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Brownfields programs are intended to revitalize former industrial and commercial sites that may be contaminated, unused and often abandoned, when the contamination is determined to be a substantial obstacle to the redevelopment of the sites.

The U.S. Environmental Protection Agency (EPA) established its current brownfields program through its authority under The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In the absence of a change in the federal law however, states have difficulty in immunizing a property owner or developer from liability of a future cleanup responsibility. As a result, clean up and redevelopment opportunities are lost as well as new jobs, new tax revenues, and the opportunity to manage growth.

Brownfield: As defined by the EPA, an abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.

CERCLA: The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress in 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.

National Priority List (NPL): The NPL is an information and management tool of the Superfund site cleanup process. A specific site is listed on the NPL after the Hazard Ranking System (HRS) screening process has been completed and public comments about the proposed site have been solicited and addressed.

EPA's Superfund Acronyms Glossary

States have primary responsibility for brownfields redevelopment programs and should be provided the flexibility to determine all aspects of the state brownfields programs in order to tailor programs to meet their unique needs. Existing state brownfields laws and existing state brownfields programs should not be preempted and grandfathered, under any federal proposal.

Fiscal Year 2003 appropriations will fall into the hands of the 108^th Congress, which will have to complete eleven of the thirteen unfinished FY2003 appropriations bills when members return to Washington, DC in January. Stakeholders fear the 108^th Congress will simply extend FY2002 spending levels until October 2003, thereby denying federal agencies and states regular FY2003 appropriations and consequently limit spending in the FY2004 appropriations bills and multi-year funding authorizations. This would leave the new $250 million authorized to enhance state cleanup programs, unfunded for FY 2003.

November 19, 2002: Congress passed a continuing resolution (CR) (HJRes 124), to keep the federal government up and running at FY2002 funding levels until January 11, 2003.

October 9, 2002: The FY2003 appropriations bill (H.R. 5605) for VA, HUD and independent agencies passed out of committee in the House. The bill provides $200 million in new funding to enhance state brownfield programs, consistent with the President's budget proposal.

July 25, 2002: The FY 2003 appropriations bill (S. 2797) for VA, HUD and independent agencies passed out of committee in the Senate. The bill provides $200 million in new funding to enhance state brownfield programs, consistent with the President's budget proposal

February 2002: The President's fiscal year (FY) 2003 budget provides $200 million in new funding to enhance state brownfield programs. A $120.5 million increase from FY 2002 funding levels.

January 11, 2002, President Bush signed H.R. 2869 into law at an event in West Conshohocken, Pennsylvania. Congress agreed to sustain Davis-Bacon wages for federally-funded brownfields construction projects and struck further agreement giving small business and qualifying landowners relief from Superfund liability. H.R. 2869 (Representative Paul Gillmor, R-Ohio) authorizes $1.25 billion (over five years) for state assessment and cleanup activities including $250 million for enhancement of state cleanup programs. In attendance at the signing were Pennsylvania Senate Majority Leader David Brightbill and Pennsylvania Representatives Tom Armstrong (NCSL Executive Committee Member) and Carole Rubley (NCSL Environment Committee Vice-Chair).

December 2001: Legislation, H.R. 2869, promoting redevelopment of brownfields sites sat mired for months in dispute over prevailing wage issues. In the final two days of session, members agreed to sustain Davis-Bacon wages for federally-funded brownfields construction projects and struck further agreement giving small business and qualifying landowners relief from Superfund liability. H.R. 2869 (Representative Paul Gillmor, R-Ohio) authorizes $1.25 billion (over five years) for state assessment and cleanup. The president is expected to sign the measure.

On September 25, 2001, the House was expected to consider HR 2869, a House and Senate "blended" brownfields bill introduced by Representative Gillmor (R-OH). House and Senate Democrats, however, withdrew their support for the bill, requesting that the U.S. Environmental Protection Agency (EPA) confirm its commitment to ensure that cleanup work financed through the bill would fall under jurisdiction of the Davis-Bacon Act, which requires workers to be paid prevailing wages. The EPA has not decided if it will assure the application of Davis-Bacon to brownfields cleanup projects funded under HR 2869.

