Title II: Brownfields Liability Clarifications - Exempts from liability under CERCLA certain owners of real property contiguous to property on which there has been a hazardous substance release or threatened release that is not owned by such persons.
(Sec. 202) Absolves from liability for response actions bona fide prospective purchasers to the extent liability at a facility for a release or threat thereof is based solely on ownership or operation of a facility. Gives a lien upon a facility to the United States for unrecovered response costs in any case for which the owner is not liable by reason of this section and the facility's fair market value has increased above that which existed before the action was taken.
(Sec. 203) Deems a person, with respect to defenses to liability of an owner of after-acquired property, to have undertaken appropriate inquiry into the property's previous ownership and uses if the person demonstrates that inquiries were undertaken in accordance with specified requirements (for property purchased after May 31, 1997, compliance with an American Society for Testing and Materials standard until standards are issued by the Administrator of the Environmental Protection Agency). Deems the appropriate inquiry requirements to be satisfied by a facility inspection and title search that reveal no basis for further investigation in the case of property for residential or similar use purchased by a nongovernmental or noncommercial entity.
Title III: State Response Programs -Adds CERCLA provisions authorizing the Administrator to award grants to States or Indian tribes to establish or enhance response programs comprised of elements including survey and inventory of brownfield sites, public participation opportunities, oversight and enforcement authorities, and certification mechanisms. Authorizes appropriations.
Restricts authority to take enforcement actions under CERCLA in cases of hazardous substance releases addressed by a State response plan. Authorizes the President to bring enforcement actions in certain instances, including cases where a State requests assistance, there is migration of contamination across State lines or onto Federal property, or there is an imminent and substantial endangerment to public health or welfare or the environment and additional response actions are likely to be necessary.
Makes restrictions on the President's authority to take such actions applicable only at sites in States that maintain, update at least annually, and make publicly available a record of sites at which response actions have been completed in the previous year and are planned to be addressed under the State response program in the upcoming year. Applies enforcement action requirements only to response actions conducted after February 15, 2001.
(Sec. 302) Requires the President to defer final listing of an eligible response site on the National Priorities List if the State is conducting a response action in compliance with a State response program that will provide long-term health and environmental protection or is actively pursuing an agreement to perform such an action with a capable person. Requires reasonable progress toward completion of actions for deferral of listing. Permits the President to decline to defer, or discontinue a deferral if: (1) deferral would be inappropriate because the State, as an owner, operator, or significant contributor is a potentially responsible party; (2) the criteria under the National Contingency Plan for issuance of a health advisory have been met; or (3) the other conditions under this section for deferral are no longer being met.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 350 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 350
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to promote the cleanup and reuse of brownfields,
to provide financial assistance for brownfields revitalization, to
enhance State response programs, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 15, 2001
Mr. Chafee (for himself, Mr. Smith of New Hampshire, Mr. Reid, Mrs.
Boxer, Mr. Warner, Mr. Baucus, Mr. Specter, Mr. Graham, Mr. Campbell,
Mr. Lieberman, Mr. Grassley, Mr. Carper, Mrs. Clinton, Mr. Corzine, and
Mr. Wyden) introduced the following bill; which was read twice and
referred to the Committee on Environment and Public Works
_______________________________________________________________________
A BILL
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to promote the cleanup and reuse of brownfields,
to provide financial assistance for brownfields revitalization, to
enhance State response programs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Brownfields
Revitalization and Environmental Restoration Act of 2001''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--BROWNFIELDS REVITALIZATION FUNDING
Sec. 101. Brownfields revitalization funding.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
Sec. 201. Contiguous properties.
Sec. 202. Prospective purchasers and windfall liens.
Sec. 203. Innocent landowners.
TITLE III--STATE RESPONSE PROGRAMS
Sec. 301. State response programs.
Sec. 302. Additions to National Priorities List.
TITLE I--BROWNFIELDS REVITALIZATION FUNDING
SEC. 101. BROWNFIELDS REVITALIZATION FUNDING.
(a) Definition of Brownfield Site.--Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601) is amended by adding at the end the following:
``(39) Brownfield site.--
``(A) In general.--The term `brownfield site' means
real property, the expansion, redevelopment, or reuse
of which may be complicated by the presence or
potential presence of a hazardous substance, pollutant,
or contaminant.
``(B) Exclusions.--The term `brownfield site' does
not include--
``(i) a facility that is the subject of a
planned or ongoing removal action under this
title;
``(ii) a facility that is listed on the
National Priorities List or is proposed for
listing;
``(iii) a facility that is the subject of a
unilateral administrative order, a court order,
an administrative order on consent or judicial
consent decree that has been issued to or
entered into by the parties under this Act;
``(iv) a facility that is the subject of a
unilateral administrative order, a court order,
an administrative order on consent or judicial
consent decree that has been issued to or
entered into by the parties, or a facility to
which a permit has been issued by the United
States or an authorized State under the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.),
the Federal Water Pollution Control Act (33
U.S.C. 1321), the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), or the Safe Drinking
Water Act (42 U.S.C. 300f et seq.);
``(v) a facility that--
``(I) is subject to corrective
action under section 3004(u) or 3008(h)
of the Solid Waste Disposal Act (42
U.S.C. 6924(u), 6928(h)); and
``(II) to which a corrective action
permit or order has been issued or
modified to require the implementation
of corrective measures;
``(vi) a land disposal unit with respect to
which--
``(I) a closure notification under
subtitle C of the Solid Waste Disposal
Act (42 U.S.C. 6921 et seq.) has been
submitted; and
``(II) closure requirements have
been specified in a closure plan or
permit;
``(vii) a facility that is subject to the
jurisdiction, custody, or control of a
department, agency, or instrumentality of the
United States, except for land held in trust by
the United States for an Indian tribe;
``(viii) a portion of a facility--
``(I) at which there has been a
release of polychlorinated biphenyls;
and
``(II) that is subject to
remediation under the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.);
or
``(ix) a portion of a facility, for which
portion, assistance for response activity has
been obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage Tank Trust
Fund established under section 9508 of the
Internal Revenue Code of 1986.
