B) Exclusions.--The term ``brownfield site''
does not include--
(i) a facility that is the subject of
a planned or ongoing removal action
under this title;
(ii) a facility that is listed on the
National Priorities List or is proposed
for listing;
(iii) a facility that is the subject
of a unilateral administrative order, a
court order, an administrative order on
consent or judicial consent decree that
has been issued to or entered into by
the parties under this Act;
(iv) a facility that is the subject
of a unilateral administrative order, a
court order, an administrative order on
consent or judicial consent decree that
has been issued to or entered into by
the parties, or a facility to which a
permit has been issued by the United
States or an authorized State under the
Solid Waste Disposal Act (42 U.S.C.
6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. 1321),
the Toxic Substances Control Act (15
U.S.C. 2601 et seq.), or the Safe
Drinking Water Act (42 U.S.C. 300f et
seq.);
(v) a facility that--
(I) is subject to corrective
action under section 3004(u) or
3008(h) of the Solid Waste
Disposal Act (42 U.S.C.
6924(u), 6928(h)); and
(II) to which a corrective
action permit or order has been
issued or modified to require
the implementation of
corrective measures;
(vi) a land disposal unit with
respect to which--
(I) a closure notification
under subtitle C of the Solid
Waste Disposal Act (42 U.S.C.
6921 et seq.) has been
submitted; and
(II) closure requirements
have been specified in a
closure plan or permit;
(vii) a facility that is subject to
the jurisdiction, custody, or control
of a department, agency, or
instrumentality of the United States,
except for land held in trust by the
United States for an Indian tribe;
(viii) a portion of a facility--
(I) at which there has been a
release of polychlorinated
biphenyls; and
(II) that is subject to
remediation under the Toxic
Substances Control Act (15
U.S.C. 2601 et seq.); or
(ix) a portion of a facility, for
which portion, assistance for response
activity has been obtained under
subtitle I of the Solid Waste Disposal
Act (42 U.S.C. 6991 et seq.) from the
Leaking Underground Storage Tank Trust
Fund established under section 9508 of
the Internal Revenue Code of 1986.
(C) Site-by-site determinations.--
Notwithstanding subparagraph (B) and on a site-
by-site basis, the President may authorize
financial assistance under section 104(k) to an
eligible entity at a site included in clause
(i), (iv), (v), (vi), (viii), or (ix) of
subparagraph (B) if the President finds that
financial assistance will protect human health
and the environment, and either promote
economic development or enable the creation of,
preservation of, or addition to parks,
greenways, undeveloped property, other
recreational property, or other property used
for nonprofit purposes.
(D) Additional areas.--For the purposes of
section 104(k), the term ``brownfield site''
includes a site that--
(i) meets the definition of
``brownfield site'' under subparagraphs
(A) through (C); and
(ii)(I) is contaminated by a
controlled substance (as defined in
section 102 of the Controlled
Substances Act (21 U.S.C. 802));
(II)(aa) is contaminated by petroleum
or a petroleum product excluded from
the definition of ``hazardous
substance'' under section 101; and
[(bb) is a site determined by the
Administrator or the State, as
appropriate, to be--
[(AA) of relatively low risk,
as compared with other
petroleum-only sites in the
State; and
[(BB) a site for which there
is no viable responsible party
and which will be assessed,
investigated, or cleaned up by
a person that is not
potentially liable for cleaning
up the site; and]
(bb) is a site for which there is no
viable responsible party and that is
determined by the Administrator or the
State, as appropriate, to be a site
that will be assessed, investigated, or
cleaned up by a person that is not
potentially liable for cleaning up the
site under this Act or any other law
pertaining to the cleanup of petroleum
products; and
(cc) is not subject to any order
issued under section 9003(h) of the
Solid Waste Disposal Act (42 U.S.C.
6991b(h)); or
(III) is mine-scarred land.
(40) Bona fide prospective purchaser.--The term
``bona fide prospective purchaser'' means a person [(or
a tenant of a person) that acquires ownership of] who
acquires ownership of, or a leasehold interest in, a
facility after the date of the enactment of this
paragraph and that establishes each of the following by
a preponderance of the evidence:
(A) Disposal prior to acquisition.--All
disposal of hazardous substances at the
facility occurred before the person acquired
the facility or the leasehold interest in the
facility.
(B) Inquiries.--
(i) In general.--The person made all
appropriate inquiries into the previous
ownership and uses of the facility in
accordance with generally accepted good
commercial and customary standards and
practices in accordance with clauses
(ii) and (iii).
(ii) Standards and practices.--The
standards and practices referred to in
clauses (ii) and (iv) of paragraph
(35)(B) shall be considered to satisfy
the requirements of this subparagraph
with respect to a person who acquires
ownership of a facility. The
Administrator shall establish standards
and practices with respect to a person
who acquires a leasehold interest in a
facility.
(iii) Residential use.--In the case
of property in residential or other
similar use at the time of purchase, or
acquisition of a leasehold interest, by
a nongovernmental or noncommercial
entity, a facility inspection and title
search that reveal no basis for further
investigation shall be considered to
satisfy the requirements of this
subparagraph.
(C) Notices.--The person provides all legally
required notices with respect to the discovery
or release of any hazardous substances at the
facility.
(D) Care.--The person exercises appropriate
care with respect to hazardous substances found
at the facility by taking reasonable steps to--
(i) stop any continuing release;
(ii) prevent any threatened future
release; and
(iii) prevent or limit human,
environmental, or natural resource
exposure to any previously released
hazardous substance.
(E) Cooperation, assistance, and access.--The
person provides full cooperation, assistance,
and access to persons that are authorized to
conduct response actions or natural resource
restoration at a vessel or facility (including
the cooperation and access necessary for the
installation, integrity, operation, and
maintenance of any complete or partial response
actions or natural resource restoration at the
vessel or facility).
(F) Institutional control.--The person--
(i) is in compliance with any land
use restrictions established or relied
on in connection with the response
action at a vessel or facility; and
(ii) does not impede the
effectiveness or integrity of any
institutional control employed at the
vessel or facility in connection with a
response action.
(G) Requests; subpoenas.--The person complies
with any request for information or
administrative subpoena issued by the President
under this Act.
(H) No affiliation.--The person is not--
(i) potentially liable, or affiliated
with any other person that is
potentially liable, for response costs
at a facility through--
(I) any direct or indirect
familial relationship; or
(II) any contractual,
corporate, or financial
relationship (other than a
contractual, corporate, or
financial relationship that is
created by the instruments by
which title to the facility is
conveyed or financed, by the
instruments by which the
leasehold interest in the
facility is acquired after
January 11, 2002, or by a
contract for the sale of goods
or services); or
(ii) the result of a reorganization
of a business entity that was
potentially liable.
(I) Leaseholders.--In the case of a person
holding a leasehold interest in a facility--
(i) the leasehold interest in the
facility--
(I) is for a term of not less
than 5 years; and
(II) grants the person
control of, and access to, the
facility; and
(ii) the person is responsible for
the management of all hazardous
substances at the facility.
(41) Eligible response site.--
(A) In general.--The term ``eligible response
site'' means a site that meets the definition
of a brownfield site in subparagraphs (A) and
(B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
(B) Inclusions.--The term ``eligible response
site'' includes--
(i) notwithstanding paragraph
(39)(B)(ix), a portion of a facility,
for which portion assistance for
response activity has been obtained
under subtitle I of the Solid Waste
Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under
section 9508 of the Internal Revenue
Code of 1986; or
(ii) a site for which,
notwithstanding the exclusions provided
in subparagraph (C) or paragraph
(39)(B), the President determines, on a
site-by-site basis and after
consultation with the State, that
limitations on enforcement under
section 128 at sites specified in
clause (iv), (v), (vi) or (viii) of
paragraph (39)(B) would be appropriate
and will--
(I) protect human health and
the environment; and
(II) promote economic
development or facilitate the
creation of, preservation of,
or addition to a park, a
greenway, undeveloped property,
recreational property, or other
property used for nonprofit
purposes.
(C) Exclusions.--The term ``eligible response
site'' does not include--
(i) a facility for which the
President--
(I) conducts or has conducted
a preliminary assessment or
site inspection; 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 determination that no
further Federal action will be
taken; or
(ii) facilities that the President
determines warrant particular
consideration as identified by
regulation, such as sites posing a
threat to a sole-source drinking water
aquifer or a sensitive ecosystem.
* * * * * * *
response authorities
Sec. 104. (a)(1) Whenever (A) any hazardous substance is
released or there is a substantial threat of such a release
into the environment, or (B) there is a release or substantial
threat of release into the environment of any pollutant or
contaminant which may present an imminent and substantial
danger to the public health or welfare, the President is
authorized to act, consistent with the national contingency
plan, to remove or arrange for the removal of, and provide for
remedial action relating to such hazardous substance,
pollutant, or contaminant at any time (including its removal
from any contaminated natural resource), or take any other
response measure consistent with the national contingency plan
which the President deems necessary to protect the public
health or welfare or the environment. When the President
determines that such action will be done properly and promptly
by the owner or operator of the facility or vessel or by any
other responsible party, the President may allow such person to
carry out the action, conduct the remedial investigation, or
conduct the feasibility study in accordance with section 122.
