[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
A SMARTER PARTNERSHIP: REMOVING BARRIERS TO BROWNFIELDS CLEANUPS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MARCH 7, 2001
__________
Serial No. 107-017
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
U.S. GOVERNMENT PRINTING OFFICE
71-487CC WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia BART STUPAK, Michigan
BARBARA CUBIN, Wyoming ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois TOM SAWYER, Ohio
HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi TED STRICKLAND, Ohio
VITO FOSSELLA, New York DIANA DeGETTE, Colorado
ROY BLUNT, Missouri THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia BILL LUTHER, Minnesota
ED BRYANT, Tennessee LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Environment and Hazardous Materials
PAUL E. GILLMOR, Ohio, Chairman
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
STEVE LARGENT, Oklahoma EDOLPHUS TOWNS, New York
GREG GANSKE, Iowa SHERROD BROWN, Ohio
JOHN SHIMKUS, Illinois GENE GREEN, Texas
(Vice Chairman) KAREN McCARTHY, Missouri
HEATHER WILSON, New Mexico THOMAS M. BARRETT, Wisconsin
VITO FOSSELLA, New York BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California JANE HARMAN, California
CHARLES F. BASS, New Hampshire HENRY A. WAXMAN, California
JOSEPH R. PITTS, Pennsylvania EDWARD J. MARKEY, Massachusetts
MARY BONO, California JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Cope, Grant, Staff Attorney, U.S. Public Interest Research
Group...................................................... 46
Meyer, George E., President, Environmental Council of the
States, Special Assistant to the Secretary, Wisconsin
Department of Natural Resources............................ 38
Minner, Hon. Ruth Ann, Governor, State of Delaware, on Behalf
of National Governors' Association......................... 19
Shinn, Hon. Robert C., Jr., Commissioner, Department of
Environmental Protection for New Jersey.................... 34
Whitman, Hon. Christine Todd, Administrator, Environmental
Protection Agency.......................................... 67
Material submitted for the record by:
American Institute of Architects, prepared statement of...... 93
American Water Works Association, prepared statement of...... 88
(iii)
A SMARTER PARTNERSHIP: REMOVING BARRIERS TO BROWNFIELDS CLEANUPS
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WEDNESDAY, MARCH 7, 2001
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Environment
and Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2123, Rayburn House Office Building, Hon. Paul Gillmor
(chairman) presiding.
Members present: Representatives Gillmor, Greenwood,
Largent, Ganske, Shimkus, Fossella, Ehrlich, Buyer, Bono,
Walden, Terry, Tauzin (ex officio), Pallone, Towns, Brown,
Green, McCarthy, Barrett, Luther, Capps, and Doyle.
Staff present: Amit Sachdev, majority counsel; Nandan
Kenkeremath, majority counsel; Mark Washko, majority counsel;
Jerry Couri, policy coordinator; Peter Kielty, legislative
clerk; Allison Taylor, minority counsel; and Dick Frandsen,
minority counsel.
Mr. Gillmor. The subcommittee will come to order, and we
will begin with opening statements. Then we will have three
panels. The Governor of Delaware will be the first panel and
then a second panel. Administrator Whitman was originally going
to be here on the morning session but because of her schedule
will not be able to do that. So we are going to reconvene after
we do the first two panels at 2 o'clock this afternoon to hear
from Administrator Whitman.
The Chair recognizes himself for the purpose of an opening
statement. And today our subcommittee starts the House's
official efforts to develop legislation to foster brownfield
cleanups efforts. And while this is my maiden voyage as
Chairman, the issue of Superfunds and brownfields is no
stranger to this panel. I hope that our efforts from here
forward will be open and constructive in nature and that we
will ultimately have those efforts result in legislation that
the White House can sign into law.
I want to welcome the support of the full committee
chairman, Chairman Tauzin, for these efforts. And I appreciate
his leadership in this area.
As we begin this effort, there are certain facts and
principles I think we should recognize. First is a paramount
interest is the protection of public health and safety.
Second, to unnecessarily leave thousands of brownfield
areas lie unused while development goes forward is one of the
most anti-environment acts which can occur. The alternative for
those who are going to develop property is to develop green
spaces and farmland.
Certainly in my State and I think many others farmland
preservation is a major goal. Not having an effective as
possible brownfields program simply means it will have concrete
poured over thousands of acres of farms and green spaces.
Today we begin the journey to a legislative solution by
taking a small initial step at this hearing. Brownfield
reclamation efforts were popular among all groups that
otherwise have concerns about reforming other parts of the
Superfund law.
Brownfields are lands that because of either real or
perceived environmental contamination discourage redevelopment
efforts. Brownfield cleanups help people in urban areas who
fear the loss of high manufacturing areas. It aids those in
rural areas where there is concern that farmland will be
destroyed to make way for urban sprawl. Further, while
brownfields efforts are well-liked, there are minor
disagreements about the way to go about it.
It might compare to the feeling people have about the all-
American dessert: apple pie. Everybody likes apple pie, but
some people want it with cinnamon, some like ice cream, and
some like cheese on top. While each slice is different, they do
make the eater feel satisfied in the end.
So this morning and later this afternoon I hope that our
witnesses will help us highlight the problems that States and
Federal Governments have faced in their suggestions as to how
to remedy those brownfield problems. If our nation is to enjoy
a partnership of economic protection coupled with economic
growth, I believe it is important that we find ways to get
these sites cleaned up and back into economic activity.
Economic growth and environmental protection are not
mutually exclusive goals. I believe that not addressing the
serious problems of liability at these sites is primarily anti-
environment because the result is zero environmental
rehabilitation in addition to taking the undeveloped or rural
lands.
I am also personally supportive of giving States,
especially those that have programs that mirror the Federal
one, more flexibility in regard to voluntary cleanup and
finality provisions that food developers and property owners
use an expedited State-approved process for cleaning up the
waste sites.
The uncertainty regarding Federal regs, extra broad
Superfund liability, and needless bureaucracy have stifled
brownfield cleanups for years. Some States' efforts to provide
assurances on future liability and speed up remediation efforts
to ensure future health and environmental security have been
stymied. We need the environment of the States because the
Federal Government simply doesn't have the resources to do the
job alone. And while certain numbers have been thrown around to
show how many brownfields our nation has, the truth is nobody
knows for sure how many of these toxic sites dot our country.
But it will not be enough for all of us to say that we
support brownfields cleanup and then do nothing more. We must
be able to improve their effectiveness and their efficiency.
And to achieve that goal, we have to remember the need to keep
the goal of our efforts on this committee in clear view.
Now I want to commend the ranking member of the
subcommittee, Mr. Pallone, for his cooperation and his help in
putting together this hearing. And I also want to pledge my
support for working together in maintaining an open line of
communications between our members and our staffs. A smarter
partnership in brownfields will result when we all join
together to make it so.
And the Chair is now pleased to recognize the ranking
member of our subcommittee, the gentleman from New Jersey, Mr.
Pallone.
Mr. Pallone. Thank you, Mr. Chairman. I want to thank you
for holding this oversight hearing today on what I believe will
be one of the most important issues our new subcommittee would
tackle this year, and that is the brownfields redevelopment.
I also wanted to take this opportunity, as you mentioned,
to thank you for the cooperation we have received so far
between our staffs and you and me personally. We have talked
about an agenda for this subcommittee. One of the important
issues we have mentioned is safe drinking water and funding
issues related to that, which I know we are going to take up in
the future.
I just wanted to say that I look forward to working with
you, and I think this is going to be the first of a number of
successful hearings on this and other topics that we have
discussed.
Brownfields, as we know, is a relatively recent, complex,
and dynamic area of public policy. Government at all levels,
local, State, and Federal, is grappling with liability,
environmental, and cost issues posed by brownfields reclamation
and is taking steps to resolve these issues.
Despite the popular image of brownfields as an urban
problem, they are found in suburbs and rural areas, too. My
State of New Jersey, is a relatively small State, although I
see we have Governor Minner. So maybe we are not as small as
you, but we are small. We have a number of aging industrial
sites, and we are obviously heavily affected by hazardous
waste. Accordingly, New Jersey has taken a leadership role in
developing regulatory and funding tools for cleaning up
brownfields.
The ability to reuse brownfields is important to
implementing New Jersey's smart growth agenda because it blunts
pressures to develop untouched greenfield land and, therefore,
helps contain sprawl. However, brownfields redevelopment is
also important because of the public policy perspective, which
is a tricky one, I have to say.
It is clear that there is no such thing as a typical
brownfield site nor is there one problem common to all sites.
They vary greatly in size, location, origin, marketability, and
degree of contamination. For the most part, none of the sites
have been inventoried or assessed. These two facts make it
nearly impossible to prescribe a single solution, which
provides redevelopment incentives for the wide variety of
brownfield sites that currently exit.
With these concerns in mind, I believe the role for the
subcommittee is to strike a balance between the desire to
provide redevelopment incentives that will work for such a
variety of sites while at the same time maintaining the
assurance to affected citizens that these sites will no longer
threaten the health of the community.
Four years ago the Democrats in the House introduced H.R.
1120, the first stand-alone brownfields bill. That was in the
105th Congress. In the 106th Congress, every Democratic member
on this committee cosponsored H.R. 1750, a stand-alone
brownfields bill that had received the endorsement of the EPA.
In the near future, Mr. Chairman, I along with Mr. Towns and
Mr. DeFazio and other Democratic colleagues will be
reintroducing similar brownfields legislation.
I was pleased to hear that in her testimony last week
before the Senate Environment and Public Works Committee, my
former Governor, now the EPA administrator, Christie Whitman,
and the Bush administration endorsed the stand-alone
brownfields approach. That means addressing brownfields
separate from any Superfund reform. If we are to be successful
in enacting brownfields legislation, it must be targeted to the
traditional brownfields issues discussed in Mrs. Whitman's
testimony.
There are many different types of voluntary cleanup
programs in the country. A report from the GAO found that the
State programs vary significantly in their approaches to public
participation, direct State oversight, and monitoring after an
action has taken place. In Illinois, for an example, a new
developer may decide to clean up just one of several chemicals
at a site and receive a certification for that chemical alone.
In my home State of New Jersey, the liable party responsible
for creating the contamination is not eligible for any
liability protection under our State brownfields program. In
other States, the person or company who polluted the site is
eligible for liability protection. There are obviously
differences.
Recently there have been reports that voluntary cleanups
under one State program are being performed with no public
participation, minimal direct State oversight, and with a heavy
emphasis on deed restrictions, fences, caps, or landscaping,
rather than permanently cleaning up or removing contamination.
In other State brownfields programs, deed restrictions are
apparently not an allowable cleanup method. So we really have a
great variation here.
With the wide array in voluntary cleanup programs, we
should be very careful in placing restrictions on Federal
enforcement authorities. And we must maintain a strong and
effective Federal safety net. If a site may present an imminent
and substantial endangerment to human health or the environment
after a voluntary cleanup, it is vital that the affected
citizens and communities can rely on both Federal and State
authorities to protect their health and neighborhoods. There is
a significant number of memorandum agreements entered into by
States and the EPA concerning voluntary cleanups that follow
this very practical approach and have been successful in
facilitating brownfields cleanups.
I just want to thank you again, Mr. Chairman. I know we
have some very good witnesses today, and I look forward to
hearing them, starting with the Governor.
[The prepared statement of Hon. Frank Pallone, Jr.
follows:]
Prepared Statement of Hon. Frank Pallone, Jr., a Representative in
Congress from the State of New Jersey
Thank you, Mr. Chairman, for holding this oversight hearing today
on what I believe will be one of the most important issues our new
Subcommittee tackles this year--Brownfield Redevelopment. I also wanted
to take this opportunity--as this is our Subcommittees first hearing--
to express my interest in this issue as well as important funding
issues under the Safe Drinking Water Act in the future. I look forward
to working with you, Mr. Chairman, and I believe this will be the first
of a number of successful hearings.
Brownfields are a relatively recent, complex and dynamic area of
public policy. Government at all levels--local, State, and federal--is
grappling with liability, environmental, and cost issues posed by
brownfields reclamation, and is taking steps to resolve them. Despite
the popular image of brownfields as an urban problem, they are found in
suburbs and rural areas, too. My state of New Jersey, a small state
with widespread aging industrial sites, is heavily affected.
Accordingly, New Jersey has taken a leadership role in developing
regulatory and funding tools for cleaning up brownfields.
The ability to reuse brownfields is important to implementing our
states smart growth agenda because it blunts pressures to develop
untouched Greenfield land, and therefore helps contain sprawl. However,
brownfields redevelopment is also important because of the public
policy perspective a tricky one at that.
It is clear that there is no such thing as a typical brownfield
site nor is there one problem common to all sites. They vary greatly in
size, location, origin, marketability, and degree of contamination. For
the most part, none of the sites have been inventoried or assessed.
Those two facts make it nearly impossible to prescribe a single
solution which provides redevelopment incentives for the wide variety
of brownfield sites that currently exist.
With these concerns in mind, I believe the role for the
Subcommittee is to strike a balance between the desire to provide
redevelopment incentives that will work for such a variety of sites,
while at the same time maintaining the assurance to affected citizens
that these sites will no longer threaten the health of the community.
Four years ago this month, the Democrats in the House of
Representatives introduced H.R. 1120, the first stand-alone brownfields
bill. That was in the 105th Congress. In the 106th Congress, every
Democratic Member on this Committee cosponsored H.R. 1750, a stand-
alone brownfields bill, that had received the endorsement of the
Environmental Protection Agency. In the near future, I along with Mr.
Towns, and Mr. DeFazio, and other Democratic colleagues will be
reintroducing similar brownfields legislation.
I was pleased to hear that in her testimony last week before the
Senate Environment and Public Works Committee, EPA Administrator
Whitman and the Bush Administration endorsed the stand-alone
brownfields approach--that means addressing brownfields separate from
any other Superfund reform. If we are to be successful in enacting
brownfields legislation, it must be targeted to the traditional
brownfields issues discussed in her testimony.
There are many different types of voluntary cleanup programs in the
country. A report from the GAO found that the state programs vary
significantly in their approaches to public participation, direct state
oversight, and monitoring after an action has been taken. In Illinois,
a new developer may decide to cleanup just one of several chemicals at
a site and receive a certification for that chemical alone. In my home
state, New Jersey, the liable party responsible for creating the
contamination is not eligible for any liability protection under the
Brownfields program. In other states, the person or company who
polluted the site is eligible for liability protection.
Recently, there have been disturbing reports that voluntary
cleanups under one state program are being performed with no public
participation, minimal direct state oversight, and with a heavy
emphasis on deed restrictions, fences, caps, or landscaping rather than
permanently cleaning up or removing contamination. In other state
brownfields programs, deed restrictions are apparently not an allowable
cleanup method.
With the wide array in voluntary cleanup programs, we should be
very careful in placing restrictions on Federal enforcement authorities
and we must maintain a strong and effective Federal safety net. If a
site may present an imminent and substantial endangerment to human
health or the environment after a voluntary cleanup, it is vital that
the affected citizens and communities can rely on both Federal and
State authorities to protect their health and neighborhoods. There are
a significant number of memorandum of agreements entered into by states
and the EPA concerning voluntary cleanups that follow this practical
approach and have been successful in facilitating brownfields cleanups.
Thank you. I look forward to hearing from the witnesses today.
Mr. Gillmor. The gentleman from Louisiana, the chairman of
the full committee.
Chairman Tauzin. Thank you, Mr. Chairman. Let me first
congratulate you and Ranking Member Pallone for the cooperative
way in which you have begun this very important 2-year period
in which your committee will focus on some extraordinarily
important environmental concerns of our country.
For the audience's sake, let me advise you that in
structuring our committee this year, we obviously put clean air
into the Energy Committee because of its extraordinary
closeness with both mobile and stationary source of energy
consumption issues. Outside of that, we broke the mold of the
previous administration of this committee in putting the other
environmental issues that are under the jurisdiction of this
committee into a single subcommittee without any other focus.
No longer will the Environmental committee be also interested
in the questions of financial services, for example, or the
Environmental Committee be interested in the extraordinary
issues of Medicare and Medicaid and patients' bill of rights
and prescription drug issues, but it will be literally
discussed here in this subcommittee and hopefully shepherded to
the full committee and to the floor in due order because we are
focusing this subcommittee's work strictly on our environmental
jurisdiction.
And I want to commend you for making brownfields your first
inquiry in the subcommittee's first hearing. Indeed, I am also
pleased that the administrator of EPA, Governor Whitman, will
make her first appearance in the U.S. House of Representatives
here today. I am also especially pleased that Governor Minner
is here from the great State of Delaware to bring the
perspective of the States to this issue.
Obviously one of the things we hope to do--and I know that
Governor Whitman has already spoken of it--is to establish a
better partnership between the EPA and the States in terms of
this important issue and to hopefully remove the barriers of
the Federal Government and to establish a more flexible program
that respects the State's decisions in these areas. That is
going to be I hope the work and the focus of this committee on
this important issue.
Important to this consideration is also the way in which we
work with the States. Governor Whitman and President Bush have
indicated that it is time we extend a helping hand, an open
hand, rather than the back of our hand, to the States as they
struggle to make these important decisions.
We don't know how many brownfield sites there are, Mr.
Chairman. You correctly said that. They could be hundreds of
thousands. Getting them cleaned up and back into productive use
in a way that both protects the environment and aids the
economy of our local communities is a worthwhile goal.
Indeed, the Bush administration has announced that it wants
to work for a brownfields bill that it can support and that
this committee can support. We have pledged to Governor Whitman
a new relationship of cooperation and partnership in this and
other environmental areas under the committee's jurisdiction.
Let me also compliment Governor Whitman on a statement she
made that she supports principles that are based upon good
scientific analysis. The quote that I want to refer to is that
she said that ``Neither policy nor politics should drive
scientific results.'' I endorse that comment. I hope this
committee does.
And I hope that the extraordinary cooperation we have
already seen between the chairman of this committee, Mr.
Gillmor, and the ranking member, Mr. Pallone, will continue as
we strive to make science the driver of the decisions that will
literally be made to make sure that these brownfields are
eventually put back into good productive use for the good of
our economy and our environment.
Finally, I wanted to not only welcome Governor Minner but
to compliment her and all the Governors--there is a bunch of
Governors in town today--for their efforts to stay in touch
with us and to give us their perspective on how these Federal
programs work in the States. We too often have neglected this
kind of close and cooperative relationship.
We are going to stress it at this committee level. We are
going to seek your help, your guidance on the energy policy we
write, on the environmental policy this committee develops, and
on every issue that is important not only to the Federal system
but intricately to the State systems that you folks manage.
I deeply appreciate your coming, as I do Governor Whitman.
Mr. Chairman, this is your first real venture out as a
subcommittee. You and Mr. Pallone are to be congratulated on
making this the important topic of discussion. You will have
the full support of the chairman and the staff in this
endeavor. And anything we can do to help you in this inquiry
and to build the bipartisan bill that we are going to have to
build out of this committee you have in abundance. And I ask
you please to call upon me on either side when you require it.
Thank you, Mr. Chairman. I yield back the balance of my
time.
[The prepared statement of Hon. W.J. ``Billy'' Tauzin
follows:]
Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee
on Energy and Commerce
Thank you, Mr. Chairman, I commend you for holding this hearing. I
am particularly pleased that Governor Whitman's first appearance in the
U.S. House of Representatives, as Administrator of EPA, is before our
Subcommittee. I am happy to join the Chairman in welcoming today's
panel of witnesses, especially Governor Minner from Delaware, and the
representatives from New Jersey and Wisconsin's state environmental
agencies that have joined us to discuss the important topic of removing
barriers to brownfields cleanups.
Brownfields are those abandoned or under utilized properties often
found in urban areas that are typically less contaminated than the
toxic waste sites on the Superfund list. There are literally hundreds
of thousands of these sites across the country and it makes perfect
sense to me that this Subcommittee should focus its efforts on looking
at ways to redevelop, revitalize and put these sites back into
productive use.
Governor Whitman has already identified principles that are
designed to promote a smarter partnership for environmental programs,
and EPA has my assurance today that the Energy and Commerce Committee
will work with the Bush Administration on these important changes.
Governor Whitman has also identified the need for more flexibility
in Federal laws and more respect for state decisions. These are the
fundamental elements of today's brownfields hearing. Uncertainty over
federal overfiling, overly broad Superfund liability, and needless
Federal bureaucracy have stifled brownfields cleanups for decades.
Federal law and federal programs should encourage the redevelopment of
brownfields, rather than impose barriers and disincentives to cleanups.
We must change federal programs so they are a helping hand for states
and local governments, not a heavy hand that gets in the way.
I also applaud Governor Whitman for her support for the principle
that scientific analysis should drive public policy, and that ``neither
policy nor politics should drive scientific results.'' While not a
specific topic at this hearing, rest assured, that the Energy and
Commerce Committee supports sound science as a driver for environmental
programs and improvements.
Honesty and trust are cornerstones for a smarter partnership in
environmental programs. Over my years of public service, I have seen
firsthand the damage that groups which rely on rhetoric and fear-
mongering have inflicted on reasonable and bipartisan efforts to make
progress in the environmental arena. I want to assure you Mr. Chairman,
that I am committed to confronting these obstacles head-on in order to
promote environmental improvements that foster more cleanups, faster
cleanups and better cleanups.
Over the past several years the Committee's relationship with EPA
has been often times rocky and partisan. I look forward to working
constructively with an EPA that works diligently and directly with this
Committee to minimize rhetoric, and to focus on the task of eliminating
barriers and disincentives to cleaning up America's toxic waste sites
and putting brownfields back into productive use.