``(C) Site-by-site determinations.--Notwithstanding
subparagraph (B) and on a site-by-site basis, the
President may authorize financial assistance under
section 128 to an eligible entity at a site included in
clause (i), (iv), (v), (vi), (viii), or (ix) of
subparagraph (B) if the President finds that financial
assistance will protect human health and the
environment, and either promote economic development or
enable the creation of, preservation of, or addition to
parks, greenways, undeveloped property, other
recreational property, or other property used for
nonprofit purposes.
``(D) Additional areas.--For the purposes of
section 128, the term `brownfield site' includes--
``(i) a site that is contaminated by a
controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C.
802)); and
``(ii) mine-scarred land.''.
(b) Brownfields Revitalization Funding.--Title I of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.) is amended by adding at the end the
following:
``SEC. 128. BROWNFIELDS REVITALIZATION FUNDING.
``(a) Definition of Eligible Entity.--In this section, the term
`eligible entity' means--
``(1) a general purpose unit of local government;
``(2) a land clearance authority or other quasi-
governmental entity that operates under the supervision and
control of or as an agent of a general purpose unit of local
government;
``(3) a government entity created by a State legislature;
``(4) a regional council or group of general purpose units
of local government;
``(5) a redevelopment agency that is chartered or otherwise
sanctioned by a State;
``(6) a State; or
``(7) an Indian Tribe.
``(b) Brownfield Site Characterization and Assessment Grant
Program.--
``(1) Establishment of program.--The Administrator shall
establish a program to--
``(A) provide grants to inventory, characterize,
assess, and conduct planning related to brownfield
sites under paragraph (2); and
``(B) perform targeted site assessments at
brownfield sites.
``(2) Assistance for site characterization and
assessment.--
``(A) In general.--On approval of an application
made by an eligible entity, the Administrator may make
a grant to the eligible entity to be used for programs
to inventory, characterize, assess, and conduct
planning related to 1 or more brownfield sites.
``(B) Site characterization and assessment.--A site
characterization and assessment carried out with the
use of a grant under subparagraph (A) shall be
performed in accordance with section 101(35)(B).
``(c) Grants and Loans for Brownfield Remediation.--
``(1) Grants provided by the president.--Subject to
subsections (d) and (e), the President shall establish a
program to provide grants to--
``(A) eligible entities, to be used for
capitalization of revolving loan funds; and
``(B) eligible entities or nonprofit organizations,
where warranted, as determined by the President based
on considerations under paragraph (3), to be used
directly for remediation of 1 or more brownfield sites
that is owned by the entity or organization that
receives the grant and in amounts not to exceed
$200,000 for each site to be remediated.
``(2) Loans and grants provided by eligible entities.--An
eligible entity that receives a grant under paragraph (1)(A)
shall use the grant funds to provide assistance for the
remediation of brownfield sites in the form of--
``(A) 1 or more loans to an eligible entity, a site
owner, a site developer, or another person; or
``(B) 1 or more grants to an eligible entity or
other nonprofit organization, where warranted, as
determined by the eligible entity that is providing the
assistance, based on considerations under paragraph
(3), to remediate sites owned by the eligible entity or
nonprofit organization that receives the grant.
``(3) Considerations.--In determining whether a grant under
paragraph (1)(B) or (2)(B) is warranted, the President or the
eligible entity, as the case may be, shall take into
consideration--
``(A) the extent to which a grant will facilitate
the creation of, preservation of, or addition to a
park, a greenway, undeveloped property, recreational
property, or other property used for nonprofit
purposes;
``(B) the extent to which a grant will meet the
needs of a community that has an inability to draw on
other sources of funding for environmental remediation
and subsequent redevelopment of the area in which a
brownfield site is located because of the small
population or low income of the community;
``(C) the extent to which a grant will facilitate
the use or reuse of existing infrastructure;
``(D) the benefit of promoting the long-term
availability of funds from a revolving loan fund for
brownfield remediation; and
``(E) such other factors as the Administrator
considers appropriate to consider for the purposes of
this section.
``(4) Compliance with applicable laws.--An eligible entity
that provides assistance under paragraph (2) shall include in
all loan and grant agreements a requirement that the loan or
grant recipient shall comply with all laws applicable to the
cleanup for which grant funds will be used and ensure that the
cleanup protects human health and the environment.