No remedial investigation or feasibility study (RI/FS) shall be
authorized except on a determination by the President that the
party is qualified to conduct the RI/FS and only if the
President contracts with or arranges for a qualified person to
assist the President in overseeing and reviewing the conduct of
such RI/FS and if the responsible party agrees to reimburse the
Fund for any cost incurred by the President under, or in
connection with, the oversight contract or arrangement. In no
event shall a potentially responsible party be subject to a
lesser standard of liability, receive preferential treatment,
or in any other way, whether direct or indirect, benefit from
any such arrangements as a response action contractor, or as a
person hired or retained by such a response action contractor,
with respect to the release or facility in question. The
President shall give primary attention to those releases which
the President deems may present a public health threat.
(2) Removal Action.--Any removal action undertaken by the
President under this subsection (or by any other person
referred to in section 122) should, to the extent the President
deems practicable, contribute to the efficient performance of
any long term remedial action with respect to the release or
threatened release concerned.
(3) Limitations on Response.--The President shall not provide
for a removal or remedial action under this section in response
to a release or threat of release--
(A) of a naturally occurring substance in its
unaltered form, or altered solely through naturally
occurring processes or phenomena, from a location where
it is naturally found;
(B) from products which are part of the structure of,
and result in exposure within, residential buildings or
business or community structures; or
(C) into public or private drinking water supplies
due to deterioration of the system through ordinary
use.
(4) Exception to Limitations.--Notwithstanding paragraph (3)
of this subsection, to the extent authorized by this section,
the President may respond to any release or threat of release
if in the President's discretion, it constitutes a public
health or environmental emergency and no other person with the
authority and capability to respond to the emergency will do so
in a timely manner.
(b)(1) Information; Studies and Investigations.--Whenever the
President is authorized to act pursuant to subsection (a) of
this section, or whenever the President has reason to believe
that a release has occurred or is about to occur, or that
illness, disease, or complaints thereof may be attributable to
exposure to a hazardous substance, pollutant, or contaminant
and that a release may have occurred or be occurring, he may
undertake such investigations, monitoring, surveys, testing,
and other information gathering as he may deem necessary or
appropriate to identify the existence and extent of the release
or threat thereof, the source and nature of the hazardous
substances, pollutants or contaminants involved, and the extent
of danger to the public health or welfare or to the
environment. In addition, the President may undertake such
planning, legal, fiscal, economic, engineering, architectural,
and other studies or investigations as he may deem necessary or
appropriate to plan and direct response actions, to recover the
costs thereof, and to enforce the provisions of this Act.
(2) Coordination of Investigations.--The President shall
promptly notify the appropriate Federal and State natural
resource trustees of potential damages to natural resources
resulting from releases under investigation pursuant to this
section and shall seek to coordinate the assessments,
investigations, and planning under this section with such
Federal and State trustees.
(c)(1) Unless (A) the President finds that (i) continued
response actions are immediately required to prevent, limit, or
mitigate an emergency, (ii) there is an immediate risk to
public health or welfare or the environment, and (iii) such
assistance will not otherwise be provided on a timely basis, or
(B) the President has determined the appropriate remedial
actions pursuant to paragraph (2) of this subsection and the
State or States in which the source of the release is located
have complied with the requirements of paragraph (3) of this
subsection, or (C) continued response action is otherwise
appropriate and consistent with the remedial action to be taken
obligations from the Fund, other than those authorized by
subsection (b) of this section, shall not continue after
$2,000,000 has been obligated for response actions or 12 months
has elapsed from the date of initial response to a release or
threatened release of hazardous substances.
(2) The President shall consult with the affected State or
States before determining any appropriate remedial action to be
taken pursuant to the authority granted under subsection (a) of
this section.
(3) The President shall not provide any remedial actions
pursuant to this section unless the State in which the release
occurs first enters into a contract or cooperative agreement
with the President providing assurances deemed adequate by the
President that (A) the State will assure all future maintenance
of the removal and remedial actions provided for the expected
life of such actions as determined by the President; (B) the
State will assure the availability of a hazardous waste
disposal facility acceptable to the President and in compliance
with the requirements of subtitle C of the Solid Waste Disposal
Act for any necessary offsite storage, destruction, treatment,
or secure disposition of the hazardous substances; and (C) the
State will pay or assure payment of (i) 10 per centum of the
costs of the remedial action, including all future maintenance,
or (ii) 50 percent (or such greater amount as the President may
determine appropriate, taking into account the degree of
responsibility of the State or political subdivision for the
release) of any sums expended in response to a release at a
facility, that was operated by the State or a political
subdivision thereof, either directly or through a contractual
relationship or otherwise, at the time of any disposal of
hazardous substances therein. For the purpose of clause (ii) of
this subparagraph, the term ``facility'' does not include
navigable waters or the beds underlying those waters. The
President shall grant the State a credit against the share of
the costs for which it is responsible under this paragraph for
any documented direct out-of-pocket non-Federal funds expended
or obligated by the State or a political subdivision thereof
after January 1, 1978, and before the date of enactment of this
Act for cost-eligible response actions and claims for damages
compensable under section 111 of this title relating to the
specific release in question: Provided, however, That in no
event shall the amount of the credit granted exceed the total
response costs relating to the release. In the case of remedial
action to be taken on land or water held by an Indian tribe,
held by the United States in trust for Indians, held by a
member of an Indian tribe (if such land or water is subject to
a trust restriction on alienation), or otherwise within the
borders of an Indian reservation, the requirements of this
paragraph for assurances regarding future maintenance and cost-
sharing shall not apply, and the President shall provide the
assurance required by this paragraph regarding the availability
of a hazardous waste disposal facility.
(4) Selection of Remedial Action.--The President shall select
remedial actions to carry out this section in accordance with
section 121 of this Act (relating to cleanup standards).
(5) State Credits.--
(A) Granting of credit.--The President shall grant a
State a credit against the share of the costs, for
which it is responsible under paragraph (3) with
respect to a facility listed on the National Priorities
List under the National Contingency Plan, for amounts
expended by a State for remedial action at such
facility pursuant to a contract or cooperative
agreement with the President. The credit under this
paragraph shall be limited to those State expenses
which the President determines to be reasonable,
documented, direct out-of-pocket expenditures of non-
Federal funds.
(B) Expenses before listing or agreement.--The credit
under this paragraph shall include expenses for
remedial action at a facility incurred before the
listing of the facility on the National Priorities List
or before a contract or cooperative agreement is
entered into under subsection (d) for the facility if--
(i) after such expenses are incurred the
facility is listed on such list and a contract
or cooperative agreement is entered into for
the facility, and
(ii) the President determines that such
expenses would have been credited to the State
under subparagraph (A) had the expenditures
been made after listing of the facility on such
list and after the date on which such contract
or cooperative agreement is entered into.
(C) Response actions between 1978 and 1980.--The
credit under this paragraph shall include funds
expended or obligated by the State or a political
subdivision thereof after January 1, 1978, and before
December 11, 1980, for cost-eligible response actions
and claims for damages compensable under section 111.
(D) State expenses after december 11, 1980, in excess
of 10 percent of costs.--The credit under this
paragraph shall include 90 percent of State expenses
incurred at a facility owned, but not operated, by such
State or by a political subdivision thereof. Such
credit applies only to expenses incurred pursuant to a
contract or cooperative agreement under subsection (d)
and only to expenses incurred after December 11, 1980,
but before the date of the enactment of this paragraph.
(E) Item-by-item approval.--In the case of
expenditures made after the date of the enactment of
this paragraph, the President may require prior
approval of each item of expenditure as a condition of
granting a credit under this paragraph.
(F) Use of credits.--Credits granted under this
paragraph for funds expended with respect to a facility
may be used by the State to reduce all or part of the
share of costs otherwise required to be paid by the
State under paragraph (3) in connection with remedial
actions at such facility. If the amount of funds for
which credit is allowed under this paragraph exceeds
such share of costs for such facility, the State may
use the amount of such excess to reduce all or part of
the share of such costs at other facilities in that
State. A credit shall not entitle the State to any
direct payment.
(6) Operation and Maintenance.--For the purposes of paragraph
(3) of this subsection, in the case of ground or surface water
contamination, completed remedial action includes the
completion of treatment or other measures, whether taken onsite
or offsite, necessary to restore ground and surface water
quality to a level that assures protection of human health and
the environment. With respect to such measures, the operation
of such measures for a period of up to 10 years after the
construction or installation and commencement of operation
shall be considered remedial action. Activities required to
maintain the effectiveness of such measures following such
period or the completion of remedial action, whichever is
earlier, shall be considered operation or maintenance.
(7) Limitation on Source of Funds for O&M.--During any period
after the availability of funds received by the Hazardous
Substance Superfund established under subchapter A of chapter
98 of the Internal Revenue Code of 1954 from tax revenues or
appropriations from general revenues, the Federal share of the
payment of the cost of operation or maintenance pursuant to
paragraph (3)(C)(i) or paragraph (6) of this subsection
(relating to operation and maintenance) shall be from funds
received by the Hazardous Substance Superfund from amounts
recovered on behalf of such fund under this Act.
