<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:73726.wais]
BROWNFIELDS LEGISLATION: ``THE BROWNFIELDS REVITALIZATION AND
EVIRONMENTAL RESTORATION ACT OF 2001,'' AND ``GILLMOR DISCUSSION
DRAFT,'' AND ``DEMOCRATIC DISCUSSION DRAFT''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 28, 2001
__________
Serial No. 107-43
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
_______
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_______________________________________________________________________
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COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia BART STUPAK, Michigan
BARBARA CUBIN, Wyoming ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois TOM SAWYER, Ohio
HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi TED STRICKLAND, Ohio
VITO FOSSELLA, New York DIANA DeGETTE, Colorado
ROY BLUNT, Missouri THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia BILL LUTHER, Minnesota
ED BRYANT, Tennessee LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Environment and Hazardous Materials
PAUL E. GILLMOR, Ohio, Chairman
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
STEVE LARGENT, Oklahoma EDOLPHUS TOWNS, New York
GREG GANSKE, Iowa SHERROD BROWN, Ohio
JOHN SHIMKUS, Illinois GENE GREEN, Texas
(Vice Chairman) KAREN McCARTHY, Missouri
HEATHER WILSON, New Mexico THOMAS M. BARRETT, Wisconsin
VITO FOSSELLA, New York BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California JANE HARMAN, California
CHARLES F. BASS, New Hampshire HENRY A. WAXMAN, California
JOSEPH R. PITTS, Pennsylvania PETER DEUTSCH, Florida
MARY BONO, California JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Billings, Hon. Leon G., State of Maryland Legislator......... 52
Bollwage, Hon. J. Christian, Mayor, City of Elizabeth, New
Jersey..................................................... 48
Crotty, Hon. Erin M., Commissioner, Department of
Environmental Conservation, State of New York.............. 39
DeMarco, Daniel R., Managing Director of Real Estate,
Campanelli Companies....................................... 77
Fisher, Hon. Linda, Deputy Administrator, Environmental
Protection Agency.......................................... 17
Garczynski, F. Gary, First Vice President, National
Association of Home Builders............................... 70
Gonzales, Hon. Javier, Commissioner, Santa Fe County, New
Mexico..................................................... 44
Hopkins, Ed, Director of Environment Quality, Sierra Club.... 92
Johnson, Gordon J., Deputy Bureau Chief, Environment
Protection Bureau, New York Attorney General's Office...... 56
Lynch, John, Broker/Owner, Lynch & Company................... 84
Roth, Larry, Deputy Executive Director, American Society of
Civil Engineers............................................ 86
Material submitted for the record by:
Crotty, Hon. Erin M., Commissioner, Department of
Environmental Conservation, State of New York, letter dated
July 26, 2001, to Hon. Paul Gillmor........................ 105
Hardy, Clifford B., Chairman, Mortgage Bankers Association
Legislative Committee, letter dated July 19, 2001, to Hon.
Paul E. Gilmor............................................. 108
National Governors Association, prepared statement of........ 105
Sierra Club, et al, letter dated June 27, 2001............... 109
Taft, Hon. Bob, Governor, State of Ohio, letter dated July
27, 2001, to Hon. Paul Gillmor............................. 108
Whitman, Hon. Christine Todd, Administrator, United States
Environmental Protection Agency, letter dated June 27,
2001, to Hon. Paul Gillmor................................. 107
(iii)
BROWNFIELDS LEGISLATION: ``THE BROWN-
FIELDS REVITALIZATION AND EVIRON-
MENTAL RESTORATION ACT OF 2001,'' AND ``GILLMOR DISCUSSION DRAFT,'' AND
``DEMOCRATIC DISCUSSION DRAFT''
----------
THURSDAY, JUNE 28, 2001
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Environment and
Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2322, Rayburn House Office Building, Hon. Paul E. Gillmor
(chairman) presiding.
Members present: Representatives Gillmor, Greenwood,
Largent, Shimkus, Fossella, Ehrlich, Buyer, Bass, Pitts, Terry,
Tauzin (ex officio), Pallone, Towns, Brown, Green, McCarthy,
Barrett, Luther, Capps, and Dingell (ex officio).
Staff present: Amit Sachdev, majority counsel; Jerry Couri,
policy coordinator; Nandan Kenkeremath, majority counsel;
Hollyn Kidd, legislative clerk; and Richard Frandsen, minority
counsel.
Mr. Gillmor. The committee will come to order.
First, let me apologize to those who are here for the late
start of the committee. We just completed a series of five
back-to-back votes, which is the reason we are late. And that,
unfortunately, is something over which we have no control.
Today marks the second major hearing this year in this
subcommittee on the subject of brownfields. Our first hearing
featured, among others, our new EPA Administrator, Christine
Whitman, and Governor Minor of Delaware representing the
National Governors Association. And I am very pleased to see
with us today the outstanding members that we have on today's
panels.
Brownfield reform is necessary, both to protect the
environment and to protect public safety. Too often today fair
law produces an outcome that is very anti-environment.
In our previous hearing, several witnesses testified that
fear of liability kept them from cleaning their brownfields.
And when people are afraid because of the resulting expense and
aggravation involved, they go out and acquire green spaces and
virgin farmland for development instead of safely cleaning up
and developing a brownfield.
At a minimum, reform is required to stop the unnecessary
plowing up of green spaces and farmland so that they can be
covered with asphalt and concrete. I have been a member of this
committee for five terms, and throughout that time I have heard
members of both parties, of the public, and two administrations
talk about reforming Superfund. It has not happened.
This year Chairman Tauzin and I decided to deal with the
problem of Superfund in separate parts with separate bills for
each part. And so far that effort has been successful. Earlier
this year we dealt with small business liability relief, with
the introduction of H.R. 1831 by Representative Pallone and
myself. That bill passed this committee, and on May 22 passed
the House 419 to nothing.
During this session, it is my goal--and I expect that we
will see--passage of a brownfields reform bill. The purpose of
this hearing is to obtain views from a wide variety of people
on nearly all of the possible provisions that have been
suggested for brownfields reform. And I am not wedded to any
particular provisions at this point.
Before us we have for consideration S. 350. The Senate bill
makes a good start, but we have heard from many people on both
sides of the aisle, and from outside groups, about improvements
that they believe should be made to it, and those views should
be considered.
We also have before us two discussion grants. The one that
has been called the Gillmor grant is certainly not intended as
a final document. It is a discussion draft intended to
stimulate discussion and to solicit views.
But I do want to thank those groups who have expressed
support for my efforts and for the provisions in the draft,
including the National Governors Association, National
Conference of State Legislatures, National Association of
Counties, the Real Estate Roundtable, National Association of
Realtors, United States Chamber of Commerce, National
Association of Industrial Office Properties, and the National
Association of Home Builders.
Following this hearing, it is my intention to work with my
colleagues and with this administration to finalize a bill that
will be introduced before this committee, and I expect that
process to be completed fairly soon. But I am not going to
prejudge the specific provisions which would be in that bill.
However, based on what we have heard so far, some of the
principles which I would expect would be contained within the
bill would be respecting the ability of States to perform
cleanups, removing the fear of investors who are reluctant to
invest in brownfields redevelopment, helping innocent
landowners, prospective purchasers, and contiguous property
owners, cutting back regulatory red tape, and getting the most
cleanup money feasible to the most sites for dirt-moving
activities.
And, again, I want to thank the witnesses who have joined
us today and to let them know how much their testimony means to
a House legislative product.
And at this time, I would like to recognize the ranking
member of the subcommittee, Mr. Pallone of New Jersey.
Mr. Pallone. Thank you, Mr. Chairman, for not only holding
this hearing today but also for working with us on trying to
come up at some point I think in the future with a bill that we
can pass out of the subcommittee on a bipartisan basis.
I do believe, and I have said before, that the time has
come for passage of a strong, effective brownfields bill, and I
am hoping that we can continue to work together in the future
to accomplish this goal on a bipartisan basis. But to achieve
this, I believe two things must happen. First, we have to stay
very close to S. 350, the bipartisan Senate-passed brownfields
bill; and, second, that the bill must maintain a strong,
effective Federal safety net.
Many State and local governments, as you know, have
discovered the potential brownfields can create for their
communities, and over the last couple of years have begun to
revitalize these lands.
However, this revitalization does not come without a price
tag, nor should it come without what should be a meticulous
process to ensure that contamination is vigorously addressed at
the site before development takes place. I believe these are
areas where the Federal Government can play a role in helping
State and local governments tackle these problems.
Currently, Mr. Chairman, the Environmental Protection
Agency provides small grants to State and local governments. It
is now time, however, to pass a stand-alone brownfields bill
that provides the legislative framework and increases funding.
This will better serve State and local governments, while at
the same time ensuring the health and safety of local
residents.
I was pleased to hear during her testimony before the
subcommittee a few months ago that the EPA Administrator--I
keep calling her Governor--Christine Todd Whitman endorsed a
stand-alone brownfields approach. Administrator Whitman also
said enacting brownfields legislation this year was an
important priority for President Bush.
There are several critical areas that I believe need to be
addressed in any successful brownfields legislation. First, it
is important that any brownfields legislation include
provisions protecting prospective purchasers and developers of
brownfields, as well as liability for innocent landowners and
contiguous property owners.
I think there is broad agreement that a new purchaser or
developer who did not cause the existing contamination should
not be liable for cleanup of the property. I believe there
needs to be a healthy partnership between the Federal
Government and the States in cleaning up these lands.
While some States are dealing with brownfields in a
productive and healthy manner, others are not. That is why I
believe there are basic criteria that all State programs should
meet, such as meaningful public participation, adequate
oversight and enforcement resources to ensure that public
health and the environment are protected, and a mechanism to
provide certification that response action has been completed.
These are widely recognized criteria that form the basis of
voluntary cleanup agreements, or most agreements, between the
EPA and 16 States right now.
With the array of voluntary cleanup programs, we should be
very careful in placing restrictions on Federal enforcement
authorities. And, therefore, I believe we must maintain a
strong and effective Federal safety net.
If a site presents an imminent and substantial danger to
human health or the environment after a voluntary cleanup, it
is vital that the affected citizens and communities can rely on
the Federal Government if State authorities lack the resources
or the political desire to address their concerns and protect
their health and their neighborhoods. And I was glad to hear
Administrator Whitman recognize the importance of an effective
Federal safety net.
It is for these reasons that the Democratic discussion
draft that I have worked on includes provisions for a strong
Federal safety net and establishes general minimum criteria for
State response programs. In addition, the Democratic draft has
provided for an Advisory Commission to evaluate the
concentration and impact of brownfield sites on minority and
economically disadvantaged neighborhoods.
It adds clarification of S. 350 to ensure the continued
applicability of Davis-Bacon to EPA brownfields grants. It has
worker training and safety programs and a reopener that allows
the President to bring an enforcement action if the cleanup
under a State program no longer protects human health or the
environment because of a change in the use of the site.
Mr. Chairman, with all due respect, I have to say that I
don't feel that your discussion draft provides the same level
of safety for the health of the public and the health of the
environment. The chairman's discussion draft changes, in my
opinion, the focus of the Senate compromise from lesser
contaminated brownfield sites to more seriously contaminated,
higher risk, Superfund-type sites.
At the same time, it changes S. 350 to place even more
severe restrictions on the EPA's ability to take enforcement
action under Superfund at sites where a serious problem remains
after a voluntary cleanup.
And, unfortunately, my concerns don't end there. The
chairman's discussion draft I think goes beyond the parameters
of brownfields by expanding on S. 350 to severely restrict the
current citizen's suit authority under Section 7002 of the
Solid Waste Disposal Act and the EPA authority under Section
7003, where toxic contamination may pose an imminent and
substantial endangerment to human health.
Furthermore, the parties benefited by Title 3 I think are
those who do not responsibly--do not act responsibly to perform
due diligence, the parties who knew of the contamination at the
time they acquired the property and have not yet acted to clean
it up, or the parties who were responsible for the
contamination in the first place.
In my opinion, the chairman's draft deviates significantly
from S. 350, the permit elimination provision, the addition of
the Governor's concurrence on the NPL list, the restrictions on
public right to know, and the significant changes in Title 3
finality.
So I still think we have a long way to go in negotiations.
But let me say I believe it is important for Congress to strike
a balance between the desire to provide redevelopment
incentives that will work for the broad variety of sites, while
at the same time maintaining the assurance to affected citizens
that these sites will no longer threaten the health of the
community environment.
And I think we can find agreement on the main principles.
And I also know, having worked with Chairman Gillmor for the
last few months, that he is always willing to work together to
find a compromise. So even though I have significant
differences I think between the chairman's draft and the
Democratic draft, I still think we can work this out, mainly
because I know that it is easy to work with Mr. Gillmor. He is
very cooperative.
Thank you.
[The prepared statement of Hon. Frank Pallone follows:)
Prepared Statement of Hon. Frank Pallone, Jr., a Representative in
Congress from the State of New Jersey
Thank you, Mr. Chairman, for holding this important hearing today.
I believe that the time has come for passage of a strong, effective
brownfields bill. I'm hoping that we may continue to work together in
the future to accomplish this goal on a bipartisan basis. But to
achieve this, I believe two things must happen:
1. We must stay very close to S.350, the bipartisan Senate-passed
brownfields bill; and
2. That bill must maintain a strong, effective federal safety net.
We all know that Brownfield sites are parcels of land that contain
abandoned or under-used commercial or industrial facilities where
contamination has been found. What distinguishes a brownfield from a
Superfund site, is that brownfield sites do not contain nearly as much
contamination as Superfund sites. Over time, this distinction has kept
many communities from dealing with brownfields, since these sites do
not always pose obvious threats to public health.
It's time for all of us, at the federal, state and local levels, to
change our thinking on brownfields. Rather than ignoring these sites,
it is time for us to envision the possibilities these lands create for
our communities. Not only can these sites spark economic development
with the opening of a new business on land that is cleansed of its
contamination, but they also create a perfect opportunity to create
more open, green space for recreation. Revitalizing these areas can
improve a neighborhood by creating new jobs and cutting down on crime.
Why should these sites lay barren, as an eyesore in the future?
Many state and local governments have discovered the potential
brownfields can create for their communities and over the last couple
of years have begun to revitalize these lands. However, this
revitalization does not come without a price tag, nor should it come
without what should be a meticulous process to ensure that
contamination is vigorously addressed at the site before development
takes place. I believe these are areas where the federal government can
play a role in helping state and local governments tackle these
problems.
Currently, the Environmental Protection Agency (EPA) provides small
grants to state and local governments. It is now time, however, to pass
a stand-alone brownfields bill, that provides a legislative framework
and increases funding. This will better serve state and local
governments, while, at the same time ensuring the health and safety of
local residents.
I was pleased to hear during her testimony before this
Subcommittee, that EPA Administrator Christine Todd Whitman endorsed a
stand-alone brownfields approach. Administrator Whitman also said
enacting brownfields legislation this year was an important priority
for President Bush.
There are several critical areas that I believe need to be
addressed in any successful brownfields legislation:
First, it is important that any brownfields legislation include
provisions protecting prospective purchasers and developers of
brownfields, as well as liability for innocent landowners and
contiguous property owners. There's broad agreement, that a new
purchaser or developer who did not cause the existing contamination
should not be liable for cleanup of the property.
I believe that there needs to be a healthy partnership between the
federal government and the states in cleaning up these lands. While
some states are dealing with brownfields in a productive and healthy
manner, others are not. That is why I believe there are basic criteria
that all state programs should meet, such as meaningful public
participation, adequate oversight and enforcement resources to ensure
that public health and the environment are protected, and a mechanism
to provide certification that response action has been completed. These
are widely recognized criteria that form the basis of voluntary cleanup
agreements between the EPA and 16 states.
The General Accounting Office (GAO) has reported that state
voluntary programs vary dramatically. About half the state programs GAO
surveyed in 1997 had not made any provision for either monitoring
nonpermanent cleanups or for overseeing their accomplishment.
State plans also deal with cleanups in many different ways. In
Illinois, for example, a new developer may decide to cleanup just one
of several chemicals at a site and receive a certification for that
chemical alone. In my home State of New Jersey, the liable party
responsible for creating the contamination is not eligible for any
liability protection under the brownfields program. In other states,
the person or company who polluted the site is eligible for liability
protection.
With the wide array of voluntary cleanup programs, we should be
very careful in placing restrictions on federal enforcement authorities
and, therefore, we must maintain a strong and effective federal safety
net. If a site presents an imminent and substantial danger to human
health or the environment after a voluntary cleanup, it is vital that
the affected citizens and communities can rely on the federal
government if state authorities lack the resources or the political
desire to address their concerns and protect their health and their
neighborhoods. I was glad to hear Administrator Whitman recognize the
importance of an effective federal safety net.
It is for those reasons, that the Democratic Discussion Draft that
I have worked on includes provisions for a strong federal safety net
and establishes general minimum criteria for state response programs.
In addition, the Democratic Draft has provided for: an advisory
commission to evaluate the concentration and impact of brownfields
sites on minority and economically disadvantaged neighborhoods;
clarification of S.350 to insure the continued applicability of Davis-
Bacon to EPA brownfield grants; a worker training and safety program;
and a re-opener that allows the President to bring an enforcement
action if the cleanup under a State program no longer protects human
health or the environment because of a change in the use of the site.
I do not feel that the Gillmor Discussion Draft provides the same
level of safety for the health of the public and the health of the
environment. The chairman's discussion draft changes the focus of the
Senate compromise from lesser contaminated brownfields sites to more
seriously contaminated, higher-risk Superfund-type sites. At the same
time, it changes S. 350 to place even more severe restriction on the
EPA's ability to take enforcement action under Superfund at sites where
a serious problem remains after a voluntary cleanup. Unfortunately, my
concerns do not end there.
The Gillmor Discussion Draft goes beyond the parameters of
brownfields by expanding on S.350 to severely restrict the current
citizen suit authority under Section 7002 of the Solid Waste Disposal
Act and EPA authority under Section 7003 where toxic contamination may
pose an imminent and substantial endangerment to human health.
Furthermore, the parties benefited by Title III are those who did not
act responsibly to perform due diligence; the parties who knew of the
contamination at the time they acquired the property and have not yet
acted to clean it up, or the parties who were responsible for the
contamination in the first place.
In my opinion, the Gillmor draft deviates greatly from S.350.
Before we can begin to hammer out a bipartisan agreement, I need to
make it clear that I, and I believe many others have grave problems
with the Gillmor proposal. From the peanut elimination provision . . .
to the addition of Governor's Concurrence on NPL listing . . . to the
restrictions on public right to know and the significant changes in
Title III (finality) . . . it is clear that we have a long way to go in
negotiations.
However, I believe it is important for Congress to strike a balance
between the desire to provide redevelopment incentives that will work
for the broad variety of sites, while at the same time maintaining the
assurance to affected citizens that these sites will no longer threaten
the health of the community or the environment. I hope that we may find
agreement on these main principles and that we may move forward in the
future on bipartisan brownfields legislation that will play an
important role in cleaning up these sites.
Mr. Gillmor. Thank you.
The gentleman from Pennsylvania, Mr. Greenwood. Oh, he just
stepped out?
On this side, the next member is Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
I had a chance within the last couple of weeks to visit a
location that is just outside my district and Congressman
Costello's in Alton, Illinois--Clark Properties. And they have
actually redeveloped a brownfield, the old LaClede steel plant.
And they are just doing a tremendous job.
They specialize in this. They had to do a lot of bonding of
insurance packaging to do that. One thing they have continued
to reinforce to me is the importance of legal certainty, and
that is going to be a big issue of our debate. That is why I am
concerned with the additional reopeners that are in the
Democratic draft discussion.
People will not invest capital if there is uncertainty of
the risks that they obtain. It is pretty simple. Alton,
Illinois, which is an old industrial city on the river, the
people there are just seeing a beautiful example of what can
happen. So I think we need to be very, very careful as we
approach this to make sure that we eventually come to an aspect
where we finally say it is okay if you invest here. There is
hold harmless. Especially if it is new money going into a new
area, legal certainty is the key.
And hopefully we will move in that direction, and I think
there is some good give and take on both sides. But if we
dilute the legal certainty debate, the brownfields argument
that has been here longer than I think I have been alive will
continue to go unresolved, because legal certainty is at the
key of redeveloping these sites.
I look forward to the hearing, and I yield back my time.
Mr. Gillmor. The gentleman yields back.
The distinguished ranking member of the full committee, Mr.
Dingell.
Mr. Dingell. Mr. Chairman, thank you for your courtesy. Mr.
Chairman, I welcome this hearing today, and my colleagues on
the Democratic side are here to offer you our assistance in
achieving a good bipartisan bill. We hope this offer will be
accepted.
Members on this side of the aisle have put forward and
strongly supported stand-alone brownfield legislation in the
past two Congresses, and we do so again this year. We do so in
the Democratic discussion draft.
I note, Mr. Chairman, that S. 350 is not an illusion but a
reality. The Senate has passed a stand-alone brownfield bill by
a vote of 99 to nothing. That bill has the support of EPA
Administrator Whitman and President Bush. The Senate bill is a
remarkable bipartisan political compromise. It spans the entire
ideological and political spectrum.
The Democratic discussion draft respects the delicate
compromises and fundamental policies reflected in S. 350. We
hope we can work with our Republican colleagues on these
matters.
The Democratic proposal remains tightly focused on
Superfund. It does not seek to amend other statutes like the
Solid Waste Disposal Act. The Senate Committee on Environment
and Public Works, under Republican control at the time,
explicitly rejected amendments affecting the Solid Waste
Disposal Act and a number of other statutes.
Further, in our draft, we do not give the EPA Administrator
the regulatory authority to amend a number of statutes, such as
the Clean Air Act, to eliminate the need to obtain permits
where so required.
Finally, our discussion draft does not go into the broader
Superfund reform issues, heeding the advice of Administrator
Whitman and recognizing that such action could again, as it has
in the past, stall all progress in these matters.
Unfortunately, the discussion draft put forward by our
colleagues on the Republican side departs dramatically from the
scope and policies of S. 350. Under that draft, the focus of S.
350 is changed from lesser contaminated sites to higher risk,
seriously contaminated sites--something we believe is unwise.
The Senate compromise on finality and the Federal safety net is
disregarded. This is, I believe, unwise and extreme.
Mr. Chairman, we believe we should listen to the Nation's
Mayors. These are the people who are in the frontlines of
brownfields redevelopment and they have the most at stake in
these matters. They have concluded that S. 350 meets their
fundamental needs.
In our deliberations, I believe we must stay close to S.
350 and avoid rolling back policies of the current, successful
EPA brownfields program.
Finally, I am very much saddened by the lack of bipartisan
cooperation from the EPA and the Bush Administration in
providing information on these issues to Democratic members of
this committee.
Eighty-four days ago, almost 3 months, Mr. Pallone and I
sent Administrator Whitman a letter containing five questions
pertinent to the precise subject of this hearing on
brownfields. I would ask unanimous consent that our letter be
inserted in the record at this point. Perhaps it will inspire
the Administrator to give us an answer which is badly needed.
I would note that as of this morning no answer, no
information, not even an acknowledgement has been received. One
must inquire whether it would benefit the Administrator to
borrow the White House's form letter and at least an automatic
signature pen, so that they may respond to inquiries from
members on this side.
Clearly, this is unacceptable behavior by a Federal agency
and its senior officials who are charged with administering
Federal laws within the jurisdiction of this committee. I would
note that if we are to achieve a bipartisan result we should
get responses to our inquiries, particularly since they are
directed in a helpful fashion.
I believe that this behavior is a disservice to the
legislative process and to the constituents that we serve. I
look forward to the testimony of our witnesses.
And, Mr. Chairman, I hope that we will be able to go
forward with a bipartisan proposal which will recognize the
realities of the situation, and avoid things which have
precluded us from achieving any success in this matter for the
past two Congresses.
Thank you.
Mr. Gillmor. Thank you, Mr. Dingell.
The gentleman from Oklahoma, Mr. Largent.
Mr. Largent. Thank you, Mr. Chairman. I would just say I
found the ranking member's opening statement most enlightening.
It is the first time I have heard him be willing to kowtow to
the Senate's leadership on the brownfields issue and say that
we should rubber stamp the work in the Senate and not try to
improve it in the House.
But, Mr. Chairman, I am looking forward to working with you
on this committee and the full committee in the House to get
this important legislation passed. It is important for the
district that I represent. In fact, I believe all districts--
most districts are affected by the brownfields issue, and this
is a very important issue.
And I would also concur with my colleague from Illinois to
say that having the issue of finality addressed in these
brownfield issues is absolutely critical to see the investment
that we need to make in so many brownfields around the country.
So, Mr. Chairman, with that I will yield back my time.
Mr. Gillmor. The gentleman yields back.
The gentleman, Mr. Luther.
Mr. Luther. Thank you, Mr. Chairman. I will be very brief.
I think we are fortunate to have a piece of legislation
that has been passed by the Senate. The fact that we have S.
350 passed on a bipartisan vote, 99 to zero--I don't know how
you can get more bipartisan than that--means that we have an
excellent product before us.
And it strikes an important balance between encouraging
State flexibility but preserving the Federal safety net, the
balance between providing liability relief to innocent
landowners and parties, but holding negligent participants
accountable. And I think it is very wise that Mr. Pallone, Mr.
Dingell, and other members of the committee have used that as a
blueprint now for the bill that is before us.
And basically, Mr. Chairman, I think that means that we
have a terrific opportunity--an opportunity to not allow 1 more
year of inaction on an important issue such as this. We have an
opportunity this year to pass bipartisan legislation, move
forward and not have another--some more time that is passing
without having important legislation in this area.
And so I thank you for the time, look forward to the
testimony, but above all, Mr. Chairman, hope that we can move
expeditiously forward and get the job done.
Mr. Gillmor. The gentleman from Nebraska.
Mr. Terry. Thank you, Mr. Chairman. I appreciate your
holding these hearings and appreciate the draft proposals that
have been submitted. I look forward to the discussion from our
witnesses today, particularly on the issues of finality and
reopeners.
I believe that S. 350 is weak, and we should improve it,
particularly in those areas. I have mentioned at this committee
before, Mr. Chairman, that I spent 8 years on the Omaha City
Council. And probably the most contentious issue during that
time wasn't new trash contractors or major road construction
projects, but when the city felt it was so important to
redevelop the industrial riverfront property and could find no
subsequent purchasers willing to accept the risk of accepting
title to property even after a cleanup.
So the city decided it would become the subsequent
purchaser of those properties. We would receive title to those
properties. It put us in a position of relying on all of the
expert witnesses that we hired, engineers, on whether the
cleanup was appropriate. It was run under the State Department
of Environmental Quality.
We asked the EPA for a letter reviewing that. We had a
letter--I know it was unique--but had a letter from the EPA
saying, ``The cleanup looks fine to us.'' What we found out is
we could not rely on that letter at all. We could not rely in
any way feeling confident that we could avoid subsequent
litigation in the future.
Now we have agreements with the first--the polluter, Sarco.
But, nonetheless, it became the focus of the discussion of
whether or not to rehabilitate this abandoned industrial
property in the heart of our downtown. If we don't address the
issues of finality and limit the reopeners we really aren't
going far enough to incent the brownfields cleanup that is the
purpose of this legislation.
So I look forward to hearing from the witnesses. I look
forward to a good discussion on those issues, Mr. Chairman. And
whatever time I have left I yield back.
Mr. Gillmor. The gentleman yields back.
The Chair would request unanimous consent that all members
be able to submit their statements in writing, those who wish
to. Is there any objection? The Chair hearing none, members may
submit them.
The gentlelady from California.
Ms. Capps. Thank you, Mr. Chairman, for holding this
important hearing today.
The redevelopment of brownfields is a critical issue, not
only for our big cities but our smaller cities and towns across
this Nation. Encouraging this redevelopment means reducing the
threat of urban sprawl and strains on our transportation
systems. It means taking advantage of the infrastructure
already in place in many urban or older industrial areas, and
it means creating jobs and economic opportunity for
neighborhoods often neglected.
I know this because I have seen it work in my district in
California. The redevelopment of a brownfield in Goleta is a
good example. Here is an example of a small and growing
community recapturing valuable property and improving the local
economy and quality of life. We need to encourage more of this
kind of revitalization of our communities.
And as I said in our brownfields hearing back in March,
over the past few years a bipartisan consensus on brownfields
legislation has emerged--the most recent evidence being the
Senate action on S. 350 with 69 co-sponsors and a vote of 99 to
zero, and the administration's support.
I am very supportive of the discussion draft that many of
us on our side of the aisle have put together on brownfields.
This measure closely tracks S. 350. Our draft both encourages
the redevelopment of brownfields and continues to ensure that
the public health is always safeguarded.
The liability protections for prospective purchasers of
brownfields, innocent landowners, and contiguous property
owners contained in S. 350 and in our draft are particularly
important. They offer much-needed assurances to developers and
property owners who are trying to do the right thing by
revitalizing brownfields.
Clearly, we want to ensure finality for those involved in
cleanup, but we also want some finality in the reduction of
threats to public health and safety, which are opposed by
brownfields, and only effective cleanup will do that.
I have yet to examine the majority's draft closely, but I
am concerned that it appears to change the focus of the bill
from lesser contaminated sites to much more seriously
contaminated sites. It also restricts EPA and citizen action to
protect the health and safety of our community, and I believe
these changes veer away from the carefully crafted compromise
in S. 350. And I don't think that is where we want to go with
this legislation.
I hope we can build on the progress made earlier this year
on liability relief for businesses that have contributed
minimal amounts to Superfund sites. In that effort, a carefully
negotiated and crafted compromise was arrived at through
painstaking discussions that will benefit businesses and our
constituents.
Quite frankly, I think S. 350 provides us with a similar
opportunity for common sense legislation, and we should waste
no time in seizing it.
Thank you, and I yield back the balance of my time.
Mr. Gillmor. The gentlelady yields back.
The gentleman from Pennsylvania. Mr. Pitts, did----
Mr. Pitts. Thank you, Mr. Chairman. I will submit my
opening statement for the record. Thank you for holding this
hearing, and I am looking forward to working with you and
hearing the distinguished panel.
Mr. Gillmor. Thank you very much.
The gentlelady from Missouri.
Ms. McCarthy. Thank you, Mr. Chairman, and I thank you for
having this hearing today. I am particularly pleased that on
panel two we will have a representative from the National
Conference of State Legislatures addressing us, because this is
truly a Federal, State, and local effort.
And having served 18 years in the Missouri General
Assembly, I am very concerned about striking the proper balance
between Federal oversight and State and local flexibility and
control regarding the brownfields initiative. Our actions at
the Federal level should complement the successes of the local
brownfields programs while also providing the EPA with the
necessary authority to ensure that sites are satisfactorily
cleaned up.
I would like to take a moment to highlight some of the
successes that have occurred in my community, because in 1998
the Kansas City Region was designated as one of only 16 awarded
a showcase community by the Environmental Protection Agency. In
this posture, the program earned the EPA Region 7's Phoenix
Award, a national honor recognizing excellence in brownfields
development work.
Some results in my district, for example, with the Lewis
and Clark redevelopment area located in historic West Bottoms
and known for years in Kansas City as the stockyard was indeed
impressive. This area was ravaged by a devastating fire in
1998, leaving businesses and abandoned buildings gutted.
And normally a rebuilding process would begin except if
there is contamination that complicates the process, as we
know. In this instance, there were mitigating factors
associated with contamination.
But the Federal brownfields program provided the trained
technical staff to help eliminate the contamination and allow
this program to go forward in an expedited way. And I am
concerned that the discussion draft before us will restrict
that in the future.
But in all parts of my district there are similar success
stories, whether it is to historic 18th and Vine, jazz
entertainment district, the Beacon Hill neighborhood housing
redevelopment, or the Blue River industrial corridor. The
results are real with business and job growth improvements and
quality of life and reinvestment in our communities in what
would otherwise be a depressed area.
Mr. Chairman, in March this subcommittee held a hearing on
removing barriers to brownfield cleanups. And I spoke of my
interest in seeing that brownfields funding for petroleum and
lead-based paint asbestos sites be considered and addressed in
any brownfields legislation.
A bill is needed to move beyond CERCLA limits that prevent
assistance for worthy brownfields projects which involve these
contaminants. At that hearing, EPA Administrator Whitman
testified and assured me that she wanted to work with Congress
to ensure that any legislative language drafted is flexible
enough to provide for cleanup of these type of sites.
I do not see that in the draft before us, but I am very
pleased that S. 350 and the Democratic discussion draft include
provisions to fund the cleanup of petroleum contaminated sites.
These two bills authorize $50 million to be made available for
these type of sites, or, if the amount is less than $200
million, 25 percent of the amount made available should be used
for site characterization, assessment, and remediation.
Mr. Chairman, I would not want to do anything to reduce
funding that is provided in S. 350 and the Democratic draft. I
think it--rather than create a ceiling, as the chairman's draft
does, I think we should talk about a floor for funding that
allows for no more than 25 percent of the amount made available
be used for site characterization, assessment, and remediation.
I am concerned because exclusion and limitation of CERCLA
and most of the EPA assessments and remediation loan funding
tools of brownfields need to be used for these petroleum
contaminated sites but cannot in the draft before us.
So for an urban area such as mine, these are real sites,
and people are interested in cleaning them up and redeveloping
them. We need to be helping in that regard, because in my
district where there is a serious urban core they were once
former gas stations and tire stores and auto salvage shops.
Closed and now vacant, these sites have a strategic location
and the potential for future commerce.
Mr. Chairman, I thank you for this hearing today and will
submit the entirety of my remarks for the record.
[The prepared statement of Hon. Karen McCarthy follows:]
Prepared Statement of Hon. Karen McCarthy, a Representative in Congress
from the State of Missouri
I would like to thank you Mr. Chairman and the Ranking Member for
holding this hearing today. I welcome the opportunity to have a
dialogue on the key Brownfields legislative proposals before us and
look forward to hearing the testimony of our distinguished witnesses. I
am particularly pleased that on the second panel we have Delegate Leon
Billings addressing us on behalf of the National Conference of State
Legislators (NCSL), because this is truly a federal, state and local
effort. As a longstanding advocate of the Brownfields program, I am
pleased that this Committee is moving forward to examine how best to
improve this most successful initiative.
The Democratic discussion draft that we have before us recognizes
the delicate balance of S. 350. However, Mr. Chairman, I am concerned
that the ``Gillmor Discussion Draft'' changes the focus of S. 350 may
result in no Brownfields reform legislation will come to pass.
Having served 18 years in the Missouri General Assembly, I am very
concerned about striking the proper balance between federal oversight
and state and local flexibility and control regarding Brownfields. Our
actions at the Federal level should compliment the successes of the
local Brownfields programs, while also providing the EPA with the
necessary authority to ensure that sites are satisfactorily cleaned up.
I would like to take a moment to highlight some of the successes that
have occurred in my community.
In 1998 the Kansas City Region was designated as one of only 16
awarded as a ``Showcase Community'' by the Environmental Protection
Agency (EPA). This past year the program earned the EPA Region 7's
Phoenix Award, a national honor recognizing excellence in Brownfield
redevelopment work. Results in my district include the Lewis and Clark
Redevelopment Area located in the historic West Bottoms, known for
years in Kansas City's growth as the ``stock yards.'' This area was
ravaged by a devastating fire in 1998, leaving business and abandoned
buildings gutted. Normally a rebuilding process would begin except when
there is a contamination complicating the process. In this instance,
there were mitigating factors associated with contamination and the
federal Brownfields program was used to partner with the city and
economic development agencies to eliminate the contamination. With the
involvement of the Brownfields program, a blighted eyesore on the
threshold of downtown Kansas City has been removed and rejuvenated to
restore and create jobs and economic development. A success story
through the partnership of Brownfields and Superfund.
In all parts of my district there are similar success stories
whether it is the Historic 18th and Vine Jazz Entertainment District,
the Beacon Hill Neighborhood housing redevelopment, or the Blue River
Industrial Corridor.
The results are real with business and job growth, improvement of
quality of life, and reinvestment in our communities in what would
otherwise continue to be a depressed area.
In March, this Subcommittee held a hearing on removing barriers to
Brownfields cleanups and I spoke of my interest in seeing that
Brownfields funding for petroleum and lead-based paint and asbestos
sites be considered and addressed in any Brownfields legislation. A
bill is needed to move beyond CERCLA limits that prevent assistance for
worthy brownfields projects which involve these contaminants. EPA
Administrator Whitman testified that day, and she assured me that she
wanted to work with Congress to ensure that any legislative language
drafted is flexible enough to provide for cleanup these types of sites.
I am very pleased that S. 350 and the Democratic discussion draft
includes provisions to fund the cleanup of petroleum-contaminated
sites. Both bills authorize $50 million to be made available these
types of sites, or if the amount is less than $200 million, 25% of the
amount made available shall be used for site characterization,
assessment, and remediation. However, I am concerned with the
Chairman's proposal which drastically cuts the necessary funding that
is provided in S. 350 and the Democratic draft to do the necessary
cleanup of these sites. The Chairman's draft creates a ceiling, rather
than a floor, for funding by allowing for no more than 25% of the
amount made available be used for site characterization, assessment,
and remediation. In addition, the proposal completely strikes the $50
million in funds authorized for these types of activities.
This concerns me because due to exclusion and limitations of
CERCLA, most of the EPA assessments and remediation loan funding tools
for brownfields cannot be used on these petroleum-contaminated sites.
In urban areas such as mine, these are real sites that people are
interested in cleaning up and redeveloping, the ``heart and soul'' of
any brownfields legislation. There are low risk sites in my urban core
that were once former gas stations, tire stores and auto salvage shops,
that have closed and are now vacant. These sites have a strategic
location and the potential for future commerce.
There are additional measures in the Chairman's Discussion draft
that I have concern with, including changing the definition of
brownfields sites from applying to lesser contaminated sites to
seriously contaminated, high-risk Superfund-type sites and removing
brownfields training and technical assistance programs. Mr. Chairman,
the redevelopment of brownfield sites is important for the health and
economies of the communities across the nation and I hope that we can
work in a bipartisan spirit to overcome our differences to reach a
compromise that we can all agree on. Thank you Mr. Chairman, I yield
back my time.
Mr. Gillmor. Thank you.
The gentleman from Maryland.
Mr. Ehrlich. Mr. Chairman, thank you for having this
hearing.
I guess folks in the room can understand, just from what
they have heard already, that there is a deep and wide
philosophical divide with regard to what this bill should look
like. And I think that is good, that is why we get paid.
I do not have a prepared statement, Mr. Chairman. Clearly,
we all know why we are here. A strong brownfields bill, a
substantive bill, is long overdue.
Maybe the most abused term in American politics today is
compromise, second only to bipartisanship. And I have seen in
my home State what a watered-down compromise brownfield statute
does, which is basically nothing. And that is clearly
unfortunate.
I understand that it is not to denigrate either side of
this debate or the executive branch, because people love press
conferences and bills and numbers and titles. However, I would
hope that once we have this hearing and we fully understand the
philosophical divide even in clearer terms, we have to really
get down to true compromise.
If possible, because I--as one legislator from Maryland who
has seen this area develop over the years, I would rather have
no bill than a bad bill, because a bad bill raises false
expectations. We have lived with that far too long with regard
to this area.
I represent a district outside of Baltimore, and ask any
member of this committee, as a committee Member of Congress who
represents either an urban area or the suburbs outside of an
urban area, and they will identify tens, dozens, hundreds of
brownfield sites that need to be cleaned up and are not cleaned
up, and I would suspect would never be cleaned up under the
Senate bill or the Democrat version that we see from our House
members so far.
Mr. Terry talked about the importance of finality. It
stands to reason, and we also clearly marry that with respect
to liability, we are talking about incentives with respect to
bona fide purchasers, innocent landowners, and the whole
category of people we should protect with regard to liability.
And if we can't, this statute will mean nothing. Nothing.
Mr. Chairman, this is a very important hearing. Clearly,
any bill that is not incentive-based will not work. Clearly,
the platitudes that you are going to hear and have heard
probably on both sides of the aisle do not move this discussion
forward.
And I hope in the end, at the end of the day, at the end of
the weeks and the months, that we see in our immediate future
we can get down to a bill that means something in the real
world for poor people who live in urban areas, who live in
these neighborhoods, who always live in these neighborhoods,
and who are forced to live in the midst of brownfield sites
that should be cleaned up and are not, because we cannot as a
Congress of the United States come up with a legitimate bill to
provide real relief in the real world for real people.
I yield back my time.
Mr. Gillmor. The gentleman yields back.
The gentleman from Texas.
Mr. Green. Thank you, Mr. Chairman.
It is interesting where we come down on the brownfields
issue. This is my third term on the committee, and it has been
frustrating because we haven't had a brownfields legislation,
and maybe no bill is better than a bad one, but we have
experienced that from my three terms.
And I would hope to see something come out that would be a
bipartisan effort in the opportunity today to look at the three
bills. And maybe we don't need to have 99 to zero as the Senate
did, but I would hope to have a very bipartisan bill as it
comes out.
Brownfields pose a roadblock to the redevelopment. It is
not polluted enough for a Superfund site, and yet many
developers will--don't want to take that liability on the
cleanup costs. I do, coming from area in--a very urban area in
Houston have some success, like other colleagues, with
cooperation between State and city and the Federal Government
and also the private sector on redevelopment of brownfields.
The city of Houston has literally a showcase of 550 acres
of brownfield site that was redeveloped. It is now creating
2,400 jobs and returning $2 million in taxes to the city, the
county, and the school districts.
The program helped to reduce eyesores in our communities
just east of downtown, and improved neighborhood quality of
life, and spurred different development types, and that is
including not only our new baseball stadium but new performing
arts center and almost 1,000 units of new housing.
In my own district, just to the east of where the new
stadium is at, we have some success with the redevelopment of
what was Hughes Tool Company, Central City Industrial Park,
located just east of downtown in Hispanic east end. It is a
former heavy industrial site that now has a State office
building and created over 5,800 new jobs. The current occupancy
rate on that facility is 96 percent.