With a new direction and a smarter partnership: between the Federal
and state governments, between EPA and Congress, and between the
regulators and industry, I hope we can have a serious evaluation of the
problems facing current cleanup programs, and that we share a common
objective: to make those federal and state programs better, more
effective, and more efficient. I look forward to the testimony of
today's witnesses, and I encourage my colleagues, federal and state
regulators and other stakeholders to working with us in making
brownfields reform a reality.
Thank you Mr. Chairman, I yield back the balance of my time.
Mr. Gillmor. Thank you very much, Mr. Chairman. And I might
say as Chairman of the Environment and Hazardous Materials
Committee, we plan to take very good care of all the trees and
trash.
The Chair recognizes the gentleman from Ohio, Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman.
Mr. Chairman, I represent neighboring districts in
northeast Ohio. Lorain County is split between our two
districts. And we both know northeast Ohio's proud history as a
center for manufacturing. We also share a concern about the
down side of that legacy: contamination from previous
commercial or industrial activities or concerns about possible
contamination that prevent the productive use of many urban
sites. By cleaning up these sites, we can create jobs and
preserve farmland and green space.
I strongly support legislation that provides increased
funding to local governments and redevelopment authorities for
site assessment grants and revolving loan funds. In addition, I
believe there is virtual consensus on providing liability
protection for innocent landowners, for owners of contiguous
property, and for new developers who were not responsible for
creating the contamination. Enacting these provisions would
encourage brownfield cleanups because anyone who qualifies as
an innocent landowner or a new developer or purchaser would
have liability protection under Superfund.
In other cases, specific persons or companies will be
responsible and potentially liable for cleaning up toxic
pollution at brownfield sites. In these circumstances, as
Ranking Member Pallone said, a strong and effective Federal
safety net is essential to protect citizens from health risks
or from toxic contamination of their neighborhoods. For
example, in the chairman's and my State of Ohio, citizens and
environmental groups throughout the State believe that the
voluntary cleanup program Ohio has undermines environmental
protection in our State. Ohio is the only State in Region 5
without a signed memorandum of understanding for brownfields
with EPA.
A recent comprehensive evaluation of the Ohio voluntary
cleanup program raises serious questions about the wisdom of
any restrictions on Federal enforcement authority. Let me
briefly cite a few of the findings.
The current voluntary action program does not meet U.S. EPA
requirements for brownfields cleanup programs in the area of
government oversight, of public participation, and of
enforcement.
Of the 88 Ohio States reviewed, none contained evidence of
any notification or interaction with residents in surrounding
communities during any phase of the assessment and cleanup
process.
Deed restrictions on land use or groundwater use, the most
common institutional control, were adopted by only 55 out of
111 sites, not quite half the sites.
Fifty-seven Ohio sites received covenants not to sue, but
only 30 percent of these sites physically removed contaminated
dirt or other contaminated substances. The other 70 percent of
these sites relied on institutional or engineering controls to
limit human exposure to these hazards, rather than actual
removal of contaminants, a pretty sorry state of affairs when
you look at all of those findings.
These are troubling findings. As we move forward, I hope
the subcommittee will recognize that the State voluntary
cleanup programs that, unfortunately, my State the last several
years has put together, that those differ significantly from
where we should be.
Mr. Chairman, I look forward to working with you on this
issue. I welcome the new Governor of Delaware to us today. And
I look forward to working on other issues of importance to
northeast Ohio and to our nation. And I thank the chairman.
Mr. Gillmor. The Chair recognizes the gentleman from
Indiana for 3 minutes.
Mr. Buyer. Thank you, Mr. Chairman.
Governor, over the years I sat at that table where you are
right now testifying on Superfund reform issues. Now I have the
opportunity as a new member of this committee to be fully
engaged in the issues, not only on Superfund but interstate
waste and brownfields. So I look forward to your testimony on
behalf of the Governors' Association today.
I appreciate, Mr. Chairman, you not only holding this
hearing today to examine the brownfields program but also your
continued interest and dedication in ensuring a clean
environment. Cleaning up our nation's contaminated sites is
important, not only to redevelop economically viable properties
but to also ensure a safe and healthy environment for our
children to grow and play. We will look at the effectiveness of
a program and its funding, the barriers to cleanup, what
flexibility you as Governors need in all of the States, and the
roles and responsibilities of all entities involved in the
process.
In my congressional district in Indiana, is the largest
Superfund site in EPA's Region 5. It is called the Continental
Steel site in Kokomo, Indiana. The site has been on the
national priority list since 1988 and presently includes the
main plant of about 68 acres, a lagoon area of about 53 acres,
and 20 acres of quarry area. Approximately 1,600 people obtain
drinking water from private wells within 3 miles of the site.
This site does not suffer from any of the difficulties
other sites suffer, whether it is liability or costly court
cases, as it is an orphan site. Instead, it suffers because of
the vast size and extremely costly price tag to clean up with
estimates well above $100 million.
While the State of Indiana has taken great initiative and
recently demolished the buildings, the hardest and most costly
portions, though, are left. The funding route for the site has
been diverted. Why? You can never get a straight answer. It was
very disappointing throughout the 1990's that the ability of
regional directors to prioritize sites was removed from them
and it was held in Washington, D.C. I think that was wrong. I
am interested to learn if similar problems exist in the
brownfields program.
I also want to comment that I do not believe we should have
a stand-alone brownfields bill. If you do that, you will never
get Superfund reform. Now, I can understand why some of my
Democrat colleagues want to say: Well, let us just move a
brownfields bill. Let us just focus on that for which we can
agree. If you do that, you will never focus on your
differences. So I am hopeful that we do Superfund reform with
brownfield together. It is like jelly in a peanut butter
sandwich.
I yield back the balance of my time.
Mr. Gillmor. The gentleman yields back. And the Chair would
announce that any members who wish to submit records to be
entered in the record, that will be done. The gentleman Mr.
Luther?
Mr. Luther. Thank you, Mr. Chairman. And thanks for holding
this hearing.
Mr. Chairman, my home State of Minnesota has been a pioneer
in creating State voluntary assessment and cleanup programs for
brownfields sites. In speaking with State and local officials
in Minnesota, it is clear to me that improvements can be made
in our Federal brownfields program.
There is just one point that I wanted to raise this morning
before the testimony begins because I think it is a point that
deserves mention. And that is that I hope that our committee
will deliberate on designating Federal funds for converting
brownfields into green space.
I come from a largely suburban district. Many of my
constituents would rather convert their brownfields into parks,
bike trails, or the like, rather than another office building.
And, as you know, the emphasis under current laws tends to be
on commercial development to the exclusion of other forms of
development.
As such, I believe that we ought to consider in this
committee providing our local communities with the option to
use brownfields grant and loan money for commercial,
residential, or recreational use, whichever best serves the
interests of the people of the local community.
I look forward, Mr. Chairman, to working with you and other
members of the committee on this important issue. And I look
forward to hearing the testimony. Thank you.
Mr. Gillmor. The gentleman from Pennsylvania, Mr.
Greenwood.
Mr. Greenwood. Thank you, Mr. Chairman. I want to also
thank you for convening the hearing today.
We want to welcome all of the witnesses, including Governor
Minner. We will be finished with all of this fodder pretty
soon. Also I look forward to Governor Whitman's, EPA Director
Whitman's, testifying later today. I am especially pleased that
President Bush has identified the issue of brownfields as a
priority for his administration.
I think we all recognize that the Superfund law frequently
impedes, rather than encourages, cleanup of brownfield sites. I
am hopeful that today's hearing will offer important evidence
about the barriers to cleanup and also help us understand what
innovative approaches States such as my home State of
Pennsylvania have used to overcome such barriers.
My district has nearly 4 square miles of brownfield sites,
deserted gas stations, small industrial buildings, empty
factories, located in the southern portion of Bucks County. It
is for this reason that since coming to Congress one of my top
priorities has been to craft legislation that allows the States
to turn these large areas of abandoned or under-utilized, once
prime commercial real estate back to America's original Fields
of Dreams. And that is why in the last session I introduced the
Land Recycling Act, which was H.R. 2580.
Returning these Fields of Dreams to active use is key to
economic development and, as we all know, economic development
leads to job creation, a drop in welfare rolls, a reduction in
crime, and safer, healthier neighborhoods. In fact, economic
development is a vital component of the fulfillment of the
American Dream: self-sufficiency and opportunity. As long as
these properties lie vacant, the dream will remain unfulfilled
for many Americans who live and struggle to survive in these
blighted areas.
The brownfields problems have many sources. Foremost among
them is the Federal law itself. Under Superfund, parties who
currently own or operate a facility can be held 100 percent
liable for any cleanup costs, regardless of whether they were
in any way at fault. The imposition of this liability has led
to tragic consequences, including the rejection by potential
developers of any site with a history of industrial activity.
It is simply not worth dealing with the environmental exposure
when they have the alternative of developing in pristine
greenfields where there is no potential for liability.
Pennsylvania, like many other States, has made significant
strides in the cleanup and reuse of contaminated and abandoned
industrial sites. Pennsylvania's award-winning Land Recycling
Program is a national model for voluntary cleanup programs.
Nearly 770 sites have been addressed under its program since
inception in 1995, with over 20,000 people now employed at
those sites.
Despite Pennsylvania's success, States, businesses, and
other experts have testified that they could be far more
effective if participation in a State voluntary cleanup program
also included a release from Federal liability. It remains
imperative that we reform Superfund so that it includes a
strong brownfields provision.
Once again, Mr. Chairman, thank you for holding this
hearing today. I look forward to working with the committee in
crafting legislation that will ensure a clean and safe
environment for ourselves, for our children, and for
generations to come.
Mr. Gillmor. Thank you.
Mr. Doyle?
Mr. Doyle. Mr. Chairman, thank you for scheduling this
timely hearing to examine Federal and State efforts to promote
the cleanup, redevelopment, and reuse of brownfields
properties.
Federal brownfields policy is of great concern to my
communities in southwestern Pennsylvania, which comprise much
of the region referred to as the Rust Belt. As you can imagine,
these are numerous old, defunct industrial sites in these
communities, which stand to benefit from our efforts to improve
the effectiveness of the brownfields program and to identify
and remedy barriers and disincentives to brownfields cleanups.
Without question, the brownfields program has spurred
serious public discussion about the link between environmental
restoration and economic development and has proven to be a
valuable resource that neighborhoods all across the country
have accessed to help make their redevelopment ideas a reality.
In communities where tax bases took a major hit, where heavy
industries crumpled in the early 1980's, redevelopment of
brownfield sites often plays a critical role in accelerating
the rate at which their economic climate is rejuvenated.
The end result of an unimpeded brownfields cleanup is that
the condition of our residents' public health and private
pocketbooks both are improved and not at the cost of busting
the local tax base but actually growing it.
In Pennsylvania alone, as my colleague has stated, the
brownfields program has supported 654 cleanups on 583
properties covering 9,000 acres and creating over 17,000 jobs.
It is also important to keep in mind that Pennsylvania has been
nationally recognized as having an outstanding State-run
program.
That being said, I believe there is much more that we can
do to better tailor the brownfields program to meet the most
pressing needs of our communities. The most frequently cited
impediments to redevelopment are: a lack of cleanup funds,
liability concerns, the need for additional environmental
assessment support, and permanent tax credits. The question is:
Are we going to proceed in crafting meaningful responses to
these very real impediments?
And I always make a practice to approach whatever matter is
at hand with an eye toward building consensus. It has been my
experience that by fostering communication and greater
understanding, the best solutions can be found to even our
toughest problems.
With this principle in mind, it is my hope that we will
take seriously and thoroughly consider all concerns brought
before this subcommittee. Throughout reaching and building
partnerships among State and local governments, environmental
groups, and the business sector, we lay the cornerstones of
what makes brownfields programs so successful. We must not lose
sight of this necessary dynamic when moving forward with any
new legislative measure such that we ensure the brownfields
program continues to make improvements in meeting currently
unmet needs and offering hope for a cleaner environment, new
jobs, a stronger tax base, and economic recovery.
Thank you, Mr. Chairman.
Mr. Gillmor. Thank you.
The Chair would announce that we have a vote on. It would
be the Chair's hope that we can continue the hearing without
recessing for the vote. The vice chairman of the committee is
over voting and will be coming back while I vote. And for those
members waiting for recognition, if you want to go vote, we
will keep your place in the order of testimony.
Gentleman from Maryland, Mr. Ehrlich.
Mr. Ehrlich. I will be brief, Mr. Chairman. I will forego a
prepared statement.
Governor, if you are getting the idea this is a pretty
important and relevant subject to every member here, you are
right. And I know it is for you, too. So welcome.
Second, Mr. Chairman, good luck. You are not going to need
it. And congratulations. That is from classmate to classmate, I
guess.
Third, Mr. Chairman, I really do know you believe in this
issue. And I think this should be the priority item with
respect to the 107th Congress.
With regard to my colleague's comments from Indiana, I
agree, but I want to add a caveat. I would love to move a
Superfund bill, as you know, but I think it is imperative, I
think it is very important this committee move a bill this
session because the need I know we are going to hear in a
second is dramatic and timely.
Last point. With regard to the issue of consensus, that is
a subjective term, particularly in this town. I hope we do not
do what some States have done, which is move consensus bills
and, as a result of a consensus, nobody takes advantage of
bills moved in those particular States because those statutes
did not handle the difficult issues, particularly with respect
to liability.
I think it is important that this committee move not only a
viable bill but a bill that deals with the real philosophical
differences that exist on this issue, particularly with respect
to liability relief.
As someone who practiced law in this area, Mr. Chairman, we
look forward to working with you. I look forward to taking this
subcommittee to Baltimore, Maryland to see an awful lot of
brownfield sites. And hopefully we can by the end of this
Congress when we revisit the 108th Congress see far less
brownfield sites.
And I yield back.
Mr. Gillmor. Gentleman yields back his time. Gentlewoman
from California.
Ms. Capps. Thank you, Mr. Chairman, for holding this
important hearing today. And I want to add my welcome to the
honorable Governor of Delaware as you are speaking here on
behalf of all of the Governors.
Over the past couple of years, we have come to a bipartisan
consensus on the need to move forward with brownfields
legislation. Not only that, but I believe we are actually very
close to consensus on the parameters of such legislation. I
hope that this year this subcommittee can produce such
legislation and we can give support to an innovative set of
programs at the EPA and at the States. We should work hard at
this because the redevelopment of brownfields is a critical
issue not only for our big cities but smaller cities and towns
across this nation.
Encouraging this redevelopment means reducing the threat of
urban sprawl and the strains on our transportation systems. It
means taking advantage of the infrastructure already in place
in many urban or older industrial areas. It means creating jobs
and economic opportunity for neighborhoods often neglected. And
I know because I have seen this in my district. The
redevelopment of the brownfields in the small Town of Goleta
near Santa Barbara, California is a good example of a small and
growing community recapturing some valuable property and
improving the local economy and enhancing the quality of life
there.
Last year I was a cosponsor of Mr. Towns' brownfields bill,
H.R. 1750. I believe that bill both encourages the
redevelopment of brownfields and continues to ensure that the
public health is always safeguarded. And so I hope the
subcommittee will consider this bill as an excellent starting
point for our discussions this year.
The liability protections in the bill for prospective
purchasers of brownfields, innocent landlords and contiguous
property owners, are particularly important. They offer much
needed assurances to developers and property owners who are
trying to do the right thing by revitalizing brownfields.
I know that much of the debate will focus on the Federal
interaction with State plans and what is termed as
``finality.'' It is my understanding that there is a wide
variation in State voluntary cleanup programs in terms of who
is eligible, the opportunity for public participation, and the
level of direct State oversight. It is because of this wide
variation that we must have a strong Federal safety net to
ensure the public health and safety of all citizens and their
neighborhoods with Federal support if necessary.
Clearly we want to ensure finality for those involved in
cleanups, but we also want some finality in the reduction of
threats to public health and safety imposed by brownfields. And
only effective cleanup will do that. And so I hope that this
subcommittee can move quickly on the legislation to address
this critical need.
Thank you. I yield back the balance of my time.
Mr. Shimkus [presiding]. I thank the gentlewoman, and I
recognize the gentleman from Nebraska, Mr. Terry.
Mr. Terry. Thank you, Mr. Acting Chairman.
A little bit of historical perspective to kind of set my
framework. I spent 8 years on the Omaha City Council. In those
8 years, there was one issue that left deep and penetrating
scars on my back. And that was a brownfields cleanup, where we
wanted to take riverfront property that was an old industrial
site and turn it into a nice city park that people could go
back to the river. I have never been involved in a more bloody
battle than that.
You know, we hear across this board bipartisan desires for
brownfield cleanup, but my experience in the field is that it
is everything but bipartisan. I was sued for my vote to go
forward with this as a city park. It was a feeding frenzy of
environmental groups that came in and said removing 4 to 6 feet
of dirt wasn't enough.
And so I just want to state that I have been through some
of these wars before and I have a kind of a very skewed view of
the current process and a strong desire for reform here which
recognizes certain realities.
And so, Governor, I don't know if you have had similar type
experiences in dealing with some of these extremist groups in
these types of cleanups that say that they are in favor of the
environment but take actions that from my standpoint are not
logical if your conclusion or your desire is to clean up and
create green space.
We need to look at reforms in regard to how the EPA can
sign off on certain projects without having to take them over
as a Superfund site. We need to empower the States to make sure
that they have the confidence in their own voluntary cleanup
when the State departments sign off.
We also need to make sure that if someone takes title, that
they have some assurances that they won't be on the hook. Those
are all areas that I think we need to look into. And while we
have the voiced spirit of bipartisanship, there is a lot of
heavy lifting that is involved in those three tenets.
So I look forward to your testimony in regard to some of
your personal experiences in Delaware. Thank you.
Mr. Shimkus. Thank you, Mr. Terry. And I want to thank you,
Governor, for being here. In fact, I was going to recommend to
my colleague from Nebraska that I am the chairman now because I
am in the chair. I am not acting.
We do this to try to keep things moving so that we don't
have to recess and waste time. I will give my 5-minute opening
statement. Maybe a few more of my colleagues will come back and
want to give theirs. And I think counsel is telling me that we
will recess for your opening statements if I don't filibuster
long enough to allow people to get back.
Superfund reform, in this aspect brownfields, in an
exciting issue now I think in this upcoming Congress. There is
optimism on a lot of sides that we can move and address some of
the problems that I think you will give testimony to, and we
are very pleased with having you here.
You talk about sprawl, which is a cliche that we are
somewhat concerned about. Superfund reform and getting some of
these old sites back in productive use could help address the
entire sprawl debate. We think we are now in a position to pass
some legislation which is environmentally sound and will help
move our nation forward and get these areas back in
productivity.
Another aspect, the prerogative of the Chair and a
prerogative of members to bring up other issues, that we are
going to have other people testify on in this long list of
people in different panels is small business liability from the
Superfund relief, which I know we probably have some staffers
from the EPA out there.
It is no mystery or secret that I have been fighting for
these small businesses who have been caught in this battle. And
I am looking forward to the new administrator helping push not
only brownfields reform but also small business liability
relief protection. And I think there is an opportunity to do
both of those.
So it is an exciting time for those of us who serve on some
of these committees that people wonder why we get on a
committee that wants to address Superfund reform or
brownfields. It is not very sexy, but I think for the growth
and, really, the living conditions and the environment of some
of our major metropolitan areas, it can be a great benefit in
the future.
So, with that, I am going to end my opening statement and
check with counsel.
Folks, we are going to take a short recess. And the recess
is not going to have a time limit. So as soon as we get the
other members back and find out they are going to do an opening
statement, then we will call the committee back into session.
So it is kind of like in the Army when they say, ``One foot in
place. Rest.'' One foot in place, we will recess subject to the
call of the Chair.
[Brief recess.]
Mr. Gillmor. The subcommittee will come to order. I
apologize to Governor Minner for this break, but I also know
that she is a former legislator and knows that sometimes these
things are beyond our control.
We will recognize the gentle lady from New Jersey, Ms.
McCarthy, for an opening statement.
Ms. McCarthy. I thank you, Mr. Chairman. And as a former
legislator, I appreciate your understanding in needing to just
spend a moment, first of all, to thank you for being here and
to thank the chairman for holding this hearing and welcoming
the opportunity to have a dialog on how we can developer a
smarter partnership for the brownfields cleanup and Superfund
sites that we all care so greatly about in our States. I have
long been an advocate of both initiatives, both at the State
legislative level and now at the Federal level.
My State of Missouri has some pretty good success stories.
Particularly my district, greater Kansas City, has been
designated a showcase community by the Region 7 Environmental
Protection Agency. And we got an award, the Phoenix Award,
which is a national honor. It recognized our excellence in
brownfields development work. And we have had some real good
results.
So I thought today what I would do is share with you some
of the things that I think worked well in Missouri that might
need to be expanded to other States. For example, we created in
Missouri a remediation tax credit for up to 100 percent of
remediation costs if it works through the voluntary cleanup
program. We might think about that as becoming a similar
Federal program for all States to use because it has been very,
very successful.
Initially the Federal brownfields tax credits could be
implemented as demonstration pilot within the 28 brownfield
showcase communities across the country on a 3-year basis. This
has been very successful. The pilot proves its success as a
showcase. And I think it would be good to expand it and roll it
out as a national program that we could get behind.
Historically many U.S. industrial sites which later became
brownfields are located close to waterways. With their flood
control, engineering, environmental, and project management
expertise, the Corps of Engineers is uniquely positioned to
assist in the national brownfields initiative. And I think we
should consider at the Federal level incorporating the U.S.
Army Corps of Engineers Water Resources Development Act into
Section 7 of the brownfields revitalization program and make
that partnership and teamwork national.