(8) Recontracting.--The President is authorized to undertake
or continue whatever interim remedial actions the President
determines to be appropriate to reduce risks to public health
or the environment where the performance of a complete remedial
action requires recontracting because of the discovery of
sources, types, or quantities of hazardous substances not known
at the time of entry into the original contract. The total cost
of interim actions undertaken at a facility pursuant to this
paragraph shall not exceed $2,000,000.
(9) Siting.--Effective 3 years after the enactment of the
Superfund Amendments and Reauthorization Act of 1986, the
President shall not provide any remedial actions pursuant to
this section unless the State in which the release occurs first
enters into a contract or cooperative agreement with the
President providing assurances deemed adequate by the President
that the State will assure the availability of hazardous waste
treatment or disposal facilities which--
(A) have adequate capacity for the destruction,
treatment, or secure disposition of all hazardous
wastes that are reasonably expected to be generated
within the State during the 20-year period following
the date of such contract or cooperative agreement and
to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in
accordance with an interstate agreement or regional
agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of
subtitle C of the Solid Waste Disposal Act.
(d)(1) Cooperative Agreements.--
(A) State applications.--A State or political
subdivision thereof or Indian tribe may apply to the
President to carry out actions authorized in this
section. If the President determines that the State or
political subdivision or Indian tribe has the
capability to carry out any or all of such actions in
accordance with the criteria and priorities established
pursuant to section 105(a)(8) and to carry out related
enforcement actions, the President may enter into a
contract or cooperative agreement with the State or
political subdivision or Indian tribe to carry out such
actions. The President shall make a determination
regarding such an application within 90 days after the
President receives the application.
(B) Terms and conditions.--A contract or cooperative
agreement under this paragraph shall be subject to such
terms and conditions as the President may prescribe.
The contract or cooperative agreement may cover a
specific facility or specific facilities.
(C) Reimbursements.--Any State which expended funds
during the period beginning September 30, 1985, and
ending on the date of the enactment of this
subparagraph for response actions at any site included
on the National Priorities List and subject to a
cooperative agreement under this Act shall be
reimbursed for the share of costs of such actions for
which the Federal Government is responsible under this
Act.
(2) If the President enters into a cost-sharing agreement
pursuant to subsection (c) of this section or a contract or
cooperative agreement pursuant to this subsection, and the
State or political subdivision thereof fails to comply with any
requirements of the contract, the President may, after
providing sixty days notice, seek in the appropriate Federal
district court to enforce the contract or to recover any funds
advanced or any costs incurred because of the breach of the
contract by the State or political subdivision.
(3) Where a State or a political subdivision thereof is
acting in behalf of the President, the President is authorized
to provide technical and legal assistance in the administration
and enforcement of any contract or subcontract in connection
with response actions assisted under this title, and to
intervene in any civil action involving the enforcement of such
contract or subcontract.
(4) Where two or more noncontiguous facilities are reasonably
related on the basis of geography, or on the basis of the
threat, or potential threat to the public health or welfare or
the environment, the President may, in his discretion, treat
these related facilities as one for purposes of this section.
(e) Information Gathering and Access.--
(1) Action authorized.--Any officer, employee, or
representative of the President, duly designated by the
President, is authorized to take action under paragraph
(2), (3), or (4) (or any combination thereof) at a
vessel, facility, establishment, place, property, or
location or, in the case of paragraph (3) or (4), at
any vessel, facility, establishment, place, property,
or location which is adjacent to the vessel, facility,
establishment, place, property, or location referred to
in such paragraph (3) or (4). Any duly designated
officer, employee, or representative of a State or
political subdivision under a contract or cooperative
agreement under subsection (d)(1) is also authorized to
take such action. The authority of paragraphs (3) and
(4) may be exercised only if there is a reasonable
basis to believe there may be a release or threat of
release of a hazardous substance or pollutant or
contaminant. The authority of this subsection may be
exercised only for the purposes of determining the need
for response, or choosing or taking any response action
under this title, or otherwise enforcing the provisions
of this title.
(2) Access to information.--Any officer, employee, or
representative described in paragraph (1) may require
any person who has or may have information relevant to
any of the following to furnish, upon reasonable
notice, information or documents relating to such
matter:
(A) The identification, nature, and quantity
of materials which have been or are generated,
treated, stored, or disposed of at a vessel or
facility or transported to a vessel or
facility.
(B) The nature or extent of a release or
threatened release of a hazardous substance or
pollutant or contaminant at or from a vessel or
facility.
(C) Information relating to the ability of a
person to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either
(i) shall grant any such officer, employee, or
representative access at all reasonable times to any
vessel, facility, establishment, place, property, or
location to inspect and copy all documents or records
relating to such matters or (ii) shall copy and furnish
to the officer, employee, or representative all such
documents or records, at the option and expense of such
person.
(3) Entry.--Any officer, employee, or representative
described in paragraph (1) is authorized to enter at
reasonable times any of the following:
(A) Any vessel, facility, establishment, or
other place or property where any hazardous
substance or pollutant or contaminant may be or
has been generated, stored, treated, disposed
of, or transported from.
(B) Any vessel, facility, establishment, or
other place or property from which or to which
a hazardous substance or pollutant or
contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or
other place or property where such release is
or may be threatened.
(D) Any vessel, facility, establishment, or
other place or property where entry is needed
to determine the need for response or the
appropriate response or to effectuate a
response action under this title.
(4) Inspection and samples.--
(A) Authority.--Any officer, employee or
representative described in paragraph (1) is
authorized to inspect and obtain samples from
any vessel, facility, establishment, or other
place or property referred to in paragraph (3)
or from any location of any suspected hazardous
substance or pollutant or contaminant. Any such
officer, employee, or representative is
authorized to inspect and obtain samples of any
containers or labeling for suspected hazardous
substances or pollutants or contaminants. Each
such inspection shall be completed with
reasonable promptness.
(B) Samples.--If the officer, employee, or
representative obtains any samples, before
leaving the premises he shall give to the
owner, operator, tenant, or other person in
charge of the place from which the samples were
obtained a receipt describing the sample
obtained and, if requested, a portion of each
such sample. A copy of the results of any
analysis made of such samples shall be
furnished promptly to the owner, operator,
tenant, or other person in charge, if such
person can be located.
(5) Compliance orders.--
(A) Issuance.--If consent is not granted
regarding any request made by an officer,
employee, or representative under paragraph
(2), (3), or (4), the President may issue an
order directing compliance with the request.
The order may be issued after such notice and
opportunity for consultation as is reasonably
appropriate under the circumstances.
(B) Compliance.--The President may ask the
Attorney General to commence a civil action to
compel compliance with a request or order
referred to in subparagraph (A). Where there is
a reasonable basis to believe there may be a
release or threat of a release of a hazardous
substance or pollutant or contaminant, the
court shall take the following actions:
(i) In the case of interference with
entry or inspection, the court shall
enjoin such interference or direct
compliance with orders to prohibit
interference with entry or inspection
unless under the circumstances of the
case the demand for entry or inspection
is arbitrary and capricious, an abuse
of discretion, or otherwise not in
accordance with law.
(ii) In the case of information or
document requests or orders, the court
shall enjoin interference with such
information or document requests or
orders or direct compliance with the
requests or orders to provide such
information or documents unless under
the circumstances of the case the
demand for information or documents is
arbitrary and capricious, an abuse of
discretion, or otherwise not in
accordance with law.
The court may assess a civil penalty not to
exceed $25,000 for each day of noncompliance
against any person who unreasonably fails to
comply with the provisions of paragraph (2),
(3), or (4) or an order issued pursuant to
subparagraph (A) of this paragraph.
(6) Other authority.--Nothing in this subsection
shall preclude the President from securing access or
obtaining information in any other lawful manner.
(7) Confidentiality of information.--(A) Any records,
reports, or information obtained from any person under
this section (including records, reports, or
information obtained by representatives of the
President) shall be available to the public, except
that upon a showing satisfactory to the President (or
the State, as the case may be) by any person that
records, reports, or information, or particular part
thereof (other than health or safety effects data), to
which the President (or the State, as the case may be)
or any officer, employee, or representative has access
under this section if made public would divulge
information entitled to protection under section 1905
of title 18 of the United States Code, such information
or particular portion thereof shall be considered
confidential in accordance with the purposes of that
section, except that such record, report, document or
information may be disclosed to other officers,
employees, or authorized representatives of the United
States concerned with carrying out this Act, or when
relevant in any proceeding under this Act.
(B) Any person not subject to the provisions of
section 1905 of title 18 of the United States Code who
knowingly and willfully divulges or discloses any
information entitled to protection under this
subsection shall, upon conviction, be subject to a fine
of not more than $5,000 or to imprisonment not to
exceed one year, or both.