Again, it is an example of what can be done with State,
with government and private sector cooperation, and we couldn't
have done it without Baker Hughes Industries, who did that.
Another site we have is the Latino Learning Center. It was
a former staging area for a trucking company, and no one wanted
to do anything with that property. For 17 years it was vacant.
It became a neighborhood dump. And now, because of the effort
of both the city and community development dollars, we have a
64-unit senior citizen housing complex, health center, and a
5,500 square foot community center.
So there are redevelopment of brownfields that are
happening. We just need to make sure it can happen more, and
that is why we need to pass Federal legislation to move that
process along. I hope our committee will work on a bipartisan
basis on a consensus on a bill, and hopefully help many more
success stories from all of our districts to happen.
I yield back my time.
Mr. Gillmor. The gentleman from New York, do you have an
opening statement? The gentleman from New Hampshire?
Mr. Bass. It is in the record, Mr. Chairman.
Mr. Gillmor. Thank you very much.
And the gentleman from Indiana has departed. That
concludes, to the best knowledge of the Chair, all of the
opening statements, and we will then proceed to the questions.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. Vito Fossella, a Representative in Congress
from the State of New York
I'd like to thank Chairman Gillmor for holding this hearing on this
important and timely legislation. Federal Brownfields legislation is
much needed, and I feel, will go a long way to expediting and improving
site assessments and cleanups.
Brownfields are generally accepted to be abandoned or underutilized
former industrial properties in which potential or real environmental
contamination hinders or prevents redevelopment and reuse. Being
considered a brownfield site is often a double edged sword--they are
usually not eligible for Superfund remediation funding under the
Superfund program because they pose a low public health risk while, at
the same time, developers may avoid them because of cleanup costs,
potential future liability, or related reasons, thereby stalling
economic redevelopment.
I support the Gillmor Discussion Draft and feel that this
legislation will go a long way to protect our environment and public
health, will reduce litigation and will enable small businesses to
develop Brownfields sites by providing liability protection for a
number of non polluters. Under this draft, contiguous property owners,
innocent landowners and prospective purchasers are exempted from
liability. In addition, liability relief is provided for small
businesses, municipalities, recyclers, service station and response
action contractors. This Draft goes further than S.350 by extending
prospective purchaser relief to cover petroleum contamination, RCRA
sites and underground storage tanks.
This draft establishes a Brownfield Assessment Grant Program, by
which a state or local government may receive assistance for developing
an inventory and collecting an assessment of one or more eligible
Brownfield sites. Also established is a Brownfield Remediation Program
through which a state or local government may receive money to
establish a revolving loan fund. These are all positive steps forward
to improving the environment, reducing litigation, and fostering
economic redevelopment.
Over the past several years, one issue of particular concern
throughout this debate has been liability. It makes no sense to saddle
new owners with liability for pollution they did not cause or create.
In my district, there are numerous actual and potential Brownfield
sites scattered across areas such as Richmond Terrace and Port
Richmond. While it has much property available to potentially develop,
business owners are leery to purchase these properties for fear of
being held liable for cleanup and damages. Banks and insurance
companies are skeptical of putting any financial backing behind
potential investors. A GAO report from December of 2000, entitled
Brownfields affirmed this theory:
``The potential for being held liable under CERCLA for the
contamination on brownfield properties is a significant barrier
to redevelopment, according to lenders; property purchasers,
such as developers; and property owners. Most brownfields are
not likely to be added to the list of potential NPL sites
because they are not severely contaminated. However, investors
are still wary of the cleanup liability provisions of both
federal and state legislation because these can apply even at
non-NPL sites. As a result, lenders and developers may avoid
investing in potentially contaminated properties, and current
owners may avoid selling them.''
United States General Accounting Office Report to Congressional
Requesters,
GAO-01-52, Brownfields--Information on the Programs of
EPA and Selected States, December 2000, Page 34.
In addition, I believe the States should be primarily responsible
for overseeing the redevelopment of Brownfield sites and that if a
State does indeed have a qualified state program, those sites should be
free of the risk of being examined by the EPA. As it stands now,
businesses, municipalities and potential landowners are fearful of the
EPA second guessing the judgements of states and having to face
potentially insurmountable problems down the road. The Gillmor Draft
addresses this issue by limiting federal reopeners for state
brownfields cleanups and increases the finality of these cleanups.
Fortunately, New York, under the leadership of Governor Pataki,
already has programs, procedures and policies in place for the
remediation of Brownfields, including a Voluntary Cleanup Program. Our
great state has made vast strides in assessing and remediating
contaminated sites, with over 125 cleanup projects approved, almost 200
ongoing or completed investigations and over 50 completed cleanups. New
York has become one of the leading states in this environmental arena.
New York itself set aside $200 million in the 1996 Clean Water/Clean
Air Bond Act for assessment and cleanup of these sites--one of the
biggest financial commitments in the country. But there is much work
left to be done.
I strongly believe that we must all work together to foster the
redevelopment of Brownfields sites and help small businesses and others
utilize these properties--making them once again viable community areas
as well as economically productive sites. Businesses, the financial
industry, government and environmentalists have an excellent
opportunity to work together to give these properties new leases on
life. We all need to strike a balance that guarantees that these sites
are cleaned up thoroughly, safeguards our environment and yet also
provides businesses with protection to take them over.
I thank the Chairman and give back the balance of my time.
Mr. Gillmor. I, first of all, want to thank--I want to
thank you for coming today. Congratulations on your
confirmation, and the floor is yours.
STATEMENT OF HON. LINDA FISHER, DEPUTY ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
Ms. Fisher. Thank you, Mr. Chairman. If it is all right
with you, I will summarize my comments and have my full
statement inserted in the record.
It is a pleasure to be here today to have the opportunity
to appear before this committee in my new role as Deputy
Administrator. I look forward to working with the members of
the Energy and Commerce Committee on brownfields and on the
many other issues on the environment in the future.
I am pleased to see that Chairman Gillmor and Congressman
Pallone have developed legislative discussion drafts that seek
to promote the cleanup and development of brownfield
properties. As Governor Whitman has stated, enacting
brownfields legislation this year is an important legislative
priority for the Bush Administration, and we are committed to
working with Congress to achieve that goal.
As the committee continues its deliberation and moves
forward with the brownfields bill, EPA would like to work with
you on legislative refinements.
Mr. Chairman, I believe that EPA and the members of this
committee--in fact, the vast majority of the members of the
House and Senate--all share the same goal, and that is to
encourage cleanup and development of brownfields properties
throughout this Nation. While many of us share the same goals,
there are genuine differences of opinion as to how to get
there. But I believe that none of these differences that we
have are insurmountable.
We are pleased to see that Chairman Gillmor's discussion
draft authorizes a grant and loan program to provide the States
and local communities the resources to identify, assess, and
clean up brownfield properties while providing more flexibility
to implement these programs.
We are also pleased to see that the discussion draft
clarifies Superfund liability for contiguous property owners
and, perhaps more importantly, prospective purchasers and
innocent landowners.
Further, Chairman Gillmor's discussion draft provides
resources to States to continue cleanup program developments
and seeks to strike a balance between the need for liability
and enforcement certainty to encourage brownfield cleanups and
development, with the need for a strong, Federal safety net to
ensure that EPA has the necessary authority to protect human
health and the environment.
Finding the appropriate balance between enforcement and
liability certainty and maintaining a protective Federal safety
net will go a long way in achieving our shared goal of enacting
brownfields legislation this year.
Thank you for the opportunity to appear before you today to
discuss this legislation.
I also want to take the opportunity to apologize to Mr.
Pallone and Mr. Dingell for not getting our letter back to him.
If I hadn't been in the hearing today I wouldn't know that it
was still in the agency. So we will do whatever we can to get
it up to you as quickly as we can. It is not our intention to
have you wait for almost 3 months to get a letter in return
from us.
So I do look forward to working with all of you on the
subcommittee, and I would be happy to take your questions on
this legislation.
[The prepared statement of Hon. Linda Fisher follows:]
Prepared Statement of Linda Fisher, Deputy Administrator, U.S.
Environmental Protection Agency
Good morning, Mr. Chairman, and members of the subcommittee. It is
my pleasure to appear before you today to discuss brownfields
legislation. This is my first opportunity to appear before the House
Energy and Commerce Committee as Deputy Administrator of EPA. I look
forward to working with the members of the committee on this and many
other issues in the future. I commend Chairman Gillmor, Representative
Pallone, and all of the members of the subcommittee for developing
brownfields discussion drafts that seek to promote the cleanup and
development of brownfield properties and remove the barriers preventing
the successful assessment, cleanup and redevelopment of brownfields
across this country. While the Administration has a policy on not
taking a position on a legislative discussion draft, I am pleased to
say that the Administration supports the direction of many of the
provisions that are being developed in Chairman Gillmor's discussion
draft and we look forward to the opportunity to support a bill as the
committee completes its work. As Governor Whitman has stated, enacting
brownfields legislation this year is an important priority for
President Bush and this Administration and we are committed to working
with Congress to achieve that goal.
As we continue a more thorough review of the draft, and the
committee continues its deliberations and introduces a bill, we would
appreciate the opportunity to work with Chairman Gillmor, and other
members, on legislative refinements that would be consistent with the
President's principles and budget. EPA remains ready to work with all
members of the Energy and Commerce Committee as we work for enactment
of brownfields legislation this year.
Currently, EPA is working in partnership with States and local
communities to promote the cleanup and development of brownfield
properties. States are developing significant expertise in the cleanup
and development of brownfield properties, and together with local
communities, will continue to have the primary role.
Over the past few years, as EPA developed and implemented its
brownfields program, we have seen that barriers may exist through
uncertainty over Federal liability and the role of EPA authority in
cases where a State has taken action. When a State approves a cleanup
that is protective of human health and the environment, there should be
limited circumstances where EPA would need to take further action.
There should be a compelling reason for EPA to become involved in the
cleanup. We do not want to stifle State cleanup programs and fail in
our goal of removing barriers that prevent brownfields cleanup.
Brownfields cleanup is an important urban redevelopment tool that
provides an alternative to development of greenfields. The
Administration believes that brownfields legislation is important
enough to be considered independently from other statutory reform
efforts, such as Superfund. I know that some members of this
subcommittee are interested in reforming Superfund and EPA remains
ready to work with them, but I would continue to urge that Superfund
issues not hold up brownfields legislation.
President Bush is committed to strengthen state and local
brownfields programs based on the following principles:
<bullet> Brownfields legislation should remove a significant hurdle to
brownfields cleanup by providing redevelopers with protection
from federal Superfund liability;
<bullet> Brownfields legislation should ensure that states have the
authority and resources to run their own brownfields programs
while ensuring those cleanups are protective of human health
and the environment;
<bullet> Brownfields legislation should direct EPA to work with the
States to ensure that they employ high, yet flexible cleanup
standards, and allow EPA to step in to enforce those standards
only when necessary;
<bullet> Brownfields legislation should streamline and expedite the
process by which grants are given to states, and in turn to
local communities, so that they have maximum flexibility to use
the funds according to their unique needs;
<bullet> The federal government should focus additional research and
development efforts on new cleanup technologies and techniques
to clean up brownfields; and
<bullet> While not under the jurisdiction of this committee, the
brownfields tax incentive should be made permanent. The
incentive expires at the end of 2003. The Administration
supports legislative efforts to make the tax incentive
permanent, which is reflected in the President's FY 2002
budget.
The States and the U.S. Environmental Protection Agency have been
at the forefront of encouraging the cleanup and economic redevelopment
of brownfields. EPA has awarded more than 399 assessment pilots of up
to $200,000 each to states, Tribes, and local governments to assist
them with brownfields redevelopment. Grantees report that EPA funding
supported assessments at over 2000 properties and helped leverage more
than $3.1 billion in economic development and generated more than
12,000 jobs. EPA's job training pilots have trained more than 640
people and put more than 480 to work. In addition, EPA has funded 127
revolving loan fund pilots, provided over $90 million in funding for
state programs, and worked with states to perform Targeted Brownfields
Assessments at more than 570 properties.
However, much remains to be done to facilitate the rapid, high-
quality assessment, cleanup and sustainable economic development in
communities across the nation. With your help, this Administration is
committed to providing the tools that communities need to address the
problems posed by brownfield properties, and it is committed to
encouraging redevelopment while fully protecting human health and the
environment.
Chairman Gillmor's discussion draft, the Brownfields Revitalization
and Environmental Restoration Act of 2001, is developing as a major
step forward in encouraging the cleanup and development of contaminated
brownfield properties. The draft authorizes grants and loan programs to
identify, assess and clean up brownfields properties, and provides more
flexibility to implement these programs.
The draft clarifies Superfund liability for contiguous property
owners, prospective purchasers, and innocent landowners. While these
provisions differ from similar provisions in S.350 and some previous
legislation, we are prepared to discuss them with you and others as the
committee continues development of a bill.
The real or perceived threat of federal liability can be a barrier
to brownfields redevelopment. The draft places clear limits on federal
enforcement authority for sites cleaned up under a state response
program. Furthermore, this legislation also recognizes the necessity of
striking an appropriate balance between providing the finality needed
to induce redevelopment and ensuring the ongoing protection of public
health and the environment. The draft does this by maintaining a
federal safety-net granting EPA authority to respond to real threats to
human health or the environment when a state is unwilling or unable to
do so.
The provisions that provide for a federal safety-net are more
limited than those found in S.350. EPA is concerned that a brownfields
bill not place too great a limit on EPA authority and the federal
safety net. We would like to work with the committee on these
provisions as the committee continues to develop a bill. Whatever
approach Congress chooses, we at EPA will only exercise Agency
authority under compelling circumstances--as demonstrated by the
Agency's history of never stepping in on its own at a brownfields site.
The Administration supports brownfields legislation that encourages
the identification, assessment, cleanup, and redevelopment of a full
range of contaminated brownfields properties by specifically
authorizing a federal program for grants and loans to states, Tribes,
and local governments. In addition, legislation should relieve EPA's
current brownfields program of unnecessary Superfund regulatory
procedures for the Brownfields Cleanup Revolving Loan Fund, and provide
for expedited grant funding of cleanup of contaminated properties.
Brownfields legislation that is consistent with the President's
principles should provide flexible grant funding to the states, local
communities, and Tribes to support their brownfields programs in ways
that will enhance the already impressive achievements of the 47 state
programs that address brownfields currently. According to a study by
the Northeast/Midwest Institute, more than 16,000 sites have enrolled
in state voluntary cleanup programs. States with emerging programs
would benefit from resources and support that enable them to use
creative approaches in encouraging protective assessment, clean up and
redevelopment of property. States with established brownfields
programs, such as Ohio and New Jersey, would benefit from support that
enhances successful brownfields redevelopment work.
The Administration also supports funding for technical assistance,
training, and technology to encourage the best methods and approaches
to cleaning up brownfields. New tools that improve the ability to
conduct protective cleanups while reducing cost can help promote the
redevelopment of brownfields across the Nation. EPA would like to work
with the committee to address these issues as the committee continues
work on the draft.
Whether states and localities receive Environmental Protection
Agency grants for assessment and cleanup, Housing and Urban Development
grants for redevelopment, Economic Development Administration grants--
or whether redevelopment is encouraged by the Federal Brownfields tax
incentive--this Administration is committed to providing the tools
necessary to address the problem of contaminated brownfields
properties.
Thank you for the opportunity to appear before you today to discuss
brownfields legislation. I look forward to working with you to achieve
swift passage of a brownfields bill.
Mr. Chairman, I will be happy to answer any questions you or the
committee members may have.
Mr. Gillmor. Thank you very much, Deputy Administrator. We
do look forward to working with you, not only on brownfields
but on a host of other issues.
And as you know, both sides of the Capitol have been
working on brownfields legislation. Has USEPA, on behalf of the
Bush Administration, endorsed any one bill?
Ms. Fisher. No, Mr. Chairman. We have expressed support for
S. 350 with refinements, but we have not endorsed the specific
language of any one bill.
Mr. Gillmor. Last week there were certain press accounts
that maintained that your agency had some concerns about
finality provisions in my discussion draft, and later it was my
understanding that there were some misunderstandings as to how
my legislation really worked.
Now that you have had time to review the proposals, does
the administration have any official position on that
discussion draft?
Ms. Fisher. Yes. Let me say one thing. I think the
Administrator was taken out of context. She was asked at a
speech she was giving what she thought about, I think, the
finality language in your bill. And, in fact, she hadn't really
had an opportunity to even look at your bill.
Her comments on the finality language were more general in
nature, and she was trying to express that she is very
concerned that the debate over finality might actually get in
the way of our achieving the enactment of brownfields
legislation this year. And she hopes that doesn't happen and
that we can work this out. So that is the context of her
comments.
In terms of your particular bill or your particular
discussion draft, we have had an opportunity to look at it. And
as with S. 350, we do support it, but we would like to see some
refinements.
Mr. Gillmor. Thank you very much. As you may know, or will
soon find out, many of the people on our subcommittee have
questions about how USEPA is interacting with the States with
regard to brownfields cleanup. And on March 7, the
Administrator testified that uncertainty is what prevents
people from maximizing the opportunity to clean up brownfield
sites.
And the Administrator then added that, to her knowledge,
USEPA ``has never come in on our own to file an oversight, to
take over the responsibility for a brownfield site.'' So my
question to you has two parts. First, has there ever been an
instance in which EPA has overfiled on a site? And, second, can
I expect that since the agency's toward reopening the site has
been consistent that this will be the policy of the Bush
Administration in regard to brownfield sites?
Ms. Fisher. Yes. In terms of the past, as an agency we have
not ever overfiled on a State at a brownfield site. And
absolutely that will continue to be the policy of the Bush
Administration.
Mr. Gillmor. Thank you very much. I would like to explore
one other area that the Administrator testified to on March 7,
and she held that at that time it was a standing policy of
USEPA to notify a Governor of its concerns about an ongoing
State cleanup and to provide the State with a reasonable
opportunity to correct the problem before USEPA could
intervene. Would that still be the policy, and can we expect it
to continue?
Ms. Fisher. Yes. Mr. Chairman, let me say both specifically
to this program and generally, EPA really believes in working
in partnerships with the States. And we don't try to take
action at any site under any program, really, that the State is
active at without working--without first trying to work very
constructively with them.
And particularly in those programs such as brownfields
where they have the lead we do everything we can to defer to
them. And we will continue to have that policy.
Mr. Gillmor. Very good. Let me just touch on the issue of
petroleum contamination. S. 350 and the Democratic discussion
draft provide a definition of brownfield site that does not
adequately cover sites contaminated with petroleum. S. 350 and
that draft excludes petroleum contaminated sites from liability
protections and Federal enforcement actions even though the
clean up was pursuant to an improved State cleanup program.
What has been called the Gillmor discussion draft takes a
more expansive approach by including a broader range of
petroleum contaminated sites within the definition of
brownfields. One is EPA's view of expanding the definition of
brownfield sites to cover more broadly petroleum contamination.
Ms. Fisher. Mr. Chairman, we are supportive of expanding
the brownfields grant and loan program, so that it could
include even the more contaminated petroleum site. And we would
be happy to work with Congress to try to codify the provisions
that would allow for the prospective purchasers of these sites
to obtain liability protection.
We also would like to work with you to ensure that if there
are further liability protections, that they are limited to the
cleanup that is subject to the appropriate State oversight and
don't go beyond what the State is working on, and that any
liability protection does not apply to past owners or
operators, and that it would continue to protect our ability to
deal with any current regulatory requirements, particularly
under the UST program, that would apply to those sites.
So with some drafting, we are open to expanding the program
so it can cover a broader set of sites.
Mr. Gillmor. Thank you very much.
Mr. Towns, we have concluded the opening statements. But if
you have one you want to submit to the record, or if you feel a
compulsion to make one----
Mr. Towns. No, no, no.
Mr. Gillmor. [continuing] out of regular order----
Mr. Towns. No, Mr. Chairman.
Mr. Gillmor. We would, of course----
Mr. Towns. I would be glad to submit my opening statement
for the record.
Mr. Gillmor. Thank you very much.
Mr. Towns. I would not interfere with the flow of the
events of the meeting.
Mr. Gillmor. Thank you.
The Chair recognizes the gentleman from New Jersey for
questions.
Mr. Pallone. Thank you, Mr. Chairman, and I am pleased to
see that Ms. Fisher is here. I see behind you Mr. Krennick, who
is also from New Jersey, and who I worked a lot with when he
worked for Congressman Frelinghuysen. So I don't know--this New
Jersey connection here in the EPA is a little dangerous. But--
--
Ms. Fisher. And you are from New Jersey.
Mr. Pallone. That is right.
And then we have the Mayor of Elizabeth who is going to be
here who will testify a little later, too.
I just very simply, if I could, Ms. Fisher--if S. 350, you
know, passed out of the House and went to the President's desk,
would he sign it?
Ms. Fisher. I never want to prejudge my President. We are
very enthused to have this legislation passed, and we are
hopeful that whatever legislation passes through the Congress
the President will sign. We are hoping that we can----
Mr. Pallone. So you are not going to tell me yes or no, but
you are giving me a strong indication that he probably would
sign it.
Ms. Fisher. I am hoping that he is going to sign any
brownfields legislation that gets to his desk.
Mr. Pallone. Okay. Now, 2 weeks ago my staff met with the
senior career management officials in charge of EPA's
brownfields program and the EPA's enforcement program. And they
told us they were not seeking any changes or refinements to S.
350.
But now I just heard you say in response to the chairman
that you were seeking refinements to both S. 350 as well as Mr.
Gillmor's draft. So I guess I am confused. What specific
changes would the EPA and the Bush Administration seek to make
to S. 350?
Ms. Fisher. Well, there are some different areas that we
think would build a better program. We think that the way S.
350 addresses the connection between the NCP and the
brownfields program is not quite drafted the way we would like
it. We would like a little bit more flexibility there. That is
one change.
We talked earlier about how S. 350 deals with petroleum. I
think we could broaden that a little bit and still have a very
protective program. But I think that some of these petroleum
sites we wouldn't be able to deal with under the brownfields--
particularly under the brownfields grant program, and we think
that would be an improvement that we would hope the Congress
would consider.
I think it is both the prospective purchaser and the
liability section--we think with careful drafting we actually
would add protection--under RCRA 7003. So there are some areas
of modification I think that would make S. 350 a better bill.
Mr. Pallone. Well, let me get to this liability issue,
because, you know, as I said, I said that any bill I can
support has to have a strong, effective Federal safety net. And
when Administrator Whitman testified in March before this
subcommittee she discussed a reopener in terms of where a
site--you know, a particular site--and I am just going to give
you her quote. She said, ``Where a site became problematic and
became a threat to human health or the environment in the
context of the reopener.''
Now, you know that S. 350 provides the reopener if a
citizen or neighborhood may be facing an imminent and
substantial endangerment to their health or the environment.
And one of the major problems that I have with the chairman's
draft is that he adds the sort of second concept to that by
saying, ``Additional response actions are likely to be
necessary to address, prevent, limit, or mitigate an emergency,
and the State will not take the necessary response actions in a
timely manner.''
It is this word ``emergency''--in other words, we have
the--you know, the imminent and substantial endangerment
requirement from S. 350, but now he is adding this language
that is saying the EPA would have to wait to bring an action
until there is also an emergency.
And I notice that you in your statement said that the
provisions that provide for a safety net are more limited in
the Gillmor draft than in S. 350, and that you are concerned
that a brownfields bill not place too great a limit on EPA's
authority and the Federal safety net.
So would you oppose this additional requirement, this
emergency language? It seems to me it is unnecessary.
Ms. Fisher. Well, and what we would actually like to do is
work both with members of this committee and ultimately the
Senate to come up with the right language that we think
satisfies the need that we have and that you have raised, as
have others, that there be a proper safety net.
Mr. Pallone. But, I mean, do you have a problem with that
reopener language in the Senate bill? Because I notice you
didn't mention that as one of the refinements.
Ms. Fisher. In the Senate bill.
Mr. Pallone. Right.
Ms. Fisher. We don't have a problem with the way the Senate
has drafted their reopeners. But we are not wedded to any
particular language. And so, you know, we are very happy to
work with members of this committee and others to take a look
at this.
Mr. Pallone. Just let me ask you this--I know that time is
up--but I just--what circumstance is required for an emergency?
What possible benefit would there be by adding this other
language about an emergency that the chairman has in there? Can
you imagine any?
Ms. Fisher. What circumstances would give rise to an
emergency that----
Mr. Pallone. Well, why would you need this extra language
in order to provide for the EPA to reopen the case?
Ms. Fisher. Well, we are not specifically asking for that
particular language, and we have internally given some thought
to, you know, what circumstances distinguish one--the
opportunity to go in under one reopener versus the other. And
so we are looking at what the differences of that would be.
I guess the most--a couple of things I think are important
and worth noting. To date we haven't found an opportunity that
we would need to go back in. And so in some ways we have this
debate over language that is a bit absent from real-world
examples. That is No. 1.
And second, again, I think we do want to try to strike the
same balance that others have spoken of. And, you know, trying
to parse the exact circumstances when one reopener would work
and another wouldn't gets to be a little bit difficult.
Mr. Pallone. Thank you.
Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman from Illinois.
Mr. Shimkus. Thank you, Mr. Chairman. I want to follow up
on this discourse on--it is my understanding that when we use
the terminology--I am not a lawyer, and so I have never gone
before the courts and bought their language of law----
Mr. Gillmor. You are fortunate.
Mr. Shimkus. Yes, I am fortunate.
Yes. No apologies, though.
But when the terminology that we use--my friend from New
Jersey talks about imminent substantial endangerment. But
always what is left off is ``may present,'' which is in front
of that. And we feel--and I think part of our drafting has been
that the ``may present'' portion allows you all to come in when
there is not an imminent substantial endangerment.
And so the importance of the emergency provision of the
Republican draft is in the hopes of, again, providing the legal
certainty with the opportunity. So, in a discourse, if the
``may present'' was dropped and we use an imminent substantial
endangerment to replace the emergency language, that is really
the context of what we are trying to work on. I would like to
hear your comments on that.
Ms. Fisher. I think that it is important to really take a
bit of a step back here and appreciate the sites that we are
actually talking about. EPA's enthusiasm over brownfields stems
from a number of centers. One is obviously the wonderful good
it is bringing to the communities, that we are actually taking
these old sites and getting them cleaned up and making them
productive.
But another one is it is really addressing a class of sites
that the Federal Government doesn't have the time or the
resources to deal with. And we are not really looking at them,
by and large, under the Superfund program or our authority.
So we have worked over the past several years to get States
to have programs so that they can address these sites. And the
brownfields are, in a sense, a subset of all the sites that the
States are really working on.
So from the beginning these are sites that we really are
looking to the States to have the lead. The discussion of will
we come back in by its very nature has to be taken into that
context. I mean, these are sites that--they are not our
priority. They are on someone else's priority list.
So the chances of us coming in are truly going to be
focused on only those, you know, very unique circumstances
where something has gone wrong at the site and the State is not
on top of it. That situation has not occurred under the
brownfields program to date--no, really under the Superfund
program where States have already taken the lead on a number of
big cleanups.
So I think that context is important because people are
reading the language I think with the fear that at these, you
know, hundreds and hundreds of brownfield sites we are really
hanging over people's shoulders waiting. And the reality is we
have stepped very far back from these sites.
Mr. Shimkus. But it is our understanding under the courts
and the ruling that the--again, the ``may present'' has--the
courts have always consistently ruled this in a very broad
area. And it is not the emergency type situation that we are
concerned it may present----
Ms. Fisher. The ``may present''----
Mr. Shimkus. [continuing] to present the chilling effect
which then slows up investment and it is not--it provides
uncertainty. And the whole aspect of a brownfields bill is to
get legal certainty.
Ms. Fisher. The ``may present'' language under the
Superfund program has been interpreted broadly. That is true.
The way it is applied here--again, given the context of the
program and where we are headed with it, it is not our
intention or practice to be going back into these sites unless
there was a very serious problem there, and, again, that the
States weren't dealing with it.
Mr. Shimkus. Okay. And I will just continue. Our position
is--I think we are very supportive, if we can define emergency
life, health, safety concern. What we are not supportive of is
an overly broad ``may present,'' which, again, continues to
throw a chilling effect.
So if there is language that we can work with the ranking
member to I think approach his concern on life, limb--and I
agree with you. I mean, these are brownfield sites. They are
not Superfund sites. And that is where we want to get to, and I
think we would encourage any evaluation from you all to help us
get at a point where you all can come in. But it had better be
for emergencies, and it should not be for something other than
emergency situation.
Mr. Chairman, if she would like to respond--if not, I will
yield back my time.
Ms. Fisher. We will be glad to work with you.
Mr. Gillmor. The gentleman from New York. Do you have some
questions?
Mr. Towns. Yes. Thank you very much.
Ms. Fisher, since 1996, the EPA has deemed it important for
State programs to meet six baseline criteria as a condition of
entering memorandum of agreements with a State to limit EPA's
enforcement discretion. I believe 16 States have finalized and
probably more are underway.
The State qualifying criteria, which is on pages 55 and 56
of the Democratic draft, are modeling the EPA's baseline
criteria and were supported by the EPA in testimony in the last
Congress. If the EPA thinks it is a good idea for a memorandum
of agreement with States, wouldn't you agree that a volunteer
program should meet these basic criteria before EPA's
enforcement authority is restricted?
Ms. Fisher. Mr. Towns, we are comfortable having, which I
think we currently do, policies and guidance for the States in
terms of how they develop their programs. We don't really want
to get into having to authorize or approve every State program,
because States are approaching these very differently, and so
we--I think we would like to have perhaps not quite the level
of rigor that we think is anticipated in the Pallone draft
where we actually have to approve all of the various State
programs. We would much rather have it be a little bit more
flexible, but give the States clear guidance on what would be
expected in terms of how the programs are.
Mr. Towns. Well, in other words you are saying--you know, I
just think we need to have a baseline, because some States, you
know, are more eager to clean up than others. And I think that
is--you know, and I come from a State where the Governor has
been really good on these kind of issues.
But I know other States where that is not the case, and I
just feel that you sort of have a responsibility to say, ``This
is where we are, and you have to meet these guidelines.'' You
know, and I think that we have to have a base.
Ms. Fisher. And I think we can do that in terms of laying
out the criteria of what States need to have to get the grants
and loans.
Mr. Towns. Right. In New York and throughout the country,
many brownfield sites are located in economically disadvantaged
or minority communities. Title IV of the Democratic draft
addresses this problem by setting up a commission to evaluate
the concentration and impact of brownfield sites on these
communities. Does EPA have a position on this issue?
Ms. Fisher. Yes. First of all, let me say that, because it
is important in the context of the Democratic draft, we have a
very active Office of Environmental Justice that is in fact
active on helping us--or working with the brownfields program
and working with the program as they make grants to States and
the communities for these particular sites. They are active
even in helping select the sites.
In addition to that, we also have a National Advisory
Committee on Environmental Justice that gives a national
perspective and, again, focuses not only on this program but
other parts of EPA.
So our feeling on this section is I guess twofold. One, we
are not sure it is a necessary addition to what we already have
operating and that is actually operating quite aggressively at
some sites. And, specifically, it gives this new group I think
a veto in terms of--a veto over both the Federal and the State
programs that are already underway.
So we totally appreciate the importance of the
environmental justice community. I guess I would ask that you
look at what we have underway and see where what we have that
is not working or not working successfully before we set up
what would be a third environmental justice effort,
particularly given the fact that they are all really looking at
the same sets of sites.
Mr. Towns. I hear you. Let me say that I agree with the
whole idea of some flexibility. I think that is very, very
important. I would even go further than some by saying based on
what you are going to do with the brownfield, and all of that,
I mean, it also determines it in terms of the level.
But I really think you need to have some kind of baseline,
and I think that is something you need to really look very
carefully at.
Ms. Fisher. Okay.
Mr. Towns. Thank you very much. I yield back, Mr. Chairman.
Mr. Gillmor. Thank you, Mr. Towns.
The gentleman from Oklahoma.
Mr. Largent. Thank you, Mr. Chairman.
And we welcome you, Ms. Fisher, before our committee for
what will be the first of many such meetings, and we are glad
you are here. Welcome to Washington.
You mentioned that you felt like that the potential exists
at least to improve upon S. 350, which is what we are trying to
do. And there has been several attempts, both on the Republican
draft and in the Democrat draft, to try to do so.
And I guess I wanted to follow up first on--well, follow--
ask you three questions specifically about three issues
specifically that are found in the Democrat draft, and ask you
if you feel like as representing the EPA that they improve S.
350.
And the first would be this Environmental Justice
Commission. It is my understanding that this particular
provision that is contained in the Democratic discussion draft
would provide for authority to an Environmental Justice
Commission to waive the Federal enforcement protections
provided under Federal law at all sites in a particular State
whenever 3 of the 5 members of the commission determine that
citizens in any minority neighborhood are not being provided
meaningful opportunities for participation.
Does the EPA believe that giving three non-elected members
of an advisory commission in Washington, DC the power to waive
Federal protections for brownfields sites in my State, based on
a complaint by one neighborhood in my State, seems--it seems to
me that that is fraught with problems for potential--potential
problems and potential abuse.
Ms. Fisher. Well, I was saying we do already have a very
aggressive environmental justice program at EPA. We have
found--and they are very active at many of the brownfield
sites, and we have found that has been an essential part of
making these sites successful in communities.
I would encourage the Congress to look at the program we
have at EPA--we also have a National Advisory Committee that
looks not only at brownfields but some of our other programs--
and see where those two efforts that are currently underway
perhaps are missing the mark before we set up a third
environmental justice initiative.
So it is not that we don't think these are important
components, an important attribute to be dealt with at the
brownfield sites. We just already have two vehicles underway
that we think brings the environmental justice----
Mr. Largent. So you feel like the protections that you have
currently--that currently exist are adequate?
Ms. Fisher. Yes. I think the programs we have are adequate.
Mr. Largent. The second question I have, it is also another
item that is contained in the Democratic discussion draft, is
applying Davis-Bacon to the over $1 billion in grants and loans
authorized by this legislation. Do you feel like--does the EPA
think that this will increase the cost for the cleanups, by
applying Davis-Bacon to all cleanup funds?
Ms. Fisher. I know that Davis-Bacon is an important issue
to a lot of members. From our perspective, it is not really a
brownfields issue, and we would rather not see it dealt with in
this bill.
Mr. Largent. Okay. And the final thing is, also contained
in the Democratic discussion draft, it contains an additional
$20 million for worker training grants that includes life
skills training for employees at nonprofit organizations. Why
do we need that in a brownfields bill?
Ms. Fisher. From our perspective, we don't think we need a
separate program for worker training. Under our current
brownfields program, however, we do have very successful worker
training programs at some of these sites, where we have
actually been able to train some local residents, particularly
in intercity areas.
And we would like to preserve the ability to use brownfield
grant and loan programs for worker training. And if we can do
that and maintain that ability, we don't think there is any
reason to set up a separate program with a separate----
Mr. Largent. And do you do life skills training?
Ms. Fisher. No, we don't.
Mr. Largent. What is life skills training?
Ms. Fisher. Well, I can tell you what I think it is. And,
actually, I think some of the Department of Labor work training
programs have a component. And it is my understanding basically
it helps teach people how to--the components of, going to work.
For some of our chronically unemployed people,
understanding and knowing just the personal habits of what it
takes to get to work on time and be ready to go to work are
part of the training that the Department of Labor I think
includes in some of their programs. But it is not what ours
encompasses.
Mr. Largent. Okay. I had one other question.
Ms. Fisher. Okay.
Mr. Largent. Knowing that the Secretary at EPA was also a
former Governor, I am wondering if she believes that a site
should be listed on the national priorities list without the
concurrence of the Governor of any given State.
Ms. Fisher. That is an issue close to her heart as a former
Governor. And as you may or may not know, it is the EPA policy
to seek the concurrence of Governors before we list sites on
the NPL. And, in fact, we have done that in every instance.
I think our feeling is it is not really a brownfields
issue. It is something we think our policy is adequately
covering. We haven't had any real complaints from Governors. I
think there has only been one site that we even had a dispute
with a Governor, and that site hasn't been listed yet.
So we think it is--our policy is taking care of it, and,
again, I am not sure it is something we really have to deal
with in the brownfields bill.
Mr. Largent. Thank you.
Mr. Chairman, I yield back.
Mr. Gillmor. The gentlelady from Missouri.
Ms. McCarthy. Thank you, Mr. Chairman.
I would like to ask just a couple of questions in followup
to some things that we have been talking about here today. When
Administrator Whitman was with us, I talked with her about
something that her State and also I think it was the State of
Wisconsin had done very successfully, which was to post on the
website an inventory of brownfields locations that were being
cleaned up, worked on, identified, etcetera--very successful in
both of those States. And she embraced the concept at the
hearing as something that she would like to see done.
S. 350 provides for a public record of voluntary cleanup
sites in Title III. The discussion draft before us today does
not. I am not asking you to take sides, but the Administrator,
you know, has done it in her own State when she was Governor,
embraced it as a concept for our consideration. Could you give
the committee some insight on why it would be important
nationally to have this?
And second thought while I get my moment, and then I will
turn it over to you, is, I would like some thought on your
feelings on whether or not we should have a floor or a ceiling
when we address these petroleum contaminated sites.
The funding issue is different in S. 350, and the
discussion draft of the chairman, you know, S. 350 requires a
$50 million, you know, total grant, but I think 25 percent be
made--must be made available to petroleum contaminated sites,
and the chairman's discussion draft kind of does this sort of
no more than 25 percent.
So you can go from zero to 25 percent on petroleum
contaminated sites--of the money. So it is a concept of whether
you have a floor guarantee of $50 million or, you know, a
ceiling of no more than--up to 25 percent.
Will it matter? Because this petroleum cleanup issue is
huge in urban areas all over this country. And the way funding
and appropriations works up here is sometimes mysterious.
Could you offer some philosophical thoughts on which
direction it would be better to go for facing the issue
nationwide?
Thank you.
Ms. Fisher. So I am going to give you an answer that is
neither. How about that? I think the most important limit is
actually the $1 million limit, because that assures that we
won't kind of lose whatever amount of funding we allocate to
any one site.
I think your point is correct. There is a huge number of
these petroleum-related sites, a lot of corner gas stations
that are boarded up and are creating problems in neighborhoods,
and even some tank farms. And that is why we were supportive of
actually expanding the concept to include the larger sites.
So I think the $1 million limit is an important one. We
haven't really focused--we can do that--on whether the 25
percent or the $50 million is better. Your comment is correct.
Probably the appropriations won't contemplate either. So it
will----
Ms. McCarthy. Having been a State legislator, and, you
know, understanding that when the Federal Government speaks and
wants us to do this then they don't provide the money, this
sort of unfunded mandate thing that we actually----
Ms. Fisher. We feel that way at the agency----
Ms. McCarthy. [continuing] that we wouldn't do any more.
Okay.
Ms. Fisher. [continuing] when Congress asks us to do
something and doesn't provide the funding.
Ms. McCarthy. I would appreciate your getting back to me on
some thoughts on that.
Ms. Fisher. Okay. But I guess I would say I think, just to
emphasize, we wouldn't want to lose the $1 million limit.
Ms. McCarthy. Right.
Ms. Fisher. Because I think that is the one that assures we
can get to a large number of sites.
On your other issue about the listing, it is true a lot of
States do have a publicly available list. And I think those
have been helpful in many instances to people who want to find
property that might be eligible for this and start the
initiative to clean it up.
I think on the other side, although I haven't had a chance
to talk to the authors about this provision, I think there is
concern about stigmas--the stigma of being associated, as a
contaminated site. But we have seen the listing work pretty
well in States that have it thus far.
Ms. McCarthy. We will do a little more research on New
Jersey and whether there was a stigma or not. I thank you for
your answers.
Mr. Chairman, I yield back.
Mr. Gillmor. The gentlelady yields back.
The gentleman from Nebraska.
Mr. Terry. Thank you, Mr. Chairman.
I appreciate your being here today. I do want to follow up
with my opening statement that I strongly believe that a strong
Federal safety net with broad reopeners is counterproductive to
some of the goals--the goals of encouraging States to take
control of brownfields, encouraging redevelopment, encouraging
subsequent purchasers.
I really believe that if--with broad reopeners that we
chill everything that we want to occur here. And I am telling
you from my real-life experiences that even though you may say,
``We don't go back in, that we are pushing ourselves away,''
that subsequent purchasers, because of that chance that you may
come back in, see the EPA and the Federal Government as
``hovering over.'' That is their perspective. You have a
different one of seeing yourself being--pushing yourselves
away. We have heard on the record before that there hasn't been
an incident where the EPA has come back in. That is still not
good enough.
So I want to work through an issue here to kind of
highlight or show as an example of what I am trying to refer to
here. When you have a reopener like imminent threat to public
health and environment, it is such a broad term.
For example, cleanup along the Missouri River where there
is arsenic in the soil. The cleanup as it currently sits--you
know, this is just kind of a hypothetical. I am sure this would
never happen in real life, but let us just set it for
hypothetically. A cleanup occurs, massive cleanup of property,
taking away six feet of dirt, replacing it with clean dirt. But
it leaches out still into the river at about 30 parts per
billion.
I mean, I would never say that the standard would be 50
parts per billion, and a new administration would come in and
lower it to 10, let us say, just in theory, hypothetically.
See, that is what people worry about is that 1 year it is
not a threat to public health at 50 parts, because that is the
current standard, but maybe just theoretically a new
administration comes in and lowers that, with the EPA working
to help that to a lower standard that now puts it below. It
wasn't a threat 1 year, but the next year it is a threat.
The Environmental Defense Fund comes in because you have
pushed yourself away. Now the courts are saying that, gee, the
EPA's own standards, this is now an imminent threat because the
leaching is occurring currently. And it is a threat to public
health.