The "blended" bill combined S. 350-a brownfields bill the Senate passed (99-0) in April-with H.R. 1831, legislation that passed the House (419-0) in May to exempt small businesses from Superfund liability. Although Representative Gillmor (R-Ohio) had held out for legislation placing greater restrictions on the EPA from reopening state cleanups, he blessed the Senate's provisions that give EPA some leeway to "reopen," under limited circumstances, a site that a state has deemed clean.

On April 25, the Senate unanimously passed (99-0, Sen. Tim Hutchinson (R-Ark.), not voting) S. 350. Several manager's amendments were included:

• Allows relatively low risk brownfield sites contaminated by petroleum or a petroleum product to apply for brownfields revitalization funding; also includes $50 million for petroleum sites (or 25% of the total appropriation for the brownfields program, if less than the authorized amount is appropriated).
• Clarifies that a grant or loan recipient may use a portion of the grant or loan to purchase insurance for the characterization, assessment, or remediation of the respective brownfields site (current practice under the EPA brownfields program).
• Adds further conditions to the ranking criteria as it specifically relates to the health of sensitive populations.
• Requires the Inspector General of EPA to submit to Congress a report on the management of the brownfields program within three years.
• Provides a savings clause that nothing in this section of the bill affects any liability or response authority under any federal law.
• Adds an element to a state response program whereby a citizen can request a state official to conduct a site assessment and the state official considers and response appropriately to the request.
• Requires the Administrator to consult with the states in determining when new information regarding a facility presents a threat to human health or the environment, while preserving EPA's authority to take appropriate action.

The week of March 19, the Senate Environment and Public Works (EPW) Committee reached a compromise on brownfields legislation ( S. 350). Supporters of the bill hope the legislation will gain final passage in the Senate before the April 6-23 recess.

The week of March 5, the Senate EPW Committee, chaired by New Hampshire Senator Bob Smith, marked up and voted in favor (15-3) of a bipartisan bill ( S. 350) to promote the clean up of revitalization of contaminated industrial sites. Concerns over the finality language-terms under which the Environmental Protection Agency could require additional cleanup-still exists among some members, and is likely to be further debated by the full Senate later this week. In a March 7, 2001 letter from Representative Joe Hackney (D-NC), chair of NCSL's Environment Committee, urged the Senate committee "to reexamine the power of the administrator with a view towards according the states the appropriate deference prior to initiation of an enforcement action." NCSL staff has been informed that the committee will offer a manager's amendment on the Senate floor spearheaded by Senator Voinovich (R-OH), to make the finality provision more "state friendly."

Feb. 15, 2001: Members of the Senate EPW Committee introduced S. 350-identical to S. 2700 from the 106th Congress-aimed at expanding the cleanup of contaminated industrial sites. Primary co-sponsors of the bill are Senate EPW Committee Chairman Bob Smith (R-NH), ranking committee member Harry Reid (D-NV), Superfund Subcommittee Chairman Lincoln Chafee (R-RI) and subcommittee ranking member Barbara Boxer (D-CA). Although the bill garnered broad bipartisan support-66 cosponsors-during the 106^th Congress, the measure was blocked due to a written agreement between Senate Majority Leader Trent Lott (R-MS) and Senator Crapo (R-ID). Senator Crapo opposed S. 2700 because he was concerned that the legislation would interfere with overhauling the Superfund law. Senator Lott promised to block efforts to change the Superfund program in exchange for Crapo's support for a bill exempting scrap metal dealers from complying with the Superfund law. That agreement has expired. A staff person in Senator Crapo's office said "although the Senator will not co-sponsor the bill, [the Senator] does have a commitment from the Chairman [Senator Smith] to make [the bill] more state friendly." Staff from the offices of Senators Voinovich (R-OH) and Inhofe (R-OK) confirmed that neither Senator will sign onto the current version of the bill, but added that the Senators "will work with Senator Smith," on the issue.

Two other bills aimed at expanding the cleanup up brownfields have been introduced in the 107^th Congress.