(C) In submitting data under this Act, a person
required to provide such data may (i) designate the
data which such person believes is entitled to
protection under this subsection and (ii) submit such
designated data separately from other data submitted
under this Act. A designation under this paragraph
shall be made in writing and in such manner as the
President may prescribe by regulation.
(D) Notwithstanding any limitation contained in this
section or any other provision of law, all information
reported to or otherwise obtained by the President (or
any representative of the President) under this Act
shall be made available, upon written request of any
duly authorized committee of the Congress, to such
committee.
(E) No person required to provide information under
this Act may claim that the information is entitled to
protection under this paragraph unless such person
shows each of the following:
(i) Such person has not disclosed the
information to any other person, other than a
member of a local emergency planning committee
established under title III of the Amendments
and Reauthorization Act of 1986, an officer or
employee of the United States or a State or
local government, an employee of such person,
or a person who is bound by a confidentiality
agreement, and such person has taken reasonable
measures to protect the confidentiality of such
information and intends to continue to take
such measures.
(ii) The information is not required to be
disclosed, or otherwise made available, to the
public under any other Federal or State law.
(iii) Disclosure of the information is likely
to cause substantial harm to the competitive
position of such person.
(iv) The specific chemical identity, if
sought to be protected, is not readily
discoverable through reverse engineering.
(F) The following information with respect to any
hazardous substance at the facility or vessel shall not
be entitled to protection under this paragraph:
(i) The trade name, common name, or generic
class or category of the hazardous substance.
(ii) The physical properties of the
substance, including its boiling point, melting
point, flash point, specific gravity, vapor
density, solubility in water, and vapor
pressure at 20 degrees celsius.
(iii) The hazards to health and the
environment posed by the substance, including
physical hazards (such as explosion) and
potential acute and chronic health hazards.
(iv) The potential routes of human exposure
to the substance at the facility,
establishment, place, or property being
investigated, entered, or inspected under this
subsection.
(v) The location of disposal of any waste
stream.
(vi) Any monitoring data or analysis of
monitoring data pertaining to disposal
activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) In awarding contracts to any person engaged in response
actions, the President or the State, in any case where it is
awarding contracts pursuant to a contract entered into under
subsection (d) of this section, shall require compliance with
Federal health and safety standards established under section
301(f) of this Act by contractors and subcontractors as a
condition of such contracts.
(g)(1) All laborers and mechanics employed by contractors or
subcontractors in the performance of construction, repair, or
alteration work funded in whole or in part under this section
shall be paid wages at rates not less than those prevailing on
projects of a character similar in the locality as determined
by the Secretary of Labor in accordance with the Davis-Bacon
Act. The President shall not approve any such funding without
first obtaining adequate assurance that required labor
standards will be maintained upon the construction work.
(2) The Secretary of Labor shall have, with respect to the
labor standards specified in paragraph (1), the authority and
functions set forth in Reorganization Plan Numbered 14 of 1950
(15 F.R. 3176; 64 Stat. 1267) and section 276c of title 40 of
the United States Code.
(h) Notwithstanding any other provision of law, subject to
the provisions of section 111 of this Act, the President may
authorize the use of such emergency procurement powers as he
deems necessary to effect the purpose of this Act. Upon
determination that such procedures are necessary, the President
shall promulgate regulations prescribing the circumstances
under which such authority shall be used and the procedures
governing the use of such authority.
(i)(1) There is hereby established within the Public Health
Service an agency, to be known as the Agency for Toxic
Substances and Disease Registry, which shall report directly to
the Surgeon General of the United States. The Administrator of
said Agency shall, with the cooperation of the Administrator of
the Environmental Protection Agency, the Commissioner of the
Food and Drug Administration, the Directors of the National
Institute of Medicine, National Institute of Environmental
Health Sciences, National Institute of Occupational Safety and
Health, Centers for Disease Control and Prevention, the
Administrator of the Occupational Safety and Health
Administration, the Administrator of the Social Security
Administration, the Secretary of Transportation, and
appropriate State and local health officials, effectuate and
implement the health related authorities of this Act. In
addition, said Administrator shall--
(A) in cooperation with the States, establish and
maintain a national registry of serious diseases and
illnesses and a national registry of persons exposed to
toxic substances;
(B) establish and maintain inventory of literature,
research, and studies on the health effects of toxic
substances;
(C) in cooperation with the States, and other
agencies of the Federal Government, establish and
maintain a complete listing of areas closed to the
public or otherwise restricted in use because of toxic
substance contamination;
(D) in cases of public health emergencies caused or
believed to be caused by exposure to toxic substances,
provide medical care and testing to exposed
individuals, including but not limited to tissue
sampling, chromosomal testing where appropriate,
epidemiological studies, or any other assistance
appropriate under the circumstances; and
(E) either independently or as part of other health
status survey, conduct periodic survey and screening
programs to determine relationships between exposure to
toxic substances and illness. In cases of public health
emergencies, exposed persons shall be eligible for
admission to hospitals and other facilities and
services operated or provided by the Public Health
Service.
(2)(A) Within 6 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator
of the Agency for Toxic Substances and Disease Registry (ATSDR)
and the Administrator of the Environmental Protection Agency
(``EPA'') shall prepare a list, in order of priority, of at
least 100 hazardous substances which are most commonly found at
facilities on the National Priorities List and which, in their
sole discretion, they determine are posing the most significant
potential threat to human health due to their known or
suspected toxicity to humans and the potential for human
exposure to such substances at facilities on the National
Priorities List or at facilities to which a response to a
release or a threatened release under this section is under
consideration.
(B) Within 24 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator
of ATSDR and the Administrator of EPA shall revise the list
prepared under subparagraph (A). Such revision shall include,
in order of priority, the addition of 100 or more such
hazardous substances. In each of the 3 consecutive 12-month
periods that follow, the Administrator of ATSDR and the
Administrator of EPA shall revise, in the same manner as
provided in the 2 preceding sentences, such list to include not
fewer than 25 additional hazardous substances per revision. The
Administrator of ATSDR and the Administrator of EPA shall not
less often than once every year thereafter revise such list to
include additional hazardous substances in accordance with the
criteria in subparagraph (A).
(3) Based on all available information, including information
maintained under paragraph (1)(B) and data developed and
collected on the health effects of hazardous substances under
this paragraph, the Administrator of ATSDR shall prepare
toxicological profiles of each of the substances listed
pursuant to paragraph (2). The toxicological profiles shall be
prepared in accordance with guidelines developed by the
Administrator of ATSDR and the Administrator of EPA. Such
profiles shall include, but not be limited to each of the
following:
(A) An examination, summary, and interpretation of
available toxicological information and epidemiologic
evaluations on a hazardous substance in order to
ascertain the levels of significant human exposure for
the substance and the associated acute, subacute, and
chronic health effects.
(B) A determination of whether adequate information
on the health effects of each substance is available or
in the process of development to determine levels of
exposure which present a significant risk to human
health of acute, subacute, and chronic health effects.
(C) Where appropriate, an identification of
toxicological testing needed to identify the types or
levels of exposure that may present significant risk of
adverse health effects in humans.
Any toxicological profile or revision thereof shall reflect the
Administrator of ATSDR's assessment of all relevant
toxicological testing which has been peer reviewed. The
profiles required to be prepared under this paragraph for those
hazardous substances listed under subparagraph (A) of paragraph
(2) shall be completed, at a rate of no fewer than 25 per year,
within 4 years after the enactment of the Superfund Amendments
and Reauthorization Act of 1986. A profile required on a
substance listed pursuant to subparagraph (B) of paragraph (2)
shall be completed within 3 years after addition to the list.
The profiles prepared under this paragraph shall be of those
substances highest on the list of priorities under paragraph
(2) for which profiles have not previously been prepared.
Profiles required under this paragraph shall be revised and
republished as necessary, but no less often than once every 3
years. Such profiles shall be provided to the States and made
available to other interested parties.
(4) The Administrator of the ATSDR shall provide
consultations upon request on health issues relating to
exposure to hazardous or toxic substances, on the basis of
available information, to the Administrator of EPA, State
officials, and local officials. Such consultations to
individuals may be provided by States under cooperative
agreements established under this Act.
(5)(A) For each hazardous substance listed pursuant to
paragraph (2), the Administrator of ATSDR (in consultation with
the Administrator of EPA and other agencies and programs of the
Public Health Service) shall assess whether adequate
information on the health effects of such substance is
available. For any such substance for which adequate
information is not available (or under development), the
Administrator of ATSDR, in cooperation with the Director of the
National Toxicology Program, shall assure the initiation of a
program of research designed to determine the health effects
(and techniques for development of methods to determine such
health effects) of such substance. Where feasible, such program
shall seek to develop methods to determine the health effects
of such substance in combination with other substances with
which it is commonly found. Before assuring the initiation of
such program, the Administrator of ATSDR shall consider
recommendations of the Interagency Testing Committee
established under section 4(e) of the Toxic Substances Control
Act on the types of research that should be done. Such program
shall include, to the extent necessary to supplement existing
information, but shall not be limited to--
(i) laboratory and other studies to determine short,
intermediate, and long-term health effects;
(ii) laboratory and other studies to determine organ-
specific, site-specific, and system-specific acute and
chronic toxicity;
(iii) laboratory and other studies to determine the
manner in which such substances are metabolized or to
otherwise develop an understanding of the biokinetics
of such substances; and
(iv) where there is a possibility of obtaining human
data, the collection of such information.