Last, the brownfields funding for petroleum and lead-based
paint and asbestos sites needs to be considered and addressed
because I think legislation is needed to move beyond CERCLA
limits that prevent assistance for worthy brownfield projects
that involve petroleum, lead-based paint, and asbestos
contamination.
Due to the exclusion and limitations of CERCLA, most of the
EPA assessments and remediation loan funding tools for
brownfields cannot be used on these sites. But in urban areas
such as mine, these are real sites people are interested in and
if revitalized could continue to provide that economic
development, local jobs, and restoration of our central cities.
So, Mr. Chairman, I think this is a very apropos hearing
that you have called today. I look forward to working with you
to address some refinements to the law we created. It is a good
law. It is working. It is helping. And we can make it even
better if we work together. Thank you very much.
Mr. Gillmor. Thank you very much.
Are there other members desiring to make an opening
statement? Gentleman from Wisconsin.
Mr. Barrett. Thank you very much, Mr. Chairman. I
appreciate your holding this hearing today.
I will be brief in my comments. I am pleased that we are
here today. I am especially pleased that George Meyer from the
State of Wisconsin is joining us to testify before the
subcommittee. He has a long and distinguished history in
Wisconsin of public service and, really, for many, many years
led a nonpartisan Department of Natural Resources in our State.
And it is something that you can be proud of. And I thank you
for the work that you have done in our State.
In the past in this Congress and in this committee,
unfortunately, this issue has been, from my viewpoint at least,
a lost leader in trying to move Superfund legislation. I say a
lost leader because I think that brownfields cleanup is an
issue that has widespread bipartisan support. Particularly in
some of the Midwestern, Northeastern cities, many of us feel
very strongly that we could have moved legislation independent
of the Superfund overhaul, which inevitably got bogged down
into debates over who should pay.
So I am especially pleased this session that the leadership
of this committee has taken a different approach and has now
willing to look at stand-alone legislation. I think that this
dramatically increases the chance that we will be able to move
forward on this very important issue.
So, again, Mr. Chairman, I thank you and would yield back
the balance of my time.
Mr. Gillmor. The gentleman yields back.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, I thank you for conducting this oversight hearing on
brownfields. This subject is important to me, and to many of the
Members of this Subcommittee. In the Detroit metropolitan area alone--
home to much of our country's industrial strength for over 100 years--
brownfields cover tens of thousands of acres of land once occupied by
mighty manufacturing facilities and thriving communities. Today, many
of these properties are abandoned by their once-prosperous owners. They
have become an eyesore and, in some instances, a threat to the
livelihood and health of the citizens who live around them. This
situation is not unique to the Detroit area, nor to urban areas
generally.
For years now, we have enjoyed bipartisan agreement that
brownfields legislation is needed. Yet, we have not seen brownfields
legislation become public law. Some years ago, lender liability relief
was enacted into law because we achieved consensus among stakeholders,
the Administration, and Members on both sides of the aisle. That
consensus produced one of the few amendments to any environmental law
in recent memory. Consensus should be the model by which we proceed.
By contrast, many controversial provisions to amend the Superfund
statute have never come close to becoming public law--and they have
held hostage consensus provisions such as prospective purchaser and
innocent landowner relief. As these consensus provisions languish, some
Members in this body cannot resist the temptation to tinker, thus
sparking controversy where there was none.
Having listened to my constituents over the years, I am aware that
environmental laws did not create brownfields. I am aware that there
are numerous challenges to the redevelopment of brownfields including
financing and infrastructure needs. I am aware that it is often
difficult to evaluate the economic condition of an area in which a
brownfield is located: its crime record and potential to attract
business. Environmental issues are often the most easily predictable of
those a developer encounters when deciding whether to invest.
That being said, I am pleased to report that brownfields
redevelopment is occurring. Local governments, developers and citizens
are finding creative ways to build their own consensus and to re-build
their communities. My colleagues on the other side of the aisle once
promoted appropriations riders that prohibited the use of Federal money
for seeding brownfields revolving loan programs. But those programs are
now up and running and gathering acclaim from the recipients of much-
needed funding.
We can build upon our communities' success. I was pleased to hear
that Administrator Whitman supports moving brownfields legislation
separate from other Superfund reform efforts. While I am not very
familiar with the details of the Senate bill she recently endorsed, I
am aware that the scope of that bill is in keeping with what I have
long encouraged this Committee to focus upon: funding, prospective
purchaser relief, innocent landowner liability clarification, and
promotion of state voluntary cleanup programs. I encourage my
colleagues to identify and adhere to areas of consensus, fix only what
is truly broken, and listen to the needs of our communities.
I thank you, Mr. Chairman.
______
Prepared Statement of Hon. Gene Green, a Representative in Congress
from the State of Texas
Thank you, Mr. Chairman, for holding this important hearing. I
appreciate the opportunity to explore the issue of brownfields, which
is of great importance to my constituents and people across the nation.
Brownfields are a problem that impacts all of us. They range in
size from abandoned truck or bus storage lots to large warehouses or
manufacturing sites. Usually, they are concentrated in economically
distressed areas.
However, brownfields pose a significant roadblock to redevelopment.
Not polluted enough to qualify as a Superfund site, they are avoided by
many developers due to cleanup costs and potential liability, and can
thus stall efforts to bring in new economic development to whole areas
of a community.
The program, thus far, has seen some successes. My hometown of
Houston is involved in the redevelopment of over 550 acres of
brownfields. whose remediation costs total over $460 million. These
cleanups are creating almost 2,400 new jobs and returning almost $2
million in taxes to the city, county, and school districts.
The program has also helped to reduce eyesores in the community,
improve neighborhood-quality-of-life, and spur different types of
redevelopment, such as a new baseball stadium, a new performing arts
center, and almost 1,000 units of new housing.
In the 29th Congressional District, two projects in particular
stand out. The state of Texas took the lead on the first by investing
in what became the Central City Industrial Park.
Located in the heart of Houston's Hispanic East End, this former
heavy industrial site was redeveloped as office space for state
agencies and for light industry.
Over 1,500 new jobs were created, many of which went to residents
in the surrounding area. Completed in 1997, the complex currently has
an occupancy rate of 96%.
The second project, also in the East End neighborhood, was a former
trucking company staging area that was redeveloped into housing for
seniors. The Latino Learning Center, Inc. invested in a brownfield that
had been vacant for 17 years and had become a neighborhood dump.
These days, though, it is home to a beautiful new, 64-unit housing
complex for senior citizens, a Seniors' Day and Health Care Center, and
a 5,500-sq. ft. community center.
The redevelopment of this site also featured access to math and
computer science classes for local students; created 5 new full-time
jobs for the residents of the community; and created 150 construction
jobs with 50% set aside for local residents. Completed in November of
2000, it is a fine example of what this program can achieve.
I hope that this committee will explore how we can continue to
build on the successes of this program. I look forward to this and
further hearings on the subject of brownfields, and I yield back the
balance of my time.
Mr. Gillmor. If there are no further opening statements, we
will proceed with Panel 1, which consists only of Governor Ruth
Ann Minner of the State of Delaware, newly elected chief
executive, Democratic Governor. And she is here testifying on
behalf of the National Governors' Association.
Governor, we welcome you and we appreciate you taking the
time to be with us and give us your thoughts on brownfields.
The committee does have a copy of your written statement. And
you have 5 minutes to summarize it. Members can then begin with
questions.
Governor?
STATEMENT OF HON. RUTH ANN MINNER, GOVERNOR, STATE OF DELAWARE,
ON BEHALF OF NATIONAL GOVERNORS' ASSOCIATION
Ms. Minner. Thank you, sir.
Good morning, Mr. Chairman and members of the subcommittee.
I am Ruth Ann Minner, the Governor of the State of Delaware. I
am here today to represent the National Governors' Association.
I currently serve as a member of the NGA's Committee on Natural
Resources. We appreciate the opportunity to provide testimony
today on brownfields issues.
The Governors believe that brownfields revitalization is
critical to the successful redevelopment of many contaminated
former industrial properties. It is a vital part of smart
growth, and many of us are pursuing smart growth in our States.
We commend and we thank this subcommittee for focusing on
the brownfield issues early in this session, and we agree with
you that passage of brownfields legislation should be the
priority of this Congress, but it must be legislation that
encourages actual cleanup of sites in our States.
Brownfields represent an enormous potential economic
development resource, one that can lead to many jobs, healthy
communities and neighborhoods, increased local tax revenues,
and less suburban sprawl. State brownfields programs have been
operating now for about a decade. And in that short period of
time, State programs have successfully facilitated reuse of
more than 40,000 sites. There are still challenges ahead, and
the States face those challenges in redeveloping brownfield
sites.
Real and perceived barriers are keeping us from eliminating
these blights in our communities. State programs have
flexibility that should be recognized and not impeded to
stimulate brownfield redevelopment. We think the Federal
Government can help remove some of these impediments that
currently exist.
Owners of contaminated industrial sites often desire the
site cleanup in order to sell their properties and return it to
productive use. Some developers are afraid that their
involvement in these State-managed sites may result in
environmental cleanup liability, liability for contamination
they did not create under the 1980 Superfund Act. Many of our
potential developers of brownfields have been deterred from
investing in a contaminated site. And that is because they know
that even if a State is completely satisfied with the property
that has been cleaned up, there is a potential for the EPA to
take action against them under the Superfund liability scheme.
If there is legislation on brownfields, Governors believe
that it should address this problem by providing for needed
liability protection for innocent owners as well as owners of
contiguous properties. Just as importantly, legislation should
preclude enforcement by anyone other than a State at sites
where cleanup has already occurred or is being conducted under
a State program. This finality should mean what it says:
completion of cleanup under State law. To not give this
insurance reduces the chances of restoration at the site.
We do not disagree with those who want exceptions to this
finality, but the exceptions should be limited and the
exceptions should give States an opportunity to take
appropriate action themselves before EPA is permitted to reopen
the cleanup and take enforcement action.
What the Governors would strongly recommend is language
that puts the burden on the EPA to demonstrate that the
Governor was notified of a problem and that the State was
unwilling or unable to take appropriate action. Of course, if
the EPA needed to take emergency action to protect the public
health or the environment and the State was unwilling to
respond, intervention by the Federal Government would be
appropriate. Similarly, a State could ask for Federal
assistance in cleaning up any site if the circumstances
warranted it.
Another provision that we believe is very important in any
bill is to require the concurrence of the States' Governors
before a site may be added to the national priorities list. It
is currently an EPA policy, and we ask that you codify this
practice.
We would also like to see action on the Superfund Act
clarified regarding the States' cost share at Superfund sites.
The Governors believe the law should clearly provide that the
Superfund response trust fund can be used to support operation
and maintenance at the same match as the cleanup actions; that
is, the 10 percent.
Last, we would like to see a bill that includes a waiver of
sovereign immunity for Federal facilities so that States can
enforce State environmental laws. Such authority has been
provided in the Clean Water Act, the Clean Air Act, the
Resource Conservation and Recovery Act. And we seek to hold the
Federal Government to the same standard of compliance for its
brownfields in our States as other parties in our State.
We sincerely appreciate your consideration of our views. We
look forward to working with you on the development of
brownfields legislation during this session. Thank you very
much. And if you are interested in specifics by way of programs
or what we have been doing in Delaware, I would be happy to
answer those questions.
[The prepared statement of Hon. Ruth Ann Minner follows:]
Prepared Statement of Hon. Ruth Ann Minner, Governor of Delaware on
Behalf of The National Governors Association
Good morning, Mr. Chairman and members of the Subcommittee. I am
Ruth Ann Minner, Governor of the State of Delaware, and am here today
representing the National Governors Association. I currently serve as a
member of the NGA's Committee on Natural Resources; we appreciate the
opportunity to provide testimony today on Brownfields issues. I have
attached a copy of the NGA policy statement on Superfund reform and ask
that it be included in the record of this hearing, along with my
statement.
The Governors believe that brownfields revitalization is critical
to the successful redevelopment of many contaminated former industrial
properties. In fact, it is a vital part of the smart growth agendas
being pursued by many Governors t his year, including my own ``Livable
Delaware'' plan. Therefore, we commend the Subcommittee for focusing on
the brownfields issue so early in this session. We agree with you that
passage of brownfields legislation should be a priority for this
Congress, but it must be legislation that encourages actual cleanup of
the sites.
Brownfields represent an enormous potential economic development
resource, one that can lead to new jobs, healthier neighborhoods,
increased local tax revenues, and less suburban sprawl. Some have
called brownfields the ``engines of the New Economy.'' Successful state
brownfields programs improve the quality of life for a community, which
in turn, increases that community's economic competitiveness and helps
it attract new business and workers. State brownfields programs have
been operating now for about a decade. In that short period, state
programs have successfully facilitated reuse of more than 40,000 sites.
For example, New Jersey, under the leadership of former Governor, now-
Administrator Whitman, led an effort to provide funding to reimburse
brownfields developers up to 75 percent of remediation and cleanup
costs, and in her last budget as Governor, she signed legislation to
award $15 million in grants to municipalities to acquire and clean up
brownfields sites. Michigan passed a bond issue that devotes $335
million to prepare brownfields sites for redevelopment, including
grants and loans to municipalities and counties. Massachusetts provides
brownfields tax credits ranging from 25--50 percent for owners who
pursue site cleanups in economically distressed areas.
In my state of Delaware, brownfields account for nearly 25 percent
of the land in our largest city, Wilmington. In 1995, we established
several financial incentives for brownfields redevelopment and
initiated a number of reforms to our state Superfund law. We provide a
50-50 matching grant of up to $25,000 for the state share from our
economic development strategic fund to cover the cost of environmental
assessment. We also offer low-interest loans for site cleanup and offer
a Blue Collar Job Creation and Capital Investment Tax Credit for
redeveloping brownfields. Perhaps most importantly, our state law,
which has a liability scheme identical to that in the federal Superfund
Act, provides liability relief for prospective purchasers of
brownfields sites that have gone through the state cleanup process and
have been issued a Certificate of Completion of Remedy.
But there are still challenges states face in redeveloping
brownfields, real and perceived barriers that are keeping us from
eliminating these blights on many of our communities. In Delaware, we
believe that the package of incentives and limited liability relief
I've described are examples of the flexibility that should be
recognized, and not impeded, under federal law to stimulate brownfields
redevelopment.
State level creativity and innovation in meeting their brownfields
needs has been the hallmark of redeveloping many industrial sites. But
there are many more sites in Delaware and thousands more across this
nation that need to be addressed. We think the federal government can
help remove some of the impediments to their redevelopment.
Owners of contaminated industrial sites often desire site cleanup
in order to sell the property and return it to productive use. State
brownfields programs allow redevelopment to take place at these sites
quickly, with appropriate cleanup standards, and with minimal
government involvement. However, some developers are afraid that their
involvement in these state-managed sites may result in environmental
cleanup liability for contamination they did not create, under, the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) of 1980, commonly referred to as ``Superfund.'' As a result,
valuable industrial land remains contaminated, unused, or abandoned,
denying communities economic activity and the direct benefits of jobs
and taxes. Many potential developers of brownfields sites have been
deterred from investing in a contaminated site. That is because they
know that even if the state is completely satisfied that the property
has been properly cleaned up, there is the potential for EPA to take
action against the cooperating party under the CERCLA liability scheme.
If there is legislation on brownfields, Governors believe that it
should address this problem by providing needed liability protections
for innocent owners and owners of property contiguous to contaminated
sites. Just as importantly, legislation should preclude enforcement by
anyone (other than by a state) at sites where cleanup has already
occurred or is being conducted under state programs. This ``finality''
should mean what it says--satisfactory completion of a cleanup under
state law should be final. To not give this assurance to developers who
are spending thousands, or hundreds of thousands, of dollars of their
own money to rehabilitate a property reduces the chances that the
rehabilitation will happen.
We do not disagree with those that want exceptions to this
finality, but the exceptions should be limited and should give states
an adequate opportunity to take appropriate action themselves before
EPA is permitted to reopen the cleanup and take an enforcement action
against the owner or the developer.
For example, we do not think that EPA's mere assertion that a
potential release of a contaminant from a brownfields site ``may
present an imminent and substantial endangerment to public health or
welfare or the environment'' should be sufficient to override the
state's approval of the cleanup and begin an enforcement action. Such
language does not assure that the problem is taken care of; it just
brings the federal government into the picture and scares away future
developers from cleaning up other sites.
What the Governors would strongly recommend is language that at
brownfields sites, the burden should be on EPA to show that the
Governor was notified and given an reasonable opportunity to correct
the problem, or threat of the problem, and was unwilling or unable to
take appropriate action. Of course, if EPA needed to take emergency
action to protect public health or the environment, and the state was
unwilling to respond, intervention by the federal government might be
appropriate. Similarly, a state could ask for federal assistance in
cleaning up any site if the circumstances warrant it.
Another provision that we believe is very important in any bill
that addresses contaminated sites is a provision to require the
concurrence of the Governor of a state in which a site is located
before a site may be added to the National Priority List. The nation's
Governors believe such a provision is vital. It is currently EPA policy
to seek the concurrence of a governor before listing a site, and we ask
that you codify this practice.
We also would like to see a section of CERCLA clarified regarding
the state cost share at Superfund sites. The Governors believe that the
law should clearly provide that the Superfund response trust fund can
be used to support operation and maintenance activities at the same
state match requirements as cleanup actions--that is, a 10 percent cost
share.
Lastly, we would like to see a bill that includes a waiver of
sovereign immunity for federal facilities, so that states can enforce
state environmental laws. Such authority has been provided in the Clean
Water Act, the Clean Air Act, and the Resource Conservation and
Recovery Act. Congress confirmed its commitment to state enforcement of
environmental laws at federal facilities in 1992 under the Federal
Facility Compliance Act, but the authority under the Superfund law is
less clear. States seek clear authority to require and oversee response
activities at federal facilities. As you may know, federal facilities
and former federal facilities are among the worst contaminated sites in
the nation. We seek to hold the federal government to the same standard
of compliance as other parties in our states.
We appreciate your consideration of our views, and we look forward
to working with you on the development of brownfields legislation
during this session.
Mr. Gillmor. Thank you very much, Governor.
Governor Whitman, who is going to be in, or ex-Governor
Whitman, this afternoon, in the testimony she submitted
emphasis a need for flexibility in working with State and local
governments to promote faster, more efficient cleanup. What
kind of flexibility would be of most benefit to the efforts of
developers, cleanup contractors, investors, and regulators at
the State level as well?
Ms. Minner. Well, we can look at each State and each site
and tell you that everyone is different. But, then, you have
dealt with them in your States, and you know that. And so the
flexibility is to allow the States to do the evaluation, to
intercede with the cleanup, to help those people who are there,
to have flexibility in our own programs, as long as our goals
are all the same, to clean up the site, to make it reusable,
and to keep the suburban sprawl down and save our open spaces
and green land.
Mr. Gillmor. Governor, some groups have testified that
Federal reforms to bolster finality for brownfields cleanup is
not needed because, even though the EPA has broad authority to
reopen cleanups, that the agency rarely uses it.
Your testimony points out that the problem lies not only
with instances where EPA actually uses this overfiling
authority, but the problem also has to do with the perception
and fear of Superfund liability and potential fellow
involvement. Could you describe in greater detail how this so-
called chilling effect inhibits development?
Ms. Minner. A site that has been designated and is ready
for cleanup, a developer willing to spend their own personal
money and sometimes hundreds of thousands of dollars takes a
look at the whole process and says: What do you mean there is
no finality? I end up spending this money, and I still may have
a problem. Here is a site 5 miles down the road, open space,
green space, no problems. Why would I spend all of my money
cleaning up a site?
They want the finality settled so that they know once they
have done the work that we have asked them to do, once they
have met all of the requirements, they don't have to worry
about a problem unless it is a new problem that they need to
deal with.
Mr. Gillmor. In terms of Federal involvement, one
suggestion has been made that I would like to bounce off of
you. And that is, would you support limiting the Federal
Government's ability to reopen State brownfield cleanups to
instances where there is a public health emergency?
Ms. Minner. That is part of what we have as a policy for
the Governors. And we absolutely agree that if there is a
health hazard or an environmental hazard, then the Federal
Government should step back in. For the most part, they should
work with us as they do that.
If we don't work to meet those standards once they have
found the second problem, then they should step in. But we
really hope that you would give the States the opportunity, the
Governors would work with EPA in providing that additional
cleanup and making sure that the site is safe.
Mr. Gillmor. Governor, your testimony recommends that
Federal law require EPA to notify a Governor of its concerns
about an ongoing State cleanup and to provide the State with a
reasonable opportunity to correct the problem. Can you
elaborate on what this means and how it would work?
Ms. Minner. Well, if you think of some of the sites we have
had--and I will use one in Delaware, which is along the
riverfront, and it does affect some of the things that you
would have to do by way of the waterway as well as cleaning up
the brownfield. As we work on that, we are dealing with two
parts of State government. We also are making sure that we meet
the Federal compliances with all of those laws that are
involved.
We wanted to do many things there. We wanted to create one
part of that area as open park land and part of a wetland area
but some area as park land, a river walk for our neighborhoods
to enjoy. We also did the Riverfront Arts Center. We did some
shops. We have got a ballpark there. If you are looking at a
multiple-use facility, there are many things that we need to
do. Give us the flexibility to do all of that at one time,
rather than saying we have to work on each one of those issues,
one cleaning up the riverfront, another putting in a site,
which would be just an environmental site near the park land
and the marshland that is there.
Mr. Gillmor. Thank you very much, Governor.
My time has expired. The ranking member, Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman. And thank you,
Governor.