``(5) Transition.--Revolving loan funds that have been
established before the date of enactment of this section may be
used in accordance with this subsection.
``(d) General Provisions.--
``(1) Maximum grant amount.--
``(A) Brownfield site characterization and
assessment.--
``(i) In general.--A grant under subsection
(b)--
``(I) may be awarded to an eligible
entity on a community-wide or site-by-
site basis; and
``(II) shall not exceed, for any
individual brownfield site covered by
the grant, $200,000.
``(ii) Waiver.--The Administrator may waive
the $200,000 limitation under clause (i)(II) to
permit the brownfield site to receive a grant
of not to exceed $350,000, based on the
anticipated level of contamination, size, or
status of ownership of the site.
``(B) Brownfield remediation.--
``(i) Grant amount.--A grant under
subsection (c)(1)(A) may be awarded to an
eligible entity on a community-wide or site-by-
site basis, not to exceed $1,000,000 per
eligible entity.
``(ii) Additional grant amount.--The
Administrator may make an additional grant to
an eligible entity described in clause (i) for
any year after the year for which the initial
grant is made, taking into consideration--
``(I) the number of sites and
number of communities that are
addressed by the revolving loan fund;
``(II) the demand for funding by
eligible entities that have not
previously received a grant under this
section;
``(III) the demonstrated ability of
the eligible entity to use the
revolving loan fund to enhance
remediation and provide funds on a
continuing basis; and
``(IV) any other factors that the
Administrator considers appropriate to
carry out this section.
``(2) Prohibition.--
``(A) In general.--No part of a grant or loan under
this section may be used for the payment of--
``(i) a penalty or fine;
``(ii) a Federal cost-share requirement;
``(iii) an administrative cost;
``(iv) a response cost at a brownfield site
for which the recipient of the grant or loan is
potentially liable under section 107; or
``(v) a cost of compliance with any Federal
law (including a Federal law specified in
section 101(39)(B)).
``(B) Exclusions.--For the purposes of subparagraph
(A)(iii), the term `administrative cost' does not
include the cost of--
``(i) investigation and identification of
the extent of contamination;
``(ii) design and performance of a response
action; or
``(iii) monitoring of a natural resource.
``(3) Assistance for development of local government site
remediation programs.--A local government that receives a grant
under this section may use not to exceed 10 percent of the
grant funds to develop and implement a brownfields program that
may include--
``(A) monitoring the health of populations exposed
to 1 or more hazardous substances from a brownfield
site; and
``(B) monitoring and enforcement of any
institutional control used to prevent human exposure to
any hazardous substance from a brownfield site.
``(e) Grant Applications.--
``(1) Submission.--
``(A) In general.--
``(i) Application.--An eligible entity may
submit to the Administrator, through a regional
office of the Environmental Protection Agency
and in such form as the Administrator may
require, an application for a grant under this
section for 1 or more brownfield sites
(including information on the criteria used by
the Administrator to rank applications under
paragraph (3), to the extent that the
information is available).
``(ii) NCP requirements.--The Administrator
may include in any requirement for submission
of an application under clause (i) a
requirement of the National Contingency Plan
only to the extent that the requirement is
relevant and appropriate to the program under
this section.
``(B) Coordination.--The Administrator shall
coordinate with other Federal agencies to assist in
making eligible entities aware of other available
Federal resources.
``(C) Guidance.--The Administrator shall publish
guidance to assist eligible entities in applying for
grants under this section.
``(2) Approval.--The Administrator shall--
``(A) complete an annual review of applications for
grants that are received from eligible entities under
this section; and
``(B) award grants under this section to eligible
entities that the Administrator determines have the
highest rankings under the ranking criteria established
under paragraph (3).
``(3) Ranking criteria.--The Administrator shall establish
a system for ranking grant applications received under this
subsection that includes the following criteria:
``(A) The extent to which a grant will stimulate
the availability of other funds for environmental
assessment or remediation, and subsequent reuse, of an
area in which 1 or more brownfield sites are located.
``(B) The potential of the proposed project or the
development plan for an area in which 1 or more
brownfield sites are located to stimulate economic
development of the area on completion of the cleanup.
``(C) The extent to which a grant would address or
facilitate the identification and reduction of threats
to human health and the environment.
``(D) The extent to which a grant would facilitate
the use or reuse of existing infrastructure.
``(E) The extent to which a grant would facilitate
the creation of, preservation of, or addition to a
park, a greenway, undeveloped property, recreational
property, or other property used for nonprofit
purposes.
``(F) The extent to which a grant would meet the
needs of a community that has an inability to draw on
other sources of funding for environmental remediation
and subsequent redevelopment of the area in which a
brownfield site is located because of the small
population or low income of the community.
``(G) The extent to which the applicant is eligible
for funding from other sources.
``(H) The extent to which a grant will further the
fair distribution of funding between urban and nonurban
areas.
``(I) The extent to which the grant provides for
involvement of the local community in the process of
making decisions relating to cleanup and future use of
a brownfield site.
``(f) Implementation of Brownfields Programs.--
``(1) Establishment of program.--The Administrator may
provide, or fund eligible entities to provide, training,
research, and technical assistance to individuals and
organizations, as appropriate, to facilitate the inventory of
brownfield sites, site assessments, remediation of brownfield
sites, community involvement, or site preparation.