(B) In assessing the need to perform laboratory and other
studies, as required by subparagraph (A), the Administrator of
ATSDR shall consider--
(i) the availability and quality of existing test
data concerning the substance on the suspected health
effect in question;
(ii) the extent to which testing already in progress
will, in a timely fashion, provide data that will be
adequate to support the preparation of toxicological
profiles as required by paragraph (3); and
(iii) such other scientific and technical factors as
the Administrator of ATSDR may determine are necessary
for the effective implementation of this subsection.
(C) In the development and implementation of any research
program under this paragraph, the Administrator of ATSDR and
the Administrator of EPA shall coordinate such research program
implemented under this paragraph with the National Toxicology
Program and with programs of toxicological testing established
under the Toxic Substances Control Act and the Federal
Insecticide, Fungicide and Rodenticide Act. The purpose of such
coordination shall be to avoid duplication of effort and to
assure that the hazardous substances listed pursuant to this
subsection are tested thoroughly at the earliest practicable
date. Where appropriate, consistent with such purpose, a
research program under this paragraph may be carried out using
such programs of toxicological testing.
(D) It is the sense of the Congress that the costs of
research programs under this paragraph be borne by the
manufacturers and processors of the hazardous substance in
question, as required in programs of toxicological testing
under the Toxic Substances Control Act. Within 1 year after the
enactment of the Superfund Amendments and Reauthorization Act
of 1986, the Administrator of EPA shall promulgate regulations
which provide, where appropriate, for payment of such costs by
manufacturers and processors under the Toxic Substances Control
Act, and registrants under the Federal Insecticide, Fungicide,
and Rodenticide Act, and recovery of such costs from
responsible parties under this Act.
(6)(A) The Administrator of ATSDR shall perform a health
assessment for each facility on the National Priorities List
established under section 105. Such health assessment shall be
completed not later than December 10, 1988, for each facility
proposed for inclusion on such list prior to the date of the
enactment of the Superfund Amendments and Reauthorization Act
of 1986 or not later than one year after the date of proposal
for inclusion on such list for each facility proposed for
inclusion on such list after such date of enactment.
(B) The Administrator of ATSDR may perform health assessments
for releases or facilities where individual persons or licensed
physicians provide information that individuals have been
exposed to a hazardous substance, for which the probable source
of such exposure is a release. In addition to other methods
(formal or informal) of providing such information, such
individual persons or licensed physicians may submit a petition
to the Administrator of ATSDR providing such information and
requesting a health assessment. If such a petition is submitted
and the Administrator of ATSDR does not initiate a health
assessment, the Administrator of ATSDR shall provide a written
explanation of why a health assessment is not appropriate.
(C) In determining the priority in which to conduct health
assessments under this subsection, the Administrator of ATSDR,
in consultation with the Administrator of EPA, shall give
priority to those facilities at which there is documented
evidence of the release of hazardous substances, at which the
potential risk to human health appears highest, and for which
in the judgment of the Administrator of ATSDR existing health
assessment data are inadequate to assess the potential risk to
human health as provided in subparagraph (F). In determining
the priorities for conducting health assessments under this
subsection, the Administrator of ATSDR shall consider the
National Priorities List schedules and the needs of the
Environmental Protection Agency and other Federal agencies
pursuant to schedules for remedial investigation and
feasibility studies.
(D) Where a health assessment is done at a site on the
National Priorities List, the Administrator of ATSDR shall
complete such assessment promptly and, to the maximum extent
practicable, before the completion of the remedial
investigation and feasibility study at the facility concerned.
(E) Any State or political subdivision carrying out a health
assessment for a facility shall report the results of the
assessment to the Administrator of ATSDR and the Administrator
of EPA and shall include recommendations with respect to
further activities which need to be carried out under this
section. The Administrator of ATSDR shall state such
recommendation in any report on the results of any assessment
carried out directly by the Administrator of ATSDR for such
facility and shall issue periodic reports which include the
results of all the assessments carried out under this
subsection.
(F) For the purposes of this subsection and section
111(c)(4), the term ``health assessments'' shall include
preliminary assessments of the potential risk to human health
posed by individual sites and facilities, based on such factors
as the nature and extent of contamination, the existence of
potential pathways of human exposure (including ground or
surface water contamination, air emissions, and food chain
contamination), the size and potential susceptibility of the
community within the likely pathways of exposure, the
comparison of expected human exposure levels to the short-term
and long-term health effects associated with identified
hazardous substances and any available recommended exposure or
tolerance limits for such hazardous substances, and the
comparison of existing morbidity and mortality data on diseases
that may be associated with the observed levels of exposure.
The Administrator of ATSDR shall use appropriate data, risk
assessments, risk evaluations and studies available from the
Administrator of EPA.
(G) The purpose of health assessments under this subsection
shall be to assist in determining whether actions under
paragraph (11) of this subsection should be taken to reduce
human exposure to hazardous substances from a facility and
whether additional information on human exposure and associated
health risks is needed and should be acquired by conducting
epidemiological studies under paragraph (7), establishing a
registry under paragraph (8), establishing a health
surveillance program under paragraph (9), or through other
means. In using the results of health assessments for
determining additional actions to be taken under this section,
the Administrator of ATSDR may consider additional information
on the risks to the potentially affected population from all
sources of such hazardous substances including known point or
nonpoint sources other than those from the facility in
question.
(H) At the completion of each health assessment, the
Administrator of ATSDR shall provide the Administrator of EPA
and each affected State with the results of such assessment,
together with any recommendations for further actions under
this subsection or otherwise under this Act. In addition, if
the health assessment indicates that the release or threatened
release concerned may pose a serious threat to human health or
the environment, the Administrator of ATSDR shall so notify the
Administrator of EPA who shall promptly evaluate such release
or threatened release in accordance with the hazard ranking
system referred to in section 105(a)(8)(A) to determine whether
the site shall be placed on the National Priorities List or, if
the site is already on the list, the Administrator of ATSDR may
recommend to the Administrator of EPA that the site be accorded
a higher priority.
(7)(A) Whenever in the judgment of the Administrator of ATSDR
it is appropriate on the basis of the results of a health
assessment, the Administrator of ATSDR shall conduct a pilot
study of health effects for selected groups of exposed
individuals in order to determine the desirability of
conducting full scale epidemiological or other health studies
of the entire exposed population.
(B) Whenever in the judgment of the Administrator of ATSDR it
is appropriate on the basis of the results of such pilot study
or other study or health assessment, the Administrator of ATSDR
shall conduct such full scale epidemiological or other health
studies as may be necessary to determine the health effects on
the population exposed to hazardous substances from a release
or threatened release. If a significant excess of disease in a
population is identified, the letter of transmittal of such
study shall include an assessment of other risk factors, other
than a release, that may, in the judgment of the peer review
group, be associated with such disease, if such risk factors
were not taken into account in the design or conduct of the
study.
(8) In any case in which the results of a health assessment
indicate a potential significant risk to human health, the
Administrator of ATSDR shall consider whether the establishment
of a registry of exposed persons would contribute to
accomplishing the purposes of this subsection, taking into
account circumstances bearing on the usefulness of such a
registry, including the seriousness or unique character of
identified diseases or the likelihood of population migration
from the affected area.
(9) Where the Administrator of ATSDR has determined that
there is a significant increased risk of adverse health effects
in humans from exposure to hazardous substances based on the
results of a health assessment conducted under paragraph (6),
an epidemiologic study conducted under paragraph (7), or an
exposure registry that has been established under paragraph
(8), and the Administrator of ATSDR has determined that such
exposure is the result of a release from a facility, the
Administrator of ATSDR shall initiate a health surveillance
program for such population. This program shall include but not
be limited to--
(A) periodic medical testing where appropriate of
population subgroups to screen for diseases for which
the population or subgroup is at significant increased
risk; and
(B) a mechanism to refer for treatment those
individuals within such population who are screened
positive for such diseases.
(10) Two years after the date of the enactment of the
Superfund Amendments and Reauthorization Act of 1986, and every
2 years thereafter, the Administrator of ATSDR shall prepare
and submit to the Administrator of EPA and to the Congress a
report on the results of the activities of ATSDR regarding--
(A) health assessments and pilot health effects
studies conducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been listed under
paragraph (2), toxicological profiles which have been
developed, and toxicologic testing which has been
conducted or which is being conducted under this
subsection;
(D) registries established under paragraph (8); and
(E) an overall assessment, based on the results of
activities conducted by the Administrator of ATSDR of
the linkage between human exposure to individual or
combinations of hazardous substances due to releases
from facilities covered by this Act or the Solid Waste
Disposal Act and any increased incidence or prevalence
of adverse health effects in humans.