I wanted to develop a little more this issue with regard to
the language on finality that you mentioned and the chairman
mentioned. You say in your written statement and I think you
said the same thing, obviously, when you spoke that you don't
think the EPA's mere assertion that a potential release of a
contaminant from a brownfield site, quote, ``may present an
imminent and substantial endangerment to public health or
welfare or the environment should be sufficient to override the
state's approval.'' And then you go into this language about
the burden to show that the Governor was notified. I am just
trying to figure how that relates to some of the agreements
that have been entered into.
I know that, in particular, in your state, if I could use
it as an example, in 1997, Delaware and EPA signed a memorandum
of agreement that said that unless EPA determines after
consultation with the state, quote, ``that there is or may be
an imminent and substantial endangerment to public health or
welfare or the environment that is not being adequately
addressed under the State program.'' That is obviously the
agreement or the language of the agreement.
Is there a problem with that language that you are citing?
I don't mean in your state. On a national level, are you
suggesting that that language be changed and you think it is
inadequate?
Ms. Minner. I think it works very well for us in most
instances. However, one of the speakers spoke to the problem
that every memorandum of understanding is different. They don't
all have that. I think it works well for us in Delaware. We
have been very fortunate in working very well with the region
in making sure that we have complied to all of those
restrictions.
But I don't speak just for myself and for Delaware. I speak
for all of the Governors. And it is different in every state.
Mr. Pallone. But if we had the imminent and substantial
endangerment language and then we had language that says that
is not being adequately addressed under the State program, you
would think that is okay? That is satisfactory at this----
Ms. Minner. As long as they come to us and work with us. A
lot of times, if we don't know something is there, they find
something that we didn't, they think that something is there,
it makes it very difficult for us. If they come to the state,
offer us the opportunity to work and correct the problem, and
if that State Governor or the department says, ``No, we don't
do it,'' their stepping in is certainly understandable.
Mr. Pallone. You just want to make sure that there is
consultation with the state, effectively?
Ms. Minner. Yes.
Mr. Pallone. Okay. Then the other thing I was going to ask
is on the second issue, which I guess is really a Superfund
issue, but you mentioned it. So I am going to bring it up. The
other provision that we believe is very important requiring the
concurrence of the Governor of a State in which a site is
located before a site can be placed on the national priority
list. Has that been a problem either with you or other
Governors, to your knowledge, in other words, that the EPA
lists sites over the objection of a Governor?
Ms. Minner. I think in the past, the policy has been that
they have worked with us and worked with us very closely. In my
statement, I said what we really want is that to be a part of
the code, rather than just a policy. I think we all know, just
as memorandums of understanding can be canceled or changed, so
can policy. We like that very much. And we would like it to be
codified so that we would know, we would continue to have that
opportunity.
Mr. Pallone. As far as you know, with the National
Governors' Association or with your own state, there hasn't
been any case in the last 5 years or in recent where the EPA
has not followed that, where they have listed something over
the objection of a Governor?
Ms. Minner. They have been working closely with us and have
always addressed it in our State of Delaware. However, I can't
say that that is true across the country in every state. But
the whole idea is simply to have it as a part of the code so we
will know in the future that that policy is in the code and
will continue.
Mr. Pallone. I guess I will probably ask my own former
Governor that question. But I watched as the President started
to appoint the members of the cabinet, they seemed to be mostly
Governors. I guess knowing Whitman and her background, it is
unlikely, it would seem to me, as administrator that she would
do anything to list a site without a Governor's approval, but I
guess that is your concern, obviously.
Ms. Minner. We are all looking forward to working with one
of our colleagues in this area.
Mr. Pallone. Thank you. Thank you, Mr. Chairman.
Mr. Gillmor. Mr. Largent, the gentleman from Oklahoma?
Mr. Largent. Thank you, Mr. Chairman. It is my turn? Is
that what you said? I am sorry. I was talking to staff.
Mr. Gillmor. You are recognized for questions if you wish.
Mr. Largent. Great. I just have a couple. Governor, other
testimony provided to this subcommittee today by the U.S.
Public Interest Research Group argues that there is no need for
greater finality for State brownfields cleanups because the
current memorandum of agreement process between State voluntary
cleanup programs and EPA, while not a formalized process, is
still a sufficient form of finality. In fact, at the end of
1999, only 14 States had MOAs. Do you think the MOA process
defeats the need for stronger finality as part of a brownfields
reform act?
Ms. Minner. No. And I think you have to really look at that
finality and say, ``As a business person, would I invest my
money if I thought I might still have a problem?''
And you are not talking in some cases of small amounts of
money. In Delaware, especially, it is hundreds of thousands of
dollars. We need to know that once it is done, that person who
has invested that money has the finality they need.
If there is another problem, work with us. We will work
with that owner. But give him some assurance. Otherwise, they
are not going to invest their money in cleaning up brownfields.
They are going to go tear up more green space and build there.
Mr. Largent. Governor, you are speaking on behalf of the
National Governors' Association. I am wondering. I heard some
of my colleagues say that they opposed moving a brownfields
bill apart from a Superfund reform bill, more comprehensive
bill. Do you agree with that position that we should wait on
brownfields until it is a part of a more comprehensive bill?
Ms. Minner. I think this is such an important issue and
affects so many areas in our States, every town, every
community. And if we are really serious that we want to run
this program and have the States participate with our people to
redevelop the areas that need to be redeveloped, rather than
destroying more open space, I think we should move very
quickly.
And it is the Governors' Association's position that we
should move quickly on brownfields legislation. We would be
quite happy to work with the committee or individuals on the
subcommittee to work on Superfund legislation as well, but we
strongly urge you to do this legislation on brownfields as
quickly as possible.
Mr. Largent. Okay. Apparently it has been EPA's practice,
although it is not in law, to seek the concurrence of a
Governor before placing a new site on the national priority
list. Is there any reason or argument against doing that from
the National Governors' Association, actually placing that into
law?
Ms. Minner. That is exactly what we want, sir. We would
prefer to have that, rather than just a noted policy, have it
codified, so that we know we will have that opportunity to
comment and to work with EPA on that priority listing.
Mr. Largent. Great. Thank you, Governor, for your time. I
yield back.
Mr. Gillmor. The gentleman yields back. The gentleman Mr.
Barrett?
Mr. Barrett. Thank you very much, Mr. Chairman.
I want to sort of continue along that line and the line
that Mr. Pallone had to sort of help me with the real world
here if you can. A State enters into a memorandum of agreement
with the EPA. You indicated that if you were a business, that
you would be reluctant to move forward. Who is actually
investing the dollars or spending the dollars once that
memorandum of agreement is entered into?
Ms. Minner. Part of it, the 10 percent, normally comes from
the Federal Government. The State does things by way of tax
incentives and other programs. But the majority of the money
invested in cleaning up a site comes from the individual who
has that land.
Mr. Barrett. Okay. And roughly what percent comes from the
States? Again, I am just trying to understand.
Ms. Minner. It varies in every State according to what our
State program is. There is no set number.
Mr. Barrett. Okay. And Delaware I assume does have a
memorandum of agreement?
Ms. Minner. Yes, we do.
Mr. Barrett. How long have you had that?
Ms. Minner. Back 1986 or 1987 if my memory serves me right.
I am going back to a period of time when I was serving in the
General Assembly.
Mr. Barrett. Okay.
Ms. Minner. I think it was about 1986 or 1987.
Mr. Barrett. And has it worked?
Ms. Minner. It has worked very well for us. However, we all
know that at any time at their discretion, the department could
decide to cancel our memorandums of understanding as well. And
so we would like to know that we have those agreements and they
are good agreements and they will continue to work.
We have been very fortunate in Delaware, and ours has
worked very well.
Mr. Barrett. Okay. So specifically what are the Governors
asking for again so I understand?
Ms. Minner. On the finality issue or----
Mr. Barrett. Yes, on the finality issue.
Ms. Minner. That once the program has been completed at the
State level with----
Mr. Barrett. When you say ``the program has been
completed,'' the----
Ms. Minner. On any given site.
Mr. Barrett. Okay.
Ms. Minner. We do a plan for each site. Once that has been
completed, the cleanup has been completed, that the owner of
that land knows that he has a completion, rather than saying at
some time in the future, EPA may step in and say, ``Okay. We
think that something different should be done, and we want you
now to reopen this site.'' We don't have a problem if it is the
health and safety of our people. We certainly want that as well
or if it is because of different environmental damage.
But they need to have some finality. Otherwise they are not
going to spend their money. They are going to go out and use
that money to buy a site that is already clean.
Mr. Barrett. Now, have you, again in the real world, had
these problems in Delaware?
Ms. Minner. Absolutely.
Mr. Barrett. Okay. Can you give me an example?
Ms. Minner. Well, we have many sites that have bene cleaned
up, but we have had many where people have looked at sites,
looked at the tax incentives, looked at the cost, and said:
Well, wait a minute. If I may have to go back and spend more
money and I have this other site 5 miles down the road that has
no problems at all, why would I invest my money there? I am
going down the road.
And so you don't have that site cleaned up. You still have
a blight in the community. You still have a problem in the
community because it is not being addressed in the meantime.
And you have more open space destroyed.
Mr. Barrett. What is the best argument, if you can play
devil's advocate, against that?
Ms. Minner. The best argument I could think of against it?
Golly, I wouldn't want to just say Federal interference because
that might upset you, but that would be my first thought. I
think basically the fact that we all want to make sure that the
environmental cleanup is achieved, exactly what we want it to
do. We all know we will never have a pristine site again, but
if we have the environmental safeties of knowing we have
cleaned up the damage that is there, we have protected our
citizens and still are using that land, rather than destroying
other open spaces.
Mr. Barrett. Okay. To segue to the Governor issue, if I
may, and the need or the desire for the gubernatorial
concurrence, could you foresee a scenario where there would be
political pressure on a Governor, say, from large contributors
not to have a site listed?
Ms. Minner. There is always that possibility. However,
being a Governor for 2 months now, I can tell you that the
people I have met and worked with on this Natural Resource
Committee are as concerned about the environment as you are in
making sure that that cleanup is done.
We had in Delaware just 2 weeks ago--a week ago, actually,
we made the announcement--a problem in an area where the owner
pleaded with me not to make the announcement. I believe in the
right for the citizens to know if there is a problem in their
area. And although he has been a dear friend for 30 years, I
told him: I am sorry. My people have the right to know what is
in that area.
I think you will find all of our Governors feel that way
because it is our state. It is our future. It is our economic
development. It is jobs. It isn't just an environmental site.
Mr. Barrett. When I was first running for office, somebody
asked me what my definition of a special interest was. I said
it is someone who gave money to my opponent because I think all
of us believe that we are the personification of goodness.
I think the reality is that there may be political
pressures at times and there might be one part of a State that,
frankly, is not as politically important or provides as many
votes. I think that there could be pressures there.
Ms. Minner. We can all say there will never be the time
when there won't be pressures, but I can tell you very honestly
in our State there would be more political pressures from our
environmental groups and our citizens who care very much about
those sites. That would far override one or two individuals
that might be the landowners.
We are concerned about making sure our State is safe, not
just for today's people but for future generations as well.
That is the whole reason for these cleanup sites, the whole
reason for reusing these sites. And I think that would far
outweigh any political involvement by way of these cases.
Mr. Barrett. Thank you. And I would yield back my time.
Thank you.
Mr. Gillmor. The gentleman's time has expired. The
gentleman from Indiana Mr. Buyer.
Mr. Buyer. I appreciate Mr. Largent asking you the question
about should you do Superfund reform with brownfield
legislation. I am not surprised by your answer. If I were a
Governor of a particular state, I would want relief that is
quick and as soon as I can get it on a whole array of things.
You also have been in a legislative process. You know that
sometimes in that process we like to do what is easy. Sometimes
we will punt on that which is difficult.
I like to try to get along, but in the 8 years that I have
been here, we still haven't gotten Superfund reform. I find
that distasteful. The only one that really has cleaned up is
lawyers. So when the gentleman mentioned about special
interest, there is a powerful special interest out there: trial
lawyers who are cleaning up most of the Superfund money over
the years. I find that just very bothersome. So that is why
earlier I made that comment. I want to do them both together.
Now, in the end, I don't run this place, but I don't know
if we would ever actually get to Superfund reform if we do that
which is the easiest. It is sort of a management thing. And
that is why I threw that out.
Ms. Minner. I think I would say to you, sir, that both are
equally important. However, I think to wait and not do what we
can accomplish with brownfields because of the problem of
Superfund is letting our environment suffer. I would suggest
that what we can do as quickly as we do we should and make sure
that we get it----
Mr. Buyer. Well, see, Governor, that is exactly what I
would say to my Democrat colleagues here: Why are you putting
off Superfund reform when we can help everyone? So that is my
frustration with the process. So I am in agreement with you.
The question that I have--and I am going to take this up
with the new administrator of EPA--I noticed you shaking your
head when I made the comments about the former EPA
administrator had taken authority away from regional directors
to prioritize sites within their regions and brought all of
that power and authority to Washington.
I take it that you would concur. What I am going to make
sure, I don't know what she is going to do, but I want
authorities to go out there to those regional directors. If
they have supervision over these sites, they know these sites
the most and the best because they work with the States and
localities. I think their input is powerful and important.
Would you agree?
Ms. Minner. I absolutely agree. I think the best way of
saying it might be if I said to you: What do you think about
the problem that we had at the Sunday Breakfast Mission or
maybe at the Moveable Feast Program or at the riverfront or at
the New Castle County Courthouse site? You are going to say you
don't know.
Mr. Buyer. I don't know what that is.
Ms. Minner. We know it. We worked with our regional
directors. Therefore, they have the availability of the
information. It takes that much longer to go the next step to
get it to Washington to whoever is working here. I think you
need to trust us at the local level in saying I am one who has
worked in environmental issues now for 26 years.
I care very much about the environment in my State. I am
not going to allow anybody to do anything knowingly to damage
that, and the local area is just as important. We will work
with whoever up the ladder, but we should have the right to
protect our State.
Mr. Buyer. Now, the testimony you just delivered, is that
your personal opinion? Is that you as Governor? Would you say
that that is also the consensus of the Governors' Association?
Ms. Minner. I think I could probably speak for most of the
Governors in saying we know our States. What I don't know
perhaps about your State or the State of California or
somewhere else I can't speak to today, but I can tell you that
the Governors on the whole believe very strongly that the local
control, our having the opportunity to work, whether it is this
program or any other program, at the State and local level is
the best way to go.
Mr. Buyer. Thank you, Governor, for your testimony. I yield
back.
Mr. Gillmor. Thank you. The Chair recognizes for questions
the gentle lady from California, Mrs. Capps.
Ms. Capps. Thank you, Mr. Chairman.
Governor Minner, based on your experience in Delaware, is
it accurate to say that the most important issue is to provide
liability protection for prospective purchasers of brownfield
sites?
Ms. Minner. Protection from liability or finality? Now you
are making me draw a line that perhaps my national Governors
would not want me to do.
Ms. Capps. Please explain.
Ms. Minner. I guess they are almost equally as important
because unless you can do both, you actually don't offer any
protection to those people who are investing their money in
cleaning up the site.
Ms. Capps. So you would want to rank them equally but both
very important.
Ms. Minner. Absolutely.
Ms. Capps. I am sorry. I didn't want to have to make you
pick one only, these two being extremely important. And also,
in Delaware--I just want to hear it restated--do the
prospective purchasers have to clean up the site before they
get liability relief?
Ms. Minner. Yes.
Ms. Capps. Maybe if you would explain a little bit about
how that process works.
Ms. Minner. Well, it has to meet all of the standards. We
have a program. We have a plant for an individual site. That
site has to be cleaned up, and then we sign off on it saying
that it has been completed. Unless that is done, they are not
then relieved from the liability and the cost.
Ms. Capps. So when a prospective buyer comes into the
situation, they know that they are the bottom line and that
they have the assurance that if they do it, that they will get
the relief. And that is what you want also as an enticement for
them to enter into the relationship so you don't want us
backing out of that. It is an important statement, but I wanted
to hear you say it in the chronology.
Ms. Minner. But let me say again that is as long as they
have met all of the standards. And if there is something that
we find out later, we don't have a problem as Governors in
saying we take another look at it. But we think we should be
offered that opportunity as the Governor and as a state, rather
than EPA stepping in and doing it.
Ms. Capps. I see. So it is your relationship with the
prospective buyer that is the critical one?
Ms. Minner. Yes.
Ms. Capps. And you need every means to hold them
accountable so that you are reviewing the process every step
along the way and only as the kind of like the tail end, then,
does the Federal Government come in with this support?
Ms. Minner. Right. Sometimes it might be as much as a year
or 1\1/2\ years later.
Ms. Capps. I see.
Ms. Minner. And construction is already underway and
somebody is putting up a building. In one case, it was a
school. And then we thought we had another problem. After we
sat down and worked with them, their fears were allayed and we
did not have a problem. Had they stepped in and sited and moved
forward on it, that school construction would have been delayed
and we would have had all sorts of problems for the children as
well as for the district and for the area.
Ms. Capps. So the procedure is important, then?
Ms. Minner. Yes, it is.
Ms. Capps. The process? Thank you. Your testimony has been
very valuable.
Ms. Minner. Thank you.
Ms. Capps. Thank you. I yield back.
Mr. Gillmor. The gentleman from Pennsylvania, Mr. Doyle.
Mr. Doyle. Thank you, Mr. Chairman.
Governor, welcome and thank you for your testimony. I just
have two questions. You are quite clear when you assert that
finality in your opinion and the Governors' Association's
opinion should be defined as ``satisfactory completion under
State law''?
Ms. Minner. Yes.
Mr. Doyle. How important do you think it is to have a
standard interpretation of what satisfactory completion means
given that there is such a variance in State laws and cleanup
programs?
Ms. Minner. But the final point is the cleanup. And I think
there each one of those sites must then meet the Federal
requirement. And so to bring it to that level, then we should
have finality. We don't always get that, but we want that. It
makes it very difficult for us sometimes for us to get
developers to enter into an agreement to clean up a site
because they don't know what is going to be at the other end.
And once you have a problem such as the one we had at one
of our schools, it then backs off other developers because they
are saying: But wait a minute. That was already done. We
thought the State was satisfied with the cleanup. And now there
is another problem.
So it makes it very difficult. The end result should always
be that the site is cleaned up and is able to be used for
something else.
Mr. Doyle. Does ``satisfactory completion'' in Delaware
mean the same thing as it does in Ohio when you have these
voluntary State programs--that is what I am trying to get at--
or should there be some sort of a standard that when EPA is
looking at 50 different States that have different programs and
they say, ``You know, this is substantially complete,'' does
that mean the same thing in each state?
Ms. Minner. I would think that under our memorandum of
understanding and every other state's, it would be the same.
For those States that do not have memorandums of understanding,
it would be the Federal.
Mr. Doyle. Would be the standard?
Ms. Minner. Would be the standard. And so I would assume
that that would hold true in every state.
Mr. Doyle. Let me ask you another question, too. To what
degree do you think allowing States the opportunity to take
actions to redress problems before EPA is permitted to reopen a
cleanup would help to mitigate the potential inconsistencies
presented by the wide range of laws and programs?
Ms. Minner. You have to remember that each state's
standards are sort of tailored to their own State and what
their problems might be. As that moves forward and we move
forward with the programs, EPA does monitor quite often some of
the things that we are doing. And if there is a problem partway
through, we change if we have to.
Each site is different. It would be very easy if I could
tell you there are 40,000 sites in this country and every one
of them is exactly the same. The context of the soil, the water
level, there are all sorts of things that make each site
different. And you almost have to look at an individual site,
not at a State or not at a region.
Mr. Doyle. But it is the Governors' testimony that you
think it might be helpful if States are given an opportunity to
redress these problems before EPA comes in?
Ms. Minner. Absolutely.
Mr. Doyle. Thank you very much. Thanks for your testimony
today.
Mr. Gillmor. Thank you, Mr. Doyle. Gentleman from Illinois,
Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Governor, welcome again. Let me ask you:--it will be a
simplistic question to begin with--Does State flexibility mean
dirtier, less safe conditions for your constituents in your
state?
Ms. Minner. Every State has their own standards, but every
State must be in compliance with the Federal law. So I don't
think it would be dirtier. It would be how we achieve those
standards. And some States might demand that it be done a
little differently. The flexibility might be even within our
States.
Mr. Shimkus. Let me ask another question. As a Governor,
elected Governor of a state, are you concerned about your
citizens' environment and safe drinking water and environmental
actions of your state?
Ms. Minner. Sir, if I were not interested in those things,
I would never have run for Governor.
Mr. Shimkus. Thank you.
In addition, I am going to go back to the greater finality.
Obviously that is an issue of debate here. Section 106 of
CERCLA that authorizes the President to compel a response
action that sites not on the Superfund national priorities list
``when a threatened release may impose''--and here we go
again--``an imminent and substantial endangerment.'' Section
703 of RCRA contains a similar requirement authorizing EPA
action in the face of an imminent hazard.
Your written testimony calls for greater finality to limit
EPA's ability to reopen a State cleanup using its Superfund
authority. To ensure true finality, Mr. Greenwood's legislation
from the last Congress, which was House Resolution 2580,
extended the finality bar to RCRA.
It is our understanding that the Governors do not object to
such an approach. Can you comment on that?
Ms. Minner. If it endangers the health of our citizens or
the integrity of our environment, you are right. We do not
object. But we still feel that you should work with the States
in allowing us the opportunity first to address those issues.
And if, for some reason, the Governors does not address the
issue or will not take the responsibility for the problem, then
EPA should step in.
Mr. Shimkus. And you do have the best interests of your
citizens in mind, as the Governors stated?
Ms. Minner. Absolutely.