``(2) Funding restrictions.--The total Federal funds to be
expended by the Administrator under this subsection shall not
exceed 15 percent of the total amount appropriated to carry out
this section in any fiscal year.
``(g) Audits.--
``(1) In general.--The Inspector General of the
Environmental Protection Agency shall conduct such reviews or
audits of grants and loans under this section as the Inspector
General considers necessary to carry out this section.
``(2) Procedure.--An audit under this paragraph shall be
conducted in accordance with the auditing procedures of the
General Accounting Office, including chapter 75 of title 31,
United States Code.
``(3) Violations.--If the Administrator determines that a
person that receives a grant or loan under this section has
violated or is in violation of a condition of the grant, loan,
or applicable Federal law, the Administrator may--
``(A) terminate the grant or loan;
``(B) require the person to repay any funds
received; and
``(C) seek any other legal remedies available to
the Administrator.
``(h) Leveraging.--An eligible entity that receives a grant under
this section may use the grant funds for a portion of a project at a
brownfield site for which funding is received from other sources if the
grant funds are used only for the purposes described in subsection (b)
or (c).
``(i) Agreements.--Each grant or loan made under this section shall
be subject to an agreement that--
``(1) requires the recipient to comply with all applicable
Federal and State laws;
``(2) requires that the recipient use the grant or loan
exclusively for purposes specified in subsection (b) or (c), as
applicable;
``(3) in the case of an application by an eligible entity
under subsection (c)(1), requires the eligible entity to pay a
matching share (which may be in the form of a contribution of
labor, material, or services) of at least 20 percent, from non-
Federal sources of funding, unless the Administrator determines
that the matching share would place an undue hardship on the
eligible entity; and
``(4) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
section.
``(j) Facility Other Than Brownfield Site.--The fact that a
facility may not be a brownfield site within the meaning of section
101(39)(A) has no effect on the eligibility of the facility for
assistance under any other provision of Federal law.
``(k) Funding.--There is authorized to be appropriated to carry out
this section $150,000,000 for each of fiscal years 2002 through
2006.''.
TITLE II--BROWNFIELDS LIABILITY CLARIFICATIONS
SEC. 201. CONTIGUOUS PROPERTIES.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is amended by
adding at the end the following:
``(o) Contiguous Properties.--
``(1) Not considered to be an owner or operator.--
``(A) In general.--A person that owns real property
that is contiguous to or otherwise similarly situated
with respect to, and that is or may be contaminated by
a release or threatened release of a hazardous
substance from, real property that is not owned by that
person shall not be considered to be an owner or
operator of a vessel or facility under paragraph (1) or
(2) of subsection (a) solely by reason of the
contamination if--
``(i) the person did not cause, contribute,
or consent to the release or threatened
release;
``(ii) the person is not--
``(I) potentially liable, or
affiliated with any other person that
is potentially liable, for response
costs at a facility through any direct
or indirect familial relationship or
any contractual, corporate, or
financial relationship (other than a
contractual, corporate, or financial
relationship that is created by a
contract for the sale of goods or
services); or
``(II) the result of a
reorganization of a business entity
that was potentially liable;
``(iii) the person takes reasonable steps
to--
``(I) stop any continuing release;
``(II) prevent any threatened
future release; and
``(III) prevent or limit human,
environmental, or natural resource
exposure to any hazardous substance
released on or from property owned by
that person;
``(iv) the person provides full
cooperation, assistance, and access to persons
that are authorized to conduct response actions
or natural resource restoration at the vessel
or facility from which there has been a release
or threatened release (including the
cooperation and access necessary for the
installation, integrity, operation, and
maintenance of any complete or partial response
action at the vessel or facility);
``(v) the person--
``(I) is in compliance with any
land use restrictions established or
relied on in connection with the
response action at a facility; and
``(II) does not impede the
effectiveness or integrity of any
institutional control employed in
connection with a response action;
``(vi) the person is in compliance with any
request for information or administrative
subpoena issued by the President under this
Act;
``(vii) the person provides all legally
required notices with respect to the discovery
or release of any hazardous substances at the
facility; and
``(viii) at the time at which the person
acquired the property, the person--
``(I) conducted all appropriate
inquiry within the meaning of section
101(35)(B) with respect to the
property; and
``(II) did not know or have reason
to know that the property was or could
be contaminated by a release or
threatened release of 1 or more
hazardous substances from other real
property not owned or operated by the
person.
``(B) Demonstration.--To qualify as a person
described in subparagraph (A), a person must establish
by a preponderance of the evidence that the conditions
in clauses (i) through (viii) of subparagraph (A) have
been met.
``(C) Bona fide prospective purchaser.--Any person
that does not qualify as a person described in this
paragraph because the person had knowledge specified in
subparagraph (A)(viii) at the time of acquisition of
the real property may qualify as a bona fide
prospective purchaser under section 101(40) if the
person is otherwise described in that section.
``(D) Ground water.--If a hazardous substance from
1 or more sources that are not on the property of a
person enters ground water beneath the property of the
person solely as a result of subsurface migration in an
aquifer, subparagraph (A)(iii) shall not require the
person to conduct ground water investigations or to
install ground water remediation systems, except in
accordance with the policy of the Environmental
Protection Agency concerning owners of property
containing contaminated aquifers, dated May 24, 1995.