You know, this is the type of thought process and
discussions that are going on in real life. So I just want to
point that out as an example of how people perceive the Federal
Government and EPA continuing to hover.
But let us just--here is my specific question to you, then.
On this type of example, let us say the Environmental Defense
Fund is successful in asking the Federal court to force the EPA
to come in and say, ``This needs to be cleaned up because the
standards have changed.'' Would the EPA support, at least in
those circumstances, allowing the States to stay in control of
the cleanup? Allowing us some language where States continue to
be in control, is that possible?
Ms. Fisher. Absolutely. I mean, our goal is to let the
States take the lead on these sites and continue to ensure
their protection. I guess--and I may seek the advice of counsel
on this--the question you raise is something we would face at
any Superfund site, and we don't go back because we have
changed, a safe drinking water standard--you referred to
arsenic--and redo every Superfund site that we have cleaned up.
So I am not quite sure that that situation would give rise
to our going back in. But to answer your real question----
Mr. Terry. The subsequent purchaser is still out there
wondering, though.
Ms. Fisher. Well, a subsequent purchaser--we think the
prospective purchaser protection in this is probably one of the
most important components of the bill and gives----
Mr. Terry. Absolutely.
Ms. Fisher. [continuing] gives them, I think very good
protection under it. And, you know, when we talk about our goal
in getting this bill passed, I mean, clearly that--that is
going to be I think a critical component of it.
Mr. Terry. Just one quick thing. I want to follow up on
something on Davis-Bacon that my friend from Oklahoma, Mr.
Largent, brought up. Have there been any instances where
communities have backed off or recipients of grant money have
backed off because of Davis-Bacon?
Ms. Fisher. I am advised that there have been two.
Mr. Terry. Where? Do you know? That is interesting.
Ms. Fisher. I can get back to you on what those are, but--
--
Mr. Terry. I would appreciate receiving that.
Ms. Fisher. Okay.
Mr. Terry. Real-life examples are important to us. Thank
you.
Mr. Gillmor. The gentleman from Louisiana, the chairman of
the full committee, Mr. Tauzin.
Chairman Tauzin. Thank you very much, Ms. Fisher, for being
here today. I wanted to take you through a couple of broad
position questions and then ask you a few specific ones. First
of all, does your Department support ensuring the brownfield
sites are not treated like Superfund sites?
Ms. Fisher. That is a broad question. I am not sure
specifically what you mean, but our goal is to particularly get
these sites through a much different, more flexible program,
which is what we are structuring here in terms of the
underlying program.
Chairman Tauzin. Then the answer is yes.
Ms. Fisher. Yes.
Chairman Tauzin. You believe that this program ought to be
different from the treatment provided for Superfund sites.
Ms. Fisher. Yes.
Chairman Tauzin. Second, do you believe that the bill that
we pass, the program we provide, should provide needed relief
to innocent parties from Superfund's overly broad liability
scheme?
Ms. Fisher. Yes. We support the prospective purchaser in
this.
Chairman Tauzin. And do you also believe that the bill
ought to increase the certainty for property owners and
developers to encourage participation in the State cleanup
programs?
Ms. Fisher. Yes. Yes, we do.
Chairman Tauzin. We can argue about how certain, but we----
Ms. Fisher. Right.
Chairman Tauzin. [continuing] certainly those are broad
principles. Do you also believe that we ought to extend
coverage of Superfund policy to petroleum contaminated sites?
Ms. Fisher. We think we should include coverage of
brownfields to some of the petroleum sites, yes.
Chairman Tauzin. Thank you very much. Let me ask you two
specific ones. The first one is in regard to the question of
EPA's role in regard to the State cleanups.
Let me first thank both the Democratic members and their
staff, as well as you, Mr. Chairman, for putting discussion
drafts before us. I think it is very helpful. In examining the
Democratic discussion draft, there are several changes to the
Senate bill that I want to ask you about.
Am I correct in my understanding that it is not EPA's
desire to increase its authority with respect to State cleanup
programs or to oversee them?
Ms. Fisher. That is correct.
Chairman Tauzin. So that you do not support the notion of
an upfront approval by EPA of the cleanup.
Ms. Fisher. That is correct. We are very comfortable having
principles and guidelines that a State program would be
expected to meet. But we don't want to get in the situation of
having to approve all of the different programs some of the
States run.
Chairman Tauzin. Second, in order to get brownfields
cleanup accomplished today, approval has to be obtained from a
number of different agencies regarding the environmental
impacts of this cleanup.
The suggestion we make in our discussion draft is that EPA,
on its own rulemaking--we don't tell you how to do it or what
to do or certainly not to diminish the environmental
requirements of those permits, but we suggest a one-stop
procedure for this to accommodate to the state's needs to
expedite and get less complicated bureaucratic approval of
their cleanup plan.
That is, we suggest a rulemaking that would combine a
single permit process respecting all of the agencies that have
some current say in that process. Do you support that notion?
Ms. Fisher. Here is the issue with that. By and large, we
are talking about state-delegated programs. EPA has delegated
already to the States the authority to write the permits under
the clean air and the clean water and the RCRA laws.
So our challenge in doing a Federal rulemaking on this now
is how we would structure that kind of a program that kind of
tells all the States who run their different permitting----
Chairman Tauzin. Don't we have a permit waiver for
Superfund cleanups right now?
Ms. Fisher. There is a permit waiver under Superfund
because under Superfund, first of all, most of them are run at
the Federal level. And, second, Superfund itself provides a lot
of the procedures that are very similar to what we would
require under the Federal programs.
Chairman Tauzin. What we are suggesting is not changing the
necessities, nor would we suggest exempting any party, any
State from compliance with the Federal standards. What we are
simply asking is: would you support--we would love to give you
the authority to do it--a process whereby your agency could
provide a streamlined permit authority for the States to move
forward once they have satisfied this regulatory process, that
the State is meeting all of the other requirements of the other
agencies. To put it simply: a one-stop shopping permit for
States to expedite brownfield cleanups.
Ms. Fisher. And I am not opposed to States doing that. In
fact, some already have.
Chairman Tauzin. I am asking you: would your agency be
supportive of our attempts to give you the authority to set up
such a structure at the Federal level?
Ms. Fisher. Yes. We will take the authority to look at it.
The----
Chairman Tauzin. To look at it.
Ms. Fisher. Yes. Here is the problem----
Chairman Tauzin. You can look at anything. You don't need
me to tell you to look at it.
Ms. Fisher. Because I am not quite sure of the problem I am
trying to fix. We have already delegated the permit programs to
the States. They have the authority to set up one-stop shopping
if they want to, and some of them already have.
To the extent the Federal Government is creating a
roadblock from States doing it, we definitely would be happy to
look at it. And if a rule--if we could do a rulemaking and that
would fix some of those problems, we would be happy to do that.
But----
Chairman Tauzin. Let me try to simplify it, because we are
getting a little complex. Are you supportive of the Gillmor
provisions which authorize a streamlined process?
Ms. Fisher. I am supportive of the provision if it includes
the ability to include both substantive and procedural
requirements, that if we did a streamlined permitting process
we would be able to maintain substantive and procedural
requirements.
Chairman Tauzin. All it does is authorize a rulemaking
which you conduct.
Ms. Fisher. Right.
Chairman Tauzin. Are you not comfortable with that kind of
an authority in----
Ms. Fisher. All it does is authorize us to do that. We will
be happy to take the authority.
Chairman Tauzin. Would you exercise the authority?
Ms. Fisher. Yes, as long as I can figure out what the
problem is we are trying to solve.
Chairman Tauzin. We will help you see that.
Thank you very much, Mr. Chairman.
Ms. Fisher. That is great. I am more than happy to do that.
Mr. Gillmor. Thank you, Mr. Chairman.
The gentleman, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman. I hope I am not too
much out of sync here having just walked in.
I am concerned, Ms. Fisher, about the provision in the
draft legislation which would I think significantly curtail the
EPA's protective authority without adequate assurances that
States would pick up the slack. I am particularly troubled by
Section 302 of the discussion draft which would give a Governor
veto authority over the listing of any Superfund site.
What concerns me--there are a couple of things that concern
me about this. What if you have a situation where a mayor,
county executive, local health officials feel one way and the
Governor feels another way. Who should have the greater sway in
that situation?
Ms. Fisher. I think the provision you are talking about is
the requirement for Governor's concurrence before we list a
site on the NPL. And as I said earlier before you came in, it
is our practice, really, at the agency today to get the
Governor's concurrence before we list a site on the NPL, and we
have actually done that in every instance.
There is one site that we propose that we don't yet have
the Governor's concurrence, but it has not gone final. So my
sense is I think our policy gets us where we need to be, and I
am not sure that we would recommend having this provision put
in the brownfields bill. It is really a Superfund issue. It is
not really a brownfields issue.
Mr. Barrett. So you don't think that that provision is
necessary?
Ms. Fisher. Right.
Mr. Barrett. Okay. That is the only question I had.
Mr. Gillmor. Thank you, Mr. Barrett.
The gentleman from Maryland.
Mr. Ehrlich. Ms. Fisher, thanks for your testimony today.
It has been clear, concise. Appreciate it. Congratulations.
Ms. Fisher. Thank you.
Mr. Ehrlich. I particularly appreciate I guess the
philosophical drift I am hearing here with regard to Governor
attention from your agency and allowing the States to do what
you want them to do. That is an answer with regard to various
questions.
As you all know, money here and money issues are relatively
easy in this context. That can be worked out. It is the real
issue with regard to autonomy and State finality, and you have
heard about 14 different questions asked different ways with
different nuances regarding the importance of finality, the
Gillmor draft language with regard to the singular issue of
finality.
Could you give me your concise policy statement with regard
to that issue? And then I want to get into Davis-Bacon for a
second--the easy stuff.
Ms. Fisher. We totally share the interest of the committee
to strike the appropriate balance between the need for
finality----
Mr. Ehrlich. Okay. That is a platitude. I want to get the
answer to--I want to get specifically your policy, your current
policy, your opinion with regard to the Gillmor draft.
Ms. Fisher. In terms of the Gillmor----
Mr. Ehrlich. Finality.
Ms. Fisher. The finality provisions?
Mr. Ehrlich. Correct.
Ms. Fisher. Well, we would like to continue to work with
the chairman to make refinements to it.
Mr. Ehrlich. Okay.
Ms. Fisher. Okay.
Mr. Ehrlich. Let me get back and try to ask a question with
regard to Davis-Bacon. And you had--one of your counsels helped
you with regard to two instances where there has been a backing
off because of Davis-Bacon. Can you give me--or can one of the
counsels give me precisely the application of Davis-Bacon in
this context? I am not sure what the application is.
Is it simply a general application because your agency is
involved and Federal dollars are involved? Is it a function of
that?
Ms. Fisher. Currently, the brownfields program is run under
Superfund.
Mr. Ehrlich. Right.
Ms. Fisher. And the funds come pursuant to Section 104 of
Superfund.
Mr. Ehrlich. Right. Federal dollars.
Ms. Fisher. And Davis-Bacon applies to that. So that is
what triggers it.
Mr. Ehrlich. This may be a difficult question, but I would
ask you to put the answer in written form. With regard to the
two instances cited earlier, the specific facts and the
chronology of events that lead to the conclusion that is pretty
relevant to us here regarding this language.
Ms. Fisher. Can I provide that?
Mr. Ehrlich. you sure can.
Ms. Fisher. Okay.
Mr. Ehrlich. Thank you. I will yield back.
Mr. Gillmor. Thank you very much.
The gentleman from New York.
Mr. Fossella. Thank you, Mr. Chairman.
Just to follow up briefly--it has been asked twice--on the
Environmental Justice Commission. I was wondering whether aside
from the merits of whether it is necessary or not--and I gather
from your discussion that it is--you don't believe it is
necessary--whether it is, or, in the opinion of counsel, is it
even constitutional to empower this commission to potentially
override Federal law? Do you have an opinion on that?
Ms. Fisher. I don't right now. I can--it is not a question
I have put to our counsel and would want to have a little bit
more opportunity to think about it before we respond.
Mr. Fossella. Is it possible to ask your counsel and then
forward it to me or----
Ms. Fisher. Sure, we can get----
Mr. Fossella. [continuing] this committee as to the
constitutionality of that? Thanks.
And just look at environmental justice through a different
prism. I believe--you probably believe that if something is
harmful or unhealthy to one individual, it doesn't matter what
color or creed you are, right?
Ms. Fisher. Correct.
Mr. Fossella. We had a situation on Staten Island, home
to--was home to the Fresh Kills landfill, it was the largest
landfill in the country, 3,000 acres--and, fortunately, we
closed this landfill this year.
But over the past few years while the city of New York
embarked on closing the landfill there were efforts around
other parts of the city that had to now assume some
responsibilities. In short, all of the residential garbage
generated in the city of New York was dumped on Staten Island
at the landfill.
So once it became apparent that other parts of the city had
to assume a degree of responsibility, we started seeing
lawsuits. And one of the actions brought was under the
jurisdiction or pursuant to environmental justice regarding a
transfer station or a potential transfer station in an area of
the Bronx.
To my knowledge, that is still open as to whether, you
know, EPA has an opinion. I am not sure. The fact of the matter
is that you had a community, just by nature of its
demographics, that were allowed to bring an action pursuant to
environmental justice, that the EPA spend a lot of money and
time reviewing it, and yet when we try to bring the same action
pursuant to environmental justice regarding the Fresh Kills
landfill--again, the largest open landfill in the country--we
were denied because we didn't meet the criteria.
I just found it odd that how the same government can look
at an open, unlined, environmentally unfriendly, unsafe
landfill and say you do not have a cause of action under
environmental justice, and just because of the makeup of your
community and demographics, and look at a transfer station
minuscule in comparison and say you do.
So I would just urge you--I know you mentioned that you
have a lot of folks who are very aggressively pursuing
environmental justice. If you take back that--there is another
side to the story and another side to other perspectives on
this matter.
So with that, thank you.
Ms. Fisher. Okay.
Mr. Gillmor. Thank you.
The gentleman from New Hampshire.
Mr. Bass. Thank you very much, Mr. Chairman. My question
will be very quick.
Both of the bills, the Senate bill and the House bill, have
authorized $200 million. The agency isn't spending anywhere
near that much. Why aren't you and will you be able to? Is that
too quick a question or should I elaborate more?
Ms. Fisher. No, I understand the question. I think the
program is currently limited because it is basically an
offshoot of Superfund and doesn't have its own funding
authority. And I am advised that we basically get a separate
appropriation for it that comes from the----
Mr. Bass. Is it a $100 million appropriation now?
Ms. Fisher. It is $90.
Mr. Bass. Ninety. How much of it have you spent, for
example, in the last--any fiscal year? Are you spending what is
getting appropriated?
Ms. Fisher. Yes, we are.
Mr. Bass. You are? Okay. But that--Okay. I understand. So
there is a difference between the appropriation and the loan
program that you have, which you are not spending very much
money at all on, is that right?
Ms. Fisher. The loan program is much smaller.
Mr. Bass. Very small. All right.
That is the only question I had, Mr. Chairman.
Mr. Gillmor. Thank you very much.
The gentleman from----
Mr. Bass. I understand that--excuse me, reclaiming my
time--if we do authorize $200 million, you are going to be able
to spend it?
Ms. Fisher. We usually, working with the Appropriations
Committee, are able to spend what they give us. And they
generally----
Mr. Bass. All right. That is fine. I understand.
Ms. Fisher. [continuing] give us far different than what is
authorized.
Mr. Bass. Thank you very much, Mr. Chairman.
Mr. Gillmor. The gentleman from Indiana who has been
waiting exceedingly patiently.
Mr. Brown. Ma'am, I have the largest Superfund cleanup site
by money in Continental Steel in Indiana. And I want to extend
compliments. It has been a long time, but the site is moving,
and you are doing some pioneering work out there. It is a
state-led site. But I want to extend the compliments, and
please let everyone know.
Ms. Fisher. Thank you. I will share that with the staff.
Mr. Brown. I also want to extend compliments to Mr. Pallone
and Mr. Gillmor. Putting the discussion drafts out is very
helpful to all of us. I am concerned--here is a question I have
for you.
If the intention here of brownfields really is to provide
greater flexibility, incentives, and the resources to State and
localities, to put these sites back into productive use, in the
Democrat discussion draft it adds minimum criteria for State
programs to qualify for funding and Federal enforcement and
liability protections, and it requires EPA to determine if
these criteria have been met upfront. Could this hamper such
cleanup efforts by States across the country?
Ms. Fisher. Yes. We would prefer a bit more flexibility
than what is provided there. We would rather not get in the
situation of having to approve every state's program. Some of
them run their brownfields under a couple of different cleanup
programs.
We do think, however, States do need to have guidance and
principles about what their programs are going to look like. We
think we can manage that through our grant program. So we do
have some handle on being sure that the States have met some
criteria, but we don't want to get into affirmatively having to
prove each of these.
Mr. Brown. Right. I want to thank you for working with the
chairman on the subsequent purchaser liability protections.
I yield back my time.
Ms. Fisher. Thank you.
Mr. Gillmor. The gentleman yields back, and that concludes
the questions. I want to, once again, thank you for coming. We
do look forward to working with you in the very near future to
produce a product that we can all support without refinements.
Ms. Fisher. Thank you, Mr. Chairman.
Mr. Gillmor. We have a series of three votes which have
started, and I think we will recess the panel now, so that we
can take those votes, and come back at 12:45 and start the
second panel. And the meeting stands recessed.
[Brief recess.]
Mr. Gillmor. The subcommittee will reconvene, and we will
begin with panel two. And I, once again, want to express my
appreciation to all of you for coming, and we will proceed with
your opening statements. We have your full testimony, and
hopefully you can summarize it in about 5 minutes, and then we
can go to questions.
Ms. Crotty?
STATEMENTS OF HON. ERIN M. CROTTY, COMMISSIONER, DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, STATE OF NEW YORK; HON. JAVIER
GONZALES, COMMISSIONER, SANTA FE COUNTY, NEW MEXICO; HON. J.
CHRISTIAN BOLLWAGE, MAYOR, CITY OF ELIZABETH, NEW JERSEY; HON.
LEON G. BILLINGS, STATE OF MARYLAND LEGISLATOR; AND GORDON J.
JOHNSON, DEPUTY BUREAU CHIEF, ENVIRONMENT PROTECTION BUREAU,
NEW YORK ATTORNEY GENERAL'S OFFICE
Ms. Crotty. Thank you very much, Mr. Chairman. I appreciate
the opportunity to be here today to share with you the position
of the State of New York, as well as The Environmental Council
of the States, on an issue that is so important to public
health and environmental protection as well as our economic and
social well being for our citizens.
I am also fortunate to have the opportunity to, once again,
work with Congressmen Fossella and Towns, who are incredible
advocates for brownfields redevelopment, and New Yorkers are
truly fortunate to have them representing us here in Congress.
Governor Pataki, Congressmen, asked me to relay to you the
State of New York's strong support for congressional action
that will make it easier for States, local governments, and
private entities to investigate, remediate, and ultimately
redevelop brownfields. Under Governor Pataki's leadership, New
York is considered actually a national leader in brownfield
cleanup and redevelopment.
We think that creativity and innovation at the State level
has been the hallmark of cleaning up and redeveloping many
brownfield sites, and we have a lot of programs in New York
State that are geared toward brownfields cleanup and
redevelopment.
But one I want to highlight because it is important to you
if your initiative passes and that is the--in 1996, the
Governor proposed and championed a $1.75 billion bond act. Of
that amount, $200 million is available to municipalities to
investigate and remediate brownfield sites.
Right now, it allows a grant of 75 percent of eligible
costs. The Governor has proposed legislation to increase that
to 90 percent and to actually allow other State and Federal
funds--importantly here, Federal funds--to be used for the 10
percent local match.
So if the Governor's changes are enacted by the
legislature, it will enable municipalities to utilize the
funding provided under your initiative for their cost share,
thereby achieving truly the Federal/state/local partnership in
addressing brownfields and further leveraging our scarce public
dollars.
We really believe that as Federal and State policymakers we
need to level the playing field between greenfield development
and brownfield redevelopment. And as we create programs and
policies to revitalize our urban areas, we need to make certain
that the programs to investigate cleanup and redevelopment
brownfields are the very foundation of those initiatives. And
in many areas, without an effective brownfield strategy our
attempts to revitalize our urban areas will be lost once again.
In New York State we have over 20 years of experience in
cleaning up contaminated sites. And we believe that the most
important need for Federal legislation is to provide liability
relief for those that are not responsible for the contamination
in the first place and finality to the cleanup process.
And if you look at it from that perspective, certainly all
of the bills that are being discussed in Congress, the Senate
bill and the two House discussion drafts, address those
concerns. However, we believe that the House majority draft
provides the greatest benefit to municipalities and non-
responsible parties that volunteer to clean up sites for three
primary reasons.
First, it provides a mechanism for finality. It requires
gubernatorial concurrence for listing a site on the national
priorities list. And it provides much needed funding for the
investigation and cleanup of brownfields. Let me go into detail
just briefly.
First, the House majority draft expands and enhances the
finality language included in Senate bill 350, which is vital
to improving the effectiveness and the pace of brownfield
cleanups. There is no question that brownfield redevelopments
currently are hindered by the pervasive fear of Federal
liability under the Federal Superfund statute, even in States
where a site has been cleaned up to the satisfaction of the
State regulatory agency.
We believe, as does the National Governors Association and
The Environmental Council of States, that the House majority
draft effectively addresses this barrier by shielding a party
from additional cleanup action by the Federal Government when
such party investigates and remediates a brownfield under a
State brownfield program that meets the criteria of the EPA,
except in those very limited circumstances that are spelled out
in your bill.
So we believe that those are reasonable conditions, and we
believe that the House majority draft's treatment of the
finality issue provides the kind of certainty that is needed to
encourage more parties to clean up contaminated sites across
this country.
Second, the House majority draft would require the
Governor's concurrence prior to listing a site on the Federal
Superfund list, which is very important to New York State,
since it demonstrates a deference to the actions being taken
under the state's programs. And it recognizes that a majority
of our sites are actually cleaned up by the--at the State or
local level.
In New York, EPA's Region 2 office does not place a site on
the NPL without the concurrence of Governor Pataki. This has
worked out very well. It fosters an excellent working
relationship, and we think it actually should be codified in
law.
And, third, the House majority draft provides another
important tool and that is funding. I commend your effort and
strongly urge you to make the States a full partner in this
effort by authorizing States like New York that demonstrate
that they have programs and policies and procedures in place to
actually administer the grant and loan programs, so the States
actually become the administrator of the funds instead of EPA.
We have a proven track record, many of us, with the clean
water and the drinking water State revolving loan funds, and we
think that that should be used as a model.
So with that, my time is up. Governor Pataki and I
appreciate your leadership and your consideration of our views
on this extremely important Federal initiative, and we are
looking forward to working with you.
[The prepared statement of Erin M. Crotty follows:]
Prepared Statement of Erin M. Crotty, Commissioner, New York State
Department of Environmental Conservation
Chairman Gillmor, thank you for providing me with the opportunity
to testify at this morning's hearing. I appreciate the opportunity to
share with you the position of the State of New York on an issue that
is so important to public health and environmental protection and the
economic and social well-being of our citizens. I am also fortunate to
have an opportunity to meet again with two New Yorkers who have made
crafting effective brownfield programs a priority--Congressman Fossella
and Congressman Towns--and New Yorkers are fortunate to have them
representing our interests.
Chairman Gillmor, Governor Pataki has asked me to relay to you the
State of New York's strong support for Congressional action that will
make it easier for states, local governments, and private entities to
investigate, remediate and redevelop brownfields that are,
unfortunately, blights on our urban and rural landscapes. Under
Governor Pataki's leadership, New York has become a leader in the field
of brownfield cleanup and redevelopment. This morning, I would like to
share with you some of the progress that we already have made to
remediate brownfields, and the need which we have found, based upon
this experience, for Congressional legislation.
Creativity and innovation at the State level has been the hallmark
of cleaning up and redeveloping many brownfields. However, even with
this significant progress, there are many more sites in New York and
thousands more across this nation that are still in need of
investigation, cleanup and redevelopment. We think the federal
government can help remove some of the barriers to their redevelopment.
New York's Brownfields & Voluntary Cleanups Programs
New York's Brownfields and Voluntary Cleanup Programs join our
traditional efforts, the State Superfund and the Oil Spill Programs,
that were put in place to clean up sites which were contaminated by
hazardous wastes or petroleum products. The New York State Superfund,
first enacted in 1979, provides for the investigation and cleanup of
sites that pose a significant threat to public health and the
environment from hazardous waste contamination. The State has
remediated 417 sites through this program, and an additional 400 more
cleanups are underway. Our Oil Spill Program provides for an immediate
and long-term response to petroleum and chemical spills. On average,
approximately 7,000 oil spill response and cleanup actions are
conducted annually. These two programs have been very successful and
their implementation has provided the State with extensive knowledge
and experience relative to contaminated site cleanups.
In an effort to transform brownfields from liabilities to assets
for New Yorkers, in 1996 Governor Pataki proposed and championed the
Clean Water/Clean Air Bond Act which authorizes $200 million for the
investigation and cleanup of brownfields by municipalities. New York's
Brownfields Program is one of the most heavily funded of its kind in
the nation. The Program provides financial assistance to municipalities
for up to 75 percent of eligible costs. Significantly, New York State
provides unprecedented liability limitation benefits to a municipality,
its successors in title, lessees, and lenders that participate in the
Brownfields Program. Our Brownfields Program provides the tools
necessary for municipalities to work in partnership with their
communities, the State and the private sector to turn properties that
were once unused into thriving, vibrant contributions to the community.
To date, 96 investigation projects and 14 cleanup projects have
been approved. These projects have received a total of $24 million.
Governor Pataki has proposed legislation that is currently before the
New York State Legislature that would increase this grant level from 75
percent to 90 percent, and allow the use of other State or federal
assistance for the required 10 percent local match. The Governor's
proposal has widespread support from stakeholders, including the
State's mayors, towns and counties and it is our hope that the
Legislature will enact the legislation this legislative session. These
changes will enable municipalities to utilize the funding provided by
the House Majority draft for their cost-share thereby achieving a true
federal, state, and local partnership to addressing brownfields and
further leveraging our public resources.
In addition to the Brownfields Program that provides incentives for
municipalities to cleanup contaminated properties, the State also has
developed a successful Voluntary Cleanup Program to encourage the
private sector to investigate, cleanup and redevelop brownfields. The
Voluntary Cleanup Program uses private rather than public funds, and
also is intended to reduce the development pressures on ``greenfield''
sites. New York's Voluntary Cleanup Program provides a cooperative
approach among the New York State Department of Environmental
Conservation, lenders, developers and prospective purchasers to
investigate and/or remediate contaminated sites and return these sites
to productive use. When the volunteer completes the required work, the
Department provides a release from liability for the work done and the
contaminants addressed, with standard reservations.
To date, the New York State Department of Environmental
Conservation has signed 196 agreements with volunteers, addressing a
total of 255 cleanup projects. Of these projects, 86 are ongoing or
completed investigations, and 115 represent remediations--50 of which
already have been completed. Each of these cleanups represents a new
beginning for a formerly contaminated under-utilized site--from
providing new jobs to the development of new parks for New Yorkers to
enjoy.
The Need for Congressional Action
As federal and state policy makers we need to level the playing
field between greenfield development and brownfield redevelopment. We
need to make certain that our statutes and our programs are not
creating artificial barriers to the reuse of brownfields, and if they
are creating barriers, we need to take appropriate action. As we create
programs and policies to revitalize our urban areas, we need to make
certain that programs to investigate, cleanup and redevelop brownfields
are the very foundation of those initiatives. In many areas, without an
effective brownfield strategy our attempts to revitalize our urban
areas will be lost.
Through New York's over 20 years of experience in cleaning up
contaminated properties, we have been able to identify the barriers to
effective cleanups and the appropriate incentives to encourage the
investigation, clean up, and redevelopment of these sites. Many of the
barriers to brownfield redevelopment require statutory amendment at the
federal and state levels. The existing liability scheme, which holds
all past, present and future owners of contaminated property liable for
cleanup costs, regardless of when or how the property was acquired
relative to the contamination, is a barrier to developers to purchase
brownfields and municipalities to take title to abandoned property. So,
too, does the potential cost of cleanup, which may not be known at the
time of purchase. In addition, lenders are often reluctant to extend
credit for the purchase and cleanup of brownfield sites, fearing future
liability or diminution of the value of the property held as collateral
should the site prove to require more extensive and costly cleanup than
initially thought. Consequently, financing such a purchase may be more
difficult than financing a purchase of a greenfield site.
Based upon our extensive experience over the past 20 years, the
most important need for federal legislation is to provide liability
relief to those not responsible for the contamination and finality to
the cleanup process. Looked at from that perspective, all three of the
primary bills before Congress--S. 350, the bill which passed the
Senate, and which forms the basis for both of the draft proposals in
the House: the House Majority bill draft; and the House Minority bill
draft--address these issues to differing degrees. The State of New York
believes, however, that of these three bills the House Majority draft
would provide the greatest benefit to municipalities and non-
responsible parties that volunteer to clean up sites. Further, we
believe that the passage of brownfields legislation should be a
priority for this Congress, but it must be legislation that encourages
the actual cleanup of brownfields.
House Majority Draft
The House Majority's draft legislation is favored by New York State
for three primary reasons: it provides a mechanism for finality,
requires gubernatorial concurrence for listing a site on the National
Priority List, and provides much needed funding for the investigation
and cleanup of brownfields. I will address these points briefly below.
First, the House Majority draft expands and enhances the finality
language included in S. 350 which is vital to improving the
effectiveness and pace of brownfield cleanups. There is no question
that brownfield redevelopments currently are hindered by the pervasive
fear of federal liability under the Superfund statute even in instances
where a site has been remediated to the satisfaction of the state. What
the State of New York, as well as the National Governors Association
and the Environmental Council of the States, strongly recommends is
language that at brownfield sites, the burden should be on USEPA to
show that the Governor was notified and given a reasonable opportunity
to correct the problem, or threat of the problem, and was unwilling or
unable to take appropriate action. Of course, if USEPA needed to take
emergency action to protect public health or the environment, and the
state was unwilling to respond, intervention by the federal government
might be appropriate. Similarly, a state could ask for federal
assistance in cleaning up any site if the circumstances warrant it.
The House Majority draft effectively addresses this barrier by
shielding a party from additional cleanup action by the federal
government when such party investigates and remediates a brownfield
under a state brownfield program that meets the USEPA's criteria;
except in very limited circumstances. We think that the finality
provisions of your discussion draft are a fair compromise between the
various points of view and sufficiently narrowly outline the
circumstances where intervention from USEPA is justifiable. In addition
to the state-request, and state-line or federal property migration
exceptions, your draft bars Superfund liability unless USEPA determines
not only that a release or threatened release presents an ``imminent
and substantial endangerment'' to public health or welfare, but also
that an emergency situation exists, and that the State will not quickly
respond. Your draft also provides a reasonable 72-hour period of time
for a state to reply to USEPA of the action it intends to take, while
maintaining an option for USEPA to take immediate action if necessary.
These are reasonable conditions, and we believe that the House Majority
draft's treatment of the finality issue provides the certainty needed
to encourage more parties to cleanup brownfield properties across this
country.
We respectfully request, however, that the House consider including
a provision that will further address the finality issue. The
legislation should prevent the federal government from recovering its
past response costs at sites remediated under a state brownfield
program when the party conducting the cleanup is not the party
responsible for the contamination. Such a provision was included in
H.R.1750 of the 106th Congress introduced by Congressman Towns. To not
give this assurance to developers who are spending thousands, or
hundreds of thousands, of dollars to cleanup and redevelop brownfields
reduces the chances that such redevelopments will happen--the exact
opposite of what is intended by the legislation.
Second, the House Majority draft would require the Governor's
concurrence prior to listing a site on the National Priorities List
(NPL). This requirement is important to New York State, since it
demonstrates a deference to the actions being taken under the State's
remedial programs. It recognizes that the majority of the activities to
remediate brownfields will be undertaken at the State or local level.
The right of concurrence on new NPL listings ensures that states have
the right of first action at contaminated sites, and where a state is
proceeding with cleanup, or has plans to do so, the federal government
will defer. As states are closer to the sites and to the affected
communities, such deference is entirely appropriate. This right of
concurrence applies only to long-term cleanup and does not in any way
limit USEPA's authority to respond to immediate problems. Nor does it
in any way impede USEPA's ability to take action at the hundreds of
sites that are already listed on the NPL.
Placement of new sites on the NPL without the concurrence of the
Governor when a state is prepared to apply its own authority would not
only be wasteful of federal resources, it would be counterproductive,
resulting in increased delays and greater costs. Over the years, USEPA
has recognized that states are currently overseeing most cleanups, and
has, as a discretionary matter, sought gubernatorial concurrence before
listing a site. In New York State, USEPA's Region 2 office does not
place sites on the NPL unless the State formally requests that a site
be listed. This process works well, fosters an excellent working
relationship between USEPA and the State, and allows for predictability
as to what will be placed on the NPL. Therefore, New York recommends
having this informal policy codified in law to assure that it continues
throughout future administrations. We greatly appreciate the inclusion
of a provision in the House Majority draft requiring gubernatorial
concurrence before a site is listed on the National Priorities List,
except in limited situations.
Third, the House Majority draft provides another important tool to
the cleanup and redevelopment of brownfields: funding. I commend your
effort and strongly urge you to make the states a full partner in this
effort by authorizing states, like New York, that demonstrate that they
have programs, policies and procedures in place to administer
brownfield grant and loan programs, to manage this effort on behalf of
the federal government.
States such as New York, with sophisticated environmental
restoration management programs, should receive preferential funding
under a Congressional brownfields bill. State population levels also
should be a major criteria for the distribution of the funds,
consistent with other federal programs. In addition, we recommend that
the bill include provisions that USEPA will provide funding through
existing state programs rather than directly to municipalities. Through
implementation of these recommendations, New York believes that the
federal funds will be used in the most cost-effective and efficient
manner.
This proposed funding structure parallels many existing
environmental and public health protection programs and provides for an
effective federal-state-local partnership. The existing Clean Water and
Drinking Water State Revolving Funds, for example, are excellent
examples of these beneficial partnerships. In addition, through such
efforts as the Clean Water/Clean Air Bond Act and the Voluntary Cleanup
Program, New York State already has an excellent understanding of the
investigation and cleanup process which municipalities and others are
undertaking. Federal legislation should take advantage of this existing
base of knowledge.
We also concur with the position of the House Majority draft
regarding the necessity of dispensing with National Contingency Plan
(NCP) compliance. While the House Majority draft clearly states that
NCP compliance is not required, other legislative proposals have
qualified NCP compliance in such a way as to make its applicability
less certain. In doing so, this language would have the effect of
discouraging participation in brownfields programs. New York's
experience indicates that we can reach our objective of making
brownfields cleanups protective of public health and the environment
without requiring adherence to the NCP.
Finally, I urge you to avoid language which would require a state
or local government to conduct an inventory of brownfields sites in
order to receive a brownfields grant or loan. In New York, we have
found that communities are reluctant to identify individual properties
as contaminated or potentially contaminated. Such an identification can
create a stigma which negatively affects the property from an economic
and community perspective.
Governor Pataki and I appreciate your consideration of our views on
this extremely important federal initiative. We commend you for your
efforts and recognize the need for such a measure. The creation of this
federal, state, and local partnership is crucial to return brownfields
to productive use and improve the quality of life for our citizens.
Mr. Gillmor. Thank you very much.
I also wanted to mention that Congressman Fossella from New
York who is a member of this panel was hoping to be here to
introduce you to the panel.
And, Commissioner Gonzales, the same is true of
Congresswoman Wilson. But she was also detained on the floor,
so on their behalf I will give you a special welcome.
But go ahead, Commissioner.
STATEMENT OF HON. JAVIER GONZALES
Mr. Gonzales. Thank you, Mr. Chairman. Chairman Gillmor,
Mr. Pallone, and members of the committee, thank you for
inviting me to testify on an issue of great importance to
America's counties and to citizens all across this country--the
cleanup and revitalization of brownfields.
My name is Javier Gonzales, and I am a County Commissioner
from Santa Fe County, New Mexico, and I currently serve as
President-elect of the National Association of Counties.
Accompanying me is Larry Naake, the Executive Director of NACO;
Edwin Rosado, our Legislative Director; and Stephanie Osborn,
our Associate Legislative Director for Environmental Issues.
Mr. Chairman, studies have estimated that there are
hundreds of thousands of brownfield sites--sites containing
low-level environmental contamination--in the United States.
They are in suburban and rural America, as well as in our inner
cities. The cleanup and revitalization of these sites presents
a win-win scenario for States, counties, citizens, and cities.
With the right tools, we can improve the health of our
environment while creating opportunities for economic
development as well as for parks, green space, and housing. By
restoring brownfield sites to productive use, we can address
two major priorities of the Nation's counties. First, we
facilitate local smart growth planning by providing space for
in-fill development instead of pushing new development to
greenfields.
Second, we help address the Nation's affordable housing
crisis by clearing the way for cost-effective residential
development in areas with existing infrastructure. For these
reasons, NACO strongly supports the enactment of bipartisan
brownfields legislation in as speedy a manner as possible.
In past years we have urged the Congress to pass
brownfields legislation only if it also contained a provision
to codify the EPA's municipal settlement policy under
Superfund. We still believe legislation to address municipal
liability is needed. However, we now believe the time has come
to enact stand-alone brownfields legislation in a timely manner
while Congress continues to grapple with Superfund reforms.
With regard to the three bills before us today, first let
me say that each of them has tremendous merit. From the
perspective of a county official, the bills have much more in
common than they have differences.
In particular, NACO supports the 5-year, $200 million
annual authorization for brownfields grants to counties and
other local governments contained in all three bills, as well
as the provision to extend eligibility for 25 percent of those
funds to sites contaminated by petroleum. Adequate funding for
these programs is of paramount importance to NACO.
NACO offered its support for S. 350 as the bill was being
considered by the Senate earlier this year. Though we are
encouraging the House to work its own will on brownfields, we
believe the Senate bill contains the major elements needed in
brownfields legislation. And we continue to recognize the
careful bipartisan balance struck in the Senate's passage of
the bill.
Therefore, we are pleased that both the Gillmor discussion
draft, the Democratic discussion draft, have used S. 350 as the
foundation for a House brownfields bill.
With regard to the Gillmor discussion draft, NACO has
identified three areas that we believe represent improvements
to S. 350. The first is the draft bill's approach to
eligibility. NACO supports a flexible program that extends
brownfields eligibility to portions of larger sites at which
environmental response action is required, so long as a portion
of the site eligible is not the subject of the response action.
Second, NACO endorses the notion of further devolving the
authority and responsibility to oversee the cleanup of
brownfield sites to States and local governments--a concept
contained in each of the three bills. We support the State
finality provisions contained in this draft bill which outline
the narrow circumstances where the Federal safety net may be
necessary and EPA should intervene.
Finally, NACO supports procedural streamlining of the
permitting process for the cleanup of brownfield sites.
Simplifying the permitting process would provide for more
timely and cost-effective cleanups while not affecting
compliance with the substantive environmental requirements
contained in the current law.
With regard to the Democratic discussion draft, we support
the following revisions to S. 350. First, we support the
addition of brownfields worker training and safety program
authorized at $20 million annually. And, second, we support the
inclusion of general minimum criteria that a State program must
meet before Federal enforcement authority is restricted under
the bill's finality provisions. These assurances help balance
the authority devolved to the States under this legislation.
In summary, Mr. Chairman, we commend the authors of all
three bills being examined at today's hearing. Each of them is
built from the same strong foundation and each has merit.
Again, we are encouraged by the Senate's bipartisan effort in
support of S. 350.
NACO supports similar bipartisan efforts in attaining House
passage, a smooth conference with the Senate, and a final bill
that can be signed by the President. We want to work with the
Republicans and the Democrats in this effort.
Mr. Chairman, Mr. Pallone, on behalf of the National
Association of Counties, I thank you for your leadership on
this important issue and for inviting testimony from county
government perspective.
Thank you.
[The prepared statement of Hon. Javier Gonzales follows:]
Prepared Statement of Hon. Javier Gonzales, Commissioner, Santa Fe
County, New Mexico and President-Elect, National Association of
Counties
Chairman Gillmor, Mr. Pallone and members of the committee, thank
you for inviting me to testify on an issue of great importance to
counties across the country--the cleanup and revitalization of
brownfields.
My name is Javier Gonzales, and I am a County Commissioner from
Santa Fe County, New Mexico. I currently serve as President-Elect of
the National Association of Counties.
The National Association of Counties (NACo) is the only national
organization representing counties in the United States. Our membership
is comprised of counties large and small, urban, suburban and rural.
County governments have the day-to-day responsibility for local land-
use planning, environmental protection, economic growth and stability,
and the general health and welfare of the citizens in our communities.
Studies have estimated that there are hundreds of thousands of
brownfields sites--sites containing low-level environmental
contamination--in the Unites States. They are in suburban and rural
America, as well as in our inner cities. The cleanup and revitalization
of these sites presents a win-win scenario for states, counties,
cities, and our citizens. With the right tools, we can improve the
health of our environment while creating opportunities for new economic
development, as well as for parks and green space.
By restoring brownfields sites to productive use, brownfields
cleanup and revitalization helps address two major priorities of the
nation's counties. First, it facilitates the implementation of local
smart growth plans by providing space for infill development, instead
of pushing new development to outer-lying, previously undeveloped areas
(green fields). And in rural areas, such as parts of my home county of
Santa Fe, directing development to these sites enables us to better
protect agricultural lands and the character of small town America.
Second, brownfields revitalization addresses a county priority by
creating opportunities for housing development. NACo believes that this
country is facing an affordable housing crisis, and that the
redevelopment of these sites can help clear the way for cost-effective
residential development in areas with existing infrastructure.