Mr. Shimkus. In a written testimony submitted by the U.S.
Public Interest Group for today's hearing, they argue: If it
ain't broke, don't fix it and, therefore, with broad state-
based liability protection in place and limited Federal
intrusion in the State cleanups, that there is simply no need
for greater finality for State brownfield cleanups. In fact,
they actually call for increased, not decreased, Federal
involvement in State cleanup programs by requiring up-front
review of State programs before Federal funding could be used.
What is your view on this approach?
Ms. Minner. Well, I think if we want to continue to deter
the cleanup of brownfield sites, we could move in that
direction, but we really have to work with those people who are
cleaning up those sites in making sure we achieve what we want
to do.
Once we have problems and there is Federal intervention at
a later point in time, you see the number of people who are
looking at cleaning up those sites decline. And it will
continue to do that if we increase that problem.
Mr. Shimkus. Thank you, Governor Minner. You have been a
great witness, and we have enjoyed having you. I yield back,
Mr. Chairman.
Mr. Gillmor. Members having completed their questions, the
Chair would announce that the record will be kept open for
members to submit questions in writing.
That will conclude our first panel. Governor, I very much
appreciate you being with us and the very helpful testimony
that you have given us. Thank you.
Ms. Minner. Thank you very much, Mr. Chairman. And I look
forward to working with you in the future, as do all of our
Governors, to achieve our goal of a cleaner environment.
Mr. Gillmor. I expect we are going to be calling on you.
Thank you.
Ms. Minner. Thank you very much.
Mr. Gillmor. Our second panel, I would ask them to come
forward. The second panel consists of: the Honorable Robert
Shinn, who is the Commissioner of the Department of
Environmental Protection for the State of New Jersey; Mr.
George Meyer, who is President of the Environmental Council for
the States and is a special assistant to the Secretary for the
Wisconsin Department of Natural Resources; and Mr. Grant Cope,
who represents U.S. Public Interest Group.
Gentlemen, the committee does have a copy of your complete
written statement. And you have 5 minutes to summarize it
before the members begin asking questions. We will begin with
Mr. Shinn.
STATEMENTS OF HON. ROBERT C. SHINN, JR., COMMISSIONER,
DEPARTMENT OF ENVIRONMENTAL PROTECTION FOR NEW JERSEY; GEORGE
E. MEYER, PRESIDENT, ENVIRONMENTAL COUNCIL OF THE STATES,
SPECIAL ASSISTANT TO THE SECRETARY, WISCONSIN DEPARTMENT OF
NATURAL RESOURCES; AND GRANT COPE, STAFF ATTORNEY, U.S. PUBLIC
INTEREST RESEARCH GROUP
Mr. Shinn. Thank you very much, Mr. Chairman.
There are a number of mayors of smaller municipalities in
many States who think brownfields are only a problem in larger
cities or urban areas of the state. New Jersey is no exception.
Let me say that brownfield redevelopment is absolutely not
limited to these larger cities or urban areas of the nation.
The fact is that most of New Jersey's 566 municipalities have
probably at least one brownfield that could be considered for
remediation, as do many communities in the country.
Brownfields sites include that long-abandoned gas station,
the out-of-business dry cleaner on the corner, in addition to
the industrial complex that closed up years ago and is now
abandoned or overgrown. These sites do not always pose an
immediate threat to public health. So it is not surprising that
many of our cities find other problems of a higher priority
than brownfields redevelopment.
We need to stop thinking of brownfields as contaminated
sites that burden a town and drain the tax rolls and to start
viewing them as valuable real estate for that new business that
wants to relocate in your town or perhaps a recreational
opportunity that can benefit the community.
Brownfield sites are attractive opportunities for
redevelopment because in most instances there is existing
infrastructure. Many brownfields sites can become choice real
estate when incorporated into a municipal redevelopment plan
and you utilize the tools such as I am going to talk about in
New Jersey.
The State of New Jersey has many incentives and dedicated
resources to stimulate environmental cleanup at identified
sites. A good example, which demonstrates our commitment to
this effort, is the Berger Industries site in Edison Township,
New Jersey. This cleanup resulted in the protection of public
health and also expanded the region's economic base.
As a former steel tube manufacturing facility, the Berger
property lay abandoned due to financial hardship of the
responsible party. The site had soil and groundwater
contamination present. Contaminants included petroleum
hydrocarbons, base neutral organic compounds, chemical
solvents, residuals, chlorinated hydrocarbons, and VOCs.
The former areas of environmental concern included
underground storage tank systems used for waste oil and fuel
oil, above-ground storage tank systems, exterior hazardous
substance drum storage areas, interior sumps, drains, trenches,
underground concrete basins, electrical transformers,
underground tunnels, and dry wells all used for operational
purposes by the former owner and operator. This was in addition
to the operational discharges that took place onsite during the
operation.
The developer entered into a cleanup and redevelopment
agreement with the New Jersey Commerce and Economic Growth
Commission and the Department of Treasury that was endorsed by
the New Jersey Department of Environmental Protection. This
agreement allowed him to be reimbursed for 75 percent of the
total cleanup costs from new taxes generated from the site. It
should be noted that this New Jersey cash incentive is probably
the first in the nation.
Project costs were approximately $29 million overall with
$2.1 million in remediation costs with community benefits of
hundreds of new full-time and part-time jobs as well as the
developers making a repayment of over $1 million in back taxes
to the municipality.
As the first site in New Jersey to complete the
redevelopment agreement process, the redeveloped site, known as
Edison Crossroads, has generated over $2 million in new State
tax revenues in the first 9 months of operation. We expect that
this project will generate $4.4 million in new taxes in its
first year of complete operation. In addition, more than $4.4
million will be generated each year as new businesses open and
existing ones expand. It is important to note that these taxes
are not being generated as the site sat idle.
Additional incentives include an immediate third party
defense for a prospective purchaser of a contaminated property
who voluntarily enters into a department cleanup oversight
document prior to taking ownership. Moreover, the department
issues with every ``no further action'' letter a covenant not
to sue. The covenant not to sue contains provisions releasing
the non-responsible party who conducted the cleanup from all
civil liability to the State to perform additional remediation
under certain conditions.
New Jersey has also established a one-stop approach to
acquiring permits. This innovative regulatory and compliance
assistance process is based on a single point of contact in the
Department of Environmental Protection. The one-stop approach
is a total facility approach to permitting. One-stop's benefits
include a thorough identification of all regulatory
requirements and coordination among various NJDEP programs for
major construction, development, and remediation projects which
are complex in number, requiring a variety of permits and
specific timing of these permits. This assures better customer
service to the public and regulated entities. In addition, it
provides more opportunity to integrate pollution prevention
concepts early on in the permitting process that may, in turn,
reduce costs and improve efficiency of the facility.
New Jersey's goal is simple: solving environmental problems
and providing business a place to locate, create jobs, to build
new housing and entertainment opportunities, all without having
to go into farmlands, open space, and other areas of the State
which lack existing infrastructure.
However, additional resources are needed to be brought to
bear on assisting all municipalities with their brownfield
cleanup and redevelopment efforts. Municipalities need
assistance in addressing demolition and disposal costs at sites
where the demolition is necessary to assist in the cleanup and
redevelopment effort. In addition, many State programs may
provide low-interest loans and grants to municipalities and
private entities but usually for conducting the preliminary
assessment, site investigation, and remedial investigation.
Financial assistance needs to be provided to non-
responsible parties for the completion for the remediation.
Moreover, there is a need for financial assistance to
municipalities who want to turn that abandoned, contaminated
property into open space, perhaps a playground or park. This
not only takes a brownfield site from an eyesore on the
community but also improves the town's quality of life.
We need to encourage cleanup and redevelopment efforts at
the Federal level as well. By streamlining some of the Federal
processes regarding the cleanup of contaminated brownfields
sites as well as putting some predictability and finality into
the process, additional brownfields site cleanups could happen
in our States. These initiatives could greatly enhance the
programs that currently exist at the State level and certainly
improve the quality of life. This is a huge, largely untapped
national investment opportunity for both public and private
sector.
Many of the municipalities in New Jersey have already taken
the initiative and identified brownfield sites in their
communities in the hopes of putting them back on the tax roll.
Many of these sites can be found on the Department of
Environmental Protection's GIS Web site, where we have
established an interactive listing of brownfields called I-Map.
This unique computer application allows for the identification
and potential marketing of brownfields sites to interested
parties via the Web. It gives you critical screening data like
population density, per capita income, and aerial photography.
This may be another tool that could be used in a broader sense
to enhance the cleanup and redevelopment efforts within other
communities around the country.
This is an exciting time for the brownfield marketplace and
urban redevelopment, is truly a rare government win-win.
Brownfield sites that have been previously overlooked for years
in New Jersey are now seen as some of the most exciting real
estate investment opportunities.
I would like to take this opportunity to thank you for
allowing me to address the committee and hope this provides an
opportunity to answer some questions and promote interest in
the continued success of the States' brownfield cleanup and
redevelopment efforts. Thank you.
[The prepared statement of Robert C. Shinn, Jr. follows:]
Prepared Statement of Hon. Robert C. Shinn, Jr., Commissioner,
Department of Environmental Protection, New Jersey
There are a number of mayors of smaller municipalities in many
states who think brownfields are only a problem in larger cities or
urban areas of the state. New Jersey is no exception. Let me say, that
Brownfield redevelopment is absolutely not limited to those larger
cities or urban areas of the nation.
The fact is that most of New Jersey's 566 municipalities have
probably at least one site that could be considered a brownfield site.
As do many communities in the country. Brownfield sites include that
long abandoned gas station, the out of business dry cleaner on the
corner, in addition to the industrial complex that closed up years ago
and is now abandoned and overgrown. These sites do not always pose an
immediate threat to public health, so it is not surprising that many of
our cities find other problems of a higher priority than brownfields
redevelopment.
We need to stop thinking of brownfields as ``contaminated sites''
that burden a town and drain the tax roles, and to start viewing them
as valuable real estate for that new business that wants to relocate to
your town. Or perhaps as a recreational opportunity that can benefit
the community.
Brownfield sites are attractive opportunities for redevelopment
because in most instances there is existing infrastructure. Many
brownfield sites can become choice real estate when incorporated into a
municipal redevelopment plan and you utilize the tools such as the
state of New Jersey has to offer.
The State of New Jersey has many incentives and dedicated resources
to stimulate environmental cleanup at identified sites. A good example,
which demonstrates our commitment to this effort, is the New Jersey
Phoenix Award Winner Berger Industries site in Edison Township, New
Jersey. This cleanup resulted in the protection of public health and
also expanded the region's economic base. As a former steel tubing
manufacturing facility the Berger property lay abandoned due to
financial hardship of the responsible party. The site had soil and
groundwater contamination present. Contaminants included petroleum
hydrocarbons, base neutral organic compounds, chemical solvents and
residuals, chlorinated hydrocarbons and volatile organic compounds. The
former areas of environmental concern included underground storage tank
systems used for waste oil and fuel oil, above ground storage tank
systems, exterior hazardous substance drum storage areas, interior
sumps, drains and trenches, underground concrete basins, electrical
transformers, underground tunnels, and dry wells all used for
operational purposes by the former owner and operator. This was in
addition to the operational discharges that took place on site. The
developer, Marc Parell from ARC Properties Inc. entered into a cleanup
and redevelopment agreement with the New Jersey Commerce and Economic
Growth Commission and the Department of Treasury that was endorsed by
New Jersey Department of Environmental Protection. This agreement
allowed him to be reimbursed for 75% of the total cleanup costs from
the new taxes generated from the site. It should be noted that this New
Jersey cash incentive is the first in the nation. Project costs were
approximately $29 million, with $2.1 million in remediation costs with
community benefits of hundreds of new full time and part time jobs, as
well as the developers repayment of over $1 million in back taxes to
the municipality.
As the first site in New Jersey to complete the ``redevelopment
agreement process'' the redeveloped site, now known as Edison
Crossroads, has generated over $2 million in new state tax revenues in
the first nine months of operation. We expect that the site will
generate approximately $4.4 million in new taxes its first year of
complete operation. In addition, more than the $4.4 million will be
generated each year as new businesses open and existing ones grow. It
is important to note that these taxes were not being generated as the
site sat idle, abandoned and contaminated for the previous 8 years.
Additional incentives include an immediate third party defense for
a prospective purchaser of a contaminated property who voluntarily
enters into a Department cleanup oversight document prior to taking
ownership. Moreover, the Department issues with every no further action
letter a covenant not to sue. The covenant not to sue contains
provisions releasing the non-responsible party who conducted the
cleanup from all civil liability to the state to perform additional
remediation under certain conditions.
New Jersey has also established a ``one-stop'' approach to
acquiring permits. This innovative regulatory and compliance assistance
process is based on a single point of contact in the Department of
Environmental Protection. The one stop approach is a total facility
approach to permitting. One stop's benefits include a thorough
identification of all regulatory requirements and coordination among
the various NJDEP programs for major construction, development and
remediation projects which are complex in number, requiring a variety
of permits and the specific timing of those permits. This assures
better customer service to the public and regulated entities. In
addition, it provides more opportunity to integrate pollution
prevention concepts early on in the permitting process, that may in
turn reduce costs and improve the efficiency of the facility.
New Jersey's goal is simple: solving environmental problems and
providing businesses a place to locate, create jobs, to build new
housing and entertainment opportunities all without having to go into
farmlands, open space and other areas of the state which lack existing
infrastructure.
However, additional resources need to be brought to bear on
assisting all municipalities in their brownfield cleanup and
redevelopment efforts. Municipalities need assistance in addressing
demolition and disposal costs at sites where the demolition is
necessary to assist in the cleanup and redevelopment effort. In
addition, many state programs may provide low interest loans and grants
to municipalities and private entities but usually for conducting the
preliminary assessment, site investigation and remedial investigation.
Financial assistance needs to be provided to non-responsible parties
for the completion of the remediation. Moreover, there is a need for
financial assistance to municipalities who want to turn that abandoned,
contaminated property into open space, perhaps a playground or park.
This not only takes a brownfield site from an eyesore or blotch on the
community but also actually improves that town's quality of life.
We need to encourage cleanup and redevelopment efforts at the
Federal level as well. By streamlining some of the federal processes
regarding the cleanup of contaminated brownfield sites as well as
putting some predictability and finality into the process, additional
brownfield site cleanups could happen in our states. These initiatives
could greatly enhance the programs that currently exist at the state
level. This is a huge largely untapped national investment opportunity
for both the public and private sector!
Many of the municipalities in New Jersey have already taken the
initiative and identified brownfield sites in their communities in the
hopes of putting them back on the tax roles. Many of these sites can be
found on the Department of Environmental Protection's GIS website where
we have established an interactive listing of brownfields called I-Map.
This unique computer application allows for the identification and
potential marketing of brownfield sites to interested parties via the
web. It gives you critical screening data like population density, per
capita income and aerial photography.
This may be another tool that could be used in other states to
further enhance the cleanup and redevelopment efforts within their
communities.
This is an exciting time for the brownfield marketplace and urban
redevelopment its truly a rare government win-win. Brownfield sites
that have been previously overlooked for years in New Jersey are now
seen as some of the most exciting investment potential.
I would like to take this opportunity to thank you for you allowing
me to address this Committee and hope that this provides an opportunity
to answer questions and promotes interest in the continued success of
the states brownfield cleanup and redevelopment efforts.
Mr. Gillmor. Thank you very much, Mr. Shinn.
Mr. Meyer?
STATEMENT OF GEORGE E. MEYER
Mr. Meyer. Thank you very much, Mr. Chairman and members of
the subcommittee.
My name is George Meyer. I served 8 years as Secretary of
the Wisconsin Department of Natural Resources and currently am
Special Assistant to the Secretary. I also have the great
privilege of being President of ECOS, the environmental
commissioners from the 50 States across the country.
These issues are important in virtually every state, as we
have heard today from the committee members, and brownfields is
a high priority. We are very interested in your organization to
help draft legislation to break down the barriers to cleaning
up and reusing the brownfields sites in this country.
Although I am using for purposes of this testimony my
experience in Wisconsin, which I am most familiar with, over
the last 15 years we have cleaned up 14,000 brownfield sites.
And we have 8 to 10 thousand sites still remaining on our list
for cleanup.
I want to point out very importantly of all those sites,
less than 1 percent of the Federal connection being cleaned up
by CERCLA or RCRA, 99 percent are being cleaned up under State
laws, either under mandatory laws or voluntary cleanup. We have
what we consider a single comprehensive cleanup regulation that
sets a broad framework for cleanup of all sites, regardless of
types of property; contamination; and, most importantly, the
different types of Federal and State regulations there are to
make it less complicated for developers and municipalities.
We have been able to do these cleanups, despite having the
more stringent groundwater protection and quality protection
laws in the country. We have been aggressive on financial
incentives. The last biennium, the legislature appropriated $26
million in brownfield grants. Twenty million dollars in
brownfield loans, $30 million in tax credits were available.
And there were site assessment grants given to our agency for
$1.5 million a year.
We have also been very aggressive, and GAO has recognized
us as being very innovative in terms of liability incentives,
liability exemptions for lenders, local governments, offsite
parties, and persons who volunteer to clean up an entire
property. Last month we adopted a new innovation, and that is
adding an environmental insurance component to our voluntary
party exemption program where, in fact, if, in fact, a cleanup
still has not met standards, but our staff and consultants
believe it will, that is a loss that, in fact, can be ensured.
So we can go to final closeout knowing there is going to be
money there if, in fact, judgments happen to be wrong.
We have public information and outreach programs that, in
fact, include, very importantly, a brownfields study group. So,
in fact, we go back and fine-tune our law every legislative
session based on a quality improvement basis which includes
environmentalists, developers, and local units of government.
Let me make some recommendations to you on behalf of ECOS
and our own personal experience. We would recommend that there
be comprehensive reforms across all Federal cleanup programs.
While attention is given to Superfund as a barrier to
brownfield cleanup, we believe it is time for Federal
legislation ultimately to address the challenges presented by
all EPA cleanup programs. RCRA causes problems in terms of
cleanup also.
States should be major partners in this initiative. The
legislation, the oversight legislation, should reflect that. As
I indicated in our state, 99 percent of the cleanups are state-
based. So we have to be very careful in this legislation not to
Federalize or complicate what are successful programs.
There needs to be improved delivery of the grants. We would
recommend that States that elect you and are capable of
administering grants and loan programs should be given the
opportunity to do so on a delegated basis. These grants and
loans should be given out on a project-specific basis without
regard to the regulatory status of the program. And the
recipient should follow the state's technical procedures.
You discussed at great length the issue of finality. I
would like to address that also. Federal legislation must
provide more assurances and finality to persons cleaning up a
property using a State process.
Past legislation has provided too much discretion to EPA to
reopen or step in during the cleanup process. In fact, we not
only would recommend that; for instance, the word ``may'' is
too open-ended. It may present an imminent and substantial
endangerment. It is very broad, can be interpreted very
broadly. There needs to be a higher standard, even whether it
is just putting the word ``does'' in or coming up with another
type of standard. And also there should not be an intervention
in cases where, in fact, the State or the responsible party are
willing and are, in fact, coming back in to address the issue.
There are also creative solutions. And I mention the one
many of these risks can be dealt with by creative use of
environmental insurance, and it can be done relatively
expensively. In fact, it is a broad master policy like we have
come up with in the State of Wisconsin.
Also, in terms of finality, I would like to address the
issue the Governors have. The States through Governors'
concurrence process on Superfund sites, you have a greater
saying whether a site is put on the national priorities list.
If, in fact, there is a State effort to go forward to deal with
a Superfund site, that, in fact, should be a basis for
nonconcurrence for the Governor for EPA to come in and put
something on the NPL list.
Last, there should be flexible approaches to public
participation. The States should have the opportunity to
develop and enhance their public participation needs for their
cleanups based on input from their own communities. I can
reflect, even in a State such as Wisconsin, in Congressman
Byrd's district, we would use a totally different, in
Milwaukee, we would use a totally different, public
participation process than we would use in a rural area of our
state. And there needs to be that kind of flexibility built
into the system.
Mr. Chairman and members of the committee, thank you very
much for the opportunity to testify. Our organization would be
very willing to help develop further legislation. Thank you.
[The prepared statement of George E. Meyer follows:]
Prepared Statement of George E. Meyer, President, Environmental Council
of the States, Special Assistant to the Secretary, Wisconsin Department
of Natural Resources
introduction:
Good morning, Mr. Chairman and distinguished members of the
Subcommittee, my name is George E. Meyer, and I am the President of the
Environmental Council of the States (ECOS), and the Special Assistant
to the Secretary of the Wisconsin Department of Natural Resources
(WDNR). I would like to thank you for the opportunity to be here today,
to speak on one of the more exciting and pragmatic environmental
initiatives our country has embarked on in a decade: the brownfields
initiative. Today, I plan to touch on the brownfields experiences I
have had in the State of Wisconsin, as a means of illustrating the
efforts that are being replicated in the other states across our
country.
As the title of your hearing clearly indicates, the key to
revitalizing these brownfields properties is by forming partnerships
and removing barriers. Through the use of partnerships--either between
government agencies, with the private sector, or both--brownfields has
become a model environmental program were all participants work
together to return these properties back to the community. The success
of this initiative in the states and at the Environmental Protection
Agency (EPA) has involved the systematic process of identifying
barriers and crafting creative, yet safe, solutions to overcoming these
barriers.