• Jan. 22, 2001: Senator Lott (R-MS) (for Senator Arlen Specter (R-PA)) introduced S. 23-the New Urban Agenda Act of 2001. Provisions include an amendment to CERCLA to provide liability reforms for non-culpable parties--who have conducted a response action at an urban facility not listed on the NPL-and the establishment of an EPA brownfields program. The program would authorize the EPA Administrator to provide grants to State and Local governments to clean up and return brownfields facilities to productive use. It also provides for the following authorizations for appropriations: $100 million for FY 2002; $105 million for FY 2003; and, $110 million for FY 2004.

Other urban development provisions include:

• Improved efforts to construct or improve federal facilities in distressed urban areas. This does not apply to facilities of the Department of Defense;
• Tax incentives to stimulate urban economic development;
• Homebuyer credits;
• An amendment to current law regarding homeownership for municipal employees;
• Expansion of qualified wages subject to the work opportunity credit; and
• Directs the Secretary of Housing and Urban Development to conduct a study regarding: (a) the feasibility of consolidating existing public and low-income housing programs under the United States Housing Act of 1937 into a comprehensive block grant system of Federal aid; (b) the possibility of administering future public and low-income housing programs under the United States Housing Act of 1937 in accordance with such a block grant system.

S. 23 has been referred to the Senate Committee on Finance.

Jan. 31, 2001: Representative Boehlert (R-NY) introduced H.R. 324-Recycle America's Land Act of 2001. More details on H.R. 324 to follow.

June 19, 2001: Letter to Representative Gillmor regarding the discussion draft on the Brownfields Revitalization Act and Environmental Restoration Act of 2001.

May 18, 2001: NCSL staff met with House Republican staff to discuss their approach to brownfields cleanup and how it differs from S. 350-the Brownfields Restoration and Revitalization Act-which passed the Senate in April. A draft proposal would authorize $50 million to establish a revolving fund to assist state voluntary brownfields cleanup programs. The staff touted their approach as being "more trim on reporting requirements" than S. 350. The draft also includes a permit streamlining piece and requires the Governor's concurrence on NPL listing. The staff person did voice concerns, however, over the likelihood of moving the draft without support from House Democrats. Stay tuned.

April 26, 2001: Letter on the passage of S. 350.

March 7, 2001: Letter on S. 350-Senate Environment and Public Works Committee

June 28, 2001: Delegate Leon Billings on behalf of NCSL, testified regarding brownfields legislation before the House Energy and Commerce subcommittee on Environment and Hazardous Waste.

The Honorable Linda Fisher, Deputy Administrator, Environmental Protection Agency, Washington, DC.

Mr. Gordon J. Johnson on behalf of National Association of Attorney Generals, Washington, DC.

Mr. Javier Gonzales, Commissioner, Santa Fe County, New Mexico on behalf of National Association of Counties.

The Honorable J. Christian Bollwage, Mayor, City of Elizabeth, New Jersey, on behalf of The United States Conference of Mayors, Washington, DC

The Honorable Leon Billings, State of Maryland Legislator, on behalf of National Conference of State Legislatures,
Washington, DC.

Mr. Ed Hopkins, Director of Environment Quality, Sierra Club, Washington, DC.

Mr. Daniel R. DeMarco, Managing Director of Real Estate, Campanelli Companies, on behalf of National Association of Industrial and Office Properties, Washington, DC.

Mr. John Lynch, Broker/Owner, Lynch & Company, on behalf of National Association of Realtors, Washington, DC.

Mr. Larry Roth , American Society of Civil Engineers.

Mr. Gary Garczynski, National Association of Home Builders, Washington, DC.

March 7, 2001: The House Committee on Energy and Commerce held a hearing entitled A Smarter Partnership: Removing Barriers to Brownfields Cleanups Subcommittee on Environment and Hazardous Materials

Panel 1
The Honorable Ruth Ann Minner, Governor, State of Delaware.

Panel 2
The Honorable Robert C Shinn, Commissioner, New Jersey Department of Environmental Protection.

Mr. Grant Cope, US Public Interest Research Group.

Mr. George Meyer, President, Environmental Council of States Special Assistant to the Secretary Wisconsin Department of Natural.

Panel 3
The Honorable Christine Todd Whitman, Administrator, Environmental Protection Agency

February 27, 2001: The Senate Superfund, Waste Control, and Risk Assessment Subcommittee held a hearing on S. 350-The Brownfields Revitalization and Environmental Restoration Act of 2001.