For these reasons, NACo strongly supports the enactment of
responsible, effective and bipartisan brownfields legislation, in as
speedy a manner as possible.
Two weeks ago, NACo's Large Urban County Caucus, representing
America's 100 largest counties, with over 48 percent of the U.S.
population, conducted a legislative fly-in in which affordable housing
and the need for brownfields legislation were the major topics of
discussion with Congressional leadership in the House and Senate.
In past years, as you may remember, we have urged the Congress to
pass brownfields legislation only if it also contained a provision to
codify the Environmental Protection Agency's Municipal Settlement
Policy under Superfund. Although that legislative strategy has not
succeeded, we still believe legislation to address municipal liability
under Superfund is needed. However, we now believe the time has come to
enact stand-alone brownfields legislation in a timely manner, while
Congress continues to grapple with Superfund reforms.
In that light, I wish to thank the members of this committee for
placing such a high priority on brownfields legislation. NACo believes
that federal brownfields legislation is needed to:
<bullet> Shore up and refine the successful U.S. EPA brownfields
characterization, assessment and remediation grants program;
<bullet> Extend eligibility to sites contaminated by petroleum or
petroleum byproducts; and
<bullet> Further devolve the authority to oversee brownfields cleanups
to the state and local level.
With regard to the three bills before us today--the Senate-passed
bill (S. 350), the Gillmor discussion draft of June 13, and the
Democratic discussion draft of June 20--first let me say that each of
them has tremendous merit and, from the perspective of a county
official, the bills certainly have more in common than they have
differences.
In particular, NACo supports the five-year, $200 million annual
authorization for brownfields characterization, assessment and
remediation grants to counties and other local governments contained in
all three bills, as well as the provisions to extend eligibility for 25
percent of those funds to sites contaminated by petroleum or petroleum
products. This type of assistance has proven to jump-start the cleanup
and revitalization of brownfields sites counties in across the country.
Adequate funding for these grant programs is of paramount importance to
NACo.
NACo also supports the liability clarifications for contiguous
properties, prospective purchasers and innocent landowners contained in
each bill. These provisions help remove the chilling effect that
currently serves as a disincentive to revitalize brownfields sites.
With regard to S. 350:
NACo offered its support for S. 350 as it was being considered by
the Senate earlier this year. Though we are encouraging the House to
works its own will on brownfields legislation and to consider
adjustments to S. 350, we believe the bill contains the major elements
needed in brownfields legislation. And we continue to recognize the
careful, bipartisan balance struck in the Senate's passage of the bill.
Therefore, we are pleased that both the Gillmor discussion draft and
Democratic discussion draft have used S. 350 as the foundation for a
House brownfields bill.
With regard to the Gillmor discussion draft, NACo identified three
areas that we believe represent improvements to S. 350:
<bullet> The first is the draft bill's approach to brownfields
eligibility exclusions. NACo supports a flexible program that
extends brownfields eligibility to portions of sites at which
Superfund, RCRA or other environmental response action is
required, so long as the portion of the site eligible for
brownfields assistance is not the subject of such requirements.
We believe that lesser contaminated portions of these sites
should not unilaterally be excluded from eligibility, and that
decisions to provide brownfields assistance at these sites
should be made on a case-by-case basis.
<bullet> Second, NACo endorses the notion of further devolving the
authority and responsibility to oversee the cleanup and
revitalization of brownfield sites to states and local
governments--a concept contained in each of the three bills. We
support the state finality provisions contained in this draft
bill, which outline the narrow circumstances where the federal
safety net may be necessary and EPA should intervene; that is,
when circumstances at the site ``present an imminent and
substantial endangerment to public health, welfare or the
environment'' and ``the State will not take the necessary
response actions in a timely manner.'' Under such
circumstances, NACo supports providing the EPA Administrator
with the authority to take immediate action, as outlined in the
bill.
<bullet> Finally, NACo supports procedural streamlining of the
permitting process for the cleanup of brownfields sites.
Simplifying the permitting process would provide for more
timely and cost-effective cleanups, while not affecting
compliance with the substantive requirements contained in
current law. We support the approach of requiring the EPA
Administrator to promulgate such a regulation, and would look
forward to working with the Administrator during the rulemaking
process.
With regard to the Democratic discussion draft, we support the
following revisions to S. 350:
<bullet> First, we support the addition of a brownfields worker
training and safety program authorized at $20 million annually.
As proposed, the program would be used to support important
programs to train and educate workers directly engaged in
brownfields cleanup and redevelopment, including those
conducting hazardous waste cleanups, as well as local
government officials and the public.
<bullet> Second, we support the inclusion of general minimum criteria
that a state response program must meet before federal
enforcement authority is restricted under the bill's finality
provisions, such as are used in negotiating current Memoranda
of Agreement between EPA and the states. Such assurances would
help balance the authority devolved to the states under this
legislation, and we have supported these provisions in previous
brownfields bills. (We also support conditioning grants to the
states on minimum criteria, as included in S. 350.)
In summary, we commend the authors of all three bills being
examined at today's hearing. Each of them is built from the same strong
foundation, and each has merit.
Again, we are extremely encouraged by the Senate's bipartisan
effort in support of S. 350. NACo supports similar bipartisan efforts
in seeking agreements from both sides of the aisle in attaining House
passage, a smooth conference with the Senate and a final bill that can
be signed by the President. We want to work with Republicans and
Democrats in this effort.
Mr. Chairman, Mr. Pallone, on behalf of the National Association of
Counties, I thank you for your leadership on this issue, and for
inviting testimony from the county government perspective. I would be
pleased to answer any questions you may have.
Mr. Gillmor. Thank you, Commissioner.
I will now recognize Mr. Pallone of New Jersey to introduce
the Mayor from New Jersey.
Mr. Pallone. Thank you, Mr. Chairman. And let me say that
Mayor Chris Bollwage is the Mayor of Elizabeth, New Jersey, and
Elizabeth may be one of the best examples of a major city in
our State that has made great strides in terms of
redevelopment, not only its residential but its commercial
districts.
And Mayor Bollwage has, in particular, played a major role,
had to deal with a lot of brownfield sites which I think has
been--his success in that has been a major part of the
redevelopment effort in Elizabeth, and he really is looked at
around the State as sort of a model for a larger city mayor in
New Jersey who can accomplish a great deal with redevelopment,
at the same time taking concerns of the environment at heart.
So thank you for being here, Chris.
STATEMENT OF HON. J. CHRISTIAN BOLLWAGE
Mr. Bollwage. Thank you, Congressman. Don't tell the two
mayors that are running for Governor that statement.
Mr. Pallone. I know. I was thinking of that today.
Mr. Bollwage. Good morning, Mr. Chairman and members of the
subcommittee. I am Chris Bollwage, the Mayor of Elizabeth, and
I am pleased to testify today on behalf of The United States
Conference of Mayors, the national mayors organization
representing more than 1,000 cities with a population of 30,000
or more. I currently serve as an Advisory Board member as well
as the co-chair of the Brownfields Task Force.
Mr. Chairman, ranking member Pallone, I would like to begin
my comments by commending you and members of this subcommittee
for moving forward with brownfields legislation. The enactment
of bipartisan brownfields legislation has been among our
conference's top priorities for 7 years. And I would like to
deliver one message on behalf of the Nation's mayors--that we
need prompt, bipartisan action on brownfields legislation.
While we can engage in discussion about how to craft
specific provisions of the legislation, debate both substantive
and technical changes, the overriding issue is, how do we come
to a broad bipartisan agreement on this legislation?
The Nation's mayors urge all of you to craft a bipartisan
agreement on brownfields. This has been, and continues to be,
the central tenet of the conference's policy on brownfields
legislation. And just for the record, at no time, Mr. Chairman,
has the Conference of Mayors endorsed or supported a partisan
legislative proposal on these matters.
I was pleased this past weekend to cosponsor a policy
statement with Charlotte Mayor Patrick McCrory, the Chair of
the Conference's Energy and Environment Committee, and Green
Bay Mayor Paul Jadin, in a bipartisan group of mayors calling
for bipartisan congressional action.
The message of this policy statement is bipartisanship. The
mayors call upon the House leadership of both parties to come
together to craft a bipartisan agreement and to do so promptly.
The mayors have called upon President Bush in Detroit to
request the House leaders to seek some bipartisan action, and
we urge the House of Representatives to adopt Senate-passed
legislation S. 350 if ongoing House efforts fail to develop a
timely and broad bipartisan agreement on brownfields
legislation.
Our position provides you with the opportunity to work
cooperatively in crafting a bipartisan agreement. Failing to
generate such an agreement in a timely manner, the mayors would
then urge you simply move forward and pass Senate legislation
S. 350.
Close behind the funding is the need for liability relief
for innocent parties. Again, each of the pending bills before
you have provisions that protect innocent parties, focusing on
developers and other parties who are seeking to clean up and
redevelop these sites.
In addition, there are other parties like contiguous
landowners that are given protection under the legislation
before you. We must ensure that people who get protection under
these provisions are innocent parties.
In this Congress, the decision has been made, and rightly
so, to move a brownfields only bill--a position strongly
advanced by President Bush and our former Governor, Christine
Todd Whitman, in their support of S. 350. It appears now that
there are some efforts to use brownfield legislation as an
umbrella to extend brownfield-related provisions to sites which
are not truly brownfields.
And, Mr. Chairman, as Congressman Pallone said, we have
developed brownfields in the city of Elizabeth, a former
landfill that is now a 166-acre site that has a 1.2 million
square foot mall, three hotels, a movie theater opening in the
summer, plus 750,000 square feet of office space. I welcome
anyone on the committee to get more information on that. I can
provide it to Congressman Pallone.
Mr. Chairman, on each of these issues, my statement
addresses funding, liability, finality, and definitional issues
with the full text for the record. It is clear that the Senate
has found ways to reach broad agreements on these issues. In
fact, on the issue of finality as one example, they rightly
concluded that their agreement, while short of what some might
advocate, will positively affect an overwhelming percentage of
the many brownfield sites throughout the Nation.
As such, the finality provisions in the Senate were broadly
supported. EPA Administrator Whitman, a former Governor, agrees
with the Senate approach. I was there when she testified. We
also agree with the Senate's stance on these issues.
We urge this panel to work in the same spirit as the
Senate, work to reach similar, broad, bipartisan agreements to
allow this legislation to move forward. The technical nuances
of one provision over another will matter little at the end of
the day if you cannot reach a bipartisan agreement.
Earlier this week our conference leaders met with President
Bush to talk about our priority issues before he spoke to the
full conference membership on face-based initiatives in
Detroit. We underscored the need for a bipartisan agreement in
the House, praising him for the support of the Senate bill. He
indicated that enactment of brownfields legislation is among
his priorities and noted his support of the Senate's bipartisan
legislation.
We need this body to move forward on a bipartisan basis, so
that we can accelerate our efforts to address this critical
national problem.
Mr. Chairman, and members of the subcommittee, ranking
member Pallone, you can count on the Nation's mayors for strong
support. Thank you very much for this opportunity, Mr.
Chairman, and it is good to see you, Congressman Pallone.
[The prepared statement of Hon. J. Christian Bollwage
follows:]
Prepared Statement of Hon. J. Christian Bollwage, Mayor, Elizabeth, NJ
on Behalf of The United States Conference of Mayors
Good morning, Mr. Chairman and Members of the Subcommittee, I am J.
Christian Bollwage, Mayor of Elizabeth, New Jersey.
I am pleased to testify today on behalf of The United States
Conference of Mayors, the national mayors' organization representing
more than 1,000 cities with a population of 30,000 or more.
Today I will speak to the position of the Conference of Mayors
regarding the pending brownfield proposals--Chairman's Discussion
Draft, Democratic Discussion Draft and S. 350, the Senate-passed bill--
now before this Subcommittee.
Within the Conference, I am a Member of the Advisory Board and I
also serve as a Co-chair of the organization's Brownfields Task Force,
a position I have held since that panel was first established in 1996.
Given these positions, I have been extensively involved in these issues
for some time.
Mr. Chairman and Ranking Minority Member Pallone, I would like to
begin my comments by commending you and Members of this Subcommittee
for moving forward with brownfields legislation. The enactment of
bipartisan brownfields legislation has been among the Conference's top
priorities for several years. In fact, this is now our third Congress
where we have been urging bipartisan Congressional action on this
legislation.
Mr. Chairman, I want to deliver one message on behalf of the
nation's mayors and this is: we need prompt bipartisan action on
brownfields legislation. While we can engage in discussion about how to
craft specific provisions of the legislation, and debate both
substantive and technical changes, the overriding issue is how we come
to a broad bipartisan agreement on this legislation.
Need for Bipartisan Action on Brownfields
Mr. Chairman, the nation's mayors urge you to craft a bipartisan
agreement on brownfields. This has been and continues to be the central
tenet of the Conference's policy on brownfield legislation. At no time,
Mr. Chairman, has the Conference of Mayors endorsed or supported a
partisan legislative proposal on these matters.
Earlier this week, the Membership of the Conference of Mayors
renewed its call for a broad bipartisan agreement on brownfields
legislation. Mr. Chairman and Members of this Subcommittee, I call you
attention to the policy statement, Bipartisan Action on Brownfields
Legislation, which was adopted Monday, June 25 by our Membership during
our 69th Annual Meeting in Detroit.
I was pleased to sponsor this policy statement with Charlotte Mayor
Patrick McCrory, the Chair of the Conference's Energy and Environment
Committee, and Green Bay Mayor Paul Jadin. It is a bipartisan group of
mayors, calling for bipartisan Congressional action.
The message of this policy statement is bipartisanship. In this
statement, the mayors call upon the House Leadership of both parties to
come together to ``craft a bipartisan agreement and to do so
promptly.'' The mayors also call upon President Bush ``to request House
Leaders to seek prompt bipartisan action.'' Finally, the mayors urge
the House of Representatives to ``adopt the Senate-passed legislation
(S. 350), if ongoing House efforts fail to develop a timely and broad
bipartisan agreement on brownfields legislation.''
Our position provides you with the opportunity to work
cooperatively in crafting a bipartisan agreement. Failing to generate
such an agreement in a timely manner, the mayors would urge you to
simply move forward with the Senate-passed legislation, S. 350.
Elements of an Agreement
Mr. Chairman, the proposals before you today share some common
elements that the mayors have consistently supported. We have called
for resources at the local level to support city and county programs to
assess and cleanup these sites. The pending bills before you have
funding elements in them that are generally consistent.
In our survey work at the Conference, where we conduct annual
surveys of our membership, federal funding for these local efforts was
the top need that was identified in each of three surveys of cities.
This information simply underscores the importance of a strong funding
element in this legislation.
Close behind funding is the need for liability relief for innocent
parties. Again, each of the pending bills before you have provisions
that protect innocent parties, focusing on developers and other parties
who are seeking to cleanup and redevelop these sites. In addition,
there are other parties like contiguous landowners that are given
protection under the legislation before you. We must ensure that people
who get protection under these provisions are ``innocent parties.''
We have also called for more clarity on the relationship between
the federal government and the states on brownfield cleanups and other
matters. As you know, this element is generally defined by the debate
over what is called ``finality.''
These issues--funding, liability relief and the federal/state
relationship--constitute the core elements of a brownfield package.
These three elements need to be supported by a clear and
appropriate definition of what constitutes a brownfield. This is an
area that needs particular attention in the final House version of the
legislation to ensure that the sites that are the focus of the
legislation, be it liability protection, funding or priority under
state cleanup programs, are truly brownfield sites.
In this Congress, the decision has been made, and rightly so, to
move a brownfields only bill, a position strongly advanced by President
Bush and Governor Christine Todd Whitman in their support of S. 350.
It appears now there are some efforts to use brownfield legislation
as an umbrella to extend brownfield-related provisions to sites, which
are not truly brownfields. Here I am talking about more seriously
contaminated sites, usually characterized as NPL or NPL-caliber sites.
We would urge you to abandon provisions that characterize sites as
brownfields, particularly where there are current owners/operators who
are responsible for contamination at these sites, so they can realize
relief or other protections/considerations for contamination that they
caused. This is a direction we would oppose.
Mr. Chairman, on each of the issues that I have outlined--funding,
liability, finality and definitional issues--it is clear that the
Senate found ways to reach broad agreements on these issues. In fact,
on the issue of ``finality'', as one example, they rightly concluded
that their agreement, while short of what some might advocate, will
positively affect an overwhelming percentage of the many brownfield
sites throughout the nation. As such, the finality provisions in the
Senate were broadly supported. EPA Administrator Christine Todd
Whitman, a former Governor, agrees with the Senate approach. We also
agree with the Senate's stance on these issue.
We urge this panel to work in the same spirit as the Senate and
work to reach similar broad bipartisan agreements to allow this
legislation to move forward. The technical nuances of one provision
over another will matter little, at the end of the day, if you can't
reach a bipartisan agreement.
Concluding Remarks
Mr. Chairman, I want to underscore the call of the nation's mayors
for bipartisan action on brownfields legislation. Bipartisan action is
a formula that works.
Earlier this week, our Conference leaders met with President Bush
to talk about our priority issues before he spoke to the full
Conference Membership on faith-based initiatives. We underscored the
need for a bipartisan agreement in the House, praising him for his
support of the Senate bill. He indicated that enactment of brownfields
legislation is among his priorities and noted his support of the
Senate's bipartisan legislation.
Let me recap. President Bush has made enactment of brownfields
legislation a priority. The United States Senate has voted 99-0 on its
proposal, S. 350. We need this body to move forward on a bipartisan
basis so that we can accelerate our efforts to address this critical
national problem.
To this end, Mr. Chairman and Members of this Subcommittee, you can
count on the strong support of the nation's mayors.
Mr. Gillmor. Thank you, Mayor.
Delegate Billings?
STATEMENT OF HON. LEON G. BILLINGS
Mr. Billings. Thank you, Mr. Chairman, Representative
Pallone. I am Maryland's State Delegate, Leon Billings. I
appear before you today on behalf of the National Conference of
State Legislatures, where I currently serve as Vice Chairman of
the Environment Committee.
Enactment of brownfields legislation in the 107th Congress
is a top priority for NCSL. NCSL has in its last formal meeting
adopted a separate resolution on brownfields. It is a
resolution which, as you know, Mr. Chairman, it is difficult to
get a resolution through NCSL. This resolution was adopted
unanimously. And interestingly enough, it parallels very
closely the position taken by the administration witness this
morning.
The following objectives are outlined in that resolution. I
will briefly review them. One, define brownfields so as to
separate them from those Superfund site or sites with
sufficient contamination to be concerned about potential future
offsite impacts or potential future use.
Two, allow States to determine whether or not a site is a
brownfield against a Federal statutory definition. And if a
State determines that a brownfield site is free of
contamination or can be cleaned up enough for the designated
deed-restricted use, a State should be authorized to immunize a
developer from liability or future cleanup responsibility.
The prepared State action should immunize parties from any
liability for contamination that they did not contribute to or
cause. Retain States' primary responsibility for brownfields
redevelopment program, grandfather existing State voluntary
cleanup programs and memorandums of agreement, and increase
Federal funding for assessment and cleanup of brownfield sites.
Let me emphasize, Mr. Chairman, brownfields legislation
should be free-standing and relate only to the narrow purpose
of allowing States to redevelop abandoned, underutilized,
industrial and commercial property for which there is minimum
likelihood of offsite contamination or endangerment to health
and welfare of subsequent users. And it should not be used as a
means to achieve other Superfund-related agendas.
I will stop at that point. I have a complete statement. I
would like to make one observation. There has been much
discussion about funding. Speaking only as a delegate from the
State of Maryland, Mr. Chairman, the issue of finality is the
issue with which we are dealing in our State. If we cannot
immunize our developers from Federal liability action, we are
not going to have a brownfields program.
Funding is secondary. While we would like to have the
money, thank you, give us finality and we will worry about the
money ourselves--speaking, again, only for Maryland.
[The prepared statement of Hon. Leon G. Billings follows:]
Prepared Statement of Hon. Leon G. Billings, Delegate, Maryland General
Assembly, Vice Chair, NCSL Environment Committee on Behalf of National
Conference of State Legislatures
Mr. Chairman, members of the committee, I am Maryland State
Delegate Leon Billings. I appear before you today on behalf of the
National Conference of State Legislatures (NCSL). I currently serve as
a Vice Chair of NCSL's Environment Committee of the Assembly on Federal
Issues.
NCSL is a bipartisan organization representing all state
legislators from all 50 states and our nation's commonwealths,
territories, possessions and the District of Columbia. The focus of
NCSL's policies and advocacy activity is the development and
maintenance of workable state-federal partnerships, preservation of
state authority, protection against costly unfunded mandates and the
promotion of fiscal integrity. I appreciate the invitation to speak to
you today about the brownfields proposals before the 107th Congress.
Let me start by voicing NCSL's support for the enactment of
brownfields legislation in the 107th Congress. It is a top priority for
NCSL. Several states have over 20 years of experience on this issue,
and it is essential that federal brownfields legislation further their
development and successes. NCSL has a brownfields policy, which is
submitted with the testimony.
We commend Representatives Gillmor and Pallone, as well as Senators
Smith, Reid, Boxer and Chafee for their efforts to draft brownfields
legislation and we look forward to working with you on this issue as it
moves through the legislative process. My comments will outline what
NCSL considers to be essential elements in a federal brownfields bill.
While I will talk further on each issue, NCSL supports brownfields
legislation that accomplishes the following objectives:
<bullet> Defines brownfields so as to separate them from those
Superfund sites or sites with sufficient contamination to be
concerned about potential future off-site impacts or potential
future use.
<bullet> Allows states to determine whether or not a site is a
brownfield against a federal statutory definition and, if a
state determines that a brownfield site is free of
contamination or can be cleaned enough for a designated, deed
restricted use, a state should be authorized to immunize a
developer from liability or a future cleanup responsibility.
That state action should immunize that party or parties from
any liability for contamination they did not cause.
<bullet> Retains states' primary responsibility for brownfields
redevelopment programs. States should be allowed flexibility to
determine all aspects of the state brownfields programs in
order to tailor programs to meet their unique needs.
<bullet> Grandfathers existing State Voluntary Cleanup Programs and
honors existing Memorandums of Agreement (MOAs) between states
and the U.S. Environmental Protection Agency.
<bullet> Increases federal funding for the assessment and cleanup of
state brownfields.
<bullet> Brownfields legislation should be free standing and relate
only to the narrow purpose of allowing states to redevelop
abandoned, underutilized industrial and commercial property for
which there is minimum likelihood of off-site contamination or
endangerment of health and welfare of subsequent users and not
used as a means to achieve other Superfund related agendas.
State brownfields programs are an integral part of our nation's
ongoing efforts to revitalize former industrial and commercial sites
that may be contaminated, may be unused and may have been abandoned.
These programs provide a significant benefit to both the environment
and the economy of impacted local communities. With increased concerns
over urban sprawl and the growing infrastructure gap, investing more
resources in the cleanup of the estimated 450,000 to 600,000
brownfields nationwide makes sense and is good public policy.
funding
NCSL is encouraged by the commitment all of the proposals make to
providing federal assistance to states to establish and expand
voluntary cleanup programs. This builds on fiscal commitments many
states have made and, futhermore, the addition of public funds would
assist in closing the gap where the private sector funds are
unavailable, providing states the necessary resources to initiate
cleanup.
To the extent federal financial assistance is provided, NCSL
encourages Congress to ensure that states are provided flexibility
regarding expenditure of these funds. This is extremely important for
the forty-seven states that currently have voluntary cleanup programs
in place. State programs offer a wide variety of incentives--tax breaks
for cleanups and the creation of new jobs, low interest rate loans and
grant--subsidized technical assistance--to facilitate brownfields
redevelopment. States need to be ensured the flexibility to develop
programs to address their unique barriers to reach the common goal of
cleanup and reuse.
NCSL supports worker training and safety grants. The safety of
employees engaged in hazardous waste and redevelopment activities and
emergency response activities is an important part of the brownfields
cleanup process. Funds for these grants should be in addition to, not
taken from existing environmental programs.
Over 16,000 sites have gone through State Voluntary Cleanup
Programs, according to the Northeast-Midwest Institute. Here are just a
few success stories from my home state of Maryland:
Former Industrial Site: Now a Mixed Use
The first Voluntary Cleanup Program in the southeast neighborhood
of Canton, Maryland, took a 4.5 acre site with five abandoned
warehouses and factory buildings (the oldest use, a cannery dating back
to 1895) and turned it into mixed office and retail project. The
project can be credited with the creation of at least 140 jobs in the
area. The $20 million dollar project required an investment of between
$50,000 and $150,000 for underground encapsulation of lead-contaminated
soil. According to the Maryland Department of Environment, the property
tax has increased from $50,000 to $300,000 since redevelopment.
Former Industrial Site: A New Industrial Site
A second site, Port Liberty, is 30 acres located in Baltimore City.
The former industrial site will now be the home to two new industries,
the American Post Services, an automobile importer, and Caldwell Cable
that produces fiber optics. The project can be credited with the
creation of at least 360 jobs in the area. The $11 million dollar
project required a cleanup investment of $500,000.
In Maryland, a combination of two programs created in 1996 work
together to encourage the redevelopment of brownfield sites, sites like
those I have just described that are contaminated or are perceived to
be contaminated and would therefore go unused. First, the Voluntary
Cleanup Program, administered by the Department of Environment,
encourages the redevelopment of contaminated properties through a
streamlined regulatory process. The program enables eligible purchasers
of property to substantially limit liability for past contamination
prior to purchase of the property. Second, the Brownfields
Revitalization Incentive Program, administered by the Maryland
Department of Business and Economic Development provides financial
incentives in the form of tax credits, grants, and loans for
redevelopment of brownfields properties. These financial incentives
were modified in 2000 to include qualified loans or grants for an
environmental assessment of the property in order to determine whether
and to what extent contamination of the property may exist. The
environmental assessment of the property has been an important
component of the success of the Maryland's brownfields program because,
as you know, even the perception of contamination is a strong deterrent
to a potential redeveloper of the property.
Residential Use:
Residential use of brownfields properties is also becoming an
increasingly viable option. Although Maryland has yet to approve a
residential project, according to 1999 survey conducted by the
Northeast-Midwest Institute, California points to 5,200 new housing
units developed on brownfields sites. Colorado attributed 2,855 new
units to projects gaining approval through its Voluntary Cleanup
Program. Michigan has document 1,400 new units at 11 different sties
across the state.
FINALITY
While programs like the ones I have mentioned above have met with
considerable success, the potential exposure of future owners to
Federal cleanup has a chilling effect on investing in property which
may be contaminated. At best this is an excuse to develop a greenfield
site: at worst it means that attractive previously used sites with
available infrastructure are bypassed.
As a result many brownfield sites remain idle. In the absence of a
change in federal law, states cannot immunize a person from cleanup
liability caused by a prior user. As a result, clean up and
redevelopment opportunities particularly in our older industrial
centers are lost as well as new jobs, new tax revenues, and the
opportunity to manage growth.
Federal law, more particularly CERCLA, lacks flexibility and
impedes the progress of brownfields development. As the 107th Congress
considers brownfields legislation, NCSL urges you to adopt legislation
that:
<bullet> Retains states primary responsibility for brownfields
redevelopment programs.
<bullet> Allows a state to immunize redevelopment parties from
liability or a future cleanup responsibility not caused by
their actions.
NCSL recognizes that finality is a contentious issue. Our position
is based on current practice. States in general have reported that EPA
is not involved or only minimally active in monitoring voluntary
brownfileds cleanup programs. EPA officials themselves have indicated
that EPA has never ``reopened'' a site deemed clean by a state. While
EPA posture places an extra burden on states to ensure environmental
protection, NCSL believes states are up to the task.
<bullet> In Maryland, we have not revisited any sites, but perform
quarterly inspections of each site that has a sign off
<bullet> Illinois did revisit one site that had been cleaned to an
industrial standard. But that was appropriate due to the fact
that there was a proposed change in residential use.
<bullet> New York has had a site where additional contamination was
discovered, and officials there addressed this by issuing a
second voluntary agreement.
NCSL urges the committee to recognize the pivotal role of states in
brownfields cleanup. The federal-state partnership in environmental
protection is a delicate balance that requires vigorous
intergovernmental cooperation. That relationship has been tested and
proved effective and any legislation that comes out of this Congress
needs to recognize that fact. Over 71 percent of major, Federal
environmental programs have been delegated to the states. Over 80
percent of all federal and state enforcement actions are taken by State
environmental officials. States need the authority to provide the
redevelopers of these otherwise wasted sites meaningful immunity from
liability from contamination they did not contribute to or cause.
In addition, non-responsible landowners, including state and local
governments, renters, or lessees, and institutions or persons financing
cleanup activities at a brownfields site should be provided similar
liability protection.
EXISTING STATE PROGRAMS
States have a proven track record when it comes to cleaning up
brownfields. In order to ensure and advance the continued success of
these programs under any Federal brownfields legislation, State
Voluntary Cleanup Programs must be grandfathered and existing
Memorandums of Agreement (MOAs) between states and the U.S.
Environmental Protection Agency must be honored.
PERMIT PROCESS
NCSL supports any efforts to streamline, minimize or eliminate the
federal procedural permitting requirements for actions carried out in
compliance with a state program. This administrative relief would allow
states to redirect valuable resources to appropriate needs. A 20% match
(as proposed in all three documents we are discussing today) might
discourage states with tight budgets from participating in the program.
However, if states were ensured of this proposed administrative relief,
NCSL would find this increase in the match rate somewhat less
objectionable.
ADVISORY COMMISSION
Given the states' experience in brownfields cleanup, it is
imperative that states be an integral part of any advisory commissions
or task forces established to study the issue. If you consider the
creation of the Advisory Commission on the Concentration and Impact of
Brownfield Sites on Minority and Economically Disadvantaged
Neighborhoods, as proposed in the Democratic draft, NCSL urges you to
expand the membership to include state and local elected officials. If
you are going to be evaluating Voluntary Cleanup Programs that the
states fund, it just makes sense to have those of us who make the funds
available at the table.
SUPERFUND
As previously stated, NCSL supports brownfields legislation that is
free standing and relates only to the narrow purpose of allowing states
to redevelop abandoned, underutilized industrial and commercial
property for which there is minimum likelihood of off-site
contamination or endangerment of health and welfare of subsequent users
and not used as a means to achieve other Superfund related agendas.
If, however, Congress is to include amendments to the Superfund
program in a brownfields bill, NCSL urges you to:
<bullet> Codify EPA's current administrative policy regarding state
approval of any new site listings on the National Priority
List.
Thank you for this opportunity to appear before you today on behalf
of the National Conference of State Legislatures. We look forward to
working with you on this issue as it moves through the legislative
process. I welcome your questions on the testimony I have provided.
Mr. Gillmor. Thank you very much.
Mr. Johnson?
STATEMENT OF GORDON J. JOHNSON
Mr. Johnson. Good afternoon. My name is Gordon Johnson. I
am a Deputy Bureau Chief of the Environmental Protection Bureau
in the Office of New York Attorney General Eliot Spitzer.
I am appearing today on behalf of Attorney General Spitzer
and on behalf of the National Association of Attorneys General.
We very much appreciate the opportunity to appear before the
committee today to comment on S. 350, which passed the Senate
by a vote of 99 to nothing, in the two draft bills that the
subcommittee has before it, each incorporating almost all
portions of S. 350.
I am particularly pleased to have been asked back by the
House members to comment on this legislation, and I am also
pleased to share the panel today with New York's new
Commissioner of Environmental Conservation, so that you can
hear all of the views of New York State and its leaders.
The passage of S. 350 provides the House with a historic
opportunity. I have been handling Superfund cases since 1983--3
years after CERCLA was enacted--and know firsthand the
successes and problems with that statute. The Attorney
General's office represents State governments and State
agencies in Superfund cases, so we are all well aware of the
ways the statute encourages and discourages cleanups,
negotiations, and settlement.
While CERCLA has become strikingly successful in helping
States obtain cleanups at most sites, there still remain that
category of sites known as brownfields--abandoned, idled, or
underused industrial and commercial facilities where expansion
or redevelopment is complicated by real or perceived
environmental contamination. Often there is no viable party
liable for the contamination who can be compelled to clean it
up.
S. 350 is a bipartisan bill which is consistent with
resolutions adopted by the National Association of Attorneys
General. It is supported by New York's Attorney General
Spitzer. I have to concede that not every provision standing
alone pleases everybody, which is perhaps why it is a
bipartisan bill. But its compromises are carefully crafted. It
is an intricate balance of give and take among its many
sponsors who have many views of what our laws should accomplish
and how they can accomplish that.
And S. 350 is a bill that should be enacted into law. It
will bring cities, counties, and States the additional
resources they need to build effective programs--programs that
will put idle land back into use and bring jobs into blighted
communities. S. 350, if enacted, will also ensure that cleanups
will be finished, that they will protect the public, and those
involved will be treated fairly in return for their agreement
to clean up.
We in Attorney General Spitzer's office have to emphasize
that attempts to alter the EPA's safety net contained in the
bill by reducing S. 350 safeguarding of EPA's ability to
protect the public is unwise. And we are fearful that such
alterations might doom efforts to obtain brownfields
legislation. We can't allow that to happen.
While S. 350 is a historic compromise, the New York
Attorney General's office believes there is still room for one
improvement which we think neither side of the debate over S.
350 would oppose. In order to prevent new landowners from
reaping a windfall due to an increase in a property's value
resulting from the Federal Government's cleanup efforts, S.
350, as well as the two drafts, would create a windfall lien in
favor of the Federal Government.
Despite the fact that it is State governments who clean up
the overwhelming number of sites throughout the country, the
windfall lien is limited to the Federal Government.
Attached to my written statement is proposed language
drafted by my office that would extend the windfall liens to
States, and thus eliminate the unfair treatment of state's
expenditures on brownfield sites. In sum, we urge this
subcommittee and the House to act expeditiously to enact
legislation that enhances state's brownfields programs in a
bill that the Senate can also adopt without further extensive
debate.
We praise your efforts, and we stand ready to work with you
to accomplish that goal.
Thank you.
[The prepared statement of Gordon J. Johnson follows:]
Prepared Statement of Gordon J. Johnson, Assistant Attorney General,
State of New York
INTRODUCTION
My name is Gordon J. Johnson, and I am a Deputy Bureau Chief of the
Environmental Protection Bureau in the office of New York Attorney
General Eliot Spitzer. I am appearing today on behalf of Attorney
General Spitzer and on behalf of the National Association of Attorneys
General (NAAG). We very much appreciate the opportunity to appear
before the Subcommittee to comment on Senate bill S.350, which passed
the Senate on April 26, 2001, by a vote of 99 to 0 and was referred to
the House, and the two draft bills the Subcommittee has before it each
incorporating most portions of S.350.
The state Attorneys General have a major interest in brownfields
legislation. As chief legal officers of our respective states, we
enforce state and federal laws in our states and help protect the
health and welfare of our citizens, our environment and natural
resources. We often are also responsible for negotiating cleanup and
natural resource damages settlements, and when a settlement cannot be
reached, it is our responsibility to commence and litigate an
enforcement action. We are well aware of the blight brownfield sites
pose in both our rural and urban areas, and how important it is to
cleanup such sites and revitalize the communities and neighborhoods in
which such sites are located.
NAAG also has been deeply involved in the Superfund reauthorization
process for many years. At its Summer meeting on June 22-26, 1997, the
sole resolution adopted by the state Attorneys General addressed
Superfund Reauthorization. While NAAG has not taken a position on
either the Gillmor or Democratic discussion drafts, the Resolution
called upon Congress to enact legislation that ``strengthens state
voluntary cleanup and brownfields redevelopment programs by providing
technical and financial assistance to those programs, and by giving
appropriate legal finality to cleanup decisions of qualified state
voluntary cleanup programs and brownfield redevelopment programs,'' and
that ``allows EPA to continue to list new sites on the National
Priorities List based upon threats to health and the environment, with
the concurrence of the state in which the site is located.'' The NAAG
Resolution arose from the state Attorneys General's recognition of the
critical importance of the Superfund program in assuring protection of
public health and the environment from releases of hazardous substances
at thousands of sites across the country. We want to make the tasks of
cleanup and protecting the public less complicated and more efficient,
and to reduce the amount of litigation and the attendant costs that
result.
NEW YORK'S BROWNFIELDS AND VOLUNTARY CLEANUP PROGRAMS
New York has actively participated with NAAG on Superfund
Reauthorization issues. It also has been a leader among states in
addressing brownfields. In 1996, New Yorkers approved a $200 million
Environmental Restoration or Brownfields Fund as part of the $1.75
billion Clean Water/Clean Air Bond Act of 1996. Under the Brownfields
Program, the State provides grants to municipalities to reimburse up to
75 percent of eligible costs for site investigation and remediation
activities at brownfield sites they own. Once remediated, the property
may then be reused for commercial, industrial, residential or public
use.
The municipality and all successors in title, lessees, and lenders
are released from remedial liability for hazardous substances that were
on the property prior to the grant, provided that the municipality is
not responsible for the contamination at the site. The State
indemnifies these same persons in the amount of any settlements/
judgements obtained regarding an action relating to hazardous
substances that were on the property prior to the grant, and they are
entitled to representation by the State Attorney General.
New York's Voluntary Cleanup Program is a cooperative approach
among the New York State Department of Environmental Conservation
(DEC), lenders, developers and prospective purchasers to investigate
and/or remediate contaminated sites and return these sites to
productive use. Under the Voluntary Cleanup Program, a volunteer can
enter into an agreement to investigate a site, remediate a site, or
investigate and remediate a site. The volunteer agrees to remediate the
site to a level which is protective of public health and the
environment for the present or intended use of the property.
Investigation and remediation is carried out under the oversight of DEC
and the New York State Department of Health (DOH) and, in most
instances, the volunteer pays the State's oversight costs. When the
volunteer completes work, the DEC provides a release from liability for
the work done and the contaminants addressed, with standard
reservations.
The Voluntary Cleanup Program covers any contaminated property in
the State for which the federal government does not have lead
responsibility. The present owner of a site, having purchased the
property in an already contaminated condition and not otherwise a
Potentially Responsible Party (PRP), is not considered a PRP in the
Voluntary Cleanup Program. Eligible participants are anyone other than
a PRP for a property that is on the New York State Registry of Inactive
Hazardous Waste Disposal Sites classified as posing a significant risk;
a Treatment, Storage or Disposal Facility (TSDF) subject to Resource
Conservation and Recovery Act (RCRA) corrective action; a TSDF
operating under interim RCRA status; or subject to other enforcement
action requiring the PRP to remove or remediate a hazardous substance.
Once the protective cleanup level is met, the DEC issues a letter
declaring that the DEC agrees that the volunteer has cleaned the site
to the previously agreed-upon cleanup level and that, barring an event
triggering a reopener, the DEC does not contemplate further action will
need to be taken at the site. It also releases the volunteer from
further remediation liability for past contamination, subject to
reopeners. Non-PRP volunteers also receive a release that covers
natural resource damages. All of the volunteer's successors and assigns
(except the site's PRPs) benefit from the release given to the
volunteer. The DEC release binds only DEC, and does not bind private
parties harmed by the discharges, does not bind the State's Attorney
General, and does not bind the USEPA. The extent of the investigation
and remediation determines the breadth, and hence the value, of the
release. The more comprehensive the remedial response, the more
comprehensive the release.
Reopeners affect only the volunteer, successor, or assign which
owns or operates the property at the time of the reopening, and
thereafter. Reopeners are triggered when the response action is not
sufficiently protective to allow the contemplated use; when the
volunteer, or its successor, changes the site's use to a use requiring
a lower level of residual contamination; when the volunteer
fraudulently obtains the release; and when environmental conditions
present at the site at the time the Voluntary Cleanup Agreement was
executed were unknown to the DEC.
As of March 31, 2001, 107 Brownfield Program projects in 53
communities across New York State had been approved for the
investigation and/or remediation of brownfield sites. Ninety-five of
the 107 projects are investigation projects with a total estimated
value of $9.9 million, and 12 are remediation projects with a total
estimated value of $11.5 million. As of the same date, 196 executed
agreements resulted in 255 projects Voluntary Cleanup projects.
Most states also have similar programs. At least 44 states have
voluntary cleanup programs, and more than half have brownfields
programs as of 1998. What most states lack is sufficient funding.
Passage of federal legislation that will help states both establish and
administer brownfields programs is essential to the continued success
of these state initiatives.
FEDERAL BROWNFIELDS LEGISLATION
Congress has been addressing the contentious issues raised by
Superfund Reauthorization for years. As Colorado Attorney General Ken
Salazar, NAAG's Chair of its Environmental Committee, wrote to Senate
leaders this past March, the bipartisan bill S.350 is the embodiment of
the Senate's recognition of ``the blight brownfields continue to cast
on our communities,'' finally translated into a ``compromise bill that
will hasten the redevelopment of numerous sites.'' S.350 would provide
stricken communities grants and technical assistance to address
brownfields that affect their neighborhoods. Attorney General Salazar
also wrote that S.350 would give ``appropriate legal finality to
cleanup decisions of qualified state voluntary cleanup and
redevelopment programs, as NAAG has urged.''
When analyzing new legislation that amends the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), we
must remember the tortured legal history of that statute. For many
years following its passage in 1980, the meaning of numerous terms, the
reach of the liability provisions, and the application of the remedy
selection provisions were the subjects of contentious litigation. These
lawsuits caused delays in cleanups, imposed substantial burdens on
federal and state programs, and increased everyone's transaction and
cleanup costs. Those days are now over: potentially responsible parties
(PRPs) now know what the statute means and where they stand, and thus
most are ready to settle their liability with government. EPA's
practices also have evolved, and EPA has developed practices that lead
to earlier settlements and the quicker implementation of remedial
decisions. Finally, the states' own Superfund programs have matured.