Today, I would like to share with you our state's ideas, which I
believe are strongly shared by other states, on how this country can
build a smarter partnership to deal with brownfields. A key to this
smarter partnership is recognizing the successful initiatives of those
states that have conquered many of the barriers that were in place 5 or
more years ago. In addition, I would like to identify, for you, what
barriers remain. While much has been done in the states to improve
their own cleanup programs, the states often lack the financial
resources to make a large impact on the universe of brownfields they
deal with on a daily basis. They need staff, equipment, and funds to
support grant programs. In addition, while the states have sought to
streamline their own cleanup programs, by making them less
administratively burdensome, they still struggle with the requirements
of cleanup programs that are under the jurisdiction of the federal
government.
wisconsin's brownfields challenge
Wisconsin is not considered a state that is ``rich'' in
brownfields. We estimate that we have approximately 8,000 to 10,000
brownfields properties in the state. We would likely not win any
boasting contest with our sister states that surround the Great Lakes.
On the other hand, we have quietly made progress on cleaning up the
sites in our state over the last 20 years. To date, over 14,000
cleanups have been completed in the state. Over 2,000 of those did not
involve petroleum contamination. Of the 8,000 or more brownfields
properties which require further work, they : (1) are the more
difficult properties to cleanup from an environmental standpoint; (2)
have many societal challenges (e.g., tax delinquency, transportation
concerns, blighted neighborhoods); or (3) have a combination of these
challenges. While many states have made tremendous progress, we may
have the more ``challenging'' properties left to deal with.
Because of the many environmental and societal challenges presented
by these brownfields properties, our state knew we had to have
different tools to deal with this type of property. Wisconsin entered
into the brownfields arena by passing its first legislation in 1994,
called the Land Recycling Act. Since then, the state has continued to
consider this issue a priority, by forming strong, long-term
partnerships with the private sector, environmentalists, local
governments and other practitioners in the field. Each consecutive
state budget has contained major brownfields initiatives, associated
with financing and liability issues.
The state has received national prominence for the efforts it has
undertaken to deal creatively and successfully with its brownfields. A
General Accounting Office report, dated December 2000, ``Information on
the Programs of the EPA and Selected States,'' refers to Wisconsin's as
one of the ``most innovative brownfields programs in the nation.'' We
believe we have achieved this status by forming smarter partnerships
with the public, and safely, but creatively removing barriers to
achieving a protective cleanup.
wisconsin's brownfields initiative
I would like to share with you the successful initiatives that we
have undertaken in our state, which are replicated in whole or in part
by other states across the nation, to make our cleanup process more
responsive to the needs of all of the public. I believe that the
success of our state and that of the other states' is that no one gave
us a federal answer to a local problem. Rather, I think the states have
been successful because they have listened to their many publics and
have shaped solutions that address local concerns.
Here are the four successful components of our state's brownfields
initiative. I hope they illustrate for you the creativity and the
success a state can have by forming partnerships and by removing
barriers to cleaning up and reusing contaminated properties.
1. a comprehensive cleanup program that applies to all discharges
In 1990, the WDNR undertook a large risk. We sat down with the
public, including the regulated community, and asked: ``how can we
improve the way we do cleanups?'' Six years later, we had a
comprehensive cleanup regulation, which dealt with sites from discovery
through final cleanup. The regulation was unique in that it covered
investigation and cleanup for all types of sites, including underground
storage tanks, landfills, wastewater treatment facilities, and spill
sites. Finally, there was one regulation for the public to understand
and comply with.
This comprehensive regulation includes promulgated soil cleanup
standards, for both groundwater migration and direct contact concerns.
It also provides the property owner the flexibility to choose the type
of cleanup standard, based on the current land use of the site. This
regulation is used in combination with our existing groundwater
regulation, which has promulgated groundwater quality standards. Even
though we have some of the most stringent groundwater quality standards
in the country, we have completed cleanups at over 14,000 sites. We
have achieved this level of success by using natural attenuation of
groundwater, where appropriate, and by requiring actual monitoring--not
just modeling--of the environment to ensure the remedy will work.
How does having a comprehensive regulation that applies to all
types of discharges help get more brownfields cleaned up? It's simple.
The public, regulated community and consultants have one set of
requirements to understand and follow. They do not have to spend
valuable time trying to figure which ``regulatory'' program has
jurisdiction over the release and which set of regulations to follow.
Time is money, and simplifying the process saves the public's time and
money.
The WDNR also provides the public with the opportunity to seek
assistance throughout the cleanup, both in terms of technical,
liability and financial assistance. Generally, the WDNR discovers a
``site'' because state law requires the person who caused the discharge
or owns the property to immediately report the discharge (including
existing environmental contamination) to the state. Once that is done,
the person who is responsible for the cleanup is required to take all
necessary actions to address the environmental contamination. WDNR can
provide these individuals with assistance, when requested, in reviewing
technical documents and clarifying liability. The WDNR tracks the
progress of these properties through a comprehensive database, called
the Bureau for Remediation and Redevelopment Tracking System (BRRTS).
What I hope is evident from this testimony is that there is no
separate brownfields program, per se, in the State of Wisconsin. The
financial and technical incentives that the state has created apply
generally to all properties, regardless of whether it is a UST
property, a spill site or a RCRA hazardous waste site. There are no
separate cleanup standards for a brownfields property, versus a non-
brownfields property. Putting up regulatory and programmatic fences is
what helped to create the brownfields situation to start with. We felt
it was time to bring those fences down.
2. financial incentives to promote cleanup and reuse
The states with the most successful programs understand that money
is a key component of any brownfields initiative. Without it, you will
only get the brownfields properties cleaned up that the private sector
would have gotten to anyway. In Wisconsin, we had $26 million in
brownfields grants and $20 million in loans available in state fiscal
year 1999 ``2001. In addition, the state had over $30 million in tax
credits available.
You don't need large amounts of money to be successful in providing
incentives. Over the last year, the WDNR created a new grant program to
assist local governments with financing the non-cleanup costs at
brownfields properties. (Please refer to the WDNR's Site Assessment
Grant at www.dnr.state.wi.us/org/caer/cfa/EL/Section/SAG.html for
further information.)
In about a year's time, the WDNR:
Promulgated a regulation and issued guidance on the grant
program.
Issued two rounds of grants, worth a total of $1.45 million to
local governments.
Awarded grants to 35 communities and signed 50 contracts with
those communities.
Received 110 requests from local governments for $3.8 million.
Obtained commitments from local governments to spend $1
million in additional funds or in-kind services at these
properties over the one-year grant term.
Will fund 22 initial assessments, 22 site investigations,
removal of 60 underground tanks, and demolition of 40
structures.
Will make environmental progress on 109 acres of contaminated
property.
What is the key to the success of this program? We were successful
for two reasons: partnerships and simplicity. The public requested the
program, and then helped us create it. We gave money to brownfields
projects that were ready to start, rather than giving money to a
community that had yet to select the projects. We kept the application
and technical process simple. The agency giving the money was also the
same agency assisting the community with the technical aspects of the
environmental work.
3. liability clarifications and exemptions
Clarifying and providing finality to a person's environmental
liability is a strong incentive to getting brownfields properties
cleaned up and reused. This is especially true where a state or a
federal cleanup program can hold a property owner responsible for the
cleanup, even if they did not cause the environmental contamination. In
Wisconsin, we have authority to ask the current property owner to
conduct the necessary environmental activities at a property. Thus,
having liability exemptions and letters, which clarify liability, are
particularly important to getting sites cleaned up. In Wisconsin, we
have a similar array of liability exemptions and ``comfort'' letters
when compared to other states. A sampling of those exemptions and
letters, include:
Local government exemption from the state's cleanup law: If a
local government acquires a property through tax delinquency,
condemnation, slum clearance or through blight elimination, the
local government is not required to investigate or cleanup the
property.
Lender and trustee exemption from the state's cleanup law: If
a lender forecloses on a property, they are only required to
conduct a phase I and II assessment of the property. A lender
cannot be held liable under state law for a cleanup if their
only involvement with the property was by virtue of lending
money.
Off-site exemption from the state's cleanup law: If a property
is impacted by contamination migrating from a neighbor's
property, the affected property is exempt from having to
conduct an investigation and cleanup.
The state has two different types of liability clarifications that
a person can receive, once they have a cleanup reviewed and approved by
the state. A person can choose between receiving a ``closure letter''
or a ``certificate of completion'' at the end of the process. Where a
person is cleaning up the known problems at a property, they are
eligible for the closure letter path. They must investigate the known
problem and cleanup according to state law. At the conclusion, WDNR
staff reviews their case and they receive a closure letter. The WDNR
may reopen the ``closed'' case if new information arises that indicates
that the conditions at the property pose a threat to public health or
the environment.
If a person is seeking a certificate of completion, they are
required to conduct an investigation of the entire property, not just
the known problem. Once the investigation has identified the areas to
be cleaned up, the same technical standards apply to persons seeking a
certificate as those seeking a simple close out letter. Once the
cleanup is complete, the WDNR will issue the certificate, which limits
the liability of the person receiving the certificate and future owners
of the property. The WDNR cannot reopen the certificate, even if
further ``old'' contamination is found, environmental standards change,
or the remedy fails. In seven years, the WDNR has not encountered a
situation where it felt it needed to reopen a certificate. Having this
type of finality has resulted in some of the more ``challenging''
brownfields being cleaned up by voluntary parties.
I am aware that there are persons who have concerns about state
cleanup programs and the limitations on ``reopening'' decisions made by
the state. I would like to offer you an example of what we believe is a
creative solution to balancing the need to give finality on cleanups,
with the need to protect the interests of the public if the property
needs to be revisited. Until recently, the State of Wisconsin would not
allow persons to get a certificate of completion if they were relying
on natural attenuation to cleanup the groundwater, and the groundwater
still exceeded state groundwater quality standards, even if the plume
was stable or receding. You could get a closure letter in this
situation, because if natural attenuation failed, the state could
reopen it.
Starting next week, the state will be allowing persons to get a
certificate of completion while using natural attenuation--as
previously described--if they pay an ``insurance fee'' to the state at
the time that the certificate is issued. This issurance fee will be
used by the state to pay for an environmental insurance policy that the
state is purchasing to cover any anticipated loss it may have at these
sites due to natural attenuation failing. The master policy covers the
state's anticipated costs of having to reopen these cases, less an
agreed upon deductible. Because of this unique private--public
solution, persons are able to get ``finality'' on their cleanups
sooner, and the state is insured if the remedy does not perform as
anticipated. The fees to participate in this option are much more
reasonable than if the person was required to individually insure the
state's potential risk. It is the type of creative solution that we
hope others explore, especially those that are concerned about
limitations on the ability to reopen a state's decision.
I would also like to mention that the State of Wisconsin has
received a great deal of benefit from having the 3rd Superfund--
Brownfields Memorandum of Agreement (MOA) in the nation. Having this
written agreement, endorsing EPA's belief in how we do cleanups, has
cleared up a number of uncertainties with regards to the EPA's role in
Wisconsin cleanups. We would like the EPA to consider doing more
brownfields MOAs that would encompass other federal cleanup programs.
4. public information, education and outreach:
Smarter partnerships start and thrive with good public outreach and
education. The foundation of our effort has been to reach out to the
public, to ask for their input and to provide them with information in
a form that easy for them to understand. I would like to highlight
three models for outreach that WDNR and other states are using:
Partnerships: Brownfields Study Group
Since 1998, the WDNR has been meeting regularly with a group of 30
brownfields practitioners to continue to evaluate and improve this
state's initiative. This group includes mayors, county treasurers, EPA,
industry representatives, attorneys, state agencies, environmentalists,
planners, consultants and other interested persons. The group has had a
major impact on improving this state's initiative by identifying
``real'' barriers to cleanup and reuse, and offering ``real'' solutions
to the problem. The key to the group is that the practitioners, not the
state, chaired the ``issue groups.'' The WDNR offered administrative
support for compiling and issuing the two Study Group reports to the
Legislature and Governor, in 1998 and 2000. You can access the state's
Brownfields Study Group Web page at the following address:
www.dnr.state.wi.us/org/aw/rr/rbrownfields/bsg/index.htm
Inventory of Sites Available on the Web
In the last year, the WDNR made publicly available on the world
wide web the program's comprehensive inventory of sites. (This had been
available in the past in paper version.) The public has access to
information on 21,000 open and closed (i.e., cleaned up) sites in the
state where a hazardous substance was discharged, and an investigation
is or was required. The location of the web site is
www.dnr.state.wi.us/org/aw/rr/brrts/index.htm. A person can search for
a property by name or location, and in the near future you can search a
geographic area for information.
By the summer of 2001, the WDNR hopes to have detailed information
on closed (i.e., cleaned up) sites available on the web. We are in the
process of scanning actual WDNR approval letters, which include
property use limitations, and we are geographically locating these
sites, so you could view the properties through a geographical
information system. The public will be able, in the future, to
determine if a site has been cleaned up, and then review the actual
WDNR approval letters on the web.
Improvements to Public Participation Requirements
The WDNR's comprehensive cleanup regulation includes opportunities
for public involvement and participation in the cleanup process. At
present, we are updating those rules to further enhance the notice that
must be provided to property owners whose property are impacted by off-
site contamination. At the time that contamination is discovered off
the property and at the time that the cleanup is complete, the property
owner where the source of contamination is will be required to send a
letter to neighboring property owners notifying them of the situation.
Those impacted owners will be notified of their opportunities to
receive information about the cleanup.
I think it is important to note that having these types of
partnerships, web sites, and databases all take time and money. States
need resources to implement and update these kind of initiatives. Money
for staff, equipment--such as geo-locational devices, software, and
scanners--is crucial if we are to fully implement these types of
initiatives.
closing remarks: a means to a smarter partnership
I believe that we can form a smarter partnership to improve this
country's efforts to cleanup and reuse brownfields properties. As we
have done in Wisconsin and in other states, we need to actively seek
out the ``real'' people who are making the brownfields initiative a
success. We need to continuously seek out their recommendations to
remove the barriers to get these properties cleaned up in a protective
manner. We need to adopt the attitude that the programs we operate can
always be improved.
I would like to leave you with several recommendations that you may
want to consider in formulating federal legislation on brownfields. I
would encourage you to ``think outside the box,'' and not simply adopt
an existing federal pilot program. We should take what worked and did
not work from those past pilot experiences, but also seek out other
successful experiences, such as at the state level, to build a new
federal model for brownfields.
Listed below are the recommendations that I would like to provide
you with today, intended to form smarter partnerships and identify the
remaining barriers to an effective brownfields initiative.
1. Any national brownfields reforms or initiatives must cut across
federal regulatory and program boundaries. For those of us in the
states that deal with a morass of brownfields properties on a daily
basis, we would like you to consider more comprehensive reforms. We
should ask ourselves: Why do the federal Underground Storage Tank (UST)
and Superfund programs have liability relief for lenders, and the
Resource Conservation and Recovery Act (RCRA) Hazardous Waste program
does not? Why does Superfund--as well as many states--provide a
liability exemption for local governments, but the federal UST and RCRA
hazardous waste programs do not? A smarter partnership is one that
involves comprehensive reforms across all federal cleanup programs.
2. In shaping a national brownfields initiative, it should be
recognized that the environmental cleanups needed at most brownfield
properties generally are the jurisdiction of the state. Let me
illustrate this point by using Wisconsin as an example. Presently,
Wisconsin has 39 Superfund sites, with 2 additional sites ``proposed''
for inclusion on the National Priorities List (NPL). In addition, we
have approximately 125 RCRA hazardous waste corrective action sites,
which the state has authorization to take the lead on all but 10 of
these cleanups. Thus, the sites with specific ``federal'' interest add
up to 51 sites, or less than 1% of the estimated brownfields sites in
Wisconsin. I believe it important to point out that the remaining 99%
of the remaining sites are being cleaned up using the state's law and
regulations. Clearly, this state--as well as other states--have
jurisdiction over most brownfields cleanups. The states' role should be
considered as a major, not minor, component of any future federal
legislation.
3. Consider a different approach to providing grants to local
governments:
Provide the states the opportunity to administrator the grants
and loans, given their experience and relationships with their
own local governments.
Provide money to brownfields properties, regardless of the
regulatory jurisdiction. Many federal Superfund removal sites
and RCRA hazardous waste sites are tax delinquent, bankrupt
properties. These properties are often the largest challenges
to communities, yet past efforts at federal legislation have
excluded these sites. Allowing them to receive grants as an
``exception'' may send the wrong message to communities. We
would recommend all properties be included, unless the person
that caused the contamination is able to pay for the
environmental work.
We need to make the grants available for demolition costs, and
removal of underground storage tanks.
Require that the grant recipient follow state--not federal--
cleanup requirements, since these properties generally are not
federal Superfund sites. Requiring these grantees to follow the
federal cleanup process, or some form of it, is a duplication
of effort, since the grantee will need to comply with state
environmental laws as well.
Simplify the administrative requirements, as the states have
done.
Provide grants to specific projects that are planned and ready
to implement.
Keep the process simple, so communities of all sizes can
equally participate and succeed.
4. Provide assurances and finality to persons cleaning up properties
under state cleanup programs:
Federal legislation should provide more assurances to states
and persons cleaning up that the federal government has limited
ability, in all of its environmental programs, to reopen a
state cleanup or ``step in'' during a cleanup, without the
state's approval.
Exemptions for lenders and local governments should be
included in legislation for those EPA programs that currently
do not have those specific exemptions. For example, local
governments should be afforded the same protections under RCRA
Subtitle C, as they are under Superfund, if they acquire a
property through involuntary means. Many of the worst
brownfields properties in this state are the tax delinquent,
bankrupt hazardous waste sites. At present, a local government
can be required to cleanup one of these properties if they
acquire it through condemnation or tax delinquency.
Past drafts of legislation have given too much discretion to
the EPA as to when it can step in. In the draft S. 350, EPA may
take action if ``a release may present an imminent and
substantial endangerment.'' Language such as this would likely
allow EPA to step in at anytime, and would give little clarity
to states and persons voluntarily cleaning up a property.
Many states believe that the EPA should not be able to propose
a site for inclusion on the NPL without the governor's
concurrence. Once again, the language gives too much discretion
to EPA.
There are creative ways to fashion a system that we can all
live with. Wisconsin has addressed its concerns about reopening
sites with very tight liability exemptions, by working with the
insurance industry to develop a cost-effective solution.
5. Public Outreach and Participation
The states believe that public participation is a very
important part of any process.
The key is not to dictate one method of public participation,
but allow the states to fashion their own systems to meet the
needs of their communities.
Federal legislation should provide adequate funding to states
that need to enhance their current processes. This funding
needs to be over a 5-year period of time, at a minimum, if
Congress wants the states to develop data bases and inventories
of brownfields properties.
Consider adopting a ``brownfields study group'' process at the
federal level, to continue to identify barriers and improve the
brownfields initiative, even if new legislation is enacted.
In closing, I would like to thank you Mr. Chairman and members of
the subcommittee for allowing me to present to you today
recommendations for creating smarter partnerships and removing barriers
to brownfields cleanups. I understand that we may not all agree on a
solution to this large challenge, but I believe that through open and
continued dialogue we can build a better program. I look forward to
working with you, ECOS, EPA and other interested persons to develop a
better program to address the estimated 600,000 brownfields properties
nationwide.
Mr. Gillmor. Mr. Meyer, thank you very much.
And Mr. Cope?
STATEMENT OF GRANT COPE
Mr. Cope. Thank you very much, Mr. Chairman.
Mr. Chairman, Representative Pallone, thank you very much
for inviting me to speak on the issue of brownfields
legislation. I would like to address three different issues
today: first, the need to redevelop expeditiously and safely
brownfields throughout our nation; second, the need not to
weaken, but to preserve or strengthen, the Federal safety net;
third, the need for up-front Federal review of State voluntary
cleanup programs.
Now, first, the need to redevelop brownfields is
unquestioned. Doing so will help curb sprawl and increase
investment in inner-city areas. This is vital because it inures
increased protections for environmental quality as well as
public health.
Now, in passing legislation that actually tries to
accomplish those goals, it is absolutely essential that you not
weaken the Federal safety net. I will give you five different
reasons why. First, the Federal safety net actually provides a
critical choice for public citizens between going to State
governments or the Federal Government to get protection from
contaminated areas in their neighborhoods.
Second, the Federal safety net actually increases the
efficacy of State voluntary cleanup programs. State officials
can in dealing with an intransigent party say, ``Listen, you
can either deal with me in good faith or you can deal with the
Federal Government.'' Third, State voluntary cleanup programs
actually provide broad liability relief for developers who go
through their voluntary cleanup program.
Fourth, really, the specter of Federal Government intruding
on a State program is a non-issue. Two different studies,
surveys of State programs, actually, make this point, one by
ECOS in late 1990's. They surveyed State environmental
protection departments and asked them, ``What about this
overfiling issue, this intrusive Federal Government? How often
does it happen?'' In fact, the States reported in the survey
that in less than a fraction of 1 percent had the State ever
overfiled or, rather, had the Federal Government ever overfiled
on a State action.
Second, National Association of Home Builders paid for
another study that was completed last year, surveyed 42 State
environmental voluntary cleanup programs. One of the questions
that they asked was: What about the feds? What about EPA? Are
they actually intruding in your voluntary cleanup program?
The findings of the report came back. It said virtually all
of the States said that there was either no intrusion or
minimal oversight.
Fifth and finally on this issue, falling up on Mr. Meyer's
point, developers as long as they go through a program can
actually cap their liability with environmental insurance. This
means that they go through, they do what the State says. And if
there is actually another need to do increased remediation at
that state, their liability is capped.
Now, briefly I would like to address some of the issues
that the Federal Government should look at when reviewing a
State program. First and foremost, they should ensure that
these programs deal with sites that have low levels of
contamination or, put another way, they should exclude heavily
contaminated sites from being involved in voluntary cleanup
programs.