(11) If a health assessment or other study carried out under
this subsection contains a finding that the exposure concerned
presents a significant risk to human health, the President
shall take such steps as may be necessary to reduce such
exposure and eliminate or substantially mitigate the
significant risk to human health. Such steps may include the
use of any authority under this Act, including, but not limited
to--
(A) provision of alternative water supplies, and
(B) permanent or temporary relocation of individuals.
In any case in which information is insufficient, in the
judgment of the Administrator of ATSDR or the President to
determine a significant human exposure level with respect to a
hazardous substance, the President may take such steps as may
be necessary to reduce the exposure of any person to such
hazardous substance to such level as the President deems
necessary to protect human health.
(12) In any case which is the subject of a petition, a health
assessment or study, or a research program under this
subsection, nothing in this subsection shall be construed to
delay or otherwise affect or impair the authority of the
President, the Administrator of ATSDR or the Administrator of
EPA to exercise any authority vested in the President, the
Administrator of ATSDR or the Administrator of EPA under any
other provision of law (including, but not limited to, the
imminent hazard authority of section 7003 of the Solid Waste
Disposal Act) or the response and abatement authorities of this
Act.
(13) All studies and results of research conducted under this
subsection (other than health assessments) shall be reported or
adopted only after appropriate peer review. Such peer review
shall be completed, to the maximum extent practicable, within a
period of 60 days. In the case of research conducted under the
National Toxicology Program, such peer review may be conducted
by the Board of Scientific Counselors. In the case of other
research, such peer review shall be conducted by panels
consisting of no less than three nor more than seven members,
who shall be disinterested scientific experts selected for such
purpose by the Administrator of ATSDR or the Administrator of
EPA, as appropriate, on the basis of their reputation for
scientific objectivity and the lack of institutional ties with
any person involved in the conduct of the study or research
under review. Support services for such panels shall be
provided by the Agency for Toxic Substances and Disease
Registry, or by the Environmental Protection Agency, as
appropriate.
(14) In the implementation of this subsection and other
health-related authorities of this Act, the Administrator of
ATSDR shall assemble, develop as necessary, and distribute to
the States, and upon request to medical colleges, physicians,
and other health professionals, appropriate educational
materials (including short courses) on the medical
surveillance, screening, and methods of diagnosis and treatment
of injury or disease related to exposure to hazardous
substances (giving priority to those listed in paragraph (2)),
through such means as the Administrator of ATSDR deems
appropriate.
(15) The activities of the Administrator of ATSDR described
in this subsection and section 111(c)(4) shall be carried out
by the Administrator of ATSDR, either directly or through
cooperative agreements with States (or political subdivisions
thereof) which the Administrator of ATSDR determines are
capable of carrying out such activities. Such activities shall
include provision of consultations on health information, the
conduct of health assessments, including those required under
section 3019(b) of the Solid Waste Disposal Act, health
studies, registries, and health surveillance.
(16) The President shall provide adequate personnel for
ATSDR, which shall not be fewer than 100 employees. For
purposes of determining the number of employees under this
subsection, an employee employed by ATSDR on a part-time career
employment basis shall be counted as a fraction which is
determined by dividing 40 hours into the average number of
hours of such employee's regularly scheduled workweek.
(17) In accordance with section 120 (relating to Federal
facilities), the Administrator of ATSDR shall have the same
authorities under this section with respect to facilities owned
or operated by a department, agency, or instrumentality of the
United States as the Administrator of ATSDR has with respect to
any nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is
appropriate for purposes of this section to treat a pollutant
or contaminant as a hazardous substance, such pollutant or
contaminant shall be treated as a hazardous substance for such
purpose.
(j) Acquisition of Property.--
(1) Authority.--The President is authorized to
acquire, by purchase, lease, condemnation, donation, or
otherwise, any real property or any interest in real
property that the President in his discretion
determines is needed to conduct a remedial action under
this Act. There shall be no cause of action to compel
the President to acquire any interest in real property
under this Act.
(2) State assurance.--The President may use the
authority of paragraph (1) for a remedial action only
if, before an interest in real estate is acquired under
this subsection, the State in which the interest to be
acquired is located assures the President, through a
contract or cooperative agreement or otherwise, that
the State will accept transfer of the interest
following completion of the remedial action.
(3) Exemption.--No Federal, State, or local
government agency shall be liable under this Act solely
as a result of acquiring an interest in real estate
under this subsection.
(k) Brownfields Revitalization Funding.--
(1) Definition of eligible entity.--In this
subsection, the term ``eligible entity'' means--
(A) a general purpose unit of local
government;
(B) a land clearance authority or other
quasi-governmental entity that operates under
the supervision and control of or as an agent
of a general purpose unit of local government;
(C) a government entity created by a State
legislature;
(D) a regional council or group of general
purpose units of local government;
(E) a redevelopment agency that is chartered
or otherwise sanctioned by a State;
(F) a State;
(G) an Indian Tribe other than in Alaska;
[or]
(H) an Alaska Native Regional Corporation and
an Alaska Native Village Corporation as those
terms are defined in the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 and following)
and the Metlakatla Indian community[.];
(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).
(2) Brownfield site characterization and assessment
grant program.--
(A) Establishment of program.--The
Administrator shall establish a program to--
(i) provide grants to inventory,
characterize, assess, and conduct
planning related to brownfield sites
under subparagraph (B); and
(ii) perform targeted site
assessments at brownfield sites.
(B) Assistance for site characterization and
assessment.--
(i) In general.--On approval of an
application made by an eligible entity,
the Administrator may make a grant to
the eligible entity to be used for
programs to inventory, characterize,
assess, and conduct planning related to
one or more brownfield sites.
(ii) Site characterization and
assessment.--A site characterization
and assessment carried out with the use
of a grant under clause (i) shall be
performed in accordance with section
101(35)(B).
(C) Exemption for certain publicly owned
brownfield sites.--Notwithstanding any other
provision of law, an eligible entity described
in any of subparagraphs (A) through (H) of
paragraph (1) may receive a grant under this
paragraph for property acquired by that
eligible entity prior to January 11, 2002, even
if such eligible entity does not qualify as a
bona fide prospective purchaser, so long as the
eligible entity has not caused or contributed
to a release or threatened release of a
hazardous substance at the property.
(3) Grants and loans for brownfield remediation.--
(A) Grants provided by the president.--
[Subject to paragraphs (4) and (5)] Subject to
paragraphs (5) and (6), the President shall
establish a program to provide grants to--
(i) eligible entities, to be used for
capitalization of revolving loan funds;
and
(ii) eligible entities [or nonprofit
organizations], where warranted, as
determined by the President based on
considerations under subparagraph (C),
to be used directly for remediation of
one or more brownfield sites owned by
the [entity or organization] eligible
entity that receives the grant and in
amounts not to exceed [$200,000 for
each site to be remediated] $600,000
for each site to be remediated, which
limit may be waived by the
Administrator, but not to exceed a
total of $950,000 for each site, based
on the anticipated level of
contamination, size, or ownership
status of the site.
(B) Loans and grants provided by eligible
entities.--An eligible entity that receives a
grant under subparagraph (A)(i) shall use the
grant funds to provide assistance for the
remediation of brownfield sites in the form
of--
(i) one or more loans to an eligible
entity, a site owner, a site developer,
or another person; or
(ii) one or more grants to an
eligible entity [or other nonprofit
organization], where warranted, as
determined by the eligible entity that
is providing the assistance, based on
considerations under subparagraph (C),
to remediate sites owned by the
eligible entity [or nonprofit
organization] that receives the grant.
(C) Considerations.--In determining whether a
grant under subparagraph (A)(ii) or (B)(ii) is
warranted, the President or the eligible
entity, as the case may be, shall take into
consideration--
(i) the extent to which a grant will
facilitate the creation of,
preservation of, or addition to a park,
a greenway, undeveloped property,
recreational property, or other
property used for nonprofit purposes;
(ii) the extent to which a grant will
meet the needs of a community that has
an inability to draw on other sources
of funding for environmental
remediation and subsequent
redevelopment of the area in which a
brownfield site is located because of
the small population or low income of
the community;
(iii) the extent to which a grant
will facilitate the use or reuse of
existing infrastructure;
(iv) the benefit of promoting the
long-term availability of funds from a
revolving loan fund for brownfield
remediation; and
(v) such other similar factors as the
Administrator considers appropriate to
consider for the purposes of this
subsection.
(D) Transition.--Revolving loan funds that
have been established before the date of the
enactment of this subsection may be used in
accordance with this paragraph.
(E) Exemption for certain publicly owned
brownfield sites.--Notwithstanding any other
provision of law, an eligible entity described
in any of subparagraphs (A) through (H) of
paragraph (1) may receive a grant or loan under
this paragraph for property acquired by that
eligible entity prior to January 11, 2002, even
if such eligible entity does not qualify as a
bona fide prospective purchaser, so long as the
eligible entity has not caused or contributed
to a release or threatened release of a
hazardous substance at the property.
(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 criteria under subparagraph (C) and the
considerations under paragraph (3)(C), to carry
out inventory, characterization, assessment,
planning, or remediation activities at 1 or
more brownfield sites in an area proposed by
the eligible entity.