``(2) Effect of law.--With respect to a person described in
this subsection, nothing in this subsection--
``(A) limits any defense to liability that may be
available to the person under any other provision of
law; or
``(B) imposes liability on the person that is not
otherwise imposed by subsection (a).
``(3) Assurances.--The Administrator may--
``(A) issue an assurance that no enforcement action
under this Act will be initiated against a person
described in paragraph (1); and
``(B) grant a person described in paragraph (1)
protection against a cost recovery or contribution
action under section 113(f).''.
SEC. 202. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.
(a) Definition of Bona Fide Prospective Purchaser.--Section 101 of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9601) (as amended by section 101(a)) is amended
by adding at the end the following:
``(40) Bona fide prospective purchaser.--The term `bona
fide prospective purchaser' means a person (or a tenant of a
person) that acquires ownership of a facility after the date of
enactment of this paragraph and that establishes each of the
following by a preponderance of the evidence:
``(A) Disposal prior to acquisition.--All disposal
of hazardous substances at the facility occurred before
the person acquired the facility.
``(B) Inquiries.--
``(i) In general.--The person made all
appropriate inquiries into the previous
ownership and uses of the facility in
accordance with generally accepted good
commercial and customary standards and
practices in accordance with clauses (ii) and
(iii).
``(ii) Standards and practices.--The
standards and practices referred to in clauses
(ii) and (iv) of paragraph (35)(B) shall be
considered to satisfy the requirements of this
subparagraph.
``(iii) Residential use.--In the case of
property in residential or other similar use at
the time of purchase by a nongovernmental or
noncommercial entity, a facility inspection and
title search that reveal no basis for further
investigation shall be considered to satisfy
the requirements of this subparagraph.
``(C) Notices.--The person provides all legally
required notices with respect to the discovery or
release of any hazardous substances at the facility.
``(D) Care.--The person exercises appropriate care
with respect to hazardous substances found at the
facility by taking reasonable steps to--
``(i) stop any continuing release;
``(ii) prevent any threatened future
release; and
``(iii) prevent or limit human,
environmental, or natural resource exposure to
any previously released hazardous substance.
``(E) Cooperation, assistance, and access.--The
person provides full cooperation, assistance, and
access to persons that are authorized to conduct
response actions at a vessel or facility (including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete
or partial response actions at the vessel or facility).
``(F) Institutional control.--The person--
``(i) is in compliance with any land use
restrictions established or relied on in
connection with the response action at a vessel
or facility; and
``(ii) does not impede the effectiveness or
integrity of any institutional control employed
at the vessel or facility in connection with a
response action.
``(G) Requests; subpoenas.--The person complies
with any request for information or administrative
subpoena issued by the President under this Act.
``(H) No affiliation.--The person is not--
``(i) potentially liable, or affiliated
with any other person that is potentially
liable, for response costs at a facility
through--
``(I) any direct or indirect
familial relationship; or
``(II) any contractual, corporate,
or financial relationship (other than a
contractual, corporate, or financial
relationship that is created by the
instruments by which title to the
facility is conveyed or financed or by
a contract for the sale of goods or
services); or
``(ii) the result of a reorganization of a
business entity that was potentially liable.''.
(b) Prospective Purchaser and Windfall Lien.--Section 107 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9607) (as amended by section 201) is amended by
adding at the end the following:
``(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 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 party obtain from an appropriate party a
lien on any other property or other assurance of payment
satisfactory to the Administrator, for the unrecovered response
costs.
``(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 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 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.''.
SEC. 203. INNOCENT LANDOWNERS.
Section 101(35) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601(35)) is
amended--
(1) in subparagraph (A)--
(A) in the first sentence, in the matter preceding
clause (i), by striking ``deeds or'' and inserting
``deeds, easements, leases, or''; and
(B) in the second sentence--
(i) by striking ``he'' and inserting ``the
defendant''; and
(ii) by striking the period at the end and
inserting ``, provides full cooperation,
assistance, and facility access to the persons
that are authorized to conduct response actions
at the facility (including the cooperation and
access necessary for the installation,
integrity, operation, and maintenance of any
complete or partial response action at the
facility), and is in compliance with any land
use restrictions established or relied on in
connection with the response action at a
facility, and does not impede the effectiveness
or integrity of any institutional control
employed at the facility in connection with a
response action.''; and
(2) by striking subparagraph (B) and inserting the
following:
``(B) Reason to know.--
``(i) All appropriate inquiries.--To
establish that the defendant had no reason to
know of the matter described in subparagraph
(A)(i), the defendant must demonstrate to a
court that--
``(I) on or before the date on
which the defendant acquired the
facility, the defendant carried out all
appropriate inquiries, as provided in
clauses (ii) and (iv), into the
previous ownership and uses of the
facility in accordance with generally
accepted good commercial and customary
standards and practices; and
``(II) the defendant took
reasonable steps to--
``(aa) stop any continuing
release;
``(bb) prevent any
threatened future release; and
``(cc) prevent or limit any
human, environmental, or
natural resource exposure to
any previously released
hazardous substance.