Second, State programs should make certain to make
polluters pay to clean up the contamination.
Third, they should ensure that citizens are meaningfully
involved in those cleanup decisions. And that concludes my
testimony.
[The prepared statement of Grant Cope follows:]
Prepared Statement of Grant Cope, U.S. PIRG Superfund Advocate
Good morning Mr. Chairman and distinguished members the House
Energy and Commerce Subcommittee on Environment and Hazardous
Materials. I would like to thank you for the opportunity to speak about
the important issue of brownfields legislation.
My name is Grant Cope. I am an Environmental Advocate for the
United States Public Interest Research Group. U.S. PIRG is the national
office of the state Public Interest Research Groups (PIRGs). PIRGs are
nonprofit, nonpartisan environmental and consumer advocacy groups
active across the nation.
Today, I will address three issues: first, the need to safely and
expeditiously redevelop brownfields; second, the need to strengthen or
at least preserve the federal safety net under current law; and third,
the other critical issues that federal brownfields legislation should
address. In brief, federal brownfields legislation should ensure that
heavily contaminated sites are excluded from the definition of
brownfields and ensure that EPA has the authority to conduct an upfront
review of state programs to ensure they contain minimum, common sense
criteria for protecting public health and environmental quality.
i. there is a great need to clean up and safely redevelop brownfields
There is a serious need in thousands of communities across our
nation to safely and expeditiously clean up brownfields. EPA defines
brownfields as ``abandoned, idled, or under-used industrial and
commercial facilities where expansion or redevelopment is complicated
by real or perceived environmental contamination.'' While there is no
definite tally on the number of contaminated sites across our nation,
there may be as many as 600,000 such sites. These contaminated sites
can contain numerous toxic substances, including substances that cause
cancer, birth defects and a variety of other adverse health effects.
Regardless of the ultimate number of sites, or their levels of
contamination, there is a clear consensus that the nation needs to
clean up and safely redevelop brownfields sites.
If this is not done correctly, the health of women, men, and
particularly children that live, work, or play near contaminated sites
will continue to be put at risk. In addition, developers will continue
to seek out greenfields, rather than helping to redevelop blighted
inner-city areas in need of reinvestment. Of course, this will
exacerbate urban sprawl, which contributes to numerous health and
environmental problems, including increased contamination of our
nation's water resources, air pollution, and fragmentation of wildlife
habitat. Clearly, brownfields redevelopment that protects public health
and helps prevent sprawling development needs to occur across our
nation.
Brownfields redevelopment programs should include commonsense
criteria such as strong clean up standards, provisions to ensure that
polluters pay to clean up their contamination, and meaningful
involvement of citizens in clean up decisions. These provisions are
essential to help combat the real health dangers associated with
contaminated sites.
The federal government can help facilitate these types of programs
by providing common sense criteria for state clean up programs and
federal funds to help spur beneficial redevelopment efforts.
Over the years, members in both the House and Senate have put
forward responsible bills that sought to address the brownfields issue
head on. Others bills have been drafted in such a way as to weaken
protections for public health and environmental quality. U.S. PIRG
would like to offer to assist the Committee, in any way possible, in
constructing the former type of legislation.
Of course, the environmental community remains united in opposing
bills that seek to roll back protections provided by Superfund, and
other statutes concerned with the remediation of toxics. Such roll back
efforts have included weakening the polluter pays principle, clean up
standards, and the federal safety net.
ii. need to preserve the federal safety net
A. Federal Government Should Preserve Protections For Public Health
EPA's order authority under the Superfund programs provides a vital
federal safety net that is the last line of defense for protecting
public health and environmental quality. EPA's order authority has a
number of beneficial effects. For example, state clean up officials
rely on EPA's order authority to force intransigent parties to
negotiate in good faith, or risk involvement by federal
authorities.1 Similarly, concerned citizens can go to the
EPA and request that they facilitate clean up efforts. Additionally,
EPA's order authority ensures that people have the choice to seek
protections from both the state and federal governments.
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\1\ General Accounting Office, Superfund, Stronger EPA-State
Relationship Can Improve Cleanups and Reduce Costs, GAO/RECD-97-77, 4-5
(1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New
Hampshire, and Texas. The report choose these states because they ``are
among the most experienced in leading cleanups as NPL sites'')
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Proponents of barring or modifying EPA's order authority under
Superfund fail to present coherent arguments for such actions. The main
rationale generally given is the need to ensure developers get
``finality.'' However, the need for additional finality disappears
after considering five factors: 1) the benefits of a strong federal
safety net for public health; 2) the benefits of a strong federal
safety net for reduced transaction costs; 3) EPA's failure to credibly
use its order authority; 4) consensus liability provisions that provide
broad relief for responsible developers; 2 and 5) a growing
market for environmental insurance.
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\2\ E.g. 106th Cong. 1st. Sess. H.R. 1750, Sections 201 (Innocent
Land Owner), 202 (Prospective Purchaser), and 203 (contiguous Property
Owner).
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1. Federal Safety Net Helps State Programs Meet Minimum Protections For
Public Health
The federal safety net can assist state voluntary clean up programs
(VCP) provide minimum protections for public health and the
environment. This is important because state programs provide widely
differing levels of protection.3 Unfortunately, social,
political and economic factors can contribute to inadequate state
environmental protection programs, particularly for state brownfields
programs.4 For example, because states constantly compete
with neighboring states in attracting business and residential
development, some states may relax clean up standards and liability
systems.5 This could initiate a race to the bottom on
protections that ultimately ends with an increase in threats to human
health.6 Therefore, it is vital that state programs meet
minimum standards, to ensure the long-term protection of human health.
The federal safety net can help states meet these minimum standards.
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\3\ Environmental Law Institute, An Analysis of State Superfund
Programs: 50-State Study, 1998 Update, (1998) (finding differing levels
of public participation in cleanup decision, resources, adequacy of
oversight at clean ups, and enforcement powers, among other important
program components); Charley Bartsh and Christine Anderson, State of
the States: An End of the Session Review of Initiatives and Program
Impacts In the 50 States (Oct. 1999) (describing types of liability
relief and eligible sites); Charley Bartsh, Christine Anderson, and
Bridget Dorfman, Brownfields voluntary Clean Up Program Impacts: Reuse
Benefits, State by State (1999) (describing widely different program
results); Charley Bartsh and Bridget Dorfman, Brownfields and Housing:
How Are State VCPs Encouraging Residential Development, 3-4, 6-7, 8-9
(May 2000) (finding considerable variability among state programs with
respect to clean up standards, public participation requirements, and
liability relief); and General Accounting Office, Brownfields:
Information on the Programs of EA and Selected States, GAO-01-52 (2000)
(noting different clean up standards, levels of publicly accessible
information, and liability standards).
\4\ William Buzbee, Brownfields, Environmental Federalism, and
Institutional Determinism, 21 William & Mary Envtl. L. Rev. 1, 58
(2000).
\5\ Lisa Dittman, Overfiling: Policy Arguments in Support of the
Gorilla in the Closet, 48 UCLA L. Rev. 375, 392 (2000) and Ellen
Zahren, Overfiling Under Federalism: Federal Nipping At State Heels To
Protect The Environment, 49 Emory L.J. 373, 3419-420 (2000).
\6\ William Buzbee, Brownfields, Environmental Federalism, and
Institutional Determinism, 21 William & Mary Envtl. L. Rev. 1, 22-24
(2000).
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a. State and EPA MOA Process Provides A Tool For Protecting Human
Health
The current Memorandum of Agreement Process (MOA) between State
Voluntary Clean Up Programs and EPA, while not a formal review process
of a delegated program, provides a surrogate for such a
process.7 Under this program, EPA provides increased
certainty to developers who operate under state programs that have an
MOA. Under this process, a state and EPA agree to an MOA if the state
VCP meets six minimum criteria.8 These baseline criteria
include requirements that state programs provide opportunities for
meaningful community involvement; ensure that voluntary response
actions are protective of human health and the environment; and have
adequate resources to ensure that clean up are conducted in appropriate
and timely manner.9
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\7\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing:
How Are State VCPs Encouraging Residential Development, 3 (May 2000)
(at the end of 1999, 14 states had MOAs with EPA and 7 more states were
in negotiations for such an agreement).
\8\ EPA, Memorandum from Elliott Laws to Superfund National Policy
Managers, Interim Approaches for Regional Relations with State
Voluntary Cleanup Programs (Nov. 1996).
\9\ EPA, Memorandum from Elliott Laws to Superfund National Policy
Managers, Interim Approaches for Regional Relations with State
Voluntary Cleanup Programs (Nov. 1996) (To receive an MOA, state
programs must: 1) provide opportunities for meaningful community
involvement; 2) ensure that voluntary response actions are protective
of human health and the environment; 3) have adequate resources to
ensure that clean up are conducted in 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; 4) provide mechanisms for the written
approval of response action plans and certification indicating that
clean ups are complete; 5) provide adequate oversight to ensure that
clean ups are conducted in a manner to protect public health and the
environment; and 6) shows capability, through enforcement or other
authorities, of ensuring completion of response actions if the
volunteering party(ies) conducing the response actions fail(s) or
refuse(s) to complete the clean up, including operation and maintenance
or long-term monitoring activities.
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Unfortunately, the State of Ohio is an example of a poor state
clean up program that lacks an MOA (see discussion in III. D. below)
For example, an initial report on Ohio's program raises serious
concerns regarding the program's ability to protect public
health.10 However, citizens are urging the State of Ohio to
improve its VCP so that the program can enjoy the increased certainty
associated with an MOA, and people can enjoy minimum protections under
the state program.
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\10\ Greene Environmental Coalition, The State of Ohio's Voluntary
Action Program: Findings and Recommendations (Jan. 2001) (citizens have
critiqued the program and are actively working with federal and state
entities to remedy the program's deficiencies so that Ohio would
qualify for an MOA).
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b. Federal Safety Net Gives Public Choice Between State and Federal
Protections
In addition to helping to develop better state clean up programs,
the federal safety net provides people with a choice between seeking
protection from the state or federal government. This protection is
critical because, at a minimum, developers will make mistakes during
some clean ups. However, state programs also provide varying levels of
protections. In fact, some states may bend to parochial considerations
and choose to expedite their state's clean up process by weakening
standards, cutting the public out of the clean up process, and seeking
to protect industrial and redevelopment interests from federal
enforcement efforts.11 When combined with state releases
from liability, this can create a dangerous combination of ill-planned
and unprotective cleanups with little or no incentives that development
protect public health.
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\11\ William Buzbee, Brownfields, Environmental Federalism, and
Institutional Determinism, William and Mary Environmental Law and
Policy Review 3 (1997).
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Therefore, the federal government should maintain the ability of
the public to choose between state and federal protections. At a
minimum, we should retain the ability of citizens to request swift
federal protection. Changing this protection could lead to burdensome
litigation over new legal standards. This choice goes to the very heart
of the benefits of a federal system of government, where states can
choose to innovate and go beyond protection provided by the federal
government.
c. Federal Safety Net Provides Important Deterrent Effect
The federal safety net also provides an important deterrent effect
against inappropriate clean ups. This deterrent effect can benefit
state VCPs, reduce transaction costs and conserve limited public
resources. For example, EPA's order authority assists state regulators
in forcing intransigent parties into good faith negotiations at clean
ups or during revisions to a program's regulations.12
Parties are less likely to negotiate in bad faith with state entities
if they know such action will result in the Federal government
assisting state efforts to ensure compliance with applicable
laws.13 This increases the efficacy of state VCPs, decreases
the possibility that businesses may have to negotiate with multiple
parties, and allows federal and state agencies to better target and
coordinate resources.
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\12\ General Accounting Office, Superfund, Stronger EPA-State
Relationship Can Improve Cleanups and Reduce Costs, GAO/RECD-97-77, 4-5
(1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New
Hampshire, and Texas. The report choose these states because they ``are
among the most experienced in leading cleanups as NPL sites'') and
Ellen Zahren, Overfiling Under Federalism: Federal Nipping At State
Heels To Protect The Environment, 49 Emory L.J. 373, 427 (2000).
\13\ Lisa Dittman, Overfiling: Policy Arguments in Support of the
Gorilla in the Closet, 48 UCLA L. Rev. 375 (2000).
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2. Federal Safety Net Can Help Reduce Transaction Costs
Ensuring state voluntary clean up programs incorporate minimum
protections can increase consistency and certainty for businesses
wishing to redevelop contaminated sites.14 This consistency
can decrease transaction costs for business and the government in a
variety of ways. This is particularly true for good actors that do not
want bad actors to financially benefit by being allowed to cut corners.
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\14\ See Jerry Organ, Environmental Federalism Part II: The Impact
of Harmon, Smithfield, and Clean on overfiling under RCRA, the CWA, and
the CAA, 30 Envtl. L. R. 10732 (2000) (discussing federal oversight
within the context of federally delegated state programs), Lisa
Dittman, Overfiling: Policy Arguments in Support of the Gorilla in the
Closet, 48 UCLA L. Rev. 375, 391 (2000) (same); and William Buzbee,
Brownfields, Environmental Federalism, and Institutional Determinism,
21 Wm. & Mary Envtl. L. Pol'y Rev. 1, 61-62 (2000) (applying same
argument to state clean up programs).
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Importantly, states retain the flexibility to develop and negotiate
innovative programs within the MOA process.15 For example,
states can respond to business concerns by targeting federal funds to
certain parties and geographic regions. Alternatively, states can use
tax incentives and federally funded state informational systems (e.g.
databases and geographic information systems) to help spur safe
redevelopment efforts.
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\15\ See, Ellen Zahren, Overfiling Under Federalism: Federal
Nipping At State Heels To Protect The Environment, 49 Emory L.J. 373,
434 (2000) (discussing MOA within the Clean Air Act, not brownfields
process).
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3. There Is No Evidence That EPA Has Abused Its Enforcement Authorities
The force behind weakening the Federal Safety Net is filled with
more hyperbole than fact. Put simply, overfilings are a very rare
occurrence.16 (``Overfiling'' refers to a situation where
the EPA conducts an enforcement action against the same entity and for
the same violation as a state enforcement official.) The Environmental
Council of the States (ECOS) conducted a state-by-state survey
regarding EPA's use of its overfiling authorities.17 This
survey used an extremely broad definition of ``overfile,'' which
included instances where EPA brought an action for violations that a
state had failed to address, rather than just instances where EPA
brought an action for violations that a state had claimed to already
have addressed. Even under this expansive definition of ``overfiling,''
the survey demonstrated that EPA overfiles in a fraction of one percent
of all cases under numerous environmental laws. In fact, states
reported that EPA overfiling accounted for just 0.3 percent of all
Federal enforcement actions during fiscal years 1992-1994, and, during
fiscal year 1994-1995, EPA overfiled on about 0.1 percent of all state
enforcement actions.18 Based on these numbers, it is clear
that EPA almost never uses its enforcement authority, indeed, it
appears that EPA only overfiled against the worst violators or in the
most inadequate state programs.
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\16\ Salt lake City Tribune, Representative Stirs Up a Western Turf
War With EPA; State's environmental watchdog is growling at fed
interference, A4 (1999) (citing three instances of overfiling over a
two year period including instances where the state failed to take any
action against a violator, the state failed to fine a violator, and a
instance where the state grossly underfined another violator).
\17\ Senate Committee on Environment and Public Works, The
Relationship Between the Federal and State Governments in the
Enforcement of Environmental Law, S. Hrg. 105-173, 161-162 (June 10,
1997).
\18\ Senate Committee on Environment and Public Works, The
Relationship Between the Federal and State Governments in the
Enforcement of Environmental Law, S. Hrg. 105-173, 161-162 (June 10,
1997).
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The findings of the ECOS state-by-state survey are mirrored in a
survey of 42 states' voluntary cleanup programs funded by the National
Association of Homebuilders.19 This state survey reports
that ``virtually all of the states [confirmed] that U.S. EPA is not
involved or only minimally active in monitoring the state's [voluntary
clean up programs].'' 20 A few states reported that while
they have a close working relationship with EPA, the agency does not
extensively monitor the state program, but rather provides funds and
program support.21
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\19\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing:
How Are State VCPs Encouraging Residential Development (May 2000).
\20\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing:
How Are State VCPs Encouraging Residential Development, 12 (May 2000)
(emphasis added).
\21\ Charley Bartsh and Bridget Dorfman, Brownfields and Housing:
How Are State VCPs Encouraging Residential Development, 12 (May 2000).
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There are a variety of reasons for the exceedingly low level of
federal oversight of state programs. Some reasons include limited
federal resources, the discretionary nature of enforcement actions, EPA
respect for the cooperative federalism structure of environmental
regulation, and the political repercussions of such
overfiling.22
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\22\ Ellen Zahren, Overfiling Under Federalism: Federal Nipping At
State Heels To Protect The Environment, 49 Emory L.J. 373, 384-386,
414-415, 430 (2000).
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4. Consensus Liability Exemption Already Exists That Would Gives
Responsible Developers Finality
Over the course of many years, bills in both the House and the
Senate have contained consensus liability exemptions that provide
expansive relief from liability for responsible developers. These
provisions include limitations on the liability of prospective
purchasers, innocent landowners and contiguous landowners.23
Innocent landowners language protects people that purchased land prior
to the enactment of the legislation and who took steps to protect
public health from contamination found on their property. Prospective
purchasers language limits the liability of people that purchase
property after enactment of the legislation and who take steps to
protect public health from contamination found on their property.
Contiguous landowner language protects people whose property has been
contaminated by a nearby property, so long as the landowner takes steps
to protect public health from that contamination. All three of these
liability limitations protect responsible developers, while maintaining
disincentives for irresponsible developers who desire quick profits at
the expense of public health.
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\23\ E.g. 106th Cong., 1st. Sess. H.R. 1750, Sections 201 (Innocent
Land Owner), 202 (Prospective Purchaser), and 203 (contiguous Property
Owner); 107th Cong. 1st Sess. S. 350, Section 201 (Contiguous Property
Owners), Section 202 (Prospective Purchasers), and Section. 203.
(Innocent Landowners).
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a. Developers Also Enjoy Broad Liability Limitations Under State Law
In addition to enjoying a negligible amount of federal oversight,
developers also enjoy broad liability protection under state laws. A
1999 study funded by the National Association of Homebuilders found
that most state voluntary clean up programs offer ``Covenants Not to
Sue'' or ``No Further Action Letters'' to developers that complete the
clean ups under state programs.24 By issuing these
documents, states largely foreclose on their ability to make developers
civilly liable for future clean ups costs. As described below, EPA
provides similar assurances under federal brownfields initiatives.
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\24\ Charley Bartsh and Christine Anderson, State of the States: An
End of the Session Review of Initiatives and Program Impacts In the 50
States (Oct. 1999).
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5. Insurance Policies Also Provide Developers With Protection
There is an already established and growing environmental insurance
market for brownfields redevelopment. The Northern Kentucky University
and The E.P Systems Group, Inc. published a 1999 report of such
products that is based, in part, on a survey and interviews with
insurance carriers and brokers, including AIG Environmental and
Kemper.25 The report found that developers already widely
use such policies; further, the types of coverage, occurrences covered,
dollar limits, and coverage periods of polices are expanding, while
costs and preconditions to coverage are decreasing. The report quotes
one insurance carrier representative, ``The market now provides very
broad coverage, which it didn't five years ago . . .'' 26
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\25\ Northern Kentucky University, The E.P Systems Group, Inc.,
Environmental Insurance Products Available for Brownfields
Redevelopment (Nov. 1999).
\26\ Id. at 52.
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These insurance policies, which are no different from any other
type of real estate insurance coverage, provide real estate buyers and
developers with certainty. These policies cap liability, thereby
enabling buyers and developers to better assess the impacts of market
forces. Ultimately, these market forces dictate when, where, and how
redevelopment occurs.
B. Federal Safety Net In Under Other Federal Statutes
A number of federal statutes give EPA the ability to protect public
health using their enforcement authorities.27 These
authorities also provide a plethora of protections for public health.
To weaken one of these provisions invites a downward spiral of
weakening protections, and the benefits inherent in those
protections.28 For example, requests for ``finality'' have
led to calls for rolling back protections under a host of statute, such
proposals have also suggested language that bars criminal fines and
penalties. U.S. PIRG strongly urges the government to uphold EPA's
ability to protect public health and environmental quality, rather than
eroding it in this fashion.
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\27\ Numerous statutes authorize EPA to issue clean up orders and
assign liability, including 42 U.S.C. Sec. Sec. 9606 (Superfund); 6973
(RCRA); 33 U.S.C. Sec. Sec. 1321(c) (Clean Water Act); 15 U.S.C.
Sec. 2606 (TSCA: standard is ``unreasonable risk''); 30 U.S.C.
Sec. 1271 (SMCRA: standard is ``imminent danger to the health or safety
of the public, or is causing, or can reasonably be expected to cause
significant, imminent environmental harm.''); 42 U.S.C. Sec. 107(a)
(Superfund: must pay clean up costs); 42 U.S.C. Sec. Sec. 7003 (RCRA:
penalties for violating orders) and 6991b (RCRA: order and penalty
authority for releases of petroleum); and 42 U.S.C. 404 (TSCA: federal
enforcement authority under federal programs concerning lead
abatement).
\28\ E.g. 1) Ellen Zahren, Overfiling Under Federalism: Federal
Nipping At State Heels To Protect The Environment, 49 Emory L.J. 373
(2000); 2) Jerry Organ, Environmental Federalism Part I: The History of
Overfiling Under the RCRA, the CWA, and the CAA, 30 Envtl. L. R. 10615
(2000); 3) Jerry Organ, Environmental Federalism Part II: The Impact of
Harmon, Smithfield, and Clean on overfiling under RCRA, the CWA, and
the CAA, 30 Envtl. L. R. 10732 (2000); and Lisa Dittman, Overfiling:
Policy Arguments in Support of the Gorilla in the Closet, 48 UCLA L.
