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.

• 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.

• 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.

• 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

• 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.

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:

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.

The 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.