``(ii) Standards and practices.--Not later
than 2 years after the date of enactment of the
Brownfields Revitalization and Environmental
Restoration Act of 2001, the Administrator
shall by regulation establish standards and
practices for the purpose of satisfying the
requirement to carry out all appropriate
inquiries under clause (i).
``(iii) Criteria.--In promulgating
regulations that establish the standards and
practices referred to in clause (ii), the
Administrator shall include each of the
following:
``(I) The results of an inquiry by
an environmental professional.
``(II) Interviews with past and
present owners, operators, and
occupants of the facility for the
purpose of gathering information
regarding the potential for
contamination at the facility.
``(III) Reviews of historical
sources, such as chain of title
documents, aerial photographs, building
department records, and land use
records, to determine previous uses and
occupancies of the real property since
the property was first developed.
``(IV) Searches for recorded
environmental cleanup liens against the
facility that are filed under Federal,
State, or local law.
``(V) Reviews of Federal, State,
and local government records, waste
disposal records, underground storage
tank records, and hazardous waste
handling, generation, treatment,
disposal, and spill records, concerning
contamination at or near the facility.
``(VI) Visual inspections of the
facility and of adjoining properties.
``(VII) Specialized knowledge or
experience on the part of the
defendant.
``(VIII) The relationship of the
purchase price to the value of the
property, if the property was not
contaminated.
``(IX) Commonly known or reasonably
ascertainable information about the
property.
``(X) The degree of obviousness of
the presence or likely presence of
contamination at the property, and the
ability to detect the contamination by
appropriate investigation.
``(iv) Interim standards and practices.--
``(I) Property purchased before may
31, 1997.--With respect to property
purchased before May 31, 1997, in
making a determination with respect to
a defendant described of clause (i), a
court shall take into account--
``(aa) any specialized
knowledge or experience on the
part of the defendant;
``(bb) the relationship of
the purchase price to the value
of the property, if the
property was not contaminated;
``(cc) commonly known or
reasonably ascertainable
information about the property;
``(dd) the obviousness of
the presence or likely presence
of contamination at the
property; and
``(ee) the ability of the
defendant to detect the
contamination by appropriate
inspection.
``(II) Property purchased on or
after may 31, 1997.--With respect to
property purchased on or after May 31,
1997, and until the Administrator
promulgates the regulations described
in clause (ii), the procedures of the
American Society for Testing and
Materials, including the document known
as `Standard E1527-97', entitled
`Standard Practice for Environmental
Site Assessment: Phase 1 Environmental
Site Assessment Process', shall satisfy
the requirements in clause (i).
``(v) Site inspection and title search.--In
the case of property for residential use or
other similar use purchased by a
nongovernmental or noncommercial entity, a
facility inspection and title search that
reveal no basis for further investigation shall
be considered to satisfy the requirements of
this subparagraph.''.
TITLE III--STATE RESPONSE PROGRAMS
SEC. 301. STATE RESPONSE PROGRAMS.
(a) Definitions.--Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601) (as
amended by section 202) is amended by adding at the end the following:
``(41) Eligible response site.--
``(A) In general.--The term `eligible response
site' means a site that meets the definition of a
brownfield site in subparagraphs (A) and (B) of
paragraph (39), as modified by subparagraphs (B) and
(C) of this paragraph.
``(B) Inclusions.--The term `eligible response
site' includes--
``(i) notwithstanding paragraph
(39)(B)(ix), a portion of a facility, for which
portion assistance for response activity has
been obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage Tank Trust
Fund established under section 9508 of the
Internal Revenue Code of 1986; or
``(ii) a site for which, notwithstanding
the exclusions provided in subparagraph (C) or
paragraph (39)(B), the President determines, on
a site-by-site basis and after consultation
with the State, that limitations on enforcement
under section 129 at sites specified in clause
(iv), (v), (vi) or (viii) of paragraph (39)(B)
would be appropriate and will--
``(I) protect human health and the
environment; and
``(II) promote economic development
or facilitate the creation of,
preservation of, or addition to a park,
a greenway, undeveloped property,
recreational property, or other
property used for nonprofit purposes.
``(C) Exclusions.--The term `eligible response
site' does not include--
``(i) a facility for which the President--
``(I) conducts or has conducted a
remedial site investigation; and
``(II) after consultation with the
State, determines or has determined
that the site qualifies for listing on
the National Priorities List;
unless the President has made a determination
that no further Federal action will be taken;
or
``(ii) facilities that the President
determines warrant particular consideration as
identified by regulation, such as sites posing
a threat to a sole-source drinking water
aquifer or a sensitive ecosystem.''.
(b) State Response Programs.--Title I of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.) (as amended by section 101(b)) is amended by
adding at the end the following:
``SEC. 129. STATE RESPONSE PROGRAMS.
``(a) Assistance to States.--
``(1) In general.--
``(A) States.--The Administrator may award a grant
to a State or Indian tribe that--
``(i) has a response program that includes
each of the elements, or is taking reasonable
steps to include each of the elements, listed
in paragraph (2); or
``(ii) is a party to a memorandum of
agreement with the Administrator for voluntary
response programs.
``(B) Use of grants by states.--
``(i) In general.--A State or Indian tribe
may use a grant under this subsection to
establish or enhance the response program of
the State or Indian tribe.