Rev. 375 (s000).
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1. Numerous Statutes Provide People With Protection Against Particular
Contaminants
EPA and other federal agencies rely on their order authorities to
protect public health under a variety of circumstances. For example,
EPA currently uses its order authority under the Resource Conservation
and Recovery Act to protect children from lead based paint. Similar
provisions also exist under the Toxic Substances Control Act (TSCA).
TSCA and RCRA orders also apply to polychlorinated biphenyls, dioxin
and a variety of other highly toxic substances. There is no justifiable
reason to weaken EPA's authority with respect to such dangerous
substances.
Any attempt to modify EPA's enforcement authorities under numerous
statutes is fraught with peril. Different statutes apply differing
standards to a variety of regulatory requirements that pertain to
hundreds of highly toxic substances. Modifying EPA's authority under
numerous statutes risks not only creating massive confusion, but also
an across-the-board weakening of EPA ability to protect public health
and environmental quality.
The same is true when modifying EPA's order authority under one
statute. For example, EPA's order authority under RCRA includes the
ability to enforce a variety of different requirements at different
types of sites regulated under the program. Varying standards provide
flexibility while protecting human health. Modifying this structure
would create an adverse ripple effect across the RCRA program.
C. Strong Federal Enforcement Benefits Business and Public Health
In addition to the benefits of retaining the federal safety net
described above, a host of other benefits also inure to government,
business interests, and the public through consistent and vigorous
enforcement of environmental laws. First, consistent enforcement
efforts ensure that members of the business community are treated
fairly. This fact is reflected in the findings of a 1996 General
Accounting Office report (GAO), which reiterated the findings of a 1991
GAO report, that ``penalties play a key role in environmental
enforcement by deterring violators and by ensuring that regulated
entities are treated fairly and consistently so that no one gains a
competitive advantage by violating environmental regulations. [The GAO
also found that] environmental statutes have been violated repeatedly
when penalties have not been applied.'' 29
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\29\ General Accounting Office, Water Pollution: Many Violations
Have Not Received Appropriate Enforcement Attention, GAO/RECD-96-23, 13
(March 1996).
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Vigorous enforcement of environmental laws, particularly hazardous
waste, can also provide incentives to increase pollution prevention
efforts. In fact, 96 percent of respondents to a 1995 Price Waterhouse
survey identified enforcement pressure as one of the most important
drivers of pollution prevention among both large and small
businesses.30 Within the context of brownfields cleanups,
enforcement actions can help to ensure that current regulated entities
do not create future brownfields sites. This means that the by
retaining the federal safety net, we both prevent harm and preserve
future options for land and groundwater use.
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\30\ Senate Committee on Environment and Public Works, The
Relationship Between the Federal and State Governments in the
Enforcement of Environmental Law, S. Hrg. 105-173, 5 (Statement of Hon
Steven Herman, Assis. Admin. Office of Enforcement and Compliance
Assurance, EPA) (June 10, 1997).
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D. There Is a Need For Increased Oversight Of State VCPs
While there is no need to weaken the federal safety net, there
appears to be a need for stepped up federal enforcement and oversight
of state environmental programs. While this testimony goes into more
detail below (See Section III. D.), a brief recitation of concerns
regarding state enforcement of environmental laws is provided here.
Both governmental and non-governmental studies document a consistent
lack of state enforcement efforts against even significant violators of
environmental laws.31 This deficiency stretches across
environmental programs, and therefore raises concerns regarding weak
state oversight and enforcement in voluntary clean up programs. Indeed,
initial assessments of some state programs provide reason for such
concerns.32 However, without modifications to budgetary
priorities and political predilections, such protections will likely
remain illusive. Therefore, at a minimum, the federal government should
preserve or strengthen the federal safety net.
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\31\ United States Public Interest Research Group, Poisoning Our
Water (2000) (finding a lack of state and federal enforcement actions
against significant noncompliers under the Clean Water Act);
Environmental Working Group, Prime Suspects: The Law Breaking Polluters
America Fails To Inspect (2000) (finding weak state monitoring and
enforcement measures against sources of pollutants under the Clean Air
Act); General Accounting Office, More Consistency Needed Among EPA
Regions in Approach to Enforcement, GAO/RECD-00-108 (2000); Inside EPA
has printed a number of articles on state enforcement of environmental
laws and EPA enforcement and oversight of state programs that implement
such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21.
Articles are based on internal EPA reports from the Office of
Enforcement and Compliance Assurance that Inside EPA obtained through
Freedom of Information Act requests. (Documents can be downloaded at
http://www.iwpextra.com); Environmental Protection Agency, Office of
Enforcement and Compliance Assurance, Enforcement and Compliance
Evaluation of Region 5, Final Evaluation Report, (Dec. 1998) (finding
general decreases in state enforcement of environmental programs);
Environmental Protection Agency, Office of Enforcement and Compliance
Assurance, Enforcement and Compliance Evaluation of Region 9, Final
Evaluation Report, 29, 31 (May, 1998) (same); Office of Inspector
General, Environmental Protection Agency, Superfund, State Deferrals:
Some Progress, But Concerns For Long-Term Protectiveness Remain, (Sept.
10, 1998) (finding that EPA administration of policy that allows states
to clean up hazardous waste sites that would otherwise qualify as
Superfund sites to result in less than adequate protections for public
health); and Office of Inspector General, Region 6's Enforcement and
Compliance Assurance Program (1997) (noting that stronger state
enforcement is needed to ensure effective deterrent against polluters
breaking the law).
\32\ See discussion about the inadequacy of state clean up programs
below.
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E. Conclusion
With consensus on broad forms of liability relief, an insignificant
risk of federal intrusion in state programs, and bars on state civil
liability for future clean up costs, developers could enjoy broad
guarantees of ``finality,'' so long as they do one simple thing: ensure
that cleanups adequately protect public health. Indeed, the only people
that would need additional ``assurance'' are developers that do an
inadequate job of cleaning up contamination. Importantly, this is the
very situation where the federal government should retain
``unencumbered'' its ability to protect public health.
There is an old saying, ``If it ain't broke, don't fix it.''
Nowhere is this adage more true than with the fundamental protection
for public health that is currently embodied in EPA's order authority.
iii. critical issues that federal brownfields legislation should
address
There are a number of issues that are critical to redressing the
problem of brownfields redevelopment. In this testimony, I would
address two of the more prominent and contentious issues. First, I will
address the need to ensure that heavily contaminated sites are excluded
from the definition of brownfields. Second, I will address the need for
an upfront review of state programs prior to getting any federal funds.
In this section, I will also outline some of the commonsense criteria
that state programs should include. The need for this federal review
and for the inclusion of only sites with low levels of contamination is
that state programs provide disparate levels of protection. Therefore,
an upfront review process would ensure minimum levels of protection
that also precludes a race-to-the-bottom between state clean up
programs.
A. Brownfields Legislation Should Only Apply To Sites With Low Levels
Of Contamination
Many state clean up programs incorporate expanded liability relief
under state law and varied clean up standards without adequate
oversight or long-term assurances of protection. Therefore, state
programs should only include sites with low levels of contamination.
This is vitally important because some legislative proposals have
called for state clean up programs to include heavily contaminated
sites. This is danger given that such federal legislation also calls
for vastly increased funding. According to the National Conference of
Mayors, lack of funding for redeveloping brownfields is the number one
factor inhibiting redevelopment.33 However, such money
should not be used to fuel inadequate and inappropriate state programs.
Rather, federal funds should be appropriately focused on thoroughly
cleaning up brownfields, preserving and promoting parks and open
spaces, and meaningfully incorporating the local community in clean up
decisions.
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\33\ National Conference of Mayors, Recycling America's Land, 11
(Feb. 2000).
---------------------------------------------------------------------------
B. Brownfields Legislation Should Incorporate An Upfront Review Of
State Programs
Federal legislation should include an upfront review of state clean
up programs prior to funneling federal resources to those programs.
This review process should ensure that state programs include
commonsense criteria to protect public health and integrate citizens
into the clean up process. The lack of a review process could result in
federal funds increasing the capacity, but not the quality, of state
clean up programs. This could dramatically accelerate ill-planned and
unprotective redevelopment activities. If this occurs, our nation could
face a new public health crisis in the coming decades. After all, lead,
arsenic, and mercury will be toxic long after the last developer leaves
a brownfields site and the first homeowner moves in. Therefore, it is
vital that states ensure developers thoroughly clean up sites.
Put another way, prevention is the best approach when protecting
public health and environmental quality. Therefore, U.S. PIRG strongly
supports an upfront federal review of state programs prior to the
distribution of any federal funds or transfer of oversight authorities.
A front-end review process is a preventative measure that helps to
ensure peoples' lives are not put at risk by inadequate and
unprotective state programs.
1. Elements Of State Clean Up Programs
The following issues are criteria that state should incorporate in
their clean up programs. This is not meant to be a full vetting of the
issues, but rather a brief highlight of the main components for such
programs.
a. Highly Protective Clean Up Standards
State clean ups must protect human health, welfare, and the
environment. Programs should completely remediate both soil and
groundwater. State programs must monitor and track all contaminated
sites in a public database. If a ``remediated'' site may endanger
public health or the environment, the State must, with public input,
reassess the site remedy and rectify any problems.
b. Safeguards on the use of Institutional Controls
State programs use institutional controls (e.g. deed and zoning
restrictions) if they decide to allow developers to leave contamination
on-site. Institutional controls are ``non-engineered instruments such
as administrative and other legal controls that minimize the potential
for human exposure to contamination by limiting land or resource use.
State use of institutional controls to limit exposure to toxic
substances must protect public health--including the most vulnerable in
our society'' and the environment, incorporate multiple layers of
institutional controls that rely on different parties for enforcement,
by supported by the community, and include a publicly available
database.34 Additionally, all entities must use the database
prior to conducting any work on or near a site.
---------------------------------------------------------------------------
\34\ The database should contain the name and location of sites,
types of controls used and the entities that are responsible for
enforcing those controls.
---------------------------------------------------------------------------
c. Site Surveys and Assessments
State programs must survey their state for contaminated sites,
assess the risks posed by each site to humans and the environment, and
list all known or suspected sites in a publicly available database.
d. Appropriate Sources of Stable Funding
State programs must not use taxpayer funds to finance the program.
States must provide a stable, long term source of funding based on the
polluter pays principle (e.g. taxes or fees on polluting industries) to
finance clean up programs. This funding must pay for all program costs,
including the clean up of orphan sites (sites for which there are no
liable parties).
e. Liability System Based On Polluter Pays Principle
Clean ups must be primarily funded by strict, joint and several,
and retroactive liability, or with revenue derived from funding as
described in paragraph ``d.'' The only acceptable defenses to this
liability system are for ``innocent landowners,'' ``bona fide
prospective purchasers'' and ``contiguous property owners.''
f. Citizen Enforcement Of Clean Up Plans
All states must give citizens the right to file citizen suits for
contamination resulting from such sites and provide citizens with a
fees for winning any such suit in court.
g. Redevelopment Should Decrease Sprawl and Increase Preservation of
Open Space
State clean up programs should focus their programs on devising
smart growth plans that decrease sprawl and revitalize urban areas.
This includes preserving existing parks, open spaces and greenways, as
well as promoting the creation of such areas.
h. Meaningfully Involve The Public In Clean Up Decisions
State programs must meaningfully involve all citizens in clean up
decisions. This includes making all clean up related documentation and
correspondence publicly available, providing for public notice,
comment, and a hearing, and giving citizens the right to appeal the
results of that hearing. Clean up activities must not occur until the
community is satisfied with the protectiveness of the clean up. This
includes assurances that state clean up programs and individual clean
up plans act to remedy any pattern of industrialization that has
created pockets of contamination and contaminated lands.35
Further, state programs should provide communities with resources (both
technical and financial) to fund citizen boards that provide an avenue
for meaningful public input in the construction of the clean up plan.
---------------------------------------------------------------------------
\35\ For information on this issue, please see the following
articles: 1) Bradford Mank, Reforming State Brownfield Programs To
Comply With Title VI, Harvard Envtl L. Rev. 115 (2000) and 2) EPA,
Brownfields Title VI Case Studies, EPA 500-R-003 (June 1993).
---------------------------------------------------------------------------
i. Assure The Public's Right To Know About Toxics In Their Community
State programs must ensure all citizens have the right to know
about all toxics in their community. This includes ensuring that
citizens are made aware of any past, current, or ongoing releases, the
name of the company responsible for the release and responsible for
cleaning up the release, as well as health effects associated with the
chemicals being released (including any cumulative or synergistic
effects, if known).
C. Upfront Review is Commonplace Under Other Programs
An upfront review is commonplace in other environmental programs,
including the Resource Conservation and Recovery Act and the Clean Air
and Water Acts.36 Despite this type of review, experience
with these programs demonstrates that states are extremely varied in
their ability and commitment to strongly enforce these laws that
protect public health and environmental quality.37 Simply
put, some states do a better job of protecting public health than do
others. However, because there are minimum standards, citizens can both
work to ensure their states meet these minimal standards and, realizing
the true benefits of federalism, push their states to go beyond these
minimal protections.
---------------------------------------------------------------------------
\36\ Resources Conservation and Recover Act, 42 U.S.C. Sec. 6926;
Clean Air Act, 42 U.S.C. Sec. 7410; and Clean Water Act, 33 U.S.C.
Sec. 1342(b)
\37\ E.g., United States Public Interest Research Group, Poisoning
Our Water (2000) (finding a lack of state and federal enforcement
actions against significant noncompliers under the Clean Water Act);
Environmental Working Group, Prime Suspects: The Law Breaking Polluters
America Fails To Inspect (2000) (finding weak state monitoring and
enforcement measures against sources of pollutants under the Clean Air
Act); General Accounting Office, More Consistency Needed Among EPA
Regions in Approach to Enforcement, GAO/RECD-00-108 (2000); Inside EPA
has printed a number of articles on state enforcement of environmental
laws and EPA enforcement and oversight of state programs that implement
such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21.
Articles are based on internal EPA reports from the Office of
Enforcement and Compliance Assurance that Inside EPA obtained through
Freedom of Information Act requests. (Documents can be downloaded at
http://www.iwpextra.com); Environmental Protection Agency, Office of
Enforcement and Compliance Assurance, Enforcement and Compliance
Evaluation of Region 5, Final Evaluation Report, (Dec. 1998) (finding
general decreases in state enforcement of environmental programs);
Environmental Protection Agency, Office of Enforcement and Compliance
Assurance, Enforcement and Compliance Evaluation of Region 9, Final
Evaluation Report, 29, 31 (May, 1998) (same); Office of Inspector
General, Environmental Protection Agency, Superfund, State Deferrals:
Some Progress, But Concerns For Long-Term Protectiveness Remain, (Sept.
10, 1998) (finding that EPA administration of policy that allows states
to clean up hazardous waste sites that would otherwise qualify as
Superfund sites to result in less than adequate protections for public
health); and Office of Inspector General, Region 6's Enforcement and
Compliance Assurance Program (1997) (noting that stronger state
enforcement is needed to ensure effective deterrent against polluters
breaking the law).
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D. Upfront Review Is Needed Because Some States Have Inadequate Clean
Up Programs
It is clear that not all state clean up programs are alike.
However, some broad themes are evident from the available data. For
example, initial data on state clean up programs demonstrates that some
states do an inadequate job of protecting public health, meaningfully
involving the public in clean up decisions, ensuring that polluters pay
to clean up contamination, enforcing the law, managing contained sites
over the long-term, funding their clean up programs, and retaining and
developing sufficient technical expertise to remediate very
contaminated sites.
The following failings highlight the need to ensure that state
programs meet minimum, commonsense criteria that protect public health
and environmental quality.
1. Some States heavily Rely On Institutional Controls To Decrease Human
Exposure, Rather Than Cleaning Up Contamination
For example, one of the most controversial issues regarding the
clean up of contaminated sites is the use of institutional controls to
decrease human exposure to toxic substances that are left on-site after
clean up activities are complete. (Institutional controls are legal
instruments, such as a deed restriction, that restricts the use of land
as a way of controlling exposure to toxic substances.)
In 1997, the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO) conducted a survey of 40 states to
determine how they used institutional controls when remediating toxic
waste sites.38 The survey found that 31 states required the
use of institutional controls, while 8 states allowed them as an option
in clean ups. Of the 40 states, only 16 states required public
notification or participation when there is a restriction put on the
use of the land and only 11 required public notification and
involvement when the there was restriction placed on the use of
contaminated groundwater.
---------------------------------------------------------------------------
\38\ ASTSWMO, Survey of State Institutional Control Mechanisms
(Dec. 1997).
---------------------------------------------------------------------------
Importantly, limiting the use of land or groundwater in an area can
adversely impact a community. For example, cleaning up areas to only
industrial or commercial standards may decrease the amount of
residential development in a neighborhood, while vastly increasing the
amount of industrial development. This could increase pollution,
depress property values and degrade the residential quality of nearby
communities. These types of issues affect the entire community;
therefore, states should reach out and attempt to integrate the public
into the decision-making process for cleaning up contaminated sites.
The ASTSWMO study also surveyed states about their enforcement of
institutional controls.39 Only 9 states provided for fines
or penalties for a failure to comply with institutional controls.
Further, many types of institutional controls rely on local government
for enforcement. However, 20 states noted that local governments
generally lack adequate funding to enforce institutional
controls.40 The ASTSWMO survey also found problems with
enforcing institutional controls, as well as raft of problems that
inhibit the successful use of these controls.
---------------------------------------------------------------------------
\39\ Id.
\40\ Other reports have noted similar problems. Resources for the
Future, Linking Land Use and Superfund Cleanups (1997) (The report
noted that an ICMA focus group had indicated ``many state and local
officials do not fully appreciate the long-term demands--including
oversight and enforcement--that institutional controls may place upon
local governments.''); and Robert Hersh, et. al., Linking Land Use and
Superfund Cleanups, Uncharted Territory, at 91 (1997) (citing
International City/Council Management Association, ICMA Draft
Preliminary Summary of Findings of Institutional Controls Study
(Washington, D.C., Nov. 1996) (the survey ``suggested that fewer than
10% of the local government respondents have experience implementing
and enforcing institutional controls at former hazardous waste
sites.'') (emphasis added).
---------------------------------------------------------------------------
Another study, by the Environmental Law Institute, examined the
effectiveness of institutional controls at Superfund
sites.41 This study found problems with enforcement at a
local level, even at these highly contaminated sites. One problem noted
was the failure to implement some institutional controls, as required
in clean up plans. Other failures included the lack of a public
education program regarding the dangers of waste left on-site and the
failure to pass local regulations restricting the use of contaminated
sites. The study also documents instances of possible human exposure to
contaminated waste as a result of noncompliance with institutional
controls.
---------------------------------------------------------------------------
\41\ Environmental Law Institute, Protecting Health at Superfund
Sites: Con Institutional Controls Meet the Challenge? (1999).
---------------------------------------------------------------------------
Importantly, a report published by Northeast-Midwest Institute in
2000 found that states are encouraging residential development on
brownfields.42 For example, California reported that 5,200
new housing units had been built on brownfields, and Colorado reported
the construction of 2,855 such units. The report goes on to site
numerous incentives that states have implemented to encourage
residential development on brownfields. Particularly at residential
sites, of developers use institutional controls, it is vital that the
controls are effective.
---------------------------------------------------------------------------
\42\ Northeast-Midwest Institute (on behalf of the National
Association of Homebuilders), Brownfields and Housing: How are State
VCPs Encouraging Residential Development?, (May 2000).
---------------------------------------------------------------------------
However, even if a site is initially cleaned up and developed for
commercial or industrial development, it is still vital that
authorities monitor for any changing land use and the adequacy of
protections over the long term. Land use is a dynamic process of
economic and social growth, not static endpoint. Commercial
developments can hold day care centers and industrial areas can be
transformed into housing developments. Therefore, it is essential that
authorities monitor the adequacy and enforce the requirements of
institutional controls.
2. The Effectiveness of States Clean Up Programs Vary
A wealth of data indicates a variety of problems with states' clean
up programs.
a. Ohio
Public notice and involvement in cleanup decisions is critical for
ensuring the long-term protection of public health, particularly when
contamination is left on-site. When the public is informed about the
risks of a site and understands the tools used to decrease those risks,
they are uniquely situated to help enforce those controls, whether by
telling children not to play in certain areas or by informing new
residents or businesses not to undertake certain actions.43
---------------------------------------------------------------------------
\43\ Robert Hersh, et. al., Linking Land Use and Superfund
Cleanups, Uncharted Territory (1997).
---------------------------------------------------------------------------
However, a study by the Northeast-Midwest Institute on Ohio's
Voluntary Action Program (VAP) found that the public might not be
notified of a clean up plan until after a cleanup occurs and the state
has issued a covenant not to sue.44
---------------------------------------------------------------------------
\44\ Northeast-Midwest Institute (on behalf of the National
Association of Homebuilders), Brownfields and Housing: How are State
VCPs Encouraging Residential Development?, 5 (May 2000).
---------------------------------------------------------------------------
A coalition of groups recently reviewed Ohio's VAP.45
Their findings are rather disturbing. Under Ohio's VAP, if the Ohio EPA
agrees that a site meets the standards set forth in the VAP, Ohio EPA
will issue a Covenant Not to Sue, which releases the owner from state
civil liability. By releasing developers from liability, the state
largely forecloses its primary tool to ensure that landowners or
developers pay to clean up dangerous contamination