Many of them are modeled on the federal statute. State officials too
understand what CERCLA means and how to use it, and can obtain
appropriate cleanups at minimal taxpayer expense. The message is clear:
we must avoid changes to CERCLA that will reignite the courtroom
battles over the meaning, scope, and implications of the law. At the
same time, we must not lose sight of our primary goal--cleanup of sites
and protection of the public and future generations. We have no desire
to replay the 1980's, even though the States were generally successful
in the courtrooms.
Consequently, as the States' primary lawyers, we are concerned
whenever new terms are included in proposed amendments to CERCLA. Those
who eye brownfield sites as prime real estate ripe for development
value the certainty that well-established legal concepts provide them.
Consequently, we must be careful whenever a new ``standard'' is
proposed for inclusion in CERCLA, especially when long-used concepts
are available that will provide the protection our citizens demand from
their governments. The exemptions to the enforcement bar in S.350 are
reasonable compromises reached after extensive efforts in the Senate
and are well-understood legally. In particular, for decades Congress
has used the concept of imminent and substantial endangerment to define
when enforcement action is needed; we see no reason to depart from this
well-established concept in a House bill.
While S.350 is a historic compromise, the New York Attorney
General's office believes that there still is room for one improvement.
In order to prevent new landowners from reaping a windfall due to the
increase in a property's value resulting from the federal government's
cleanup efforts, S.350--as well as the two drafts--would create a
``windfall lien'' in favor of the federal government. The amount of the
lien is equal to the lower of EPA's unrecovered cleanup costs and the
increase in the fair market value of the property due to the
government's cleanup efforts. When the new landowners sell the
property, EPA can recover on its lien.
Despite the fact that it is State governments who clean up the
overwhelming number of sites throughout the country, the windfall lien
is limited to the federal government. Attached is proposed language
drafted by the New York Attorney General's office that would extend the
windfall liens to states and thus eliminate the unfair treatment of
states' expenditures on brownfield sites.
Finally, the New York Attorney General's office is very concerned
about certain aspects of the Gillmor draft, among others, that could
leave the public unprotected from toxic chemical discharges. The draft
deletes subparagraphs in S.350 that require certain landowners and
operators who are exempted from liability under the bills to take
reasonable steps to stop ongoing releases, prevent threatened future
releases and limit exposure in order to qualify for the liability
exemption. These requirements in S.350 are necessary to protect the
public, and have long been the duty of landowners under common law. As
part of the carefully honed compromises in S.350, the New York Attorney
General's office believes they are a necessary part of any brownfields
legislation.
The New York Attorney General's office also is concerned by the
Gillmor draft's reduction in the federal cleanup safety net, broadening
of liability exemptions, diminishment of public participation
requirements, and disruption of the careful balances contained in
S.350. We oppose these aspects of that draft both because they
represent bad policy and because they render the bill less
representative of the compromise necessary for passage.
In sum, we urge this Subcommittee and the House to act
expeditiously to enact legislation that enhances states' brownfields
programs in a bill that the Senate can also adopt without further
extensive debate.The New York Attorney General's office proposes the
following amendment to Section 202(b) of S.350, which adds the
following section to CERCLA Sec. 107 (added text in bold):
``(p) Prospective Purchaser and Windfall Lien--
``(1) Limitation on liability--Notwithstanding subsection (a)(1), a
bona fide prospective purchaser whose potential liability for a release
or threatened release is based solely on the purchaser's being
considered to be an owner or operator of a facility shall not be liable
as long as the bona fide prospective purchaser does not impede the
performance of a response action or natural resource restoration.
``(2) Lien--If there are unrecovered response costs incurred by the
United States or by a State at a facility for which an owner of the
facility is not liable by reason of paragraph (1), and if each of the
conditions described in paragraph (3) is met, the United States shall
have a lien on the facility, or may by agreement with the owner, obtain
from the owner a lien on any other property or other assurance of
payment satisfactory to the Administrator, for the unrecovered response
costs the United States has incurred, and a State shall have a lien on
the facility, or may by agreement with the owner, obtain from the owner
a lien on any other property or other assurance of payment satisfactory
to the State, for the unrecovered response costs the State has
incurred.
``(3) Conditions--The conditions referred to in paragraph (2) are
the following:
``(A) Response action--A response action for which there are
unrecovered costs of the United States or of a State is carried out at
the facility.
``(B) Fair market value--The response action increases the fair
market value of the facility above the fair market value of the
facility that existed before the response action was initiated.
``(4) Amount; duration--A lien under paragraph (2)--
``(A) shall be in an amount not to exceed the increase in fair
market value of the property attributable to the response action at the
time of a sale or other disposition of the property;
``(B) shall arise at the time at which costs are first incurred by
the United States or by a State with respect to a response action at
the facility;
``(C) shall be subject to the requirements of subsection (l)(3);
and
``(D) shall continue until the earlier of--
``(i) satisfaction of the lien by sale or other means; or
``(ii) notwithstanding any statute of limitations under section
113, recovery of all response costs incurred at the facility.''.
Mr. Gillmor. Thank you very much, and my thanks to all of
the panel.
Let me start out with the questioning. Before we get into
some of the specifics, Mayor, I just have a question for you. I
know you want a bipartisan bill, because I counted and you said
it 18 times.
So I presume that was a message. But I guess, what do you
mean by ``bipartisan''? Suppose we have a--do you mean all of
the Republicans and all of the Democrats--support we have a
majority in one party and a significant minority in the other
party? I mean, what is bipartisan?
Mr. Bollwage. 99-0.
Mr. Gillmor. Do you mean we shouldn't pass a bill that is
not 99-0? Is that what you are saying?
Mr. Bollwage. No. I just--you know, as someone who reads a
lot of newspapers, when I see Jesse Helms and Ted Kennedy vote
alike on a bill I would consider that bipartisan. Do you think,
you know, that S. 350 could work in our community? I would say
absolutely. I mean, that is a bipartisan bill that passed when
different members of the ideological spectrum throughout this
country came together and cast their vote yes.
I think that if you wanted to take the S. 350 and the
provisions of that, I listened to the debate this morning, and
I think we are talking more about Superfund issues than we were
ever talking about brownfield issues. And I believe that if you
took what is in the provision of S. 350, moved it out of this
committee to the full House, that would be a bipartisan bill.
Look at what we have done in the city of Elizabeth without
any Federal legislation. We have built a mall on a former
landfill, 166-acre site, three new hotels, a movie theater,
750,000 square feet of office space. We have taken four other
sites, converted them into soccer fields, little league fields.
Just imagine what the cities of this Nation could do with
support from the Congress. It is likely that S. 350, under most
circumstances----
Mr. Gillmor. Well, I don't want to----
Mr. Bollwage. Okay.
Mr. Gillmor. Mayor, I don't want to go back over all of
that. I just wanted to ascertain what you meant. I hope we get
a bipartisan bill within the definition of what most people
would consider bipartisan. Even though it might be 420 to one,
we will still----
Mr. Bollwage. That would work, Mr. Chairman.
Mr. Gillmor. That would work?
Mr. Bollwage. That would work.
Mr. Gillmor. Okay. Let me just ask each one of the panel
quickly--under what has been dubbed the Democratic discussion
draft, there is a section that is not in either the Senate bill
or in the majority discussion draft--creates a five-person
advisory commission for international justice would be
established in Washington.
That commission would have the power, if only 3 out of the
5 of the non-elected members found any one neighborhood in a
State didn't have a meaningful opportunity to participate in a
brownfields program, they would then have the authority to
disqualify every brownfield site in the State from the
liability protections and the finality provisions of the bill.
I guess my question to each of you is: does that kind of
policymake sense to you? Commissioner?
Ms. Crotty. Mr. Chairman, in New York State, like the EPA,
we also have a task force on environmental justice. The task
force was convened a couple of years ago and is presently
coming up with a draft report for my consideration on how to
factor in environmental justice concerns in our permitting
process. And I think that that is an appropriate forum for
these discussions to take place.
We also are taking into consideration cumulative effects in
our State Environmental Quality Review Act, and we believe that
environmental justice concerns are real, and we need to create
procedures and processes to address those concerns. And we
think that we have the appropriate procedures and policies in
place or under development to do that. We don't necessarily
need it in this piece of Federal legislation.
Mr. Gillmor. Thank you.
Commissioner?
Mr. Gonzales. Mr. Chairman, just briefly, the National
Association of Counties has not taken a position on
environmental justice. From a personal standpoint, I would just
applaud whatever efforts are done in that area. However, let me
State that fundamental to our support for this type of bill, we
just want to make sure that we accomplish what we hope the bill
is intended to accomplish, and that is to create incentives,
not disincentives.
Being a minority, and certainly serving at the local level,
let me assure you that there are a lot of local officials
across this country that are trying to revitalize poor areas of
our community and having tools like this will help meet that
objective. Absolutely.
Mr. Gillmor. Well, the brownfields bill.
Mr. Gonzales. Brownfields legislation.
Mr. Gillmor. Mayor?
Mr. Bollwage. Mr. Chairman, the U.S. Conference of Mayors
has not taken a position on that issue either. But just
quickly, we achieved 20 permits with the EPA with support of
the Regional Plan Association to reconvert this landfill in 1
year's time.
Mr. Gillmor. Thank you.
Delegate?
Mr. Billings. The NCSL hasn't taken a position, though, as
you know, their general posture is that if these kinds of
commissions are created State legislatures ought to be
represented on them. We will be reviewing this issue at our
annual meeting in August. And if this legislation hasn't passed
unanimously through the House by then, we will get back to you
with a position.
Mr. Gillmor. Thank you very much.
Mr. Johnson?
Mr. Johnson. Yes. The National Association of Attorneys
General also has not taken a position on this. Personally,
though, I think that what is important here is to look at the
purpose of these provisions. We know from our experience in New
York, and I think throughout the country, that redevelopment of
brownfield sites does not work if people in the local community
are not part of the process, and this commission is an effort
to try to make sure that people are fully involved in the
process.
And so to the extent that any of the drafts diminish public
participation, that is not a good idea, because you can't
develop a brownfield site without the locals being part of that
process. And that is the key and the key element that I think
the committee has to consider.
Mr. Gillmor. Well, my question was a little more specific.
I mean, the specific provision we are talking about--I come
from a State of over 11 million people. You know, we have tens
of thousands of brownfield sites. And I guess my question is,
in a State of 11 million people with tens of thousands of
brownfield sites, should 3 of 5 members of a non-elected
advisory committee, because they are unhappy about what
happened at one of those sites, be able to terminate the
brownfields program in the whole state? That is a specific
provision.
Mr. Johnson. Well, I do believe the position raises some
interesting questions about grant of authority and whether that
would be appropriate under our laws. We haven't look at that
matter in detail. But, again, the key here is, how do you make
sure and how do you ensure that locals in communities are part
of the process? Because brownfield development does not work
without them being fully part of the decisionmaking on
redevelopment of brownfield sites.
Mr. Gillmor. I will now go to Mr. Pallone, but I think we
will probably have time for a couple rounds of questions here.
Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman.
I wanted to start with Mr. Billings, ask him a couple of
questions. Is it a correct reading of your testimony that you
believe a State, or in this case the Federal legislation,
should immunize a developer or a prospective purchaser who did
not cause or contribute to the contamination? In other words, a
party not liable for the pollution, but no such immunization,
liability protection, or restriction on EPA enforcement
authority should go to a party who caused the pollution or has
the future cleanup responsibility.
I know you stressed this, but I wanted to make sure I
understood.
Mr. Billings. Yes. The position of the NCSL policy is that
liability/immunity should extend to the redeveloper but not to
the potentially responsible party as defined in Superfund, the
party that caused or contributed to the contamination in the
first instance.
Mr. Pallone. So there wouldn't be----
Mr. Billings. In Maryland law, Mr. Pallone, we don't--the
person who caused or contributed to the pollution in the first
instance is not eligible to be a party to a brownfields
redevelopment.
Mr. Pallone. And so you are saying that not only there
would be no protection to one who caused the problem, but also
no protection to a party who exacerbated it in some way, is
that right?
Mr. Billings. That is right. Again, in Maryland law, if the
party that is redeveloping the site exacerbates the pollution
problem, then they are a responsible party liable for cleanup,
irrespective of the immunization of that party from liability
that might have occurred before that party came on the scene.
Mr. Pallone. All right. Let me----
Mr. Billings. And let me just say, Mr. Chairman, that that
is why we make this sharp distinction between Superfund and
brownfields. We are not--we are talking about sites where you
may have only the perception of contamination or very modest
contamination. In most of those cases, the issues that you
raise aren't going to arise. If this is a site--an assessment
of which suggests that it is going to be a serious problem--it
shouldn't be in the brownfields program, and nobody should be
immune from liability.
Mr. Pallone. Okay. Well, you know, that kind of goes to my
second question, but let me ask it anyway, Mr. Billings. Do you
support the provision in the Senate bill--it is on page 42 or
43--that allows the President to exclude NPL--national priority
list--caliber sites or sites that pose any significant risk
from the definition of an eligible brownfield site?
Mr. Billings. While the NCSL resolution doesn't speak
directly to that point, I think it would be implied that any
NPL site would not be eligible for brownfield treatment, and
any significantly contaminated site short of an NPL site would
not be eligible for brownfield treatment.
Mr. Pallone. So, basically, you believe that the Federal
legislation should focus only onsites with marginal or no
contamination?
Mr. Billings. That is right, Mr. Chairman. If we can get
finality on those sites--we have got a lot of them--we get
finality there, let us clean those up, and then we will come
back and talk to you about if we need more protection in the
future.
Mr. Pallone. Okay. Thanks. Thank you. That really answers
it.
Let me ask Mr. Johnson, as a representative of the chief
law enforcement officers of the State, do you believe that the
Senate bill S. 350 provides the appropriate amount of finality
for State programs? And do you support the four reopeners that
are in S. 350?
Mr. Johnson. Yes. We believe that S. 350 marks an
appropriate balancing of the need for finality with the need
for protective cleanups. As the Chair of the National
Association of Attorneys General Environmental Committee wrote
the Senate in March, he said that S. 350 would ``give
appropriate legal finality to cleanup decisions of qualified
State voluntary cleanup and redevelopment programs as NAC has
urged.'' So we think that it is applying compromise. It may not
be what everybody wants, but it is a rather exquisite balancing
of the need for appropriate programs and appropriate sign-offs
from EPA versus the need for finality. And we think that the
four reopeners involved also are appropriate under the
circumstances.
We think with this additional element in place our
brownfields programs in New York, while they have been very
successful to date, will be able to continue and be more
successful.
Mr. Pallone. Thank you.
Mayor Bollwage--I don't know--is there some time left
there, Mr. Chairman?
Mr. Gillmor. Twenty-two seconds.
Mr. Pallone. I just wanted to--I know that you have been
very successful in your brownfields redevelopment in
Elizabeth--we talked about that--as you said, without any new
Federal legislation.
But in terms of the Senate bill, the broad--you know, the
compromise that passed the Senate, do the mayors around the
country believe it meets their fundamental needs for
brownfields legislation?
Mr. Bollwage. Do we believe that there is fundamental need
for brown--yes.
Mr. Pallone. Do you think that the Senate bill basically
would satisfy, you know, the mayor's needs in terms of what,
you know, you are trying to accomplish?
Mr. Bollwage. We think the Senate bill--finality, funding,
etcetera--addresses all of the key issues of the Nation's
mayors and our concerns. We also strongly believe that it is
politically valuable, and that it is likely to address most
circumstances in many of our cities. And we believe that this
bill addresses well over 90 percent of the existing brownfields
throughout the Nation.
Mr. Pallone. Did they pass the resolution about----
Mr. Bollwage. It is attached to my--I believe it is
attached to my formal statement. We passed a resolution in
Detroit over the weekend that was cosponsored by myself, Mayor
McCrory, who is Chair of the Republican Mayors of Charlotte,
and Paul Jadin, the Mayor of Green Bay, Wisconsin. We were the
co-authors.
Mr. Pallone. And that was supporting the Senate bill?
Mr. Bollwage. Correct.
Mr. Pallone. And it was, as you say, both Republican and
Democrats?
Mr. Bollwage. Correct.
Mr. Pallone. All right. Thanks a lot.
Mr. Bollwage. Thank you, Congressman.
Mr. Gillmor. Ms. Crotty, some groups have argued that there
is--I beg your pardon, Vito. The gentleman from New York.
Mr. Fossella. It is the story of my life. Thank you, Mr.
Chairman.
And welcome all of the witnesses. In particular, let me
welcome Commissioner Crotty, and thank you for coming down. I
know the Commissioner has been involved in this matter for more
than a decade, and she knows it inside and out and she has done
a wonderful job in her new post, albeit a short one. But prior
to coming she has been terrific.
In fact, she came to Staten Island when we brought together
community leaders, property owners, everyone imaginable--
environmental groups--to try to put a local perspective on it.
And she has been great since then, so thank you.
Just a couple of questions. I will throw them out there and
then, you know, whoever--if you can answer them. To Ms. Crotty
and Mr. Johnson, we have different written statements from each
of you regarding the New York brownfields program and the
various legislative proposals before the committee today. I am
just curious, why are these views so different? And who
essentially runs the State voluntary cleanup program in New
york?
Before you answer that, may I just also ask Ms. Crotty and
Mr. Billings to answer as well, the testimony submitted by the
Sierra Club for today's hearing argues that with broad-based,
state-based liability protections in place, and limited Federal
intrusions into State cleanups, that there is simply no need
for greater finality for State brownfields cleanup.
They go on--in fact, they actually call for increased, not
decreased, Federal involvement in State cleanup programs by
requiring EPA review and approval of criteria for State
programs before Federal funding could be used. And I am
curious, Ms. Crotty and Mr. Billings, what is your view of that
approach?
Ms. Crotty. Thanks, Congressman, and thanks for your kind
words. I really appreciate that.
First, with respect to the differing comments by certainly
myself and Gordon representing Attorney General Spitzer, we
believe, as my statement says--we believe that the Senate bill
is a good starting point, but we also believe that there are a
number of changes that can be made, modifications that could be
made to the Senate bill, that make it even better.
And my testimony certainly identifies the areas that we
think are an improvement over the Senate, and we encourage the
House to come to an agreement on those initiatives. In terms of
who runs the voluntary cleanup program in New York State, the
State Department of Environmental Conservation runs the
voluntary cleanup program in New York State. And we are
ultimately the ones who decide what the cleanup is going to be
and issue the no further action letters or the liability
limitation letters.
With respect to the Sierra Club's comments, I haven't read
them yet. However, from my perspective and the Department's
perspective, this issue of finality is extremely important to
municipalities, to not-for-profits that are redeveloping
property, as well as to private developers, and finality to
everybody involved.
So we want to be able to make it easier for parties to
clean up contaminated sites, not harder for parties to clean up
contaminated sites. Or putting it another way, let us get rid
of the artificial barriers. And if you have a State program
that EPA--meets EPA's criteria for a brownfield program, then
cleaning up a site to the satisfaction of that regulatory
agency should be the final say.
And I think that that will--except for those limited
circumstances that the House majority draft identified, and I
think that that will act as an incredible incentive to bring
more private dollars in to clean up brownfields, which is
ultimately what we are looking for.
Mr. Fossella. Mr. Johnson? Mr. Billings?
Mr. Johnson. The EC does an excellent job in running the
voluntary cleanup program, and they have been able to reach
numerous settlements and obtain cleanups throughout the year--
throughout the last years, despite the absence of any kind of
finality.
We get the cases where the EC has been unsuccessful,
because the task falls to the Attorney General's office to
recover the moneys that the State has been compelled to spend
to clean up those sites where a State wasn't able to get a
voluntary cleanup agreement.
So we really have an idea and a good feeling for the pulse
of the reasons why those sites aren't being addressed,
particularly the sites where the State goes out and, because
they need to be cleaned up, they are cleaned up using State
moneys.
Our feeling on the finality provisions are really twofold.
No. 1, we think that the finality provision in S. 350 is good
and appropriate, and it balances the need to make sure that a
cleanup is good and protective with the need for finality. If
we look at S. 350, we have to remember that there is no
provision, for instance, in S. 350 for certification, for
instance, of a State program.
[The prepared State program has an incentive to meet EPA
criteria because then it receives grant money, but there is no
requirement that the program itself be a certified program
before the enforcement bar comes into effect. You have to
balance that compromise with the other compromise, which is
that EPA could come in, when necessary, just as EPA is
available to come in in numerous Federal programs under the
Clean Water Act, RCRA, and so on and so forth, when those are
State delegated programs. We think that S. 350 gives an
appropriate balance.
The other reason to like S. 350 is that it passed. It was
enacted 99 to nothing. We think that S. 350 can pass the House
at close to the same level. And that combination of ingredients
tells us that let us keep it the way it is, let us pass that
legislation, and let us get the other aspects--the funding and
that basic finality that we need to go ahead to help make our
brownfields programs better.
As with respect to the Sierra Club provision, I haven't,
you know, looked at that in particular. I do have a feeling,
though, that at least in New York we don't need EPA oversight
to tell us that our cleanups are good. And so for our State we
can administer a program and do it well. We have done it well
for 20 years, and EPA has full confidence in us. And I am not
sure we want EPA involved in every decision that gets made down
the road about every site.
Mr. Gillmor. We have a very limited amount of time left
before we have to go over and vote. And what I would like to
do, with the concurrence of the members, is maybe each of us
can do one more quick question, not take our full time, and
that ought to enable us to get over and vote.
Mr. Fossella. Mr. Chairman, if I may, Mr. Billings was
about to respond, and then----
Mr. Gillmor. Yes. Go ahead.
Mr. Fossella. [continuing] it is your committee, do what
you want.
Mr. Gillmor. Well, we want to do it as expeditiously as
possible.
Mr. Billings. And I will try to be very quick. I also have
not read the Sierra Club testimony. I must tell you,
Congressman, that when we tried to write brownfields
legislation in Maryland the single biggest obstacle we had was
convincing the parties that were interested in the legislation
that we are talking about brownfields and not Superfund.
I believe that it is very likely that the Sierra Club's
concerns are related to the fact that both of these bills--all
of these bills address Superfund in some way, some more than
others. If you narrow this to brownfields, to legitimate, real
brownfields, keep it narrow, I think those kinds of concerns
will disappear.
That is the fight I had to fight in Maryland. I lost a
little of greenness in the process. But we carried the day.
Mr. Gillmor. Let me real quickly--Commissioner Crotty, I
want to ask you a question on MOA. There have been some groups
who have argued there is no need for greater finality for State
brownfields because the current memorandum of agreement process
between State voluntary cleanup programs and the EPA is a form
of finality.
But, in fact, only 16 States have MOAs, and New York does
not. So I guess my question was: do you think the MOA process
defeats the need for stronger finality? Or what has been your
experience in New York with the MOA process? And maybe you
could tell us some of the reasons why New York does not have an
MOA.
Ms. Crotty. Sure. Absolutely. Actually, before I became
Commissioner, I was a deputy commissioner for water quality and
remediation, and I was the first deputy commissioner to try to
negotiate an MOA with EPA Region 2, and very soon broke off
negotiations because the language that they wanted in the MOA
was so open-ended that it really became a second guess on all
of our cleanups.
They wanted language that I will note is included in Senate
350 and in the Democratic discussion draft of these kind of NPL
caliber sites. You know, EPA has the authority to go in and
remediate if they determine that the site is an NPL caliber
site. And that, from our perspective in New York State, gave us
a lot of worry because it is a very open-ended issue. Does that
mean you have to get scored and put on the hazard ranking
system? Does that mean that you can--EPA would second-guess
every single cleanup that we entered into?
And so we felt at that time that we could assure the
developers, the municipalities, the not-for-profits, that it is
a very rare instance--and Deputy Administrator Fisher said this
this morning. You know, it is a very rare instance when EPA is
going to go in and second-guess a State when a party has
cleaned up to the satisfaction of the State. Yet it is a risk,
and it is a risk that some parties are willing to bear, but I
have heard from other parties that they are not willing to bear
it.
And so I think that the language that is in the House
majority draft that talks about the kind of criteria or having
a brownfield program with certain criteria is the right way to
go. And, certainly, the Deputy Administrator comments about how
she doesn't want to have to sign off on every single State
cleanup program is an appropriate way to go as well.
Mr. Gillmor. Thank you very much.
Mr. Pallone, we are almost out of time. Do you want to take
real--before you start, let me ask----
Mr. Pallone. Let me just ask----
Mr. Gillmor. Yes, go ahead.
Mr. Pallone. [continuing] if I could just ask Ms. Crotty,
what are the criteria that you were referring to, you were just
mentioning?
Ms. Crotty. Well, the House majority draft--actually, I
think it is on page 41--gets to this issue of finality. Or 51--
wrong one. And we think that what the--without flipping through
the pages, conceptually what the Deputy Administrator was
saying this morning is something that is very advantageous from
a State perspective, which is in order to get access to these
brownfield funds you need to have a program that meets certain
criteria that EPA has identified in a guidance document.
And I think that that is an appropriate way to go. It is
flexible. Not every State has the same brownfield program. We
are very different. In New York I have four brownfield
programs. In New Jersey, I don't think you have as many. And so
each State is tailoring its brownfield cleanup programs to the
risks that are presented in front of them.
Mr. Pallone. You are saying that the States should meet the
minimum criteria, though.
Ms. Crotty. I believe that States need to--if you want to
have finality to your program in terms of finality to limit the
liability of the Federal Government to go after the party who
has cleaned up to the state's satisfaction, you have to meet
minimum requirements.
And as the Deputy Administrator said this morning, she is
going to spell those out in guidance documents. And so I think
that that is a fair bar to reach.
Mr. Pallone. All right. Thank you. I know we are running
out of time, but thank you all.
Ms. Crotty. Thank you.
Mr. Pallone. We only have 4 minutes.
Mr. Gillmor. Yes. Are you referring to the language on page
41?
Ms. Crotty. I believe I am. Let me just quickly look. Yes.
Mr. Gillmor. I just wanted to make sure. It is?
Ms. Crotty. Yes.
Mr. Gillmor. Okay.
Ms. Crotty. Yes.
Mr. Gillmor. They are the majority bills.
Ms. Crotty. Yes, it is on--starts on line 16.
Mr. Gillmor. Okay.
Ms. Crotty. No. Starts on----
Mr. Gillmor. Starts on line 1, page 41.
Ms. Crotty. Yes.
Mr. Gillmor. Yes. Okay. We are out of time. I want to thank
you.
Let me ask you--if members had questions in writing to
submit to you, we would appreciate it if you could answer us.
We will go vote, come back with panel three immediately. Thank
you very much.
[Brief recess.]
Mr. Gillmor. We will reconvene for the last panel, and I
want to commend this panel for a number of things. We are
grateful for your patience.
Before we start, let me call on my colleague from Ohio, Mr.
Brown, to comment on one of the panelists.
Mr. Brown. I thank the chairman, and thank you for allowing
me to introduce my friend, John Lynch. I apologize for only
coming in a few minutes ago. My Health Subcommittee was
meeting--has been meeting all day, and I have got to run to
something else, too.
But I wanted to take the chance, first of all, to thank the
chairman for his good work on brownfields. The chairman and I
share a county, Lorraine County. My district goes east from
there; his goes west. But he has been--had a commitment to
brownfields legislation.
The legislation sponsored by Senator Chafee and the
discussion drafts that you and Mr. Pallone have circulated in
the House are particularly important, and I applaud you for
that, and we need to be respectful I think of the broad
majority that S. 350 has commanded in the Senate and the
delicate compromise it represents.
John Lynch is a former member of Cleveland City Council and
was on the City Council for 12 years, serving with two of our
colleagues, one of our colleagues now and one previous
colleague. He served on Council with Congressman Kucinich,
served on Council with former Congresswoman Mary Rose Oakar,
and served on the Council as Senator Voinovich as mayor.
So he has known this business a long time, and he and I
have worked on energy issues together, on other kinds of
development issues together, and it is my pleasure that John
Lynch has joined us today.
And I thank the chairman for allowing me to submit a few
remarks. Thank you, Mr. Chairman.
Mr. Gillmor. We will proceed with our panel. Mr.
Garczynski?
STATEMENTS OF F. GARY GARCZYNSKI, FIRST VICE PRESIDENT,
NATIONAL ASSOCIATION OF HOME BUILDERS; DANIEL R. DeMARCO,
MANAGING DIRECTOR OF REAL ESTATE, CAMPANELLI COMPANIES; JOHN
LYNCH, BROKER/OWNER, LYNCH & COMPANY; LARRY ROTH, DEPUTY
EXECUTIVE DIRECTOR, AMERICAN SOCIETY OF CIVIL ENGINEERS; AND ED
HOPKINS, DIRECTOR OF ENVIRONMENT QUALITY, SIERRA CLUB
Mr. Garczynski. Mr. Chairman, thank you very much.
Congressman Pallone, and other members of the subcommittee, I
am Gary Garczynski, a builder/developer from Northern Virginia
who works in Northern Virginia and Metropolitan Washington, DC,
and I am also the first vice president of the National
Association of Home Builders appearing here on behalf of our
203,000 member firms.
For the past 4 years I have also been the oversight officer
for NAHB's smart growth initiative, and we work together to try
to bring a lot of stakeholders to the table, and interest
groups, on the common goal of how we grow as a country, meeting
the growth challenge, and creating affordable decent housing
for all Americans.
We partnered with the U.S. Conference of Mayors and HUD to
build a million homes in America's cities over the next 10
years, and part of that revitalization effort certainly has to
be centered on brownfields. Currently, we feel that Federal law
and EPA policy are insufficient to provide certainty to
developers who remediate a brownfield site under a State
brownfields program.
Federal legislation is necessary to provide incentives and
greater protection to spur meaningful redevelopment and urban
revitalization. The GAO estimates that are approximately
450,000 brownfield sites nationwide, and of these sites up to
as many as 200,000 contain abandoned underground storage tanks
that are impacted by petroleum leaks.
Mr. Chairman, your draft--discussion draft encourages us as
developers to redevelop this broader universe of sites by
providing incentives for the cleanup of petroleum sites in two
significant areas. First, in addition to the CERCLA
protections, prospective purchasers who successfully complete a
statewide cleanup brownfields program or purchase a remediated
site are afforded additional protection from RCRA liability and
enforcement authority.
Second, in the finality section, in addition to including
protections for Superfund contaminants, your draft extends
Federal enforcement protections for petroleum contaminated
sites as well.
Unfortunately, S. 350 and the Democratic discussion draft
treat petroleum as kind of a second-class citizen without a
policy rationale. Both bills provide prospective purchasers
with liability protection under CERCLA only. In the finality
section, each bill includes Federal enforcement protections for
Superfund contaminants alone.
The absence of any enforcement protections for petroleum
contaminated sites represents I think a significant limitation
to S. 350 and the Democratic discussion draft. On finality, we
believe that EPA has an important role in protecting health and
the environment, but States are in a better position to be the
primary authority to investigate site contamination, establish
cleanup standards, and determine when those cleanup standards
have been achieved.
As stated earlier, your draft provides an appropriate level
of certainty by foreclosing EPA enforcement under both CERCLA
and RCRA. However, S. 350 and the Democratic discussion draft
lack the certainty and finality necessary to overcome the
perception that EPA could intervene--that currently inhibits
brownfield development.
The reopener provision on the insufficient standard States
that the Federal brownfields legislation must provide not only
certainty and finality for site developers and owners but also
an appropriate Federal safety net, authorizing EPA to exercise
its enforcement authority in clearly defined circumstances
commonly called ``reopeners.'' I think the Gillmor draft
replaces information with contamination and conditions, and,
therefore, eliminates the potential for the mere existence of
the new information which may be subject to a reopener as in S.
350 and the Democratic discussion draft.
I know we are running out of time right now, and I am sure
we are going to have questions later. But I would, in
conclusion, State that I believe as a practitioner we are here
to try to encourage and incentivize the development of
brownfields. We don't think S. 350 goes far enough to provide
that finality or is broad enough to cover minor contaminants
such as petroleum.
We are grateful for the opportunity to discuss this issue,
and I would also encourage you during your debates on this
issue to ask some lenders to step forward, because unless you
have people like myself as a builder or developer, who can be
financed by a lender, you can pass a lot of laws on brownfields
but the private sector has to be involved if we are really
going to make this a successful program. That is what we see as
necessary at NAHB.
Thank you.
[The prepared statement of F. Gary Garczynski follows:]
Prepared Statement of F. Gary Garczynski, First Vice President on
Behalf of the National Association of Home Builders
Chairman Gillmor, Mr. Pallone and members of the Subcommittee, I am
pleased to appear before you today on behalf of the 203,000 members of
the National Association of Home Builders to testify on federal
brownfields legislation. My name is Gary Garczynski and I am the First
Vice President of the National Association of Home Builders. I am a
home builder and a land developer from Northern Virginia.
For the past four years, I have been involved in developing NAHB's
Smart Growth strategy and personally working to bring together all
stakeholders and interest groups for the common goal of solving our
growth concerns. As we have worked together, brownfields redevelopment
has emerged as one of the cornerstones of our efforts.
IMPORTANCE OF BROWNFIELDS AND SMART GROWTH
Brownfields are agricultural, commercial or industrial properties
that are impacted by contaminants, including hazardous substances as
defined under the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) and petroleum products. Historically,
developers have avoided these properties because of concerns relating
to the uncertain environmental liabilities at those properties under
state and federal environmental laws. Because of these liability
concerns, brownfield properties are typically passed over in favor of
undeveloped ``greenfields'' sites where potential contamination and the
related liability does not present obstacles to development.
As you know, brownfields redevelopment, if done correctly, presents
a unique opportunity to marry economic development with the principles
of Smart Growth and environmental protection. Brownfields redevelopment
has the potential to slow the development of open space and farmland by
presenting property owners and developers with access to brownfields
sites located in desirable locations, with existing infrastructure and
affordable pricing. Additionally, brownfields redevelopment is
consistent with the notion of reestablishing our communities. Many
brownfields sites are located in urban areas or close-in suburbs within
walking distance or in close proximity to existing amenities such as
transportation systems, restaurants and shops. This proximity both
fosters the sense of community and satisfies the increasing needs of
our population.
STATE EFFORTS TO ADDRESS BROWNFIELDS REDEVELOPMENT
During the past several years, state legislatures, State
environmental protection agencies and the United States Environmental
Protection Agency (EPA) have all proactively promoted brownfields
redevelopment through legislative and regulatory initiatives. Currently
at least 43 states have some form of brownfields legislation or
voluntary cleanup programs that actively encourage the remediation,
reuse or redevelopment of environmentally impaired property.
Brownfields and Housing: How Are State VCPs Encouraging Residential
Development?, Bartsch and Dorfman, Northeast-Midwest Institute, April,
2000. These State programs encourage brownfields redevelopment through
a combination of techniques including: (1) credible financial
incentives for investigating, remediating and reusing contaminated
properties; (2) flexible, yet certain remediation standards which allow
cleanups to reflect the actual risk posed by the contamination at a
site; and (3) transferable liability protection to all future property
owners and tenants once these remediation standards have been attained.
As one would expect, state brownfields programs provide liability
protection under state law only. The question, then, becomes what
protections exist under federal environmental statutes for owners and
tenants of brownfields sites after cleaning up the property in
compliance with state remediation standards? It is with respect to this
last question that federal brownfields legislation becomes essential.
THE NEED FOR FEDERAL BROWNFIELDS LEGISLATION
Recognizing the need to create incentives to develop brownfields
properties, EPA has adopted a series of brownfields policies and
guidelines. These programs provide, among other things, funding for
brownfields assessment and remediation, job training, tax incentives,
and guidance on those circumstances where EPA may exercise its
discretion not to impose liability on a developer of a brownfields site
under federal environmental statutes.
Current federal law and EPA's policies, in particular, do not
provide liability protection for developers or owners of contaminated
property who remediate property to state standards. Therefore, EPA may
impose additional remediation requirements at brownfields sites.
Indeed, even where a developer has remediated contamination at a
brownfields site to the satisfaction of a State environmental agency
under a well established, well funded, stringent State brownfields
program, EPA retains its authority to independently require further
remediation under federal environmental statutes.
Federal environmental statutes which require remediation of
contaminated property [e.g., CERCLA; the Resource Conservation and
Recovery Act, 42 U.S.C. Sec. 9609 et seq. (``RCRA'') and the Toxic
Substances Control Act, 15 U.S.C. Sec. 2601 et seq. (``TSCA'')]
typically impose strict liability on those parties owning contaminated
property, even where those parties did not cause the contamination. As
a matter of practice, EPA rarely requires additional remediation of
brownfields properties under these federal authorities once a property
has been remediated to State cleanup standards. However, nothing
prohibits EPA from doing so. Therefore, the perceived threat of EPA
intervention, rather than EPA's actual enforcement activities to date,
significantly inhibits developers from attempting a brownfields site
remediation. Simply, the perception is the reality. Under current law,
a developer has little incentive to acquire a brownfields site and
remediate it to the satisfaction of a State environmental agency while
EPA enforcement remains a distinct possibility.
EVALUATION OF THE GILLMOR JUNE 13TH DRAFT, THE DEMOCRATIC DISCUSSION
DRAFT AND S.350
Petroleum Contaminated Sites Must Be Accorded the Same Protection as
Other Sites
To encourage builders and developers to redevelop petroleum-
contaminated sites, it is imperative that prospective purchasers, who
successfully complete a state clean-up/brownfields program, are
protected from RCRA liability and enforcement authority. The Gillmor
Discussion Draft has recognized and acknowledged that petroleum
contamination is a concern for developers. Under Section 129 of the
Gillmor Discussion Draft, in addition to CERCLA enforcement protection,
the draft provides additional liability protection under RCRA Section
7002(a)(1)(B) and 7003, 42 U.S.C. Sec. 6972(A)(1(B) and 6973.
Neither S.350 nor the Democratic Discussion Draft provides this
protection. Section 129(b)(1)(A) of S.350 and the Democratic Discussion
Draft provides that the president may not use the authorities under
sections 106(a) or 107(a) of CERCLA against any person conducting or
completing a response action regarding a specific release in compliance
with a State brownfields program. This section represents the
cornerstone of S.350's and the Democratic Discussion Draft's attempt to
restrict EPA's enforcement authority where a brownfields property is
remediated under a State brownfields program.
However, Section 129(b)(1)(A) restricts EPA's enforcement authority
under CERCLA alone. CERCLA expressly applies to remediation of a
release or threatened release of hazardous substances. 42 U.S.C.
Sec. Sec. 9604, 9606(a), 9607(a). Hazardous substances, as defined
under CERCLA, expressly exempts petroleum products, including crude oil
or any fraction thereof, natural gas and natural gas liquids. 42 U.S.C.
Sec. 9601(14). Therefore, S.350 and the Democratic Discussion Draft do
not provide any enforcement protections regarding petroleum-
contaminated sites.
The absence of any enforcement protections for petroleum
contaminated sites represents an extremely significant limitation to
S.350 and the Democratic Discussion Draft. The General Accounting
Office estimates that there are approximately 450,000 brownfields sites
nationwide. Out of these sites, EPA estimates that 100,000 to 200,000
sites contain abandoned underground storage tanks or are impacted by
petroleum leaks. EPA USTfields Initiative, www.epa.gov/swerosps/bf/
index.html. EPA has recognized the importance of petroleum contaminated
brownfield sites along with the current barriers that prevent EPA from
effectively addressing these petroleum contaminated sites. S.350 and
the Democratic Discussion Draft attempt to solve this problem by
devoting a portion of federal grants funding to assist in the clean-up
of these sites, however only the Gillmor Discussion Draft matches the
grant funding with needed enforcement and liability protections for
developers and other prospective purchasers who attempt remediate
petroleum contaminated sites. Petroleum contaminated sites are obvious
targets for redevelopment because of their prime locations and the
well-known and cost-effective remediation technologies available for
petroleum contamination.
As a matter of policy and logic, there is no apparent basis for
treating hazardous substance contamination under CERCLA more favorably
than petroleum contamination. On the contrary, since there are numerous
petroleum contaminated sites and these sites present attractive
development opportunities, federal brownfields legislation should
provide at least the same liability protections for petroleum
contaminated sites as for sites contaminated with CERCLA hazardous
substances.
Additional Liability Protection for Prospective Purchasers who Purchase
Petroleum Sites
The Gillmor June 13th Discussion Draft provides additional
liability protection to ``prospective purchasers'' under RCRA Section
7002(a)(1)(B) and 7003, 42 U.S.C. Sec. 6972(A)(1(B) and 6973, and
RCRA's provisions relating to a release of petroleum from underground
storage tanks, 42 U.S.C. Sec. 6991b(h). Whereas S.350 and the
Democratic Discussion Draft provide prospective purchasers with
liability protection under CERCLA alone, the Gillmor Discussion Draft
has the foresight to provide an additional level of protection for the
purchasers of petroleum-contaminated sites. Simply, the Gillmor Draft
provides a greater incentive for developers to tackle petroleum sites.
EXTENSION OF ENFORCEMENT LIMITATIONS TO FUTURE OWNERS AND TENANTS
As I mentioned previously, any brownfields legislation must provide
for the transfer of enforcement protections and liability protections
from current owners to future owners, leaseholders, or tenants of these
properties. Existing state programs, EPA enforcement policy, and
previous federal brownfields legislative proposals all have tied the
enforcement and liability protections directly to the property, or the
contamination itself, rather than the current owner or remediator. In
fact, several EPA CERCLA enforcement policies promulgated over the past
decade consistently hold that owners of contaminated properties who did
not cause or contribute to a release of a hazardous substance, or who
purchased contaminated property after the contamination was released,
are not subject to EPA enforcement action under sections 106 or 107 of
CERCLA. I am pleased the Gillmor Discussion Draft continues this
common-sense practice.
Under the Gillmor Discussion Draft, the EPA is limited from
bringing an enforcement action at a brownfields site where a release is
being remediated under a state clean up program. Tying the enforcement
limitations directly to the release at a brownfields site affords
future owners, leaseholders and tenants the much needed peace-of-mind
when contemplating the acquisition or rental of a former brownfields
site.