``(ii) Additional uses.--In addition to the
uses under clause (i), a State or Indian tribe
may use a grant under this subsection to--
``(I) capitalize a revolving loan
fund for brownfield remediation under
section 128(c); or
``(II) develop a risk sharing pool,
an indemnity pool, or insurance
mechanism to provide financing for
response actions under a State response
program.
``(2) Elements.--The elements of a State or Indian tribe
response program referred to in paragraph (1)(A)(i) are the
following:
``(A) Timely survey and inventory of brownfield
sites in the State.
``(B) Oversight and enforcement authorities or
other mechanisms, and resources, that are adequate to
ensure that--
``(i) a response action will--
``(I) protect human health and the
environment; and
``(II) be conducted in accordance
with applicable Federal and State law;
and
``(ii) if the person conducting the
response action fails to complete the necessary
response activities, including operation and
maintenance or long-term monitoring activities,
the necessary response activities are
completed.
``(C) Mechanisms and resources to provide
meaningful opportunities for public participation,
including--
``(i) public access to documents that the
State, Indian tribe, or party conducting the
cleanup is relying on or developing in making
cleanup decisions or conducting site
activities; and
``(ii) prior notice and opportunity for
comment on proposed cleanup plans and site
activities.
``(D) Mechanisms for approval of a cleanup plan,
and a requirement for verification by and certification
or similar documentation from the State, an Indian
tribe, or a licensed site professional to the person
conducting a response action indicating that the
response is complete.
``(3) Funding.--There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of fiscal years
2002 through 2006.
``(b) Enforcement in Cases of a Release Subject to State Program.--
``(1) Enforcement.--
``(A) In general.-- Except as provided in
subparagraph (B) and subject to subparagraph (C), in
the case of an eligible response site at which--
``(i) there is a release or threatened
release of a hazardous substance, pollutant, or
contaminant; and
``(ii) a person is conducting or has
completed a response action regarding the
specific release that is addressed by the
response action that is in compliance with the
State program that specifically governs
response actions for the protection of public
health and the environment;
the President may not use authority under this Act to
take an administrative or judicial enforcement action
under section 106(a) or to take a judicial enforcement
action to recover response costs under section 107(a)
against the person regarding the specific release that
is addressed by the response action.
``(B) Exceptions.--The President may bring an
enforcement action under this Act during or after
completion of a response action described in
subparagraph (A) with respect to a release or
threatened release at an eligible response site
described in that subparagraph if--
``(i) the State requests that the President
provide assistance in the performance of a
response action;
``(ii) the Administrator determines that
contamination has migrated or will migrate
across a State line, resulting in the need for
further response action to protect human health
or the environment, or the President determines
that contamination has migrated or is likely to
migrate onto property subject to the
jurisdiction, custody, or control of a
department, agency, or instrumentality of the
United States and may impact the authorized
purposes of the Federal property;
``(iii) after taking into consideration the
response activities already taken, the
Administrator determines that--
``(I) a release or threatened
release may present an imminent and
substantial endangerment to public
health or welfare or the environment;
and
``(II) additional response actions
are likely to be necessary to address,
prevent, limit, or mitigate the release
or threatened release; or
``(iv) the Administrator determines that
information, that on the earlier of the date on
which cleanup was approved or completed, was
not known by the State, as recorded in
documents prepared or relied on in selecting or
conducting the cleanup, has been discovered
regarding the contamination or conditions at a
facility such that the contamination or
conditions at the facility present a threat
requiring further remediation to protect public
health or welfare or the environment.
``(C) Public record.--The limitations on the
authority of the President under subparagraph (A) apply
only at sites in States that maintain, update not less
than annually, and make available to the public a
record of sites, by name and location, at which
response actions have been completed in the previous
year and are planned to be addressed under the State
program that specifically governs response actions for
the protection of public health and the environment in
the upcoming year. The public record shall identify
whether or not the site, on completion of the response
action, will be suitable for unrestricted use and, if
not, shall identify the institutional controls relied
on in the remedy. Each State and tribe receiving
financial assistance under subsection (a) shall
maintain and make available to the public a record of
sites as provided in this paragraph.
``(D) EPA notification.--
``(i) In general.--In the case of an
eligible response site at which there is a
release or threatened release of a hazardous
substance, pollutant, or contaminant and for
which the Administrator intends to carry out an
action that may be barred under subparagraph
(A), the Administrator shall--
``(I) notify the State of the
action the Administrator intends to
take; and
``(II)(aa) wait 48 hours for a
reply from the State under clause (ii);
or
``(bb) if the State fails to reply
to the notification or if the
Administrator makes a determination
under clause (iii), take immediate
action under that clause.
``(ii) State reply.--Not later than 48
hours after a State receives notice from the
Administrator under clause (i), the State shall
notify the Administrator if--
``(I) the release at the eligible
response site is or has been subject to
a cleanup conducted under a State
program; and
``(II) the State is planning to
abate the release or threatened
release, any actions that are planned.
``(iii) Immediate federal action.--The
Administrator may take action immediately after
giving notification under clause (i) without
waiting for a State reply under clause (ii) if
the Administrator determines that 1 or more
exceptions under subparagraph (B) are met.