(B) Grant amounts.--
(i) Individual grant amounts.--A
grant awarded under this paragraph may
not exceed $950,000.
(ii) Cumulative grant amounts.--The
total amount of grants awarded for each
fiscal year under this paragraph may
not exceed 15 percent of the amounts
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 the 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 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 5 years
after the date on which the grant is awarded to
the eligible entity, unless the Administrator
provides an extension.
[(4)] (5) General provisions.--
(A) Maximum grant amount.--
(i) Brownfield site characterization
and assessment.--
(I) In general.--A grant
under paragraph (2) may be
awarded to an eligible entity
on a community-wide or site-by-
site basis, and shall not
exceed, for any individual
brownfield site covered by the
grant, $200,000.
(II) Waiver.--The
Administrator may waive the
$200,000 limitation under
subclause (I) to permit the
brownfield site to receive a
grant of not to exceed
$350,000, based on the
anticipated level of
contamination, size, or status
of ownership of the site.
(ii) Brownfield remediation.--A grant
under paragraph (3)(A)(i) may be
awarded to an eligible entity on a
community-wide or site-by-site basis,
not to exceed $1,000,000 per eligible
entity. The Administrator may make an
additional grant to an eligible entity
described in the previous sentence for
any year after the year for which the
initial grant is made, taking into
consideration--
(I) the number of sites and
number of communities that are
addressed by the revolving loan
fund;
(II) the demand for funding
by eligible entities that have
not previously received a grant
under this subsection;
(III) the demonstrated
ability of the eligible entity
to use the revolving loan fund
to enhance remediation and
provide funds on a continuing
basis; and
(IV) such other similar
factors as the Administrator
considers appropriate to carry
out this subsection.
(B) Prohibition.--
(i) In general.--No part of a grant
or loan under this subsection may be
used for the payment of--
(I) a penalty or fine;
(II) a Federal cost-share
requirement;
[(III) an administrative
cost;]
[(IV)] (III) a response cost
at a brownfield site for which
the recipient of the grant or
loan is potentially liable
under section 107; or
[(V)] (IV) a cost of
compliance with any Federal law
(including a Federal law
specified in section
101(39)(B)), excluding the cost
of compliance with laws
applicable to the cleanup.
[(ii) Exclusions.--For the purposes
of clause (i)(III), the term
``administrative cost'' does not
include the cost of--
[(I) investigation and
identification of the extent of
contamination;
[(II) design and performance
of a response action; or
[(III) monitoring of a
natural resource.
[(iii)] (ii) Exception.--
[Notwithstanding clause (i)(IV)]
Notwithstanding clause (i)(III), the
Administrator may use [up to 25 percent
of the] funds made available to carry
out this subsection to make a grant or
loan under this subsection to eligible
entities described in any of
subparagraphs (A) through (H) of
paragraph (1) that satisfy all of the
elements set forth in section 101(40)
to qualify as a bona fide prospective
purchaser, except that the date of
acquisition of the property was on or
before January 11, 2002.
(C) Assistance for development of local
government site remediation programs.--A local
government that receives a grant under this
subsection may use not to exceed 10 percent of
the grant funds to develop and implement a
brownfields program that may include--
(i) monitoring the health of
populations exposed to one or more
hazardous substances from a brownfield
site; and
(ii) monitoring and enforcement of
any institutional control used to
prevent human exposure to any hazardous
substance from a brownfield site.
(D) Insurance.--A recipient of a grant or
loan awarded under paragraph [(2) or (3)] (2),
(3), or (4) that performs a characterization,
assessment, or remediation of a brownfield site
may use a portion of the grant or loan to
purchase insurance for the characterization,
assessment, or remediation of that site.
(E) Administrative costs.--
(i) In general.--An eligible entity
may use up to 5 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 of a brownfield
site;
(II) design and performance
of a response action; or
(III) monitoring of a natural
resource.
[(5)] (6) Grant applications.--
(A) Submission.--
(i) In general.--
(I) Application.--An eligible
entity may submit to the
Administrator, through a
regional office of the
Environmental Protection Agency
and in such form as the
Administrator may require, an
application for a grant under
this subsection for one or more
brownfield sites (including
information on the criteria
used by the Administrator to
rank applications under
subparagraph (C), to the extent
that the information is
available).
(II) NCP requirements.--The
Administrator may include in
any requirement for submission
of an application under
subclause (I) a requirement of
the National Contingency Plan
only to the extent that the
requirement is relevant and
appropriate to the program
under this subsection.
(ii) Coordination.--The Administrator
shall coordinate with other Federal
agencies to assist in making eligible
entities aware of other available
Federal resources.
(iii) Guidance.--The Administrator
shall publish guidance to assist
eligible entities in applying for
grants under this subsection.
(B) Approval.--The Administrator shall--
(i) at least annually, complete a
review of applications for grants that
are received from eligible entities
under this subsection; and
(ii) award grants under this
subsection to eligible entities that
the Administrator determines have the
highest rankings under the ranking
criteria established under subparagraph
(C).
(C) Ranking criteria.--The Administrator
shall establish a system for ranking grant
applications received under this paragraph that
includes the following criteria:
(i) The extent to which a grant will
stimulate the availability of other
funds for environmental assessment or
remediation, and subsequent reuse, of
an area in which one or more brownfield
sites are located.
(ii) The potential of the proposed
project or the development plan for an
area in which one or more brownfield
sites are located to stimulate economic
development of the area on completion
of the cleanup.
(iii) The extent to which a grant
would address or facilitate the
identification and reduction of threats
to human health and the environment,
including threats in areas in which
there is a greater-than-normal
incidence of diseases or conditions
(including cancer, asthma, or birth
defects) that may be associated with
exposure to hazardous substances,
pollutants, or contaminants.
(iv) The extent to which a grant
would facilitate the use or reuse of
existing infrastructure.
(v) The extent to which a grant would
facilitate the creation of,
preservation of, or addition to a park,
a greenway, undeveloped property,
recreational property, or other
property used for nonprofit purposes.
(vi) The extent to which a grant
would meet the needs of a community
that has an inability to draw on other
sources of funding for environmental
remediation and subsequent
redevelopment of the area in which a
brownfield site is located because of
the small population or low income of
the community.
(vii) The extent to which the
applicant is eligible for funding from
other sources.
(viii) The extent to which a grant
will further the fair distribution of
funding between urban and nonurban
areas.
(ix) The extent to which the grant
provides for involvement of the local
community in the process of making
decisions relating to cleanup and
future use of a brownfield site.
(x) The extent to which a grant would
address or facilitate the
identification and reduction of threats
to the health or welfare of children,
pregnant women, minority or low-income
communities, or other sensitive
populations.
[(6)] (7) Implementation of brownfields programs.--
(A) Establishment of program.--The
Administrator may provide, or fund eligible
entities or nonprofit organizations to provide,
training, research, and technical assistance to
individuals and organizations, as appropriate,
to facilitate the inventory of brownfield
sites, site assessments, remediation of
brownfield sites, community involvement, or
site preparation.
(B) Funding restrictions.--The total Federal
funds to be expended by the Administrator under
this paragraph shall not exceed 15 percent of
the total amount appropriated to carry out this
subsection in any fiscal year.
[(7)] (8) Audits.--
(A) In general.--The Inspector General of the
Environmental Protection Agency shall conduct
such reviews or audits of grants and loans
under this subsection as the Inspector General
considers necessary to carry out this
subsection.
(B) Procedure.--An audit under this
subparagraph shall be conducted in accordance
with the auditing procedures of the General
Accounting Office, including chapter 75 of
title 31, United States Code.
(C) Violations.--If the Administrator
determines that a person that receives a grant
or loan under this subsection has violated or
is in violation of a condition of the grant,
loan, or applicable Federal law, the
Administrator may--
(i) terminate the grant or loan;
(ii) require the person to repay any
funds received; and
(iii) seek any other legal remedies
available to the Administrator.
(D) Report to congress.--Not later than 3
years after the date of the enactment of this
subsection, the Inspector General of the
Environmental Protection Agency shall submit to
Congress a report that provides a description
of the management of the program (including a
description of the allocation of funds under
this subsection).
[(8)] (9) Leveraging.--An eligible entity that
receives a grant under this subsection may use the
grant funds for a portion of a project at a brownfield
site for which funding is received from other sources
if the grant funds are used only for the purposes
described in paragraph [(2) or (3)] (2), (3), or (4).
[(9)] (10) Agreements.--Each grant or loan made under
this subsection shall--
(A) include a requirement of the National
Contingency Plan only to the extent that the
requirement is relevant and appropriate to the
program under this subsection, as determined by
the Administrator; and
(B) be subject to an agreement that--
(i) requires the recipient to--
(I) comply with all
applicable Federal and State
laws; and
(II) ensure that the cleanup
protects human health and the
environment;
(ii) requires that the recipient use
the grant or loan exclusively for
purposes specified in paragraph [(2) or
(3)] (2), (3), or (4), as applicable;
(iii) in the case of an application
by an eligible entity under paragraph
(3)(A), requires the eligible entity to
pay a matching share (which may be in
the form of a contribution of labor,
material, or services) of at least 20
percent, from non-Federal sources of
funding, unless the Administrator
determines that the matching share
would place an undue hardship on the
eligible entity; and
(iv) contains such other terms and
conditions as the Administrator
determines to be necessary to carry out
this subsection.