To the contrary, the enforcement limitations provided by Section
129(b)(1)(A) of S.350 and the Democratic Discussion Draft apply only to
a person who ``is conducting or has completed a response action
regarding the specific release'' under a State brownfields program.
Read literally, this language potentially excludes from S.350's and the
Democratic Discussion Draft's enforcement protections both current
developers of a brownfields site as well as future owners and/or
tenants of that site. Two examples illustrate this problem.
First, assume a property owner seeks to sell contaminated property
and agrees with the proposed buyer/developer that the property owner
will complete the required remediation under State law prior to
closing. In this circumstance, the developer will not be a person
``conducting'' or ``completing'' the required response action and would
fall outside the protections of Section 129(b)(1)(A).
Second, assume that the proposed developer, not the property owner,
conducts and completes the response action. Subsequently, the developer
sells the property to another developer who leases the property to a
tenant. Again, neither the second developer nor the tenant fall within
the language of Section 129(b)(1)(A) because they did not ``conduct''
or ``complete'' the response action. For these reasons the provisions
of S.350 and the Democratic Discussion Draft should be amended to
expressly apply to all parties who participate in the response action
and all future owners or tenants of that property.
The federal enforcement protections under Section 129 of S.350 and
the Democratic Discussion Draft seriously undermine existing EPA policy
by identifying only those parties who participated in the clean up as
being eligible for enforcement protections.
FEDERAL BROWNFIELDS LEGISLATION MUST PROVIDE FINALITY
NAHB fully recognizes the importance of EPA's enforcement role in
ensuring protection of public health and the environment. NAHB also
recognizes and supports the fundamental presumption of state primacy
under all three of the bills presented here today. Existing state
brownfields programs must be the primary authority to investigate site
contamination, establish clean-up standards sufficient to protect
public health and the environment, and determine when those clean-up
standards have been achieved. For any federal legislative proposal to
be successful, it must strike a balance between two important
objectives: maintaining EPA's enforcement role and ensuring finality to
prospective purchasers that have successfully completed a state
brownfields program.
Fundamentally, federal brownfields legislation must ensure that for
those sites where (a) EPA is not currently requiring remediation under
federal environmental statutes, and (b) remediation has been completed
to the satisfaction of a State environmental agency, EPA will, as a
matter of law, not seek further remediation under federal statutes
except under defined circumstances. This framework provides the essence
of needed federal brownfields legislation: creating the requisite
certainty to developers of brownfields property, removing the
perception of EPA overfiling, and providing finality in the form of
statutory liability and federal enforcement protections. At the same
time, this framework necessarily must retain appropriate enforcement
authority for EPA, a so-called federal ``safety net,'' under clearly
defined circumstances.
The Gillmor Discussion Draft provides an appropriate level of
certainty by prohibiting enforcement under CERCLA Section 106, 107, or
113, 42 U.S.C. 9606, 9607, or 9613, and RCRA Sections 7002(a)(1)(B) and
7003, 42 U.S.C. 6972(a)(1)(B) or 6973. Importantly, the Gillmor
Discussion Draft, in addition to including protections for Superfund
contaminants, once again has recognized the critical necessity of
providing enforcement protection for petroleum-contaminated sites. In
sum, the Gillmor Discussion Draft couples the limitations on federal
enforcement with the limited reopeners in Section 129(b)(1)(B) to
provide an effective balance between finality and the federal ``safety
net.''
To the contrary, S.350 and the Democratic Discussion Draft lack the
certainty and finality necessary to overcome the perception of EPA
intervention that currently inhibits brownfields development. Clearly,
intent of Section 129(b)(1)(A) of S.350 and the Democratic Discussion
Draft is to provide a certain measure of finality for persons
remediating hazardous substance contamination in compliance with State
brownfields programs. However, by limiting EPA's enforcement
authorities under CERCLA, without similar limitations on EPA
enforcement authorities under RCRA, S.350 and the Democratic Discussion
Draft only partially accomplish this goal.
Simply stated, by limiting Section 129(b)(1)(A) to CERCLA, a person
remediating hazardous substance contamination under a State brownfields
program will be subject to potential federal intervention under RCRA
for the exact same hazardous substances. As an example, assume that a
site is contaminated with benzene in soil and groundwater and that a
developer remediates that contamination to the satisfaction of a State
environmental agency. Section 129(b)(1)(A) provides a developer with
certain protections from CERCLA enforcement. The developer does not,
however, receive any protections against a third party law suit under
RCRA Section 7002(a)(1)(B) or an EPA enforcement action under RCRA
Section 7003.
For this reason, providing a limitation on EPA's CERCLA enforcement
authority alone does not resolve the concerns regarding EPA
intervention that gave rise to Section 129(b)(1)(A) of S.350 and the
Democratic Discussion Draft.
FEDERAL BROWNFIELDS LEGISLATION MUST NOT INCLUDE REOPENER PROVISIONS
WITH INSUFFICIENT STANDARDS
As set forth above, federal brownfields legislation must provide
not only certainty and finality for site developers and owners, but
also an appropriate federal ``safety net'' authorizing EPA to exercise
its enforcement authorities under federal environmental statutes in
clearly defined circumstances. These provisions, sometimes referred to
as reopeners, are contained in Section 129(b)(1)(B) of S.350 and the
Democratic Discussion Draft. The specific reopener provided for in
Section 129(b)(1)(B)(iv) of S.350 and the Democratic Discussion Draft
is overly broad and as a result threatens to significantly undermine
the finality and certainty that S.350 and the Democratic Discussion
Draft correctly seek to achieve.
Specifically, Section 129(b)(1)(B)(iv) of S.350 and the Democratic
Discussion Draft provides that EPA may bring an enforcement action if:
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,
welfare or the environment. Consultation with the State shall
not limit the ability of the Administrator to make this
determination.
There are two fundamental problems with this provision. First,
information known to the State ``on the earlier of the date on which
cleanup was approved or completed'' forms the baseline for determining
whether ``new'' information has been discovered subsequently. In many
instances, a State environmental agency approves a cleanup plan and the
remediator thereafter continues to generate data during the course of
designing and implementing the approved cleanup. Pursuant to Section
129(b)(1)(B)(iv), any and all data generated during remedial design and
remedial action will be newly discovered and potentially subject the
remediator to EPA enforcement.
Second, and more significantly, the mere existence of any new
``information'' such that the contamination or conditions present any
threat is a standard without boundaries. Several examples illustrate
this point. First, assume a report issued by an organization, whether
or not peer reviewed, alleges that a particular contaminant at a site
poses a marginally greater risk than previously thought. In that
circumstance, the ``information'' reopener contained in Section
129(b)(1)(B)(iv) potentially applies notwithstanding the validity of
the report or whether the risk remains with the range documented as
part of the State approved cleanup. Second, any migration of
contaminants within a site, which is a normal occurrence, would
potentially be subject to this same reopener. Finally, any fluctuation
in sampling results, within the same order of magnitude (even expected
seasonal fluctuations) could potentially subject a particular site to a
reopener.
In sum, there is no standard contained within Section
129(b)(1)(B)(iv) that constrains the quality, reliability, authority or
environmental significance of the new information. As such, this
reopener is potentially so broad as to eliminate the very protections
S. 350 and the Democratic Discussion Draft seek to create.
As an alternative, Section 129(b)(1)(B)(iv) of the Gillmor Draft
reads:
(iv) the Administrator, after consultation with the State,
determines that contamination or conditions, that on the later
of the date on which cleanup was approved or completed, were
present at the site but were not known by the State, as
recorded in documents prepared or relied on in selecting or
conducting the cleanup, have been discovered that present a
threat requiring further remediation to protect public health
or welfare or the environment and the State will not take the
necessary response action.
By replacing ``information'' with ``contamination and conditions,''
the Gillmor draft eliminates the potential for the mere existence of
any new ``information'' to subject a particular site to a reopener.
``Contamination and conditions'' is a concrete standard by which EPA
and the developer can quantify the level of threat at a site and
whether that threat warrants the exercise of EPA's enforcement power.
Additional Weakening Provisions in the Democratic Discussion Draft
The Democratic Discussion Draft contains several additional
provisions that render the federal enforcement protections contained in
Section 129 virtually meaningless.
First, the Democratic Discussion Draft includes, as an additional
reopener under Section 129(b)(1)(B) that allows EPA to reopen a site
that has completed a state approved clean up if:
the cleanup of the site under the response action plan of the
State program no longer protects human health or the
environment, as determined by the Administrator or the State,
because of a change or a proposed change in the use of the
site.
This reopener is overly broad and unnecessarily undermines the
finality of state-approved response actions. For example, the reopener
applies to any ``change or proposed change in the use of the Site.''
Pursuant to this sweeping language, even a change (or for that matter a
proposed change) from one industrial use to another would authorize EPA
to reconsider the state-approved response action. Moreover, this
reopener is unnecessary because S. 350 and the Democratic Discussion
Draft already contain a reopener where changed conditions exist.
To the extent, however, that a specific reopener for change
conditions in land use is deemed necessary, the reopener should be
drafted to ensure that it applies only to significant changes in land
use, such as a change from non-residential to residential uses.
Significant changes in land use are those which fundamentally alter the
exposure assumptions upon which the State approved the response action.
The Gilmore Discussion Draft addresses site use changes in
precisely this manner. Specifically, in section 202(c)(3), a
prospective purchaser loses its defense to liability only while the
change in site use is ``inconsistent'' with the terms of the state-
approved response action.
Second, the Democratic Discussion Draft creates a litany of
standards that a state program must satisfy in order to become a
``qualified'' state program for the purposes receiving federal
enforcement protection under Section 129 of the legislation. The
conditions that this legislation would impose on states are nothing
more than a thinly veiled attempt to grant EPA review of existing state
programs. Furthermore, these conditions undermine the presumption of
state primacy that the Democratic Discussion Draft pretends to support.
Finally, Title IV of the Democratic Discussion Draft creates an
Advisory Commission on the Concentration and Impact of Brownfield Sites
on Minority and Economically Disadvantaged Neighborhoods. While the
impetus for the creation of this commission is honorable, the provision
contained in Section 401(c) is a direct assault on state authority and
on EPA's authority. This subsection allows for the revocation of the
federal enforcement protections granted under 129(b)(1)(A) if the
commission finds that minorities and economically disadvantaged
neighborhoods are not allowed ``meaningful'' public participation in
the state clean up program. This provision gives appointees, who may
not have the requisite expertise and knowledge, unprecedented control
and review of state programs and short-circuits the ability of EPA to
exercise its authority under 129(b)(1)(B) of the legislation.
Furthermore, the level of technical expertise required for appointment
to this commission in the fields of; health science, risk assessment,
and engineering is undefined. Our concern is the creation of this
federal commission would result in this commission passing judgement on
state voluntary clean-up programs with no direct knowledge of these
programs.
CONCLUSION
For four years, I have personally sought to marry the principles of
Smart Growth with a wide variety of interest groups, governments,
developers, site owners, community groups and environmentalists to
reach common ground. A cornerstone of that effort is brownfields
redevelopment. However, as attractive as brownfields development
appears, any effort that strangles private sector participation will
prove to be an exercise in futility. Federal brownfields legislation
must ensure that builders and developers receive liability protections
as a means to provide incentives for the development of these sites.
Furthermore, builders and developers must be assured that EPA will not
take an enforcement action unless a clear and limited set of
circumstances warrants federal action. Without these incentives and
protections, builders and developers will remain skeptical of acquiring
and remediating brownfield sites.
It is my firm belief that the Gillmor June 13th Discussion Draft
provides builders and developers with the necessary incentives to
tackle these sites while ensuring the federal ``safety net.'' While
S.350 and the Democratic Discussion Draft provide certain important
elements toward that end, these bills will not encourage the
development community to redevelop brownfield sites. The exclusion of
meaningful liability protection for prospective purchasers under RCRA,
the exclusion of federal enforcement protections for petroleum
contaminated sites remediated under a state program, the failure to
provide protection to future owners and tenants, and the standardless
reopeners do not strike an appropriate balance between providing
certainty, finality and liability protection to brownfields developers.
I encourage the members of this subcommittee to join with Chairman
Gillmor and move forward on enacting his meaningful, workable,
brownfields proposal.
Again, I am grateful for this opportunity to appear before you on
this important issue. I look forward to working with all members of the
subcommittee. Thank you.
Mr. Gillmor. Thank you very much.
Mr. DeMarco?
STATEMENT OF DANIEL R. DeMARCO
Mr. DeMarco. Thank you. Thank you for the opportunity to
present the National Association of Industrial and Office
Properties' views on Senate 350, the Gillmor discussion draft,
and the Democratic discussion draft. I wish to thank Chairman
Gillmor, ranking member Mr. Pallone, and members of the
subcommittee for their leadership on this important issue. I am
honored to be here.
My name is Dan DeMarco, and I am a member of the National
Association of Industrial and Office Properties, NAIOP, and
currently serve as NAIOP's national vice chairman of government
affairs. In 2002, I will become NAIOP's national chair-elect. I
am currently a partner with Campanelli Companies in Boston,
Massachusetts. We are a family owned, commercial real estate
company that was established in 1947.
Our company has developed over 12.5 million square feet of
commercial property, including a number of sites involving
environmental challenges. NAIOP is the Nation's leading
organization of developers, investors, and owners of commercial
real estate. We provide support and guidance to over 10,000
members helping to create, protect, and enhance the value of
commercial and industrial real estate and promote grass-roots
public policy.
We also work with various public sector entities in helping
to bring idle properties back into use. As the owners,
purchasers, and developers of brownfields, our members have a
vested interest in this legislative reform.
Brownfields hold an enormous amount of latent value for
both the public and private sectors. Developing these sites can
relieve growth pressure on local communities while at the same
time having a profound effect on our urban core, yet this
potential will remain unrealized unless Congress performs the
Superfund liability system.
Liability for cleanup of brownfield sites arises under the
Federal Superfund statutes and similar State laws. Liability
under the Superfund is joint and several. That is, each
potential responsible party bears the entire responsibility for
all cleanup expenses. The Superfund liability scheme has
clearly exacerbated the difficulty of bringing brownfields back
to productive use and may itself be responsible for the
creation of many of these sites.
NAIOP has testified before Congress in the past on the
issue of brownfields reform, and we continue to maintain there
are five key practical elements for revitalization. No. 1,
reform the Superfund liability system. Two, defer to State
remediation programs. Three, cleanup standards that are
specific, risk-based, and take into account future use. Four is
liability risks that can be quantified. And five is recognition
of market forces.
Our analysis of these three bills leads NAIOP to conclude
that each makes individual attempts to address our concerns. We
hope that these issues can be collectively addressed in a
broad, bipartisan manner. Brownfields redevelopment result from
a complex economic process dominated by real estate issues.
As Tip O'Neill used to say, all politics is local, and is
likewise true for real estate. A Federal cookie cutter approach
for brownfield development is insufficient to achieve the goals
of improving the environment, rebuilding our urban cores,
reducing sprawl, and increasing employment, and returning
unproductive properties to State and local tax bases.
The U.S. Conference of Mayors estimates there are more than
500,000 brownfield sites nationwide. It is reasonable to
speculate that as many as half of these are petroleum sites.
We applaud the Gillmor draft for including this type of
lesser contamination in the general definition of brownfield.
We are also encouraged by Senate 350 and the Democratic draft
which both allow the use of brownfield grant and revitalization
loan funds to be used for environmental assessments and cleanup
activities of petroleum contaminated sites.
All three bills provide some form of protection from the
liability to innocent landowners, contiguous property owners,
and prospective purchasers. To qualify for this protection, Mr.
Gillmor's draft, an innocent owner or a bona fide purchaser
would deliver to make--would have to make due diligence
inquiries under the American Society of Testing Material
Standards.
On the other hand, Senate 350 and the Democratic draft
would complicate this process for acquiring an EPA rulemaking.
We believe the Gillmore draft provides a simple, workable
approach. All three bills allow EPA to impose a lien on the
increase of the property value, and we are not sure if this is
a useful approach.
I see time is winding down here, so I would like to make
one general comment with regard to our company's enactment with
State legislation, particularly in Massachusetts, the mass
contingency plan.
We have been involved in up to six sites that have had some
level of investigation and remediation, and we have had very
positive results. We have removed tank farms. We redeveloped at
the Devons Air Force Base--military base in Western Mass--the
first private installation. It was a building leased to
Gillette.
And without the cooperation of both the Federal Government
and the State government, Gillette would not have come in 5
years ago to lease this building, and that military base would
not have been redeveloped the way it has been.
There was a Federal indemnity achieved in that case, as
well as a State covenant not to sue. And the State mass
contingency plan has worked very well in self-policing and
really leveraged tens of millions of dollars in private
investment to remediate sites. Our company--millions of
dollars.
Thank you.
[The prepared statement of Daniel R. DeMarco follows:]
Prepared Statement of Daniel R. DeMarco, Partner, Campanelli Companies,
on Behalf of the National Association of Industrial and Office
Properties
Mr. Chairman, Ranking Member Pallone and Members of the
Subcommittee: I greatly appreciate the opportunity to present NAIOP's
views on S. 350, the ``Gillmor Discussion Draft'' and the ``Democratic
Discussion Draft'' to the Subcommittee. First, I want to thank
Subcommittee Chairman Gillmor, Congressman Pallone and members of the
subcommittee for their hard work and their recognition of the
importance of this issue. It is an honor to be a part of this
discussion.
My name is Daniel R. DeMarco. I am a member of the National
Association of Industrial and Office Properties (NAIOP) and currently
serve a NAIOP's National Vice-Chairman of Government Affairs. In 2002,
I will become the National Chairman-elect of NAIOP.
I am a partner in Campanelli Companies in Braintree, Massachusetts.
Campanelli is a family owned commercial real estate company in business
since 1947 and employing approximately 50 people. Our company has
developed over 12.5 million square feet of commercial property
primarily in Massachusetts and manages a 5.4 million square foot
commercial real estate portfolio. A number of sites we have developed
in the greater Boston area have involved a variety of environmental
issues. Today, Campanelli is an active development, construction,
acquisition and property management real estate company. Prior to
joining the Campanelli Companies in 1989, I was an Associate with the
Boston, Massachusetts law firm of Burns and Levinson, where I
specialized in corporate law, and from 1982 to 1984, I served as a
legislative assistant to former U.S. Representative Brian Donnelly (D-
MA).
NAIOP is the nation's leading organization of developers,
investors, and owners of commercial real estate. NAIOP provides support
and guidance to its over 10,000 members nationally to help create,
protect, and enhance the value of commercial and industrial real
estate, as well as promotes grassroots public policy related to real
estate development. Among its numerous activities, NAIOP works with
various public sector entities--particularly local government and
regional economic and industrial development agencies, authorities, and
corporations--in helping to bring unused or underutilized properties
back as productive sources of jobs and tax revenues back to
communities. As the owners, purchasers, and developers of brownfields,
our members have a keen interest in legislative efforts aimed at
renewal of these properties.
Further, as the owners and developers of commercial and industrial
properties subject to regulation under a variety of federal and state
environmental laws, NAIOP members have much at stake in efforts to
reform the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, commonly known as ``Superfund'' or ``CERCLA.''
the superfund liability scheme and the creation of brownfields
A brownfield is any real property that, because of actual or
suspected environmental contamination, may lie idle, unoccupied,
underutilized, or unused. The contamination of these properties may
stem from activities that took place or conditions that arose before
current ownership and operation of the property, and as a result of
lawful non-negligent conduct. In most, if not all, instances, a
brownfield will not be the subject of an active investigation, remedial
or enforcement action by the U.S. Environmental Protection Agency
(EPA), or a state environmental agency.
Liability for cleanup of these sites arises under the federal
Superfund and similar state statutes, and extends to all past and
current owners and operators of the property and to any party
responsible for generating or transporting any hazardous substances
requiring cleanup at the property. Liability under this scheme is
``joint and several,'' i.e., each potentially responsible party (PRP)
bears the entire responsibility for all remedial expenses to a person
who cleans up a site, notwithstanding the amount or nature of
contamination for which the PRP may be individually responsible.
Allocation among PRPs usually takes place in lawsuits or in other
adversary contexts in which the PRPs seek equitable contribution among
themselves.
The Superfund liability scheme has clearly exacerbated the
difficulty of bringing brownfields back to productive use. Moreover,
that liability scheme itself is responsible for the creation of many
brownfields. This system makes the owners of contaminated properties
liable for millions of dollars in cleanup costs even if they had
nothing to do with contaminating the site or they purchased the
property decades after the contamination occurred. It exposes
landowners not only to Superfund actions by EPA, but also to lawsuits
decades in the future by as-yet unanticipated parties who incur cost to
clean up the property. Concerned about this ``trailing'' liability,
owners of possibly contaminated properties often hold this land back
from the market. When properties that carry the stigma of contamination
become available for sale, most developers avoid them out of concern
that they will be exposed to endless uncertainty and undue financial
liability.
LEGISLATIVE REFORMS ARE NEEDED
Brownfields hold enormous potential value for both the private and
public sectors. This potential will remain unrealized, however, unless
Congress reforms the Superfund liability system.
In April 1997, and again in May 1999, NAIOP had the privilege to
testify before Congress on legislation aimed at Superfund reform and
Brownfields revitalization. In that testimony, we pointed to five
elements that NAIOP views as necessary to achieve meaningful Superfund
reform that will result in practical brownfields revitalization: (1)
Reform of the Superfund liability system; (2) Deference to state
voluntary remediation programs; (3) Cleanup standards that are site
specific, risk based, and which take into account future use; (4)
Liability risks that can be quantified with solutions that are final;
and (5) Recognition of market forces.
Our analysis of these bills leads NAIOP to conclude that the
``Gillmor Discussion Draft,'' S. 350, and the ``Democratic Discussion
Draft'' make individual attempts to address our members concerns on
these important issues. We hope that these issues outlined above can be
addressed in a broad bi-partisan manner.
BROWNFIELD CLEANUP AND REDEVELOPMENT IS PART OF AN ECONOMIC PROCESS
Redevelopment of any brownfield property results from a complex
economic process dominated by real estate issues. A developer will not
be attracted to the most environmentally pristine of properties--
whether urban, suburban, exurban, rural, or agricultural--if the
property does not have economic potential. A developer will consider
the inhibition to investment posed by a property's environmental
contamination as it would similar inhibitions, such as the availability
of infrastructure, work force, tax issues, and other factors.
We have heard the phrase ``all politics is local.'' It is likewise
true that all real estate is local. To quote a 2001 guidebook on
brownfields development forwarded by former Clinton Administration EPA
Assistant Administrator Tim Fields, ``State-level creativity and
innovation in meeting a wide range of brownfield site assessment,
cleanup, and financing needs has been the hallmark of [brownfields
reuse].''
Therefore, a federal ``cookie cutter'' approach for brownfield
development is insufficient to achieve the lofty goals of improving the
environment, rebuilding our urban cores, reducing sprawl, increasing
employment, and returning unproductive properties to state and local
tax bases. Both S. 350 and the ``Gillmor Discussion Draft'' recognize
that voluntary cleanup programs of the various states provide the best
mechanisms to achieve these goals. By identifying the benefit of these
programs, these bills address the five elements referred to above.
(1) Title I--Brownfields Revitalization Funding
The U.S. Conference of Mayors estimates that there are more than
500,000 brownfield sites in the United States. It is reasonable to
speculate that as many as half or more of these sites could be old gas
stations. We applaud the ``Gillmor Discussion Draft's'' effort to
expand the definition of brownfield sites to include the less
contaminated petroleum sites regulated by the Resource Conservation and
Recovery Act. Further, we are encouraged by S. 350 and the ``Democratic
Discussion Draft's'' efforts to permit the use of grant and loan
proceeds to implement environmental assessments and undertake cleanup
of petroleum contaminated sites.
(2) Title II--Liability Clarifications
All three bills provide some form of protection from liability to
innocent landowners, contiguous property owners, and bona fide
purchasers of contaminated properties, all of which would mitigate some
of Superfund's most draconian provisions. In order to qualify for this
protection under Mr. Gillmor's draft, an innocent owner and a bona fide
purchaser would have had to make inquiries for diligence investigations
under the standards of the American Society of Testing of Materials
(ASTM), the industry standard of both the commercial real estate and
banking industries. For properties acquired before the promulgation of
the ASTM standards, the party would have had to demonstrate compliance
with contemporary industrial standards. The procedure in S. 350 and the
``Democratic Discussion Draft'' would require a complex EPA rulemaking
and add uncertainty to a process that the free market and the most
rigorous watchdog--the banking industry--have found effective. We
support the provision in S. 350 and the ``Democratic Discussion
Draft,'' but believe that the ``Gillmor Discussion Draft'' provides a
more simple approach.
The ``windfall lien'' provision of both S. 350 and the ``Democratic
Discussion Draft'' allow EPA to impose a lien on the increase in value
of the property to the extent of EPA's unrecovered cleanup costs. It
does not, however, impose an obligation on EPA to attempt to recover
these costs from PRPs. In contrast, the ``Gillmor Discussion Draft''
recognizes the need to require EPA to follow its own ``Polluter Pays''
policy before it imposes a lien on an innocent party. It requires that
before EPA seeks to recover its costs from a bona fide purchaser it
must first make reasonable attempts to recover those costs from one or
more responsible parties.
Regrettably, however, none of the bills recognize the inherent
unfairness of imposing an open-ended lien that has no time limitations,
either for filing or duration. Under none of the bills would a bona-
fide purchaser have notice of an EPA lien. Further, the EPA has the
option to impose its lien at any time. Any lien imposed by the EPA
should be recorded at the time the Agency performs its work at the
affected property. This would be consistent with CERCLA Section 107(l),
which already establishes a federal lien to secure the Agency's
remedial costs on property ``affected by a removal or remedial
action.'' A notice provision would inform a prospective purchaser that
EPA might seek to recover proceeds from the property after its
acquisition. Such a notice provision is essential to fairness. The
unintended effect, however, of any lien provision applying to a bona
fide purchaser would be to discourage the development of properties on
which EPA has filed its lien. Thus, NAIOP strongly believes that any
lien EPA has filed should be released upon purchase of the property by
a bona fide purchaser. Again, we do not know if this was the true
intention of the bill's authors.
(3) Title III--State Response Programs
Of critical importance to the cleanup and redevelopment of
brownfields properties is the effective deferral of Federal enforcement
in situations where properties have been cleaned up in compliance with
State programs.
Since the early 1990s, 47 states have enacted legislation or
otherwise established programs that provide releases from liability
under state environmental laws for parties who successfully complete
voluntary and mandatory remediation actions. The ``Gillmor Discussion
Draft'' requires EPA to defer to such state programs, and it would
provide statutory protection against both cost recovery and
contribution actions by the federal government or private parties for
persons who meet the requirement s of those programs.
On the other hand, state governments would still be allowed to
pursue Superfund claims under CERCLA section 107. This deferral to the
state programs in the ``Gillmor Discussion Draft'' also provides an
element of finality to site closure that is now missing from the
Superfund site cleanup equation.
The example of states like Massachusetts, New Jersey, Pennsylvania,
Michigan, Indiana, and others with voluntary cleanup programs, bolster
the view of state program success. Many of these states have developed
cleanup standards keyed to site use and risk and require enforceable
deed restrictions and notices that convey with the property if it is
not cleaned up to residential standards. If the use changes, the
protection from liability lapses.
In Pennsylvania, for example, NAIOP actively participated in the
legislative process that resulted in Act 2, the Land Recycling and
Environmental Remediation Standards Act. Under that statute, parties
may choose to clean up contaminated properties to one or more of three
different levels, after which they receive a release from liability
under state environmental laws. The remediation standards of Act 2
apply both to voluntary cleanups and mandatory remedial actions under
the state's version of Superfund. The Pennsylvania statute has resulted
in the cleanup of more than 650 sites since 1995, and has been adopted
as model legislation by the American Legislative Exchange Council, an
organization representing by legislators from all 50 states.
It is important to recognize that states have been at the forefront
of brownfields redevelopment and cleanup, while EPA has been slower to
catch up. NAIOP urges Congress to not attempt to federalize the state
programs, or make states meet a standard issued by EPA to qualify for
deferral of EPA Superfund enforcement. It would be more logical and
productive to require EPA to study and emulate the most successful
state programs in order to redesign its own Superfund enforcement
strategies. For example, the ``Gillmor Discussion Draft'' somewhat
achieves this by emulating a provision in Pennsylvania's Act 2 Section
902 (35 P.S. Sec. 6026.902) which eases requirements for permits or
permit revisions for cleanup actions taken in compliance with the
statute. Section 303 in Title III of the ``Gillmor Discussion Draft''
requires EPA to promulgate regulations within 18 months that would
streamline, minimize, or eliminate procedural permitting requirements.
This suggestion recognizes the extraordinary need to bring our
brownfield sites back to life and to overcome impediments that would
counter the attractiveness of the program.
The extent to which the EPA may reopen for liability the
remediation of a property cleaned up under a state program has been
controversial. It is essential to understand that there are two groups
affected by this: (1) Owners of thousands of contaminated properties
that have not been released for sale, and (2) Parties who would clean
up and redevelop these and thousands of other contaminated properties.
These groups have not done so because of concern that they will face a
future of lurking federal liability.
As the ``Gillmor Discussion Draft'' recognizes, this applies not
only to EPA enforcement actions, but also to third party suits for
contribution under Section 113 of Superfund. Indeed, while we are not
aware of EPA having yet sought to take an enforcement action at a site
that has undergone a state approved cleanup, there are legions of third
party suits for cleanup. The threat of liability for contamination
found many years after cleanup by detection techniques that have not
yet been developed lurks under Superfund. Both site owners and
developers need the assurance of finality on both EPA and third party
enforcement actions.
The ``Gillmor Discussion Draft'' also recognizes that while EPA
should be able to take action to protect human health and the
environment where state programs have failed to do so, the Agency
should first give the states the opportunity to cure any defect for
which EPA can give them notice. Moreover, the draft actually enhances
the likelihood of cleaning up more brownfields by requiring EPA to
reopen state decisions only where true emergencies exist. Using the
boilerplate ``imminent and substantial endangerment standard'' for
reopening provides very little protection from second-guessing. Under
the statutes, which have imminent and substantial endangerment
provisions, courts have given a very broad interpretation to the term
and have allowed actions to go forward where the problems were much
less than crises or emergencies.
In B.F. Goodrich v. Murtha, (1988) 697 F. Supp. 89, for example,
the court held that the ``imminent and substantial endangerment''
provision of CERCLA Section 106, which authorizes EPA abatement
actions, is not limited to emergency situations, and that EPA may act
even where the actual harm may not be realized for years. EPA's own
guidelines as to what constitutes an imminent and substantial
endangerment are skimpy, and EPA has interpreted its authority broadly.
In United States v. Tarkowski, 248 F.3d 596, a case decided by the
U. S. Court of Appeals for the Seventh Circuit earlier this year, Judge
Posner criticized EPA's claim that an imminent and substantial
endangerment existed to justify its authority to take a response action
under CERCLA Section 104. Judge Posner said (at 599):
``The EPA takes the extreme position that, provided it has
probable cause to believe that there is even a thimbleful of a
hazardous substance spilled in a person's yard, or we suppose
even a drop, it has an absolute right to an access order . .
.''
Judge Posner was particularly critical that EPA would seek ``to
undertake remedial efforts before determining whether there is a hazard
that justifies the efforts.'' 248 F.3d at 601. Authorizing EPA to take
action at sites cleaned up under state programs only in true
emergencies where the state has sufficient notice to cure any noted
problem should avoid this unnecessary over-reaching by EPA.
The sensible restrictions on EPA second-guessing in the ``Gillmor
Discussion Draft'' gives due credit to the states that have been on the
firing line of brownfields redevelopment and encouragement to the
developers who want to use those programs. At the same time these
provision do not sacrifice protection of human health and the
environment. We need to recognize that most developers, their
employees, families, and other loved ones live in the communities where
they work. It is cynical at best to project that states will try to cut
environmental protection in order to attract development. In the
unlikely event that such a circumstance would occur, the ``Gillmor
Discussion Draft'' provides adequate ability for EPA to act swiftly and
effectively to counteract such misconduct.
(4) Title IV of ``Democratic Discussion Draft''--Advisory Commission
We applaud the inclusion in the ``Democratic Discussion Draft'' of
a provision that would authorize a study of the effect of brownfields
development on Environmental Justice issues. We concur that all
communities should share in the benefits of such activity and that the
Commission appointed under Title IV should both monitor compliance with
this goal and issue recommendations to implement the goal. The
Commission should not, however, have the unprecedented authority to
disenfranchise state cleanup programs, as the Draft would empower it to
do. This provision is probably unconstitutional as a violation of due
process of law and the restriction of the 10th Amendment to the
Constitution.
SUMMARY
Cleaning up real or perceived contamination will not assure the
success of a brownfields remediation. Additionally, the ordinary
factors that make real estate development work must be in place for a
brownfield development to succeed. Hence, brownfields revitalization
incentives must be market-driven. Location, accessibility,
infrastructure, work force, demand, and other factors must be taken
into account when allocating grants and other financial resources to
brownfield revitalization efforts. Even public and non-commercial
projects must make economic sense. The ``Gillmor Discussion Draft''
builds upon the substantial foundation provided in S. 350, which NAIOP
supported. We believe that the ``Democratic Discussion Draft'' attempts
to address some of the same problems, but just does not go far enough.
NAIOP members maintain that brownfields can and should be
redeveloped consistent with protection of the environment and human
health. Failure to enact brownfields reform legislation will result in
the creation of more brownfields, as well as continue to foster the
current inhibitions to brownfield redevelopment. Such outcomes are
unilaterally inconsistent with protecting the environment and human
health. The committee has an unparalleled, historic opportunity this
year to take advantage of Congressional momentum, as well as fulfill
the private sector's desire to enact this important legislation.
Congress should act before this window of opportunity closes.
Enacting broad bi-partisan brownfields reform legislation would result
in both greater environmental remediation and the creation of wider
economic opportunity in redeveloped brownfield sites.
Mr. Chairman, Congressman Pallone, and members of the Subcommittee,
I again thank you for the opportunity to present NAIOP's views on
brownfields reform legislation, specifically S. 350, the ``Gillmor
Discussion Draft'' and the ``Democratic Discussion Draft.'' NAIOP
understands that there will be a long discussion over certain policy
components of this legislation; after all, legislation is the art of
compromise. We feel that S. 350 and both drafts discussed here today
will involve all interested parties in continuing the important dialog
that began many years ago. We appreciate your collective efforts as you
work to obtain a broad bipartisan consensus on how to move forward in
passing brownfields reform. Ultimately your efforts will be successful.
NAIOP looks forward to working with the committee to that end.
Thank you.
Mr. Gillmor. Thank you.
Mr. Lynch?
STATEMENT OF JOHN LYNCH
Mr. Lynch. Thank you for the opportunity to present the
views of the National Association of Realtors on brownfields,
and I wish to thank Chairman Gillmor and ranking member Pallone
for your leadership in addressing this very important issue. I
would like to thank my friend, Sherrod Brown, for the nice
introduction before.
My name is John Lynch. I own a full-service real estate
company, commercial real estate company in Cleveland, Ohio. We
offer brokerage, site location, consulting, management, and
appraisal services. I also have a small building company. We
build energy efficient homes.
I have been licensed in real estate since 1972. And, as
Sherrod said, I was a member of Cleveland City Council. I have
done my stint in public service. It is often said, and I agree,
that realtors don't sell homes or buildings; we sell
communities. The more than 760,000 members of the National
Association of Realtors, real estate professionals involved in
all aspects of the real estate industry, are concerned and
active members of all of our communities.
Like everyone else, we want clean air, clean water, and
clean soil. We want to see contaminated properties cleaned up
and returned to the marketplace. We care about a healthy
quality of life, as well as a vibrant economy, and we are
willing to do our part to maintain that important balance.
NAR holds the brownfield legislation as our No. 1, as our
top environmental issue, as our top priority. NAR supports
brownfield legislation which will effectively promote the
cleanup and redevelopment of hundreds of thousands of our
Nation's brownfield sites. And if the chairman indicates there
is 10,000 in Ohio, there is about 2,500 in my marketplace then.
Throughout the country the real estate industry is becoming
increasing comfortable with the idea of redeveloping brownfield
sites. Old factories and warehouses are being replaced with
cultural facilities, parks, apartment communities, shopping
centers, what we heard earlier. At the same time that they
provide a cleaner and safer environment, these revitalized
sites increase the tax base, they create jobs, and they provide
for new housing.
Support for brownfield development also fits with NAR's
smart growth initiative--our new program to advocate public
policies which seek to maintain community quality of life while
allowing the market forces to generate growth. Brownfields
redevelopment is occurring because Federal, State, and local
governments have banded together to creatively attack the
brownfields problem by providing a variety of incentives and
assistance. It just makes sense to redevelop these sites.
In a report published last year, the State of Ohio reports
that 85 sites have entered our voluntary action program
resulting in the creation of over 7,000 jobs. Ohio recently
passed a $400 million bond issue with half of the money being
devoted for the cleanup of brownfield sites, for innocent
property owners and prospective purchasers.
New Jersey--a Rutgers University report estimates that
within 10 years brownfields redevelopment can create 66,000
permanent jobs, housing for some 71,000 people, and some $62
million in new tax revenues. However, significant hurdles still
remain.
From the real estate industry perspective, liability
concerns continue to impede brownfield development. First and
foremost, brownfield legislation must provide Superfund
liability protection for innocent landowners and prospective
purchasers who have not caused or contributed to the hazardous
waste contamination on the properties.
It is important to get these innocent property owners out
of the liability net, so that resources can be targeted toward
the cleanup rather than toward litigation.
Second, brownfields legislation must recognize successful
cleanups conducted under State brownfield programs. Through
their programs, most of the States provide real estate owners
and developers with incentives to make brownfields
redevelopment more attractive. Typically, the State will
provide some sort of--some form of liability relief once it has
approved a cleanup.
In Ohio, the relief comes in the form of a no further
action letter from the State EPA. Unfortunately, there is no
guarantee, despite what was mentioned earlier by Ms. Fisher,
that the Federal EPA will not assert its authority at some
future date and require some additional cleanup.
Without some degree of certainty that they are protected
from the Federal as well as from State liability, owners and
developers are reluctant to undertake development of
contaminated sites. For this reason, the Ohio program is
underutilized. In conjunction with the creative leadership of
Administrator Whitman, I am confident that Congress can craft
and pass legislation providing the real estate community with
the certainty that they can go forward.
Practical and effective brownfield legislation presents a
win-win opportunity for everyone by cleaning up hazardous waste
sites, thereby allowing them to be put to new productive uses
which can enhance the community growth and the quality of life.
In light of the strong support for brownfield legislation
in the administration and in the Senate, the House has now a
unique opportunity to take up the gauntlet and to reinforce a
nationwide effort to turn brownfields into greenfields. NAR
looks forward to working with this committee and the entire
House to pass a brownfields bill in the 107th Congress.
Thank you very much for allowing me to participate with you
and to share with you the views of the National Association of
Realtors.
[The prepared statement of John Lynch follows:]
Prepared Statement of the National Association of Realtors<SUP>'</SUP>
Thank you for the opportunity to present the views of the National
Association of Realtors<SUP>'</SUP> (NAR) on brownfields. I wish to
thank Chairman Gillmor and Ranking Member Pallone for your leadership
in addressing this very important issue.
My name is John Lynch. I own a full service commercial real estate
company in Cleveland, Ohio, offering brokerage, site location,
consulting, management and appraisal services. I have been licensed in
real estate since 1972. 1 also served on the Cleveland City Council for
12 years.
It is often said--and I agree--that Realtors<SUP>'</SUP> don't sell
homes, we sell communities. The more than 760,00 members of the
National Association of Realtors<SUP>'</SUP>, real estate professionals
involved in all aspects of the real estate industry, are concerned and
active members of our communities. We want clean air, clean water and
clean soil. We want to see contaminated properties cleaned up and
returned to the marketplace. We care about a healthy quality of life as
well as a vibrant economy, and we are willing to do our part to
maintain that important balance.
NAR supports brownfields legislation which will effectively promote
the cleanup and redevelopment of the hundreds of thousands of our
nation's brownfields sites. Throughout the country, the real estate
industry is becoming increasingly comfortable with the idea of
redeveloping brownfields sites. Old factories and warehouses are being
replaced with cultural facilities, parks and apartment communities. At
the same time that they provide a cleaner and safer environment, these
revitalized sites increase the tax base, create jobs and provide new
housing.
Support for brownfields redevelopment also fits within NAR's Smart
Growth Initiative, our new program to advocate public policies which
seek to maintain community quality of life while allowing market forces
to generate growth.
Brownfields redevelopment is occurring because federal, state and
local governments have banded together to creatively attack the
brownfields problem by providing a variety of incentives and
assistance.
In a report published last year, the State of Ohio reports that 85
sites have entered our Voluntary Action Program, resulting in the--
creation of over 7,000 jobs. Ohio recently issued a $400 million bond,
with half of the money devoted to brownfields cleanup. In New Jersey, a
recent Rutgers University report estimates that--within 10 years--
brownfields redevelopment can create 66,000 permanent jobs, new housing
for 71,000 people, and $62 million in new tax revenues.
However, significant hurdles remain. From the real estate industry
perspective, liability concerns continue to impede brownfields
redevelopment.
First and foremost, brownfields legislation must provide Superfund
liability protection for innocent landowners and prospective purchasers
who have not caused or contributed to hazardous waste contamination.
It's important to get these innocent property owners out of the
liability net so that resources can be targeted toward cleanup rather
than litigation.
Secondly, brownfields legislation must recognize successful
cleanups conducted under state brownfields programs. Through their
programs, most of these states provide real estate owners and
developers with incentives to make brownfields redevelopment more
attractive.
