U.S. House of Representatives: Committee on Energy and Commerce, RepublicansPrepared Witness Testimony: Roth, Larry

Subcommittee on Environment and Hazardous Materials
June 28, 2001
10:00 AM
2322 Rayburn House Office Building

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.

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.

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.

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.^[1]

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.^[2] 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.

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.^[3] 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.^[4]

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.^[5] 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."^[6]

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."^[7]

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.^[8]

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.

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.

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.

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.

Mr. Chairman, that concludes our testimony. I would be happy to answer any questions you may have.

^[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.")

^[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.

^[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.

^[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. § 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).

^[7] Laws-Herman Memorandum, supra note 3, at 2 (emphasis added).

^[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://test.archives.republicans.energycommerce.house.gov/107/hearings/03072001Hearing45/hearing.htm>.

Brownfields Legislation