``(E) Report to congress.--Not later than 90 days
after the date of initiation of any enforcement action
by the President under clause (ii), (iii), or (iv) of
subparagraph (B), the President shall submit to
Congress a report describing the basis for the
enforcement action, including specific references to
the facts demonstrating that enforcement action is
permitted under subparagraph (B).
``(2) Savings provision.--
``(A) Costs incurred prior to limitations.--Nothing
in paragraph (1) precludes the President from seeking
to recover costs incurred prior to the date of
enactment of this section or during a period in which
the limitations of paragraph (1)(A) were not
applicable.
``(B) Effect on agreements between states and
epa.--Nothing in paragraph (1)--
``(i) modifies or otherwise affects a
memorandum of agreement, memorandum of
understanding, or any similar agreement
relating to this Act between a State agency or
an Indian tribe and the Administrator that is
in effect on or before the date of enactment of
this section (which agreement shall remain in
effect, subject to the terms of the agreement);
or
``(ii) limits the discretionary authority
of the President to enter into or modify an
agreement with a State, an Indian tribe, or any
other person relating to the implementation by
the President of statutory authorities.
``(3) Effective date.--This subsection applies only to
response actions conducted after June 8, 2000.
``(c) Effect on Federal Laws.--Nothing in this section affects any
liability or response authority under any Federal law, including--
``(1) this Act, except as provided in subsection (b);
``(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
``(5) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).''.
SEC. 302. ADDITIONS TO NATIONAL PRIORITIES LIST.
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605) is amended by
adding at the end the following:
``(h) NPL Deferral.--
``(1) Deferral to state voluntary cleanups.--At the request
of a State and subject to paragraphs (2) and (3), the President
generally shall defer final listing of an eligible response
site on the National Priorities List if the President
determines that--
``(A) the State, or another party under an
agreement with or order from the State, is conducting a
response action at the eligible response site--
``(i) in compliance with a State program
that specifically governs response actions for
the protection of public health and the
environment; and
``(ii) that will provide long-term
protection of human health and the environment;
or
``(B) the State is actively pursuing an agreement
to perform a response action described in subparagraph
(A) at the site with a person that the State has reason
to believe is capable of conducting a response action
that meets the requirements of subparagraph (A).
``(2) Progress toward cleanup.--If, after the last day of
the 1-year period beginning on the date on which the President
proposes to list an eligible response site on the National
Priorities List, the President determines that the State or
other party is not making reasonable progress toward completing
a response action at the eligible response site, the President
may list the eligible response site on the National Priorities
List.
``(3) Cleanup agreements.--With respect to an eligible
response site under paragraph (1)(B), if, after the last day of
the 1-year period beginning on the date on which the President
proposes to list the eligible response site on the National
Priorities List, an agreement described in paragraph (1)(B) has
not been reached, the President may defer the listing of the
eligible response site on the National Priorities List for an
additional period of not to exceed 180 days if the President
determines deferring the listing would be appropriate based
on--
``(A) the complexity of the site;
``(B) substantial progress made in negotiations;
and
``(C) other appropriate factors, as determined by
the President.
``(4) Exceptions.--The President may decline to defer, or
elect to discontinue a deferral of, a listing of an eligible
response site on the National Priorities List if the President
determines that--
``(A) deferral would not be appropriate because the
State, as an owner or operator or a significant
contributor of hazardous substances to the facility, is
a potentially responsible party;
``(B) the criteria under the National Contingency
Plan for issuance of a health advisory have been met;
or
``(C) the conditions in paragraphs (1) through (3),
as applicable, are no longer being met.''.
<all>
Read twice and referred to the Committee on Environment and Public Works. (text of measure as introduced: CR S1481-1486)
Committee on Environment and Public Works Subcommittee on Superfund, Toxics, Risk, and Waste Management. Hearings held. With printed Hearing: S.Hrg. 107-76.
Committee on Environment and Public Works. Ordered to be reported with an amendment in the nature of a substitute favorably.
Committee on Environment and Public Works. Reported by Senator Smith, of NH with an amendment in the nature of a substitute. With written report No. 107-2. Additional and Minority views filed.(text of measure as reported in Senate: CR 4/25/2001 S3879-3884)
Committee on Environment and Public Works. Reported by Senator Smith, of NH with an amendment in the nature of a substitute. With written report No. 107-2. Additional and Minority views filed. (text of measure as reported in Senate: CR 4/25/2001 S3879-3884)
Placed on Senate Legislative Calendar under General Orders. Calendar No. 19.
Star Print ordered on the reported bill.
Measure laid before Senate by unanimous consent. (consideration: CR S3879-3912)
The committee substitute as amended agreed to by Unanimous Consent.
Passed/agreed to in Senate: Passed Senate with an amendment by Yea-Nay Vote. 99 - 0. Record Vote Number: 87.(text: CR S3907-3912)
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Passed Senate with an amendment by Yea-Nay Vote. 99 - 0. Record Vote Number: 87. (text: CR S3907-3912)
Roll Call #87 (Senate)Measure amended in Senate by unanimous consent after passage.
Message on Senate action sent to the House.
Received in the House.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Water Resources and Environment.
Referred to the Subcommittee on Environment and Hazardous Materials.
Subcommittee Hearings Held.