Typically, the state will provide some form of liability relief
once it has approved a cleanup. In Ohio, relief comes in the form of
a``No Further Action'' letter from the state EPA. Unfortunately, there
is no guarantee that the federal EPA will not assert authority at a
future date and require additional cleanup.
Without some degree of certainty that they are protected from
federal as well as from state liability, owners and developers are
reluctant to undertake development of contaminated sites. For this
reason, Ohio's program is underutilized. In conjunction with the
creative leadership of Administrator Whitman, I'm confident that
Congress can craft and pass legislation providing the real estate
community with the certainty they need to go forward.
Practical and effective brownfields legislation presents a ``win-
win'' opportunity for everyone by cleaning up hazardous waste sites,
thereby allowing them to be put to new and productive uses which
enhance community growth and quality of life.
In light of the strong support for brownfields legislation in the
Administration and the Senate,, the House has a unique opportunity to
take up the gauntlet and reinforce our nationwide effort to turn
``brownfields'' into ``greenfields.'' NAR looks forward to working with
this Committee and the entire House to pass a brownfields bill in the
107th Congress.
Thank you again for the opportunity to present the views of the
National Association of Realtors<SUP>'</SUP>. I'm happy to answer any
questions.
Mr. Gillmor. Thank you, Mr. Lynch.
Mr. Roth?
STATEMENT OF LARRY ROTH
Mr. Roth. Good afternoon, Mr. Chairman, Congressman
Pallone, and members of the subcommittee. My name is Larry
Roth. I am a registered professional engineer in six States,
and a registered geotechnical engineer in California with 30
years of experience in consulting civil, environmental, and
geotechnical engineering.
Currently, I am the Assistant Executive Director and Chief
Operating Officer of the American Society of Civil Engineers.
The cleanup of brownfields is important to the environmental
and industrial health of this Nation through revitalization of
many of our urban areas. We commend the subcommittee for its
effort to produce bipartisan brownfields legislation.
ASCE strongly encourages Congress to pass legislation that
would assist in the redevelopment of brownfields. These sites,
left untended, impose significant costs on the entire society.
Properly restored, they aid in the revival of blighted areas,
promote sustainable development, and invest in the Nation's
industrial and economic strength.
As blighted urban land is restored to productive use, the
pressure to develop greenfields is lessened. This mitigates
undesirable effects of sprawl such as traffic congestion and
preserves culturally and ecologically valuable land.
I should state at the outset that ASCE supports the
carefully negotiated bipartisan brownfields approach taken in
S. 350, including its funding, liability, and finality
provisions. Significant to the effort to renew brownfields, in
our view, is the provision that S. 350 that would limit any
Federal response at State brownfield sites to current or future
releases with certain important exceptions.
These exceptions would allow Federal enforcement only, one,
at the state's request; two, in the event of a release across a
State line or onto Federal property; three, if the EPA
determines that an imminent and substantial endangerment to
public health or the environment exists; or, four, if the
agency determines that the site conditions warrants attention
and that further remediation to protect public health or the
environment.
We believe that this narrowly crafted, bipartisan approach
to the reopener question in S. 350 is the best way to address
the dynamics of the Federal-state partnership in brownfield
cleanups. The Senate compromise adequately balances the
interest of property owners and developers, the States, and the
Federal Government in the cleanup process, while also assuring
that human health and the environment are protected to the
maximum extent practicable.
We should point out that the Bush Administration endorsed
this compromise in Federal-state power-sharing before the
subcommittee in March. We think that the finality provisions in
the June 13 draft bill go well beyond the compromise crafted by
the Senate. It would limit Federal authority to act at
brownfield sites under CERCLA and under other Federal laws as
well.
Congress should not limit EPA's authority to respond under
CERCLA or other authorities to actual or threatened releases of
hazardous substances at brownfields that have been cleaned up
by a State. This is important because there can often be little
meaningful State review during the cleanup process itself. Some
States require developers to enter into enforceable consent
agreements. Others involve the State extensively in approving
work plans and supervising the cleanup process.
Most States, however, allow the developer to operate more
or less independently with little or no oversight beyond a
review of documentation submitted at the end of remediation
activities. The brownfields program needs a Federal umbrella to
ensure human health and the environment are not left threatened
by inadequate State cleanup efforts.
In fact, to make sure there is a uniform and protective
cleanup effort nationally, we believe that the final
brownfields legislation should establish minimum Federal
criteria for assessing the adequacy of State brownfields
programs.
In conclusion, CERCLA currently lacks certain liability
exemptions for brownfields redevelopment. We believe liability
relief provisions in the Senate bill offer innocent landowners,
contiguous landowners, and prospective purchasers a good deal
of certainty while continuing to afford appropriate protection
and safeguards to human health and the environment.
Mr. Chairman, that concludes my testimony. Thank you for
inviting me here today. I would be happy to answer any
questions that you may have.
[The prepared statement of Larry Roth follows:]
Prepared Statement of Larry Rpth, Executive Director, American Society
of Civil Engineers
Mr. Chairman, Congressman Pallone and Members of the Subcommittee--
Good morning. My name is Larry Roth. I am a professional engineer and
the assistant executive director and chief operating officer of the
American Society of Civil Engineers (ASCE). I appreciate the
opportunity to appear before this subcommittee on behalf of ASCE to
present our views on legislation aimed at restoring the economic and
social potential of brownfields sites.
ASCE was founded in 1852 and is the country's oldest national civil
engineering organization. It represents more than 125,000 civil
engineers in private practice, government, industry and academia who
are dedicated to the advancement of the science and profession of civil
engineering. ASCE is a 501(c)(3) non-profit educational and
professional society.
a. the need for action
The cleanup of brownfields is important to the environmental and
industrial health of this nation through the revitalization of many of
our urban areas. We commend the Subcommittee for its efforts to produce
bipartisan brownfields legislation.
ASCE strongly encourages Congress to pass legislation that would
assist in the redevelopment of brownfields. These lands have
effectively have been removed from productive capacity due to serious
contamination. These sites, left untended, impose significant costs on
the entire society. Properly restored, they aid in the revival of
blighted areas, promote sustainable development, and invest in the
nation's industrial strength.
In 1995, the General Accounting Office estimated that there were
more than 450,000 brownfield properties across America. Last year, the
U.S. Conference of Mayors calculated that redeveloped brownfields could
generate 550,000 additional jobs and up to $2.4 billion in new tax
revenue for cities nationwide.
ASCE believes that brownfields restoration, properly carried out,
limits urban sprawl, thereby achieving a balance between economic
development, the rights of individual property owners, the public
interest, social wants and a healthy environment. Revitalized
brownfields reduce the demand for undeveloped land. As blighted urban
land is restored to productive use, the pressure to develop distant
open spaces is lessened, thereby mitigating the undesirable effects of
sprawl, such as traffic congestion, and preserving culturally and
ecologically valuable land.
The current brownfields program was established by the
Environmental Protection Agency (EPA) in 1993 under its general
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) authority. That program, which has expanded to include more
than 300 brownfields assessment grants (most for $200,000 over two
years) totaling more than $70 million, needs to be placed on a sound
statutory footing in order to ensure its continued progress.
B. BROWNFIELDS LEGISLATION IN THE 107TH CONGRESS
ASCE has reviewed S. 350, the Brownfields Revitalization and
Environmental Restoration Act of 2001. This bill passed the Senate by a
vote of 99-0 in April. ASCE supported S. 350 during its consideration
in the Senate.
We also have reviewed two recent legislative proposals for
brownfields that were produced by this Subcommittee. They are the
Discussion Draft of June 13, 2001 (the Gillmor plan), and the
Democratic Discussion Draft of June 20, 2001 (the Pallone plan).
Let me state that ASCE continues to support the carefully
negotiated, bipartisan brownfields approach taken in S. 350, including
its funding and liability provisions. Our detailed comments on specific
issues follow.
C. THE ROLE OF THE STATES
States have long sought greater local control over the Superfund
program generally. We know, of course, that states have differing
authorities and ideas about brownfields cleanups. They have a wide
range of approaches and policy tools. Some address brownfields through
voluntary cleanup programs, others supplement their voluntary program
activities, and still others have separate brownfields cleanup and
redevelopment programs.<SUP>1</SUP>
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\1\ For a pointed comment on state voluntary cleanup programs, see
Joel B. Eisen, Brownfields Policies for Sustainable Cities (9 Duke
Envtl. L. & Pol'y F. 187, 207-208 (1999) (``Often, there is also little
meaningful [state] review during the remediation process itself. Some
states require developers to enter into enforceable consent agreements;
others involve the state extensively in approving work plans and
supervising the cleanup process . . . Most allow the developer to
operate more or less independently with little or no state oversight
beyond a review of documentation submitted at the end of remediation
activities.'')
---------------------------------------------------------------------------
Forty-four states have initiated voluntary cleanup (or response)
programs for brownfields. The site owner works cooperatively with the
state. The private parties that voluntarily agree to clean up a
contaminated site receive some protection from future state enforcement
action at the site, often in the form of a ``no further action'' letter
or ``certificate of completion'' from the state. These voluntary
programs for brownfields are important because of the certainty that
the EPA will not be able to complete the cleanup of even the nation's
worst hazardous waste sites alone.<SUP>2</SUP> But these state
commitments do not, and should not, affect the EPA's authority to
respond to actual or threatened releases of hazardous substances under
CERCLA.
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\2\ In 1998, the General Accounting Office reported that, of
approximately 3,000 sites identified as possible National Priorities
List (NPL) sites, only 232 were named by either EPA, a state, or both,
as likely to be placed on the NPL.
---------------------------------------------------------------------------
In 1996, the EPA attempted to give the states a larger role in the
brownfields process through an administrative mechanism that allows the
Agency and the states to enter into ``partnerships'' to encourage the
cleanup of sites that are not contaminated enough to warrant cleanup
under Superfund itself.<SUP>3</SUP> The policy set out six ``baseline
criteria'' for the Agency to allow states to carry out voluntary
cleanups at brownfield sites under a memorandum of agreement. Voluntary
state cleanup programs must provide opportunities for meaningful
community involvement; ensure that voluntary response actions are
protective of human health and the environment; have adequate staff and
financial resources to ensure that voluntary response actions are
conducted in an appropriate and timely manner, and that both technical
assistance and streamlined procedures, where appropriate, are available
from the state agency responsible for the voluntary cleanup program;
provide mechanisms for the written approval of response action plans
and a certification or similar documentation indicating that the
response actions are complete; provide adequate oversight to ensure
that voluntary response actions are conducted in such a manner to
assure protection of human health and the environment; and show the
capability, through enforcement or other authorities, of ensuring
completion of response actions if the volunteering party carrying out
the response action fails to complete the necessary response actions,
including operation and maintenance or long-term monitoring
activities.<SUP>4</SUP>
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\3\ Memorandum from Elliott P. Laws, Assistant Administrator,
Office of Solid Waste and Emergency Response, and Steven Herman,
Assistant Administrator, Office of Enforcement and Compliance
Assurance, to EPA Superfund National Policy Managers (Nov. 14, 1996).
\4\ Id., Attachment 1.
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As of May 9, 2001, sixteen states had entered into a memorandum of
agreement with the EPA under the 1996 voluntary cleanup program
guidelines for brownfields, according to the Agency.<SUP>5</SUP> In
effect, these states have agreed to strict federal oversight of their
brownfield cleanup programs in return for assurances from the EPA that
the federal government will voluntarily curtail its powers under
section 106(a) of CERCLA, which allows the Agency to override local
cleanup decisions at a hazardous waste site after the cleanup is
completed in cases of ``imminent and substantial endangerment.''
<SUP>6</SUP>
---------------------------------------------------------------------------
\5\ The states are Arkansas (December 2000); Colorado (April 1996);
Delaware (August 1997); Florida (December 1999); Illinois (April 1995);
Indiana (December 1995); Kansas (March 2001); Maryland (February 1997);
Michigan (July 1996); Minnesota (May 1995); Missouri (September 1996);
New Mexico (December 1999); Oklahoma (April 1999); Rhode Island
(February 1997); Texas (May 1996); and Wisconsin (October 1995).
\6\ 42 U.S.C.A. Sec. 9606(a) (West 2001). Known as the ``reopener''
clause, the ``imminent and substantial endangerment'' locution
restricts federal action to current or future releases. It does not
contemplate an EPA response for releases that occurred at some time in
the past. See Meghrig v. KFC Western Inc., 116 S.Ct. 1251, 1255 (1996).
---------------------------------------------------------------------------
The EPA will not intervene in a state voluntary cleanup program
absent a catastrophic failure of the initial cleanup. ``[G]enerally EPA
does not anticipate taking removal or remedial action at sites involved
in this Voluntary Cleanup Program unless EPA determines that there may
be an imminent and substantial endangerment to public, health, welfare,
or the environment.'' <SUP>7</SUP>
---------------------------------------------------------------------------
\7\ Laws-Herman Memorandum, supra note 3, at 2 (emphasis added).
---------------------------------------------------------------------------
Section 301 of S. 350 adds a new section to CERCLA that effectively
would codify the EPA policy and the Supreme Court holding in Meghrig by
limiting any federal response at brownfield sites to current or future
releases. It would preclude federal enforcement through section 106(a)
or a cost-recovery action under section 107(a) following a state
cleanup at a brownfield site, with four important exceptions. These
exceptions would allow federal enforcement (1) at the state's request;
(2) in connection with migration across a state line or onto federal
property; (3) if the EPA determines that an imminent and substantial
endangerment to public health or welfare or the environment exists,
after considering the response actions already taken at the site, and
determines that additional response actions are likely to be necessary;
or (4) if the Agency determines new information on the site's condition
warrants attention and the site presents a threat requiring further
remediation to protect public health, welfare, or the environment. The
Bush Administration endorsed this compromise in federal-state power-
sharing before this Subcommittee in March.<SUP>8</SUP>
---------------------------------------------------------------------------
\8\ A Smarter Partnership: Removing Barriers to Brownfields
Cleanups: Hearing Before the Subcomm. on Environment and Hazardous
Materials of the House Comm. on Energy and Commerce, 107th Cong. (Mar.
7, 2001) (Statement of Christine Todd Whitman, Administrator, U.S.
Environental Protection Agency) (``Brownfields legislation should
direct EPA to work with the states to ensure that they employ high, yet
flexible cleanup standards, and allow EPA to step in to enforce those
standards when necessary.'') <http://energycommerce.house.gov/107/
hearings/03072001Hearing45/hearing.htm>.
---------------------------------------------------------------------------
The Democratic Draft of June 20 generally follows the language in
S. 350. It would preclude federal enforcement or cost recovery
following a state brownfield cleanup, with the four exceptions affirmed
in S. 350. The Gillmor Draft would adopt a somewhat more restrictive
approach to reopeners, prohibiting the EPA or any other party from
seeking a post-cleanup enforcement order under section 106, a cost
recovery under section 107 or a civil action under section 113 of
CERCLA. It would allow for federal or private enforcement under the
same four exceptions included in S. 350 and the Democratic Draft,
however.
The narrowly crafted bipartisan approach to the reopener question
in section 301 of S. 350 is the correct way to address the natural
tension between the federal and state roles in brownfields cleanups.
This provision would give the states ample opportunity to carry out a
brownfield cleanup under minimum federal oversight while protecting
human health and the environment in case of a cleanup failure through
the use of federal enforcement tools in the existing Superfund statute.
This Subcommittee should conform its brownfields bill as nearly as
possible to the Senate provision on reopeners.
D. STATE PROGRAM CRITERIA
In practice, state voluntary programs do not focus on redevelopment
nor do they target urban sites specifically. State voluntary programs
are more often aimed at getting simple, less contaminated sites cleaned
up regardless of whether they are reused, and, as we have noted, they
have differing authorities and ideas about brownfields cleanups.
Brownfields programs, on the other hand, are more likely to focus on
redevelopment and be part of a broader state strategy or set of social
policies aimed at improving distressed urban areas.
The Democratic Discussion Draft would create a new provision that
would require states to certify to the EPA that they have the legal and
financial resources available to carry out a brownfields cleanup. The
Gillmor Discussion Draft contains similar requirements. Each bill would
codify the EPA practice of signing memoranda of agreement with states
to carry out voluntary cleanup programs under Agency guidance. ASCE
endorses this solution.
To ensure a uniform and protective cleanup effort nationally, we
believe that the final brownfields legislation ought to establish
minimum federal criteria for assessing adequate state brownfields
programs. The states should be required to demonstrate that their
programs satisfy minimum environmental and public health criteria.
There also must be some way to ensure appropriate public
participation in state cleanups or provide assurance through state
review or approval that site cleanups are adequate. Public
participation and accountability are important to making good cleanup
decisions.
E. LIABILITY ISSUES
CERCLA currently lacks certain liability exemptions for brownfields
redevelopment. Nevertheless, the EPA has undertaken several liability-
related administrative steps to encourage brownfields development.
Significantly, the Agency has allowed expanded use of ``prospective
purchaser agreements.'' These make up a ``no-action assurance'' by the
EPA that it will not enforce against someone who wants to buy
contaminated property for cleanup or redevelopment. There must be a
clear benefit to EPA (often, obtaining cleanup funding not otherwise
available) or to the community in entering into the agreement. Another
initiative is the EPA ``comfort letter,'' a notification to the
prospective buyer of a brownfield (such as a closed military base) as
to EPA's enforcement intentions there, based on information then known
to EPA. Comfort letters are informational and not binding assurances,
however, as the prospective purchaser agreements are.
These EPA policies, however, restrict only the Agency. They provide
no assurance that states or private parties may not sue under the Act.
Moreover, although some states, as part of their own brownfields
programs, have provided protection from liability under state law as an
incentive for investment in these sites, states are without power to
waive liability under the federal CERCLA.
Thus, the fear of liability under CERCLA frequently impedes the
cleanup and redevelopment of brownfields. We support liability
provisions in CERCLA that release prospective purchasers of
contaminated brownfields property; innocent landowners, and contiguous
property owners from responsibility for the cleanup of a site. We
believe liability relief provisions for innocent landowners, contiguous
landowners and prospective purchasers will provide a great deal of
certainty to homeowners, buyers, and developers involved in the
purchase, sale, cleanup and redevelopment of brownfields properties. S.
350 and the two Subcommittee bills easily satisfy these requirements.
F. SCOPE OF THE LEGISLATION
We believe a federal brownfields restoration program should be
narrowly tailored to conserve federal funds by addressing only those
sites where no other federal or state cleanup actions are possible or
under way.
To this end, the legislation should exclude from the brownfields
restoration program any site that is undergoing a remedial or removal
action funded under CERCLA or that is listed or proposed for listing on
the NPL.
Other exclusions should apply to sites that are the subject of an
administrative or court-ordered cleanup or a cleanup approved through a
consent decree under CERCLA, the Resource Conservation and Recovery Act
(RCRA), the Federal Water Pollution Control Act (FWPCA), the Toxic
Substances Control Act (TSCA) or the Safe Drinking Water Act (SDWA).
Brownfields funding should not go to sites subject to corrective
action under 3004(u) or 3008(h) of RCRA and to which a corrective
action permit or order has been issued or modified to require the
implementation of corrective measures.
Finally, no federal assistance should go for a hazardous waste
disposal unit for which a closure notification has been submitted and
that has closure requirements specified in a closure plan or permit
under RCRA; a site that is federally owned or operated; any portion of
a facility where there has been a release of polychlorinated biphenyls
and that is subject to remediation under TSCA; or that is being
addressed by the Leaking Underground Storage Tank (LUST) Trust Fund.
All three bills meet this important goal.
g. conclusion
Mr. Chairman, that concludes our testimony. I would be happy to
answer any questions you may have.
Mr. Gillmor. Thank you very much, Mr. Roth.
Mr. Hopkins?
STATEMENT OF ED HOPKINS
Mr. Hopkins. Thank you, Chairman Gillmor, and members of
the committee for this opportunity to speak today on
brownfields issues.
In addition to my statement, I would like to have
introduced into the record a letter from seven public health
and environmental groups concerning the discussion draft if we
could.
Mr. Gillmor. Give us a copy, and we will deal with that at
the end of the hearing.
Mr. Hopkins. Okay. Thank you, sir.
My name is Ed Hopkins. I am the Director of the Sierra
Club's Environmental Quality Program. We are a national
nonprofit environmental advocacy organization with more than
700,000 members. The Sierra Club strongly supports cleaning up
brownfields in ways that protect public health and the
environment and, to the greatest extent possible, hold
polluters accountable for cleanup costs.
In our view, the majority draft bill takes the debate over
how best to clean up and redevelop brownfields in the wrong
direction. It represents a radical departure from the
bipartisan bill that unanimously passed the Senate, Senate bill
350, with the support of EPA Administrator Whitman.
The draft bill promotes redevelopment above consideration
of public health and the environment, fairness to taxpayers,
and the right of citizens to know about and participate in
decisions affecting their communities. The Sierra Club will
vigorously oppose this bill as an unacceptable weakening of the
Nation's public health protection laws.
We are afraid if the committee chooses this approach, which
diverges so greatly from the bill passed in the Senate and the
policies that the administration has espoused, we believe it
will doom the prospect of enactment of brownfield legislation.
There are several principal areas of concern about this
bill. First, the draft bill includes heavily contaminated sites
within the definition of brownfields and eligible response
sites. In our view, brownfields legislation should address
sites with low levels of contamination.
One of the most important provisions of Senate bill 350 is
that it includes only sites with relatively low levels of
contamination, recognizing that higher risk sites should be
addressed under the provisions of State and Federal laws
specifically written to address the risks they pose to ensure
protection of the public's health and safety.
In defining brownfield sites that would be eligible for
Federal funding, the draft bill in several ways greatly expands
the scope of brownfields and includes more contaminated sites.
It allows portions of heavily contaminated sites subject to
cleanup under a number of Federal laws to be considered as
brownfields.
The definition of eligible response sites under the Senate
bill explicitly excludes Superfund caliber sites. Those are
included in the draft bill. The draft bill would also allow
States to designate highly contaminated sites, including
hazardous waste disposal sites in areas contaminated with PCBs
as brownfields.
Allowing more higher-risk sites to take advantage of
funding and enforcement limits under a State brownfield program
greatly concerns us because of the inadequacy of some of the
State programs. The Sierra Club strongly opposes the concept
of, one, making high-risk sites eligible for funding in
restricted Federal enforcement; two, reducing the enforcement
authority of the Federal Government, thus leaving oversight
largely to the States; and, three, failing to set minimum
common-sense requirements for State cleanup programs. And this
is precisely what this bill would do.
Our second major concern is that the draft bill fails to
include criteria for State voluntary cleanup programs, and we
see this program criteria as vital for ensuring protection of
public health and environmental quality.
State cleanup programs vary tremendously. A dozen States,
including Ohio, lack assurances for public participation in
their cleanup program. In Ohio, for example, States are--the
public is not notified of cleanup until after it occurs. These
documented weaknesses of State programs suggest that limiting
Federal enforcement authority while increasing Federal funding
for State voluntary cleanup programs may result in increased
health risks.
Our third major concern is that the draft bill weakens
EPA's authority to protect public health and the environment
from toxic waste. The Federal safety net in CERCLA and other
statutes must be preserved to safeguard the public.
We see there is no real need to limit the Federal
Government's authority in this area. As EPA Administrator
Whitman has testified in the Senate, EPA has never superseded a
State brownfields decision. Yet this draft goes a long way
toward changing the provisions of S. 350, changing, for
example, the standard of imminent and substantial endangerment
by adding the concept of emergency.
So we have many concerns about this bill, Mr. Chairman, and
we appreciate the opportunity to speak here today.
[The prepared statement of Ed Hopkins follows:]
Prepared Statement of Ed Hopkins, Sierra Club
Chairman Gillmor and members of the House Energy and Commerce
Subcommittee on Environment and Hazardous Materials, thank you for the
opportunity to speak today about Representative Gillmor's June 13 draft
brownfields legislation.
My name is Ed Hopkins, and I am the director of the Sierra Club's
Environmental Quality program. The Sierra Club is a national, nonprofit
environmental advocacy organization with more than 700,000 members.
To summarize the Sierra Club's principal concerns, there are four
main areas where Representative Gillmor's draft bill takes the debate
over brownfields legislation in the wrong direction.
<bullet> First, the draft bill includes heavily contaminated sites
within its definition of ``brownfields'' and ``eligible
response sites.'' Brownfields legislation should only address
sites with low levels of contamination.
<bullet> Second, it fails to include minimum, commonsense criteria for
state voluntary cleanup programs. Requiring minimum state
program criteria is vital for ensuring protections of public
health and environmental quality.
<bullet> Third, the draft bill weakens the EPA's authority to protect
public health and the environment from toxic waste. The federal
safety net in CERCLA and other statutes must be preserved to
safeguard the public
<bullet> Fourth, the draft bill eliminates a host of protections for
local communities. These provisions include, but by no means
are limited to, unnecessary restrictions on listing Superfund
sites; efforts to allow the elimination of requirements for
public notice, information, and participation in environmental
permitting decisions; and removal of protections for public
health embodied in CERCLA, RCRA and other laws.
OVERVIEW
Various estimates place the number of brownfields between 450,000
to 600,000. Under the EPA's broad definition--``abandoned, idled, or
under-used industrial and commercial facilities where expansion or
redevelopment is complicated by real or perceived environmental
contamination''--anything from a trash-strewn inner-city lot posing
minimal health threats to sites that are just barely less hazardous
than those listed on the National Priority List could be considered a
brownfield.
The Sierra Club strongly supports cleaning up brownfields in ways
that protect health and the environment and that, to the greatest
possible extent, hold polluters accountable for cleanup costs.
Responsible brownfields cleanup should reduce or eliminate public
exposure to contaminants, protect the environment, revitalize
communities, facilitate development that takes advantage of existing
infrastructure, and discourage consumption of undeveloped land.
Irresponsible brownfields redevelopment can pose risks to public health
and the environment, disillusion and anger communities that have been
denied opportunities to participate in redevelopment decisions, and
decrease redevelopment efforts. Eagerness to redevelop contaminated
property should not have a greater priority than protecting health.
In our view, Representative Gillmor's draft bill takes the debate
over how best to clean up and redevelop brownfields in the wrong
direction. It represents a radical departure from the bipartisan bill
that unanimously passed the Senate (S. 350), with the support of EPA
Administrator Whitman.
This draft bill promotes redevelopment above consideration of
public health and the environment, fairness to taxpayers, and the right
of citizens to know about and participate in decisions affecting their
communities. The Sierra Club will vigorously oppose this bill as an
unacceptable weakening of the nation's public health protection laws.
If the Committee chooses this approach, which diverges so greatly from
the provisions in the Senate bill and the policies the Administration
has espoused, we believe it will doom the prospect for enactment of
brownfields legislation, thereby slowing efforts to clean up and
redevelop the nation's brownfields.
In the Sierra Club's view, draft bill contains a number of
provisions that weaken public health protections and inappropriately
shift liability for cleanup to the public. The draft bill:
Includes heavily-contaminated or high-risk sites in the definition of
``brownfields'' and ``eligible response sites.''
One of the most important provisions of S. 350 is that it includes
only sites with relatively low levels of contamination. It recognizes
that higher risk sites should be addressed under the provisions of
state and federal laws specifically written to address the risks they
pose to ensure protection of the public's health and safety.
In defining brownfield sites that would be eligible for federal
funding, the draft bill in several ways greatly expands the scope of
brownfields and includes more contaminated sites. It removes S.350's
limitation that only ``relatively low risk'' petroleum sites be
included as brownfield sites (S.350 Section 101(a)(39)(D)(ii)(bb)(AA)).
It also allows portions of heavily contaminated sites subject to
cleanup under a number of federal laws to be considered for brownfields
funding. (Section 101(a)(39)(B)(iii) and (iv)) We are wary of drawing
the lines too closely on highly contaminated sites because it suggests
more precise knowledge of the site than may be accurate. In the Hickory
Woods development of Buffalo, New York, for example, toxic chemicals
have been found in an area just outside an NPL site. After chemicals
were found in some basements, the state health department has advised
residents to avoid disturbing the soil in their yards and to take other
precautions. Excluding all of seriously contaminated sites--not just
portions of them ( errs appropriately on the side of public safety.
1The definition of ``eligible response sites,'' under the Senate bill,
explicitly excludes ``Superfund-caliber'' sites, those which have
undergone a preliminary assessment and site investigation and have
received a pre-score under EPA's site evaluation process that would
indicate that the site could qualify for inclusion on the National
Priorities List. The draft bill, by dropping this limitation, would
greatly restrict the EPA's authority to protect public health from
inadequate cleanups at these higher-risk sites.
The draft bill would also allow states to designate ``independent
of any federal oversight'' highly contaminated sites, including
hazardous waste disposal sites and areas contaminated with
polychlorinated biphenyls as ``brownfields.'' It would then allow
states that may not be authorized for corrective actions under RCRA to
use federal taxpayer dollars to subsidize the cleanup of sites that
would otherwise be regulated under RCRA. This would take place without
any federal oversight.
Allowing more, higher-risk sites to take advantage of funding and
enforcement limits under a state brownfield program greatly concerns us
because of the inadequacies of some of the state programs. (Our
concerns about state programs are discussed below.) The Sierra Club
strongly opposes the concept of 1) making high-risk sites eligible for
funding and restricted federal enforcement, 2) reducing the enforcement
authority of the federal government, thus leaving oversight largely to
the states, and 3) failing to set minimum, commonsense requirements for
state cleanup programs. This is precisely what the draft bill proposes.
Limits unnecessarily the ability of the federal government to protect
public health and the environment.
The draft bill makes a number of changes in existing law and in
S.350 that, taken together, significantly weaken the federal safety net
for protecting public health and the environment from contaminated
waste sites. By severely undermining the federal safety net, this draft
bill erodes the public's ability to rely on EPA as a safeguard for the
health of their families and neighborhoods.
There is no need to limit the ability of the federal government to
protect public health. As EPA Administrator Whitman testified in the
Senate and is reported to have told the U.S. Chamber of Commerce
(National Journal's Congress DailyAM, June 19, 2001), the EPA has never
superceded a state brownfields decision.
In seeking to address a nonexistent problem, the draft bill goes
unacceptably beyond S. 350 in weakening the federal safety net, which
authorizes EPA to order polluters to clean up contamination that may
present an imminent and substantial endangerment to public health and
the environment. Not only does this provision bar the EPA from ordering
cleanups, but it goes even further, amending Section 113 of CERCLA, to
prevent the Agency from undertaking or assessing polluters costs for
long-term cleanup activities. (Section 129(b)(1)(A) of the draft)
While S.350 preserves the meaning of the ``imminent and substantial
endangerment'' standard to avoid unnecessary litigation, the draft bill
drops this term, whose meaning has been established through years of
litigation. Instead of enabling the EPA to prevent threats to public
health, the draft bill shifts the focus to controlling damage during
emergencies or instances where the state has delayed taking action.
(See Section 129(b)(I)(B)(iii) and (iv) of the draft bill.) Instead of
serving to prevent threats to health, the draft bill would limit
federal authority to responding to an emergency, presumably situations
where health or environmental threats have occurred. The term
``emergency'' is not defined, however, and introducing this new concept
seems likely to trigger considerable litigation. We view this change as
yet another weakening of the federal safety net.
In S.350, the limits on EPA's enforcement authority apply only to
sites that states plan on cleaning in the coming year or that states
finished cleaning in during the previous year, and which the state
includes on publicly available database. The state must also provide
basic information pertaining to whether the sites will be suitable for
unrestricted use and what, if any institutional controls are relied
upon. States must update this record at least annually. Making
information on response actions available to the public is important to
provide citizens with greater information about the cleanups occurring
in their communities. Creating broader awareness of institutional
controls that are in place can be extremely important in protecting the
public. The public record provision is a commonsense requirement that
should be a prerequisite for any federal brownfields funding; without
it, there can be no accountability for states' use of federal funds.
The draft bill has completely dropped this critical requirement, thus
eliminating an important resource that citizens can use to examine the
state cleanup program, hold the state agency accountable, and ensure
improved enforcement of institutional controls.
Reducing EPA's ability to intervene will not only put the public at
risk from inadequate cleanups under state supervision, but it could
remove the incentive for responsible parties to perform adequate
cleanups in the first place. Preserving the federal safety net
strengthens the hands of state officials who are negotiating with
intransigent parties. State officials can invoke the prospect of
federal intervention if parties fail to meet state requirements.
Without this stick, state officials will lose negotiating leverage with
private parties.
Because of the inconsistent and inadequate protection provided by
state cleanup programs, the federal government should retain its
current authorities to protect public health. The federal government
has more resources, technical expertise, and greater guarantees for
public involvement than many states. The federal government can use
these tools to prevent or mitigate threats to public health from
inadequate cleanups. If Congress weakens the federal safety net, it
risks jeopardizing these important protections.
These unnecessary limitations on federal enforcement authority
under CERCLA and the Resource Conservation and Recovery Act are
especially troubling because the draft bill expands the definition of
brownfields to include higher-risk sites and fails to set minimum
standards for state cleanup programs.
As described below, the draft bill also significantly modifies
language in Title II of S. 350 that limits liability for developers,
innocent landowners, and owners of land that is contaminated by
adjacent property. This language has been relatively consistent in
previous bills offered by Members of both parties. In combination with
the other provisions related to the federal safety net, these changes
would weaken protections for public health and incentives to ensure
that only responsible developers can avail themselves of liability
limitations.
There is no real, documented need to weaken federal protections.
With state liability exemptions, future federal liability relief such
as those provided under Title II of S.350, and commonplace insurance
policies, responsible developers have no reason to be concerned about
the need for future clean up costs as long as they adequately clean up
waste sites. The only parties that need increased finality are
irresponsible companies, those who fail to clean up toxic waste sites
adequately, redevelop these sites, and then sell them to unsuspecting
people. This is precisely the rationale for federal protection.
Fails to ensure that state brownfields programs meet minimum standards.
The draft bill sets no minimum standards for state brownfield
redevelopment programs. Instead, it makes available money to all states
and limits federal enforcement authority in all states, regardless of
the adequacy of a state's cleanup program.
The draft bill identifies some of the most important elements of a
credible state program: timely survey and inventory of brownfields
sites; oversight and enforcement authorities; resources to ensure that
adequate response actions will protect human health and the environment
and comply with applicable federal and sate law; resources to ensure
that if the person conducting the response fails, there is a mechanism
for the necessary response activities to be completed; mechanisms for
the public to participate in a meaningful way; and mechanisms for
approval of a cleanup plan and a requirement for verification and
certification. But these program elements are purely discretionary, and
states may receive federal funds regardless of the quality of their
brownfield redevelopment program. (Section 129)
State cleanup programs vary tremendously. A dozen states, including
Ohio, lack assurances for public participation in their cleanup
programs, according to a 1998 report by the Environmental Law
Institute. Some state cleanup programs rely extensively on weak cleanup
standards, containment and institutional controls rather than cleanups
that would protect public health and the environment, according to 1998
reports by the General Accounting Office (Hazardous Waste Sites, State
Cleanup Practices) and the EPA's Office of Inspector General
(Supervened, State Deferrals: Some Progress, But Concerns for long-term
Protectiveness Remain). A recent audit of New York's cleanup program
found similar weaknesses (Dept. of Environmental Conservation, Selected
Operating Practices to the Remediation of Inactive Hazardous Waste
Disposal Sites, February 2001). The state's Comptroller found that
after sites had gone through the state cleanup program, 30 of 221 sites
did not meet state cleanup standards, and at 141 other sites, state
records did not demonstrate whether cleanup standards had been met.
Certain states have particularly inadequate cleanup programs. In
Ohio, for example, the public is not notified of cleanups until after
they occur, and the state has provided financial incentives to
redevelop sites that are never cleaned up. By failing to set minimum
national standards, brownfields legislation risks rubber-stamping
inadequate programs like Ohio's and providing the resources for the
state to increase the number of shoddy actions it takes under its
program. Consider the following scenario that could occur under Ohio's
Voluntary Action Program, according to Cincinnati environmental
attorney David Altman:
If an on-site sewer system or an underground coke oven gas
line of an old, urban steel plant leaked benzene on the plant's
own property near the fence line of its urban neighbors and as
a result of that leak nearby homes filled with fumes, the rules
require very little to be done. This steel company could black-
top over its contaminated property, put a ``Don't drink the
water'' restriction in its deed, and calculate a secret risk
assessment to ``determine'' for itself the threat to off-site
people. If the steel company is satisfied with its risk
assessment calculated or derived from the data and assumptions
that it chooses to use, that there will not be too many
``excess'' cancer deaths, no cleanup will be done. In addition,
neither neighboring families nor the Ohio EPA will get all the
data concerning the spill and will never need to be told about
the risk assessment. The only data that would need to be
disclosed is the data which supports the steel company's
position and conclusion. Finally, if the steel company has a
document retention program which requires disposal of ``unused
data'' after six months, the law actually allows the
destruction of that data! (from testimony of D. David Altman,
On Proposed Rules for Ohio's Voluntary Action Program,
September 5, 1996, before the Ohio Environmental Protection
Agency)
These documented weaknesses of state programs suggest that limiting
federal enforcement authority at toxic waste sites, while increasing
federal funding for states' voluntary clean up programs, may result in
increased public health and environmental risks.
Fails to provide the public with information and opportunities to
participate in cleanup and redevelopment decisions.
Under the guise of ``permit streamlining,'' the draft bill requires
the EPA to issue regulations that could minimize or even eliminate
protections under all federal statutes for public participation and
dissemination of information for cleanup actions under state programs.
(Section 303) Although the bill does not authorize any exemption from
substantive standards required by law, the line distinguishing
procedural and substantive can be a thin one.
Drastically restricting or eliminating a public comment period, for
example, could mean that the public would not have a fair opportunity
to offer meaningful comment on the substantive requirements. It could
also make it much easier for businesses to get permits--against the
wishes of local citizens--for hazardous waste incinerators, permanent
waste landfills, and discharges of toxic waste into water. It could
also incite years of litigation as polluting industries press for more
contaminating activities, and citizens fight to preserve the sanctity
of their neighborhoods. Ultimately, this provision could reverse
decades of advances that now provide the public with access and the
right to participate meaningfully in decisions affecting public health
and environmental quality in their neighborhoods.
Eliminates the EPA's authority to ensure that state cleanups comply
with local, state or federal public health safeguards.
S. 350 explicitly maintains the EPA's authority to ensure that
state cleanups protect public health by complying with state, local or
federal safeguards. (Section 128 (e)(1)(A)(ii)) These ``relevant and
appropriate requirements'' are protections which, though not legally
mandated cleanup standards, nonetheless provide clear protective
guidelines for cleanups. Examples include state drinking water and
groundwater standards, solid waste cleanup and management requirements,
and federal and state air quality standards. Without this requirement,
states desiring to provide higher levels of protection to their
residents would find the job much more difficult. Unfortunately, the
draft bill deletes this requirement, which would likely further
undermine the adequacy of state cleanups. In their rush to redevelop
contaminated sites, states may choose to err on the side of faster and
cheaper redevelopment, rather than better, or more protective
redevelopment. If federal taxpayers are going to subsidize state
voluntary clean up programs, then Congress should ensure that the
cleanups are complying with standards and protecting public health,
rather than creating potential bombs in communities across the country.
Delays or blocks listing heavily-contaminated sties on Superfund's
National Priorities List.
Although EPA has the authority to list a site on the National
Priorities List without the concurrence of a Governor, in practice the
EPA closely coordinates listings with state officials and, as a rule,
does not list sites without a Governor's concurrence. The draft bill
could delay or stop the EPA from listing a site by requiring the EPA to
obtain the Governor's concurrence before listing. If the Governor
assures the EPA that the state is addressing or will address the site
under state authority, the EPA may not list the site without a finding
that the state is a ``major'' potentially responsible party at the
site. (Section 302) These provisions tie the EPA's hands and may
prevent the Agency from addressing threats to public health at the
site, even when the state is doing nothing to protect the public.
It would also restrict the ability of citizens and city, county or
regional officials to get heavily contaminated sites listed. Congress
should not render meaningless citizens' current ability under Superfund
(Section 105) to petition EPA to list a site. This provision can
provide an important tool for local citizens who are concerned about
years of state inaction at heavily contaminated sites. Further, the
bill indiscriminately places the wishes of a state governor above the
needs of local officials, who may have on-the-ground knowledge about a
site, how it affects their local community, and the need to get it
expeditiously cleaned up.
Encourages risk-based cleanups that could endanger public health by
leaving toxic contaminants on site.
Section 129(a)(1)(A)(ii)(IV) of the draft bill allows states to use
federal grants to ``establish or enhance a program or framework for
conducting risk-based cleanups,'' a provision not included in S.350.
The Sierra Club strongly opposes the encouragement of risk-based
cleanups, which result in leaving contamination on site rather than
removing it.
``Risk assessments'' are at best inadequate and imprecise estimates
of actual risk. They attempt to assess only a few of the many risks
associated with contaminant exposures. They almost always ignore the
complex interactions among the many chemicals to which potential
victims are always exposed, and the outcomes are always heavily
influenced by the biases of the risk assessors. It is easy to bias an
outcome by many orders of magnitude through inappropriate use of overly
favorable assumptions. Further, risk assessments may fail to protect
the health of sensitive subpopulations, including pregnant women,
children and people with HIV or AIDs or those who are undergoing cancer
treatment.
Site-specific risk assessments can underestimate real-world risks
in that they allow the risk assessor to exclude from the calculation
risks that can be ``cut off'' by a cap or a fence or a land use that
assumes that no one ever will go there.
Risk assessment procedures based on an identical set of realistic
assumptions AND using laboratory data of equal quality (objectives
rarely achieved in real-world situations) can sometimes be of limited
value in comparing a variety of clean-up alternatives, but only for
those limited impacts actually assessed. They are scientifically
incapable of ``proving'' that one particular option is ``safe'' or
``safe enough''.