Opening Statements:
Sen. Lincoln Chafee of Rhode Island.
Sen. Bob Smith of New Hampshire.
Sen. James M. Inhofe of Oklahoma.
Sen. Barbara Boxer of California.
Sen. Max Baucus of Montana.
Sen. Thomas R. Carper of Delaware.
Sen. Jon S. Corzine of New Jersey.

Witnesses:
Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency.

J. Christian Bollwage, Mayor of Elizabeth, New Jersey, on behalf of the United States Conference of Mayors.

Myrtle Walker, Mayor of East Palo Alto, California, on behalf of the National Association of Local Government Environmental Professionals,

Phil O'Brien, Director, Division of Waste Management, New Hampshire Department of Environmental Services,

Mike Ford, Mike Ford Agency, Clark, NJ, on behalf of the National Association of Realtors

Alan Front, Senior Vice President, The Trust for Public Land

John Arlington, Assistant Vice President, American Insurance Association

Grant Cope, Staff Attorney, U.S. Public Interest Research Group

Robert Fox, Manko, Gold & Katcher LLP, Bala Cynwyd, PA

Deeohn Ferris, President, Global Environmental Resources Inc.

Although bills were considered in both the House and Senate, the session ended without the enactment of either a brownfields bill or comprehensive Superfund reform legislation.

June 2000: Letter on S. 2700--Subcommittee on Superfund, Waste Control and Risk Management

June 29, 2000:: The Subcommittee on Superfund, Waste Control and Risk Assessment held a hearing on the Brownfields Revitalization and Environmental Restoration Act, S. 2700

Opening Statements:
Sen. Lincoln Chafee, Rhode Island
Sen. Bob Smith, New Hampshire

Statement by the Witnesses:
Tim Fields, Jr.: Assistant Administrator for Solid Waste and Emergency Response, U.S. Environmental Protection Agency

J. Christian Bollwage: Mayor of Elizabeth, NJ, on behalf of the U.S. Conference of Mayors

Preston A. Daniels: Mayor of Des Moines, IA, on behalf of the National Association of Local Government Environmental Professionals--introduced by Senator Grassley, Iowa.

Jan Reitsma: Director, Rhode Island Department of Environmental Management

Kevin P. Fitzpatrick: President, AIG Global Real Estate Investment Corp., New York, NY, on behalf of the Real Estate Roundtable

Alan Front: Senior Vice President, Trust for Public Land

William McElroy: Vice President, Zurich U.S. Specialties, New York, NY, on behalf of the American Insurance Association

Vernice Miller Travis: Partnership for Sustainable Brownfields Redevelopment

The National Conference of State Legislatures urges the Administration and Congress to provide states maximum flexibility in designing and financing brownfields programs. This includes:
Enacting free standing brownfields legislation that relates only to the narrow purpose of allowing states to redevelop abandoned, underutilized industrial and commercial property for which there is minimum likelihood of off-site contamination or endangerment of health and welfare of subsequent users and not used as a means to achieve other Superfund related agendas.
Authorizing states to immunize a property owner or developer from liability or a future cleanup responsibility.
Providing states greater flexibility in determining the best use of federal funds-assessment vs. cleanup.
(Access a full copy of NCSL's Brownfields Redevelopment Policy.)

According to the National Brownfields Association, 47 states have voluntary cleanup programs in place. The programs offer a wide variety of incentives-tax breaks for cleanups and the creation of new jobs, low interest rate loans and grant-subsidized technical assistance-to attract private investments. Programs also provide participants with authoritative "comfort" regarding the limits of their residual risk of cleanup liability under state law.

NCSL's Environment, Energy and Transportation Program: Brownfields

U.S. EPA Office of Solid Waste and Emergency Response
Superfund Liability Documents from EPA's Office of Site Remediation Enforcement (OSRE)
U.S. Department of Housing and Urban Development

Molly Stauffer, Committee Director, Environment and Natural Resources Committee
Laurie Holmes, Committee Assistant, Environment and Natural Resources Committee

Prepared by: Molly Stauffer, Committee Director, Environment and Natural Resources Committee