[(10)] (11) Facility other than brownfield site.--The
fact that a facility may not be a brownfield site
within the meaning of section 101(39)(A) has no effect
on the eligibility of the facility for assistance under
any other provision of Federal law.
[(11)] (12) Effect on federal laws.--Nothing in this
subsection affects any liability or response authority
under any Federal law, including--
(A) this Act (including the last sentence of
section 101(14));
(B) the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.);
(C) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
(D) the Toxic Substances Control Act (15
U.S.C. 2601 et seq.); and
(E) the Safe Drinking Water Act (42 U.S.C.
300f et seq.).
[(12) Funding.--
[(A) Authorization of appropriations.--There
is authorized to be appropriated to carry out
this subsection $200,000,000 for each of fiscal
years 2002 through 2006.
[(B) Use of certain funds.--Of the amount
made available under subparagraph (A),
$50,000,000, or, if the amount made available
is less than $200,000,000, 25 percent of the
amount made available, shall be used for site
characterization, assessment, and remediation
of facilities described in section
101(39)(D)(ii)(II).]
(13) Authorization of appropriations.--There is
authorized to be appropriated to carry out this
subsection $200,000,000 for each of fiscal years 2018
through 2022.
* * * * * * *
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
includes each of the elements, or is
taking reasonable steps to include each
of the elements, listed in paragraph
(2); or
(ii) is a party to a memorandum of
agreement with the Administrator for
voluntary response programs.
(B) Use of grants by states.--
(i) In general.--A State or Indian
tribe may use a grant under this
subsection to establish or enhance the
response program of the State or Indian
tribe.
(ii) Additional uses.--In addition to
the uses under clause (i), a State or
Indian tribe may use a grant under this
subsection to--
(I) capitalize a revolving
loan fund for brownfield
remediation under section
104(k)(3); or
(II) purchase insurance or
develop a risk sharing pool, an
indemnity 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 paragraph
(1)(A)(i) are the following:
(A) Timely survey and inventory of brownfield
sites in the State.
(B) Oversight and enforcement authorities 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
response action fails to complete the
necessary response activities,
including operation and maintenance or
long-term monitoring activities, the
necessary response activities are
completed.
(C) Mechanisms and resources to provide
meaningful opportunities for public
participation, including--
(i) public access to documents that
the State, Indian tribe, or party
conducting the cleanup is relying on or
developing in making cleanup decisions
or conducting 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 release of a
hazardous substance, pollutant,
or contaminant at a brownfield
site located in the community
in which the person works or
resides may request the conduct
of a site assessment; and
(II) an appropriate State
official shall consider and
appropriately respond to a
request under subclause (I).
(D) Mechanisms for approval of a cleanup
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
response action indicating that the response is
complete.
[(3) Funding.--There is authorized to be appropriated
to carry out this subsection $50,000,000 for each of
fiscal years 2002 through 2006.]
(3) Funding.--There is authorized to be appropriated
to carry out this subsection $50,000,000 for each of
fiscal years 2018 through 2022.
(b) Enforcement in Cases of a Release Subject 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,
pollutant, or contaminant; and
(ii) a person is conducting or has
completed a response action regarding
the specific release that is addressed
by the response action that is in
compliance with the State program that
specifically governs response actions
for the protection of public health and
the environment,
the President may not use authority under this
Act to take an administrative or judicial
enforcement action under section 106(a) or to
take a judicial enforcement action to recover
response costs under section 107(a) against the
person regarding the specific release that is
addressed 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 release
at an eligible response site described in that
subparagraph if--
(i) the State requests that the
President 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 contamination has
migrated or is likely to migrate onto
property subject to the jurisdiction,
custody, or control of a department,
agency, 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
release 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
consultation with the State, determines
that information, that on the earlier
of the date on which cleanup was
approved or completed, was not known by
the State, as recorded in documents
prepared or relied on in selecting or
conducting the cleanup, has been
discovered regarding the contamination
or conditions at a facility such that
the contamination or conditions at the
facility present a threat requiring
further remediation to protect public
health or welfare 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 subparagraph
(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
actions 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 suitable for unrestricted use and, if
not, shall identify the institutional controls
relied on in the remedy. Each State and tribe
receiving financial assistance under subsection
(a) shall maintain 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 release 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 Administrator
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 Administrator 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 response 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
release, any actions that are
planned.
(iii) Immediate federal action.--The
Administrator may take action
immediately after giving notification
under clause (i) without waiting for a
State reply under clause (ii) if the
Administrator determines that one 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 demonstrating that enforcement action is
permitted under subparagraph (B).
(2) Savings provision.--
(A) Costs incurred prior to limitations.--
Nothing in paragraph (1) precludes the
President from seeking to recover costs
incurred prior to the date of the enactment of
this section or during a period in which the
limitations 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 the 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 implementation
by the President of statutory
authorities.
(3) Effective date.--This subsection applies only to
response actions conducted after February 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.).
* * * * * * *
ADDITIONAL VIEWS
I am grateful to Chairman Bill Shuster and Ranking Member
Peter DeFazio for their willingness to move H.R. 1758, the
Brownfields Reauthorization Act of 2017, through the Committee
on Transportation and Infrastructure.
Our bipartisan reauthorization of the U.S. Environmental
Protection Agency's (EPA) Brownfields Program will help our
communities across the country assess and clean up potentially
contaminated industrial sites to turn those blighted properties
into real assets.
However, in addition to the policy improvements we are
making in this reauthorization, the Brownfields Program
requires robust federal support. For that reason, I
respectfully submit these additional views to highlight the
need for Congress to provide the federal resources necessary to
make our Brownfields Program a continued success and to share
those benefits more widely across America.
Every Congressional District in America is home to at least
one brownfield. Over the past few years, the Subcommittee on
Water Resources and Environment has held multiple hearings on
the benefits that the Brownfields Program has for our
communities. Those hearings have underscored that some of the
best investments we can make are ones that grow our economies
and restore our environment. According to a 2007 EPA study,
every acre of brownfields redevelopment creates approximately
10 jobs. What's more, on average, every $1 dollar of the EPA's
Brownfields Program leverages about $18 in additional outside
investment.
With hundreds of thousands of brownfields sites across
America, we have an important opportunity to demonstrate our
bipartisan commitment to creating jobs and strengthening our
communities by providing robust federal funding for the
Brownfields Program. As Matt Zone, Councilman for Cleveland,
Ohio and witness for the National League of Cities, testified
during one Subcommittee on Water Resources and Environment
hearing, ``Investment in and cleanup of the brownfields sites
that are a blight on urban and rural communities across the
country is an investment in our nation's civic infrastructure,
and infrastructure investment is essential to moving America
forward.''
Despite the clear, demonstrated value of the Brownfields
Program, witness after witness testified before the
Subcommittee that the single most significant obstacle to the
success of the Brownfields Program is inadequate federal
funding.
According to the testimony of J. Christina Bollwage, Mayor
of Elizabeth, New Jersey and witness for the Conference of
Mayors, the ``EPA has had to turn away a lot of highly
qualified applicants due to lack of funding. EPA estimates that
for the past 5 years, over 1,600 requests for viable projects
were not awarded money because of limited funding. EPA
estimates that if they were able to provide funding to those
turned away applicants, an additional 54,000 jobs would have
been created along with $10.3 billion of leveraged funding.''
Multiple municipal and state witnesses, and other
brownfields stakeholders, recommended that Congress both
increase the authorized level of funding for EPA's Brownfields
Program and ensure that these increased levels are fully
appropriated on an annual basis.
Our bipartisan bill, that I introduced with my colleagues
Rep. John Katko, Committee on Transportation and
Infrastructure, Ranking Member Peter DeFazio, and Subcommittee
on Water Resources and Environment, Ranking Member Grace
Napolitano, would have provided $250 million annually for
brownfields site assessment and remediation grants. After
working with my Republican colleagues to make bipartisan
modifications to the bill during its markup, we agreed to
authorize the EPA's Brownfields Program at $200 million
annually. In the future, I look forward to working with my
colleagues to increase funding to the program to ensure it has
the resources necessary to clean up and assess the remaining,
more complicated and costly sites.
Hundreds of thousands of brownfields properties are a daily
eyesore, potential health hazard, and drag on the local economy
because Congress has failed to provide sufficient federal
funding. In fact, the demand for brownfields funding continues
to grow and EPA has only been able to fund about one quarter to
one third of the applications it receives. Increased investment
will return brownfields to productive uses, generate additional
tax revenues, improve the environment, grow jobs, and
revitalize communities all over America.
I remain committed to working with my colleagues in
Congress to move forward in reauthorizing the EPA's Brownfields
Program and restore earlier funding cuts made to this important
program so that we can provide our communities with the
resources they desperately need to rejuvenate these
underutilized areas.
Elizabeth H. Esty,
Member of Congress.
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