Appropriate use of risk assessment techniques will be very
expensive, especially for small sites. Instead of basing decisions on
risk assessments, the emphasis should be on eliminating or minimizing
exposure. It is easier to qualitatively describe the potential
consequences of known exposures than risk, and easier for the public to
understand. Combining this with information about health effects can be
a good argument for treatment or removal of the source of the risk.
Eliminates environmental justice considerations from grant application
criteria.
Section 128(e)(3)(J) of S. 350 included as a grant criterion the
extent to which a grant would address or facilitate the identification
and reduction of threats to the health and welfare of minority
communities. We think that it's important that a brownfields bill
recognize that minority communities may be more affected by brownfields
sites and may be less able to address these problems on their own. The
draft bill deletes environmental justice from the criteria the
Administrator must include when establishing a system for ranking grant
applications.
Provides liability exemption for entities that fail to protect people
from toxic waste.
S.350 exempts from liability contiguous property owners and
innocent landowners who take reasonable steps to stop continuing
releases, prevent any threatened future releases, and prevent or limit
exposure to any hazardous substances releases on or from the property.
(Section 201(o)(1)(A)(iii) for contiguous property owners and Section
302(2)((II) for innocent land owners) The draft bill deletes the
``reasonable steps'' requirement for obtaining liability exemption,
increasing the risk of public or environmental exposures and saddling
the taxpayer with the costs.
Provides liability exemption for entities that buy contaminated
property without making appropriate inquiry.
S.350 reasonably requires prospective purchasers to make
appropriate inquiry and inspect land prior to purchase if they are to
be exempt from liability. Contiguous property owners are required to
conduct all appropriate inquiry and to have no knowledge that the
property was being contaminated by adjacent property in order to be
exempt. (Section 201(o)(1)(A)(viii)) Similarly, it requires innocent
landowners to conduct all appropriate inquiry. (Section 201(2)(I)) The
elimination of these requirements in the draft bill shifts the burden
from landowners to the general public.
Eliminates brownfields training programs
The draft bill also eliminates S.350's provision that gave the
EPA's authority to provide funds for training, research and technical
assistance to community members and organizations that can facilitate
inventorying, assessment, remediation, site preparation and community
involvement in brownfield sites. The elimination of this provision
deals a severe blow to ensuring that local people can help solve local
problems in their community. Federal brownfields legislation should
facilitate exactly this type of involvement.
In conclusion, for the reasons stated above, this draft bill
weakens protections under existing laws and will likely increase public
health and environmental risk. The Sierra Club strongly opposes this
draft bill, and I believe that many of our colleague organizations
share that view.
Thank you for the opportunity to testify today. I will be happy to
answer any questions you may have.
Mr. Gillmor. Thank you, Mr. Hopkins, and let us proceed to
questions.
First, for Mr. Garczynski, both the Senate bill and what is
being referred to as the Democrat discussion draft limit CERCLA
protections to only people who conduct the cleanup. That narrow
language prevents a transfer of enforcement protection from
current owners to future owners, and potentially excludes them
from protection--a range of other parties that otherwise would
have been covered.
The so-called Gillmor discussion draft rectifies those
problems by including Sections 7002 and 7003 of RCRA as part of
the Federal enforcement protection for brownfield sites cleaned
up under a State program. And the draft further applies these
protections specifically to the contamination that is the
subject of the State cleanup only in just one class of party.
Could you explain why you think this might be a more
preferable approach?
Mr. Garczynski. Well, we were very concerned that in S. 350
and the House Democratic draft that the Federal enforcement
protections only applied to the person who did the cleanup or
the firm doing the cleanup as opposed to eventually a future
owner, someone who was renting the property or leasing the
property.
So we think the extension of that protection should be
confirmed on those individuals or future owners and tenants as
well, and they should be given the same Federal enforcement
protections. So we applaud that in this particular draft.
Mr. Gillmor. Let me direct another question to you, but
also the same question here to Mr. DeMarco, and that question
would be that, do both the Senate version and the Democratic
discussion draft provide a definition of brownfield site that
does not adequately cover sites contaminated with petroleum?
S. 350 and the Democrat discussion draft exclude petroleum
contaminated sites from liability protection and Federal
enforcement protections, even though the cleanup was pursuant
to an approved State cleanup program. The Gillmor discussion
draft takes a more expansive approach by including a broader
range of petroleum contaminated sites within the definition of
brownfields.
What is your view of expanding the definition of
brownfields to more broadly cover petroleum contamination?
Mr. Garczynski. Let us go back to the numbers that I cited.
If we say--and you can probably vary in the total amount--but
it is 450,000 to 500,000 sites in this country, and up to
200,000 are petroleum contaminated. Why take those out of play?
When I leave here today, I am going to take this suit off
and go over to a job, an in-field job we are developing in
Baileys Crossroads right in Arlington. I am going to pass
probably 12 abandoned gas stations in great locations for
either commercial or residential development.
Why should they be taken out? What kind of vitality can you
have in a reclamation area or in a revitalization area if those
type of sites can't be addressed? That is why I think the
expansion to petroleum-based sites is imperative.
Mr. DeMarco. I would echo those remarks, and I guess add
that virtually every site contaminated that we have dealt with
as a company, a major contaminant, has been underground tank--
heating oil or gasoline. And attitudes have changed quite a
bit, and the science has changed quite a bit, where people are
not up in arms over how to deal with these problems.
Lenders are comfortable dealing with these problems. We do
non-recourse financing with customers that allow permanent
loans with, say, insurance companies. There are carve-outs
always for hazardous materials, environmental issues. So, you
know, as a developer, we want to be comfortable that we
encounter situations and if there is a definite way of dealing
with them, and we can bring them to finality.
We found that in taking out petroleum tanks if they come
out, you know, you can estimate how much it costs to take them
out, you can see whether it is leaking, you can take out soil
that has been contaminated, and I would say in our experience
that is 80 to 90 percent of what we run into. So I think it is
extremely important. It is the lower risk here of contaminated
issues that we are talking about in regards to Superfund.
Mr. Gillmor. Let me direct a question to Mr. Lynch. I
noticed from your testimony that you had some good things to
say about Ohio's voluntary action program. And as a realtor and
a member--a former member of the Cleveland City Council, have
you found that voluntary cleanup programs run by the State are
effective?
Mr. Lynch. They are effective, but there is still the
problem with, really, the double jeopardy from the standpoint
that the sites are cleaned up but there still is that hammer
over the property's head basically dealing with the potential
impact of EPA coming back in and saying that there may be
additional cleanup that is required.
Mr. Gillmor. Thank you.
The gentleman, Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
I wanted to ask Mr. Roth a question first. I believe you
gave us good advice when your testimony states that the
subcommittee should conform its brownfields bill as nearly as
possible to the Senate provision on reopeners.
As I understand it, your organization of civil engineers,
many of whom I am sure are directly involved in these
redevelopment activities, believes that the bipartisan approach
to the Senate bill on the reopeners question gives States ample
opportunity to carry out a brownfields cleanup under minimum
Federal oversight while protecting human health in case of a
cleanup failure by preserving critical Federal enforcement
authorities.
Is that correct, and would you, you know, just comment on
that briefly?
Mr. Roth. Yes. First, thank you. As engineers and members
of the American Society of Civil Engineers and civil engineers
in our profession, our fundamental canon of ethics requires us
to hold the safety, health, and welfare of the public
paramount. In addition to that, however, we also as civil
engineers are seeking ways to promote sustainable development
as well as a wide range of environmentally sound public
policies.
We support the bipartisan compromise in S. 350 because we
think that other approaches could potentially weaken the
important provisions for protection of human health and the
environment.
Mr. Pallone. Now, you believe that States should be
required to demonstrate that their programs satisfy minimum
Federal criteria for qualified programs. That is correct also?
Mr. Roth. Yes. Again, we are coming from the perspective of
protecting human health and the environment, and if there is an
assurance that the State programs meet certain--or meet the
Federal guidelines, that is certainly acceptable.
Mr. Pallone. Thank you.
I wanted to ask Mr. Hopkins, you know, you sort of got to
the heart of what I was saying in my opening statement earlier
today when you said that you are concerned that, you know, the
Senate bill obviously passed the Senate, could pass the House,
but that the chairman's draft, you know, might unravel so to
speak, you know, the compromise I guess that was achieved in
the Senate and ultimately, you know, we would not be able to
pass the bill, either in the House or in the Senate, you know.
And I think that was premised on the notion that, you know,
the Senate was a very--the Senate bill was a very carefully
crafted compromise and that we don't really want to get away
from it too much.
I mean, I think that the Democratic draft is not--you know,
is really making some clarifications or adding a few things
here or there, but it doesn't really substantially change the
Senate bill, whereas my concern, as I said in my opening
statement, is that the chairman's draft really is a significant
change, and that if we were to adopt that here in the
subcommittee we would have a hard time getting it, you know,
through the House or through the Senate.
Would you just comment on that a little bit? Because, I
mean, obviously our goal--I think everyone's goal, including
the chairman's, is to get a bill on the President's desk. But I
think that there is a real problem if we get too far away from
the Senate compromise. We haven't really had any discussion of
how significant this compromise was and how difficult it was to
achieve in this Senate.
Mr. Hopkins. Well, Representative Pallone, as you know,
brownfields legislation has been debated for I don't know how
many years now, but the last several Congresses. And there
really hasn't been a lot of progress toward achieving
legislation.
And this year, over the past year, for the first time there
is really a consensus come about over the Senate bill and a lot
of the issues that we are talking about here today about the
appropriate level of contaminated sites to bring into a
brownfields bill, or the reopeners for Federal enforcement were
thoroughly debated over in the Senate, and a very finely honed
compromise was struck.
And I think if a much more different bill comes out of the
House than was passed in the Senate it will be difficult to
reconcile those. And I also want to say that we weren't
entirely happy with the Senate bill that passed, because, as
you know, it doesn't include required program criteria for
State programs.
And, again, we don't necessarily believe that there is a
need for additional finality language. So while we weren't
entirely happy with it, we believe it is a lot better than the
majority bill that is being discussed here.
Mr. Pallone. Thank you.
Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman from Illinois.
Mr. Shimkus. Thank you, Mr. Chairman.
I would just, before I go on with my questions, just note
that in the Democratic draft, page 55, you have about a page--
two pages of qualifications which are added, which would be new
hoops to draw through, jump through.
And so just to casually say it doesn't change course or
it--I think we need to make sure we look at the draft and
identify that there are some new provisions in here. So we
ought to be talking about maybe some of the things in the
Democratic draft that probably aren't as acceptable as
sometimes we hear here.
I have got a couple of questions, but can anyone tell me
what ``may'' means? May. Every time we talk about this imminent
substantial endangerment, we always forget ``may.'' I don't
understand why we do that. Mr. Hopkins, you forgot ``may'' when
you mentioned it. What does ``may'' mean?
Why don't we just say it presents imminent substantial
endangerment, and just quantify it and say, ``This is a
dangerous situation. We are going to go in.'' Instead of
saying, ``Well, maybe it will, or maybe it will not.'' I am not
going to follow up on that, but I just find it very ironic that
whenever we talk about imminent substantial endangerment no one
mentions ``may.''
Again, I am not a lawyer, so--Mr. Garczynski, on the
Gillmor discussion draft, aptly named--the gentleman from Ohio,
which the State of Ohio has also been named in a couple arenas
here today--it provides the protections for bona fide
prospective purchasers who are not polluters and who purchase
property after the pollution has occurred.
Senate 350 and the Democratic discussion draft provide
prospective purchasers liability protections under CERCLA, but
fail to provide protection under RCRA. The Gillmor draft
extends prospective purchaser protection to RCRA, Sections
7002, 7003, and 9003(h), which is a storage tank issue, as we
know.
You highlighted this in your written testimony. Can you
elaborate why this makes such a difference for your members in
providing greater certainty to prospective purchasers for
redevelopment of petroleum contaminated brownfield sites that
are cleaned up under a State program?
Mr. Garczynski. Yes, Congressman. I believe it goes back to
a couple of points. No. 1, again, the sheer number of sites
that would be available if we could address petroleum
contaminates. No. 2, the issue of the certainty is important
because unlike the Sierra Club or my friends--the civil
engineers who we hire--I have to sign my name on a loan
document that is putting everything I own at risk most of the
time.
I want to have as much finality when I sign my name as
possible. And I think my lenders do as well. So that is why
when we get to these issues of certainty and finality they are
important to me as a builder/developer, maybe more so than
other stakeholders.
And the number of sites that are addressed in terms of the
petroleum--if 95 percent of us are redeveloping those sites,
okay, we are not the original polluters, so we want to make
sure that if the site is cleaned up and the liability and the
enforcement of the State have been provided, hopefully that
would be good enough for the Federal Government as well.
Mr. Shimkus. And I am glad you continue to talk about the
finality issue. That is what I opened up with, and that is--
really, that is one of the importance--of the chance and at
least in the Gillmor discussion draft as to--to address that.
Do you know if the EPA supports the need for greater
finality for State brownfield cleanups? Do you have any idea?
Mr. Garczynski. We had a conversation with Administrator
Whitman about 2 weeks ago, and addressed this finality issue.
And, of course, I think as her deputy said this morning, EPA
still has to be there for that may endanger the health, safety,
and welfare. But she was open to the discussion of the finality
issue provided, again--and we hear that word that the chairman
asked about--if it were approached in a bipartisan compromise.
So I don't have a true answer on her position, but she said
she was open to the discussion. That is correct, Mr. Chairman,
as I remember it.
Mr. Shimkus. And if I can just go to Mr. DeMarco at the
end. I mentioned the Clark Company who is redeveloping a
brownfield site, and they used a procedure of--of course, the
company is professional in developing those types of sites, but
also the aspect of getting insurance and coverage in case
something happened.
Can you just talk us through that? I didn't have a good
handle on it even after they explained it to me. You sort of
mentioned it in your opening comments. And then just tie it
into what we are trying to do here today, and this insurance
aspect of trying to cover people. Which provision would be more
helpful or harmful?
Mr. DeMarco. Well, as I understand the proposed bills,
funds available would be able to be used toward insurance. But
I think what has happened over the last 10 years, really, is
that environmental insurance has become a more and more
valuable tool in facilitating handling brownfields or
contaminated sites.
Actually, we are currently working on two transactions.
When you negotiate the purchase of a site or a lease, whoever
is coming in and is now part of that property wants to fully
investigate the property. I mean, our development team--a key
member--is our environmental consultants.
The landowner wants to keep control of the exploratory
process, and yet is not going to make a deal with a buyer or
somebody who is going to lease unless they feel comfortable
there has been full exploration and that there is something
backing up potential problems.
Environmental insurance we found has filled this role. We
have written several environmental insurance policies for
premiums that are getting most cost effective because more of
them are being written, and it is a very useful and
comprehensive protection in the private sector for a purchaser
or a long-term lessee of a property. So we find it pretty
effective and see it happening more often.
Mr. Shimkus. Mr. Chairman, if I can just finish up----
Mr. Gillmor. Proceed. Proceed.
Mr. Shimkus. Mr. Garczynski, I wanted to follow up with the
last question on this finality debate. Do you feel that it is
important to extend the finality provisions to Section 7002 and
Section 7003?
Mr. Garczynski. I have my counsel available to reeducate me
on those sections. He reignited my interest in those as did
your question.
From the citizens' standpoint, the citizens' committee, we
do not think that that is necessary for this reason. When we go
through a zoning or an application to a county, city, or town,
on a piece of property, or just an approval, there are lengthy
hearings for ample citizen input.
I think it starts even before you attempt to get on the
schedule, so we think that that certainly I think gives
citizens the opportunity to comment on any brownfield site that
may be being considered for redevelopment.
Second, as far as the EPA is concerned, if it is not a
Superfund site or there is not EPA involvement to begin with,
then--and they are not involved in investigation, then we think
that that should be considered under the broad definition of a
brownfield site.
Mr. Shimkus. Okay. Thank you.
Thank you, Mr. Chairman.
Mr. Gillmor. Thank you. Let me--just one question that came
to mind on your comment, Mr. DeMarco, on the environmental
insurance. Could you or some of the other panel just give me
kind of a range on what that premium would be vis-a-vis the
property value? And I presume it is like title insurance, it is
a one-time premium?
Mr. DeMarco. Yes. For instance, we have recently
underwritten a policy--had one for us done that was a 10-year
policy, $75,000 deductible, and about a $75,000 premium for
about a $5 million limit. So that is the nature of that policy.
Mr. Gillmor. Let me now ask unanimous consent of the
committee to insert a number of items in the record. We have a
letter of support from the National Governors Association. Do
you want to do those separately?
Mr. Pallone. Well, I just would also ask unanimous consent
that a number of letters from various organizations with regard
to the Senate bill be inserted in the record. I have--I guess
this is from the U.S. Conference of Mayors and there are a few
others.
Mr. Gillmor. And also, we have a number of letters of
support for the Gillmor draft. And since it is only you and I,
Frank, I think we will have no objection to--also, I would ask
unanimous consent that we keep the record open for 30 days, so
that members may submit further documents, particularly opening
statements, and that we got that one in. Without objection, it
is so ordered.
I very much appreciate all of you coming. It is very
helpful. Thank you.
[Whereupon, at 2:55 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
State of New York
Department of Environmental Conservation
July 26, 2001
Honorable Paul E. Gillmor
Chairman, Subcommittee on Environment & Hazardous Materials
United States House of Representatives
2125 Rayburn House Office Building
Washington, DC 20515-6115
Dear Chairman Gillmor: I want to thank you for providing me with
the opportunity to testify on June 28, 2001 before the Subcommittee on
Environment & Hazardous Materials on brownfields legislation. This
issue is of great importance to the State of New York, and we firmly
believe that our wealth of experience in redeveloping these sites can
be of material assistance to the Subcommittee as it debates and refines
the legislation.
Based on New York's more than 20 years of experience, we believe
that there is a pressing need for federal legislation to facilitate and
assist the financing of brownfields and voluntary cleanups. The New
York State Department of Environmental Conservation (Department) firmly
believes that the House Majority Draft would provide the greatest
benefit to states, municipalities and non-responsible parties. This
draft legislation meets the three criteria of greatest importance to
the State of New York, in providing a mechanism for finality requiring
gubernatorial concurrence for listing a site on the National Priority
List, and by authorizing much needed funding for the investigation and
cleanup of brownfields.
In further support of my testimony, I would like to take this
opportunity to stress the importance of providing adequate assurances
that parties participating in a cleanup pursuant to a state response
program will not be thereafter subjected to enforcement by the federal
government. In particular, the Department submits that the finality
language and the clearly limited, reasonable exceptions to it contained
in the House Majority Draft are not only appropriate but critical to
ensuring the effectiveness of brownfields remedial programs. Without
this language, states would be unable to provide sufficient assurances
of finality. The finality provisions of your discussion draft are a
fair compromise between the various points of view and sufficiently
outline the narrow circumstances where intervention from the United
States Environmental Protection Agency is justifiable. Without such
finality, persons interested in redeveloping a site, or in providing
the financing necessary to construct a new facility at a site, would
avoid such transactions at contaminated sites.
I want to thank you again for providing me with an opportunity to
share with you the views of the Department on an issue of such great
importance to the State. Please do not hesitate to call on me if I can
be of further assistance.
Sincerely,
Erin M. Crotty
Commissioner
cc: The Honorable Vito J. Fossella
The Honorable Edolphus Towns
______
Prepared Statement of The National Governors Association
Thank you for the opportunity to submit testimony for the record of
this Subcommittee hearing on the subject of Brownfields legislation.
The Governors believe that remediation of brownfields sites is critical
to the successful redevelopment of many communities. We commend the
Congress for crafting a legislative proposals that have the potential
to significantly enhance and expand the cleanup of moderately
contaminated brownfields sites across the country. The National
Governors Association (NGA) supports swift passage of a bipartisan bill
that can be signed by the President. Passage of brownfields legislation
should be a priority for this Congress, but it must be legislation that
encourages actual cleanup of the sites.
Brownfields represent an enormous potential economic development
resource, one that can lead to new jobs, healthier neighborhoods,
increased local tax revenues, and less suburban sprawl. Successful
state brownfields programs improve the quality of life for a community,
which in turn, increases that community's economic competitiveness and
helps it attract new business and workers. State brownfields programs
have been operating now for about a decade, and states are very proud
of their record of success. In that short period, state programs have
productively facilitated reuse of more than 40,000 sites. In prior
testimony before this Subcommittee in March, we outlined the investment
that states have made and continue to make in bringing brownfields
sites back to life.
State flexibility should be recognized, and not impeded, under
federal law to stimulate brownfields redevelopment, and the federal
government can help remove some of the existing impediments. State
brownfields programs allow redevelopment to take place relatively
quickly, with appropriate cleanup standards, and with minimal
government involvement. However, some developers are afraid that their
involvement in these state-managed sites may result in federal
environmental cleanup liability under, the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of 1980, commonly
referred to as ``Superfund.'' As a result, valuable industrial land
remains contaminated, unused, or abandoned, denying communities
economic activity and the direct benefits of jobs and taxes. There is
no question that brownfields redevelopment is currently hindered by the
pervasive fear of federal liability under the Superfund statute.
Governors believe that brownfields legislation should help address this
problem, as the June 13 Discussion Draft, S. 350, and the June 18
Discussion Draft do, by providing needed liability protections for
innocent owners, prospective purchasers, and owners of property
contiguous to contaminated sites.
Just as importantly to Governors, legislation should preclude
enforcement by anyone (other than by a state) at sites where cleanup
has already occurred or is being conducted under state programs, except
in exceptional circumstances. This ``finality'' should mean what it
says--satisfactory completion of a cleanup under state law should be
final. To not give this assurance to developers who are spending
thousands, or hundreds of thousands, of dollars of their own money to
rehabilitate a property reduces the chances that the rehabilitation
will happen.
We do not disagree with those that want exceptions to this
finality, but the exceptions should be limited and should give states
an adequate opportunity to take appropriate action themselves before
EPA is permitted to reopen the cleanup and take an enforcement action
against the owner or the developer.
NGA supports the finality provisions in the June 13 Discussion
Draft that would improve the effectiveness and pace of brownfields
cleanups by allowing state cleanup programs to provide assurance to
landowners who wish to develop their property without fear of being
engulfed in the federal liability scheme.
For several years NGA has consistently sought language in both
Superfund and brownfields bills regarding finality. We have supported
bills in prior years that barred the Environmental Protection Agency
(EPA) from imposing Superfund liability after a state-approved
brownfields cleanup unless a release or threatened release required a
response action was immediately required to prevent or mitigate a
public health emergency and the state was not responding in a timely
manner.
We have also supported bills that limited federal or judicial
enforcement actions only if the state requests such action,
contamination has migrated across state lines, the Agency for Toxic
Substances and Disease Registry issues a public health advisory for the
site, or if the President determines that response action or
immediately required to prevent, limit, or mitigate an emergency when
there is an immediate risk to public health or welfare or the
environment and the state will not take the necessary response actions
in a timely manner. Conversely, we have not supported bills that failed
to preclude federal actions at sites where a cleanup had occurred or
was occurring at non-NPL sites in the absence of a real emergency,
believing that such provisions would make it to easy for EPA to simply
second guess state decisions at sites under the state's jurisdiction.
The finality provisions of the June 13 Discussion Draft, S. 350 and
the June 18 Discussion Draft do not go as far as NGA's prior positions
have sought. The June 13 Discussion Draft, however, is the fairest
compromise between the various points of view and narrowly outlines the
circumstances where intervention from EPA is justifiable. In addition
to the state-request, and state-line or federal property migration
exceptions, the June 13 Discussion Draft bars Superfund liability
unless EPA determines not only that a release or threatened release
presents an ``imminent and substantial endangerment'' to public health
or welfare, but also that an emergency situation exists, and that the
state will not quickly respond. The June 13 Discussion Draft also
provides a more practical 72-hour period of time for a state to reply
to EPA of the action it intends to take, while maintaining an option
for EPA to take immediate action if necessary. These are reasonable
conditions and we are willing to support them for the sake of working
with the Congress for speedy passage of a bill.
Like the finality provision, the Governors have for many years
sought to include in any Superfund or brownfields bill a provision
according each Governor the statutory right of concurrence on EPA's
decision to place new sites on the NPL in his or her state. The right
of concurrence on new NPL listings ensures that states have the right
of first action at hazardous sites, and where a state is proceeding
with cleanup, or has plans to do so, the federal government will defer.
As states are closer to the sites and to the affected community, such
deference is entirely appropriate. We would note that this right of
concurrence applies only to long-term cleanup and does not in any way
limit EPA's authority to respond to immediate problems. Nor does it in
any way impede EPA's ability to take action at the hundreds of sites
that are already listed on the NPL.
Placement of new sites on the NPL without the concurrence of the
Governor when a state is prepared to apply its own authority is not
only wasteful of federal resources, it would be counterproductive,
resulting in increased delays and greater costs. Over the years EPA has
recognized that states are currently overseeing most cleanups, and has,
as a discretionary matter, sought gubernatorial concurrence before
listing a site. We ask merely to have this informal policy codified in
law to assure that it continues throughout future administrations. We
greatly appreciate the inclusion of a provision in the June 13
Discussion Draft requiring gubernatorial concurrence before a site is
listed on the National Priorities List, except in limited situations.
The funding provisions in the bill that provide grants to states
and local governments for both response actions as well as site
assessments are very positive steps in assuring that financial
assistance is available so that sites can actually move toward final
cleanups. But we hope that the funding is not so restrictive that
states will have no incentive to apply for the money.
We appreciate the Subcommittee's consideration of our views, and we
look forward to working with you on the development of brownfields
legislation during this session.
______
United States Environmental Protection Agency
Washington, D.C. 20460
June 27, 2001
The Honorable Paul Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington D.C. 20515
Dear Mr. Chairman: Thank you for scheduling a hearing on June 28,
2001, to discuss moving forward with brownfields legislation. Passage
of brownfields legislation is a priority for President Bush and the
Administration and provides an opportunity to remove existing barriers
to brownfields cleanup and development. I would like to offer my
continued support for your efforts to achieve a bipartisan bill that
will encourage developers to work with state and local governments to
clean up the hundreds of thousands of underused, idled, and abandoned
brownfield properties across the country.
As we approach your hearing, I want to take the opportunity to
clarify statements that were reported in the trade press in connection
with remarks I delivered at the U.S. Chamber of Commerce event on June
18, 2001. At the time I responded to the question at the event I had
not had the opportunity to see the Gillmor brownfields discussion
draft. It is clear that my comments were misreported. My comments
referred to the issue of finality in general and my desire not to have
that issue hold up the progress that has been made on moving important
brownfields legislation forward.
Let me repeat for the record my testimony before your subcommittee
on March 7, 2001, brownfields legislation should include ``finality''
language to address uncertainty over Federal liability and enforcement
issues. In addressing these concerns, there could be limited
circumstances where EPA would need authority to take further action if
a State approves a protective cleanup, where there is compelling
evidence that a cleanup is no longer protecting human health and the
environment. However, to my knowledge, EPA has never had to
``overfile'' in order to take over responsibility at a brownfields
cleanup proceeding under State authority.
I am eager to continue to work toward a solution on this issue, and
EPA stands ready to provide additional assistance to you and other
Members of Congress throughout the legislative process.
Sincerely yours,
Christine Todd Whitman
Administrator
______
State of Ohio
June 27, 2001
The Honorable Paul Gillmor
Chairman
Environment and Hazardous Materials Subcommittee
Washington, D.C. 20515
Dear Chairman Gillmor: I am grateful for your work on the
Brownfields Revitalization and Environmental Restoration Act of 2001.
The redevelopment of our Nation's brownfields into productive, job-
producing properties offers the opportunity to stimulate the economy
and benefit the environment. States such as Ohio, with a substantial
manufacturing history, are particularly in need of a good federal
brownfields program to support the brownfields work our State already
has underway. Of particular importance are the issues of the State's
concurrence in National Priority List (NPL) additions and the finality
of the State's sign-off on cleanup projects.
With regard to concurrence in NPL listings, your bill provides
Governors with important input and concurrence rights. There are many
reasons that a Governor may choose not to concur in a proposed NPL
listing. Communities attempting to attract new residents and businesses
are very concerned about the stigma that they perceive to be attached
to having a ``Superfund'' site in the community. If state and local
governments are willing to address contaminated properties, a Superfund
listing is an unnecessary impediment to quick and effective
revitalization. I am very pleased to see that your bill recognizes the
importance of Governors' concurrence in NPL listings.
Your bill also supports state brownfield programs by offering a
reasonable degree of assurance that projects approved by the State as
protective of the environment will not be subject to further
enforcement action by the federal government. The lack of this
assurance has been a deterrent to some redevelopment projects, and it
is important that this deterrent be removed. Again, I am pleased to see
finality addressed in your bill.
Thank you for your work on the important issue of brownfield
redevelopment. I am confident that Ohio will see a strong trend toward
revitalization as a result of your efforts.
Sincerely,
Bob Taft
Governor
______
Mortgage Bankers Association of America
July 19, 2001
The Honorable Paul E. Gillmor
Chairman
Subcommittee on Environmental and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman: The Mortgage Bankers Association of America
(MBA) is pleased to submit this statement for the record on the
hearings by your Subcommittee, on June 28, 2001, on brownfields
legislation.
MBA strongly supports Federal legislation that will promote the
cleanup of brownfields, provide financial assistance for brownfields
revitalization, enhance state response programs, and most importantly,
clarify Superfund liability with respect to brownfields transactions.
It is estimated that there are approximately 400,000 to 600,000
brownfields sites in the country. The Environmental Protection Agency
(EPA) defines brownfields as abandoned, idled, or underutilized
industrial or commercial facilities where expansion or redevelopment is
complicated by real or perceived environmental contamination. According
to a recent survey conducted by the U. S. Conference of Mayors, 187 of
231 cities responded that cleaning up existing brownfield sites could
generate as many as 540,000 new jobs if the land were returned to
production. At least 175 cities estimated brownfield redevelopment
could generate up to $2.4 billion in local tax revenues.
While brownfields can present excellent redevelopment
opportunities, they are an underutilized asset that could help
communities address a number of issues, including revitalizing urban
areas, increasing tax revenues, and promoting sustainable growth. In
order to participate in brownfields redevelopment, lenders and
developers must determine an acceptable balance of risk and potential
return on investment. This determination requires analysis of a complex
array of state and federal environmental laws and regulations.
Environmental risks for lenders come from a number of sources, most
of which relate to environmental contamination that has impacted real
or personal property used as collateral to secure a loan. Of major
concern to the real estate finance industry is the need to clarify
lender liability with respect to the liability protection for innocent
landowners and purchasers who have not caused or contributed to
hazardous waste contamination. There are three types of risks that
lenders face with respect to loans that involve hazardous waste
contamination, especially when the property to be mortgaged is affected
by the contamination:
<bullet> The borrower's ability to repay the loan may be affected if
the cash flow funding that would otherwise be available is
needed to address contamination issues.
<bullet> The lender becomes directly responsible for cleanup costs
associated with a particular properly.
<bullet> The value of the real estate that has been contaminated is
diminished.
These risks depend upon the application of state and federal
environmental laws, as well as EPA and state environmental regulations.
EPA has undertaken administrative reforms to encourage
redevelopment of brownfields. However, the current Superfund liability
scheme may deter prospective purchasers from buying and remediating
brownfields sites. M13A supports laws and regulations that provide
safe-harbors so that developers will not be faced with potentially
open-ended liability. MBA would encourage Congress to consider the
necessity of providing finality to any brownfields remediation program
in order to protect prospective purchasers from liability.
MBA is pleased that Congress is addressing the important aspects
involved in the brownfields cleanup issue. Passage by the Senate of S.
350, the ``Brownfields Revitalization and Environmental Restoration Act
of 2001,'' and your Subcommittee's hearings on the two draft proposals
on the subject are evidence of Congress's concern about the need to
address the problem.
MBA respectfully urges that your subcommittee report meaningful
brownfields legislation in order that Congress can promptly address
this important issue. We look forward to working with the House and the
Senate in this endeavor.
Sincerely,
Clifford B. Hardy, Chairman
MBA Legislative Committee, COMBOG Board
President, First Housing, Tampa, FL
______
Sierra Club;
Natural Resources Defense Council;
Physicians For Social Responsibility;
U.S. Public Interest Research Group; Clean Water Action;
Friends of the Earth; American Public Health Association
June 27, 2001
The Honorable W.J. Tauzin
United States House of Representatives
Washington, DC 20515
The Honorable Paul Gillmor
United States House of Representatives
Washington, DC 20515
The Honorable John Dingell
United States House of Representatives
Washington, DC 20515
The Honorable Frank Pallone
United States House of Representatives
Washington, DC 20515
Dear Representative: Our organizations strenuously oppose Rep.
Gillmor's draft brownfields legislation, dated June 13, 2001. After
more than a decade of trying to pass brownfields legislation, the
Senate passed compromise legislation (S.350) earlier this year. Rep.
Gillmor's draft brownfields legislation is a step backwards, because it
goes far beyond S.350 in rolling back fundamental protections for
public health and environmental quality, and will polarize the debate
on brownfields, and hinder efforts to pass an acceptable brownfields
bill this year. Rep. Gillmor's draft legislation broadly defines
brownfields to include highly contaminated sites, fails to provide any
minimum criteria for state voluntary clean up programs, and eviscerates
the ability of citizens to rely on EPA or citizen suit authority to
protect public health or environmental quality from toxic waste.
Because of these problems, and many other deficiencies, we urge the
Committee to reject this draft legislation.
Includes Heavily Contaminated Sites
Section 301 of Rep. Gillmor's draft legislation contains an overly
broad definition of ``Eligible Response Sites,'' which could severely
weaken the federal safety net at heavily contaminated toxic waste
sites. Many of our organizations worked closely with the Senate
sponsors of S.350 to ensure that bill was narrowly crafted to include
only brownfield sites with low levels of contamination. Rep. Gillmor's
draft legislation eliminated that language, and then modified other
provisions to significantly expand the types of sites, to include high-
risk sites, included as eligible response sites.
Fails To Establish Minimum Criteria For Voluntary Clean Up Programs
Rep. Gillmor's draft legislation also fails to include an up front
review of state programs to ensure that they contain common sense
criteria to protect public health and environment quality. In fact,
this draft does not even include the very basic criteria contained in
current EPA policy for entering into Memorandums of Agreements with
state brownfield programs. Reports from independent state agencies, the
General Accounting Office, state-based organizations and organizations
of state hazardous waste managers have noted serious defects in state
voluntary clean up programs that highlight the need for minimum
criteria.
For example, a recent report on Ohio's voluntary clean up program
detailed projects where the public was effectively shut out of the
clean up process, and where little or no active clean up occurred other
than imposing deed restrictions on the se of contaminated property.
Yet, Rep. Gillmor's draft bill would severely restrict federal
enforcement authority and citizen suit provisions that could ensure
polluters clean up these sites.
The lack of an up front review, combined with increased federal
funding, could allow inadequate state voluntary clean up programs to
ramp up their redevelopment activities, leading to an increased number
of unprotective clean ups. Minimum criteria will help to ensure state
programs provide the public with relevant and timely information, and
with the opportunity to meaningfully participate in the clean up
process. Without such criteria, citizens will have little opportunity
to ensure that polluters and appropriately clean up toxic waste sites.
Weakens Citizens' Ability To Ensure That EPA Protects Public Health
Further, section 129(b) of Rep. Gillmor's draft legislation
effectively wipes out the federal safety net. This section would
eviscerate EPA's authority under sections 106, 107 and 113 of
Superfund, and section 7003 of the Resources Conservation and Recovery
Act (RCRA), to order polluters to clean up heavily contaminated toxic
waste sites that continue to pose serious threats after a voluntary
clean up. The bill would likewise undercut the ability of citizens to
protect themselves from contamination by prohibiting citizen suits
under section 7002 of RCRA. Under Rep. Gillmor's draft, the
Administrator of the EPA would not be able to act to protect
neighborhoods unless she determines that a toxic release presents an
imminent and substantial endangerment to human health and also that
there is already an ``emergency'' and the State has refused to take
necessary actions in a ``timely manner.'' This undermines the current,
well-known standard under current law by eliminating its
``preventative'' focus, and will result in years of increased
litigation.
There is no need to weaken the federal safety net; in fact, doing
so only undercuts the efficacy of state clean up programs. Consensus
language contained in S.350 already protects developers, innocent
landowners, and owners of land contaminated by adjacent property. The
language contained in Rep. Gillmor's draft bill goes beyond these sound
provisions, and would weaken the principle that protects public health
by ensuring that polluter pays to clean up their contamination.
Rep. Gillmor's bill also significantly modifies the consensus
language on liability exemptions contained within S.350. For example,
section 201 of Rep. Gillmor's draft bill (concerning contiguous
property owners) could exempt from liability corporations and people
who knowingly purchased contaminated property, and who failed to take
any step to protect the public from that contamination. Section 202 of
Rep. Gillmor's draft bill (concerning prospective purchasers) would go
beyond Superfund to inappropriately prohibit citizens from using
section 7002, and EPA from using sections 7003 and 9003 of RCRA to
ensure that developers adequately clean up hazardous waste and
petroleum contamination. Further, section 203 of Rep. Gillmor's draft
bill (concerning innocent landowners) significantly reduces the level
of inquiry that owners would have to show in order to qualify for an
exemption from liability. It also provides EPA, or other unspecified
parties, with overly broad discretion to promulgating regulations that
establish standards of inquiry that corporations and people must meet
prior to qualifying for an exemption from liability.
Overall, Rep. Gillmor's draft legislation would deny citizens the
ability to prevent inadequate clean up decisions at highly contaminated
sites; while at the same time, severely undercutting the power of these
same citizens and the EPA to order polluters to appropriately clean up
contamination. Ultimately, with the infusion of federal funds into
state programs, and the inadequacies of various state programs noted
above, Rep. Gillmor's draft bill could make communities across the
nation almost powerless to protect themselves, or to seek protection
from the EPA. Our organizations vehemently oppose these limitations, as
they are an anathema to sound policies respecting protection of public
health and environmental quality.
Eliminates Protections For Local Communities
Rep. Gillmor's draft legislation goes far beyond S.350 in a number
of other ways that are also detrimental to protections for public
health and environmental quality. For example, section 303 of Rep.
Gillmor's draft legislation provides regulatory authority to amend all
federal environmental laws to eliminate procedural permitting
requirements. This could make it much easier to permit hazardous waste
incinerators, permanent waste landfills, and discharges of toxic waste
into water; create years of litigation; and ultimately, reverse decades
of progress in ensuring public access to information and meaningful
public participation in decisions affecting public health and
environmental quality in neighborhoods across the nation.
Section 303 of Rep. Gillmor's draft legislation widely diverges
from EPA's current policy for governor's concurrence on listing sites
on Superfund's National Priority List (NPL). The veto authority it
gives to a governor is far more absolute than EPA's current policy for
governor's concurrence on listing sites under the NPL. It could cause
unnecessary delays or blocks on EPA's authority to list highly
contaminated sites, especially in instances where politically and
economically powerful state interests may influence state decisions. It
would also eliminate citizens' ability under section 105 of Superfund
to petition EPA to list sites on the NPL. In addition, it also fails to
provide local or county governments, who can be acutely affected by
contaminated sites, with an avenue to get sites listed on the NPL.
Rep. Gillmor's draft legislation contains a host of other
objectionable provisions. For example, section 128(e)(3) eliminates
provisions that S.350's sponsors included to address environmental
justice problems near toxic waste sites. Section 101 of Rep. Gillmor's
bill would allow states to independently designate highly contaminated
sites, including hazardous waste disposal sites and areas contaminated
with polychlorinated biphenyls as ``brownfields,'' while using federal
taxpayer dollars to redevelop such site with little, if any, federal
oversight.
Conclusion
Our organizations are united in our belief that state and federal
government must ensure that contaminated sites are thoroughly and
expeditiously cleaned. Cleaning up and then redeveloping sites with low
levels of contamination provides a tremendous opportunity to revitalize
urban areas throughout the nation and reduce sprawl. These
considerations are critical for addressing threats to public health,
problems in achieving environmental justice, and the need to preserve
greenways. For these reasons, and many others, state voluntary clean up
programs must satisfy minimum, common sense criteria that protect
public health and involve the public in a meaningful way during the
cleanup process. Further, any acceptable brownfields legislation must
maintain a strong and effective federal safety net to protect families
across the nation. The environmental and public health community wants
a bill that meets these challenges head on, and ensures that the nation
moves forward in rebuilding blighted communities and preserving
precious open spaces. The Gillmor draft bill fails on all accounts and
should be opposed.
If you have any questions, please do not hesitate to call Grant
Cope (202/546-9707), Ed Hopkins (202/675-7908), or Faith Weiss (202/
289-6868).
Sincerely,
Grant Cope,
Staff Attorney, U.S. PIRG
Ed Hopkins,
Director Environmental Quality Program, Sierra Club
Faith Weiss,
Legislative Staff Attorney, Natural Resources Defense Council
Don Hoppert,
Director of Federal Affairs, American Public Health Association
Gawain Kripke,
Director Economic Campaign, Friends of the Earth
Lynn Thorp,
National Campaign Coordinator, Clean Water Action
Susan West,
Director of Environmental Health Program, Physicians For Social
Responsibility
cc: Rep. Jim Greenwood, Rep. Steve Largent, Rep. Greg Ganske, Rep. John
Shimkus, Rep. Heather Wilson, Rep. Vito Fossella, Rep. Robert
Ehrlich, Rep. Steve Buyer, Rep. George Radanovich; Rep. Joseph
Pitts; Rep. Mary Bono; Rep. Greg Walden; Rep. Lee Terry; Rep.
Edolphus Towns; Rep. Henry Waxman; Rep. Sherrod Brown; Rep.
Edward Markey; Rep. Gene Green; Rep. Karen McCarthy; Rep.
Thomas Barrett; Rep. Bill Luther; Rep. Lois Capps; Rep. Mike
Doyle; Rep. Jane Harman; and Administrator Christie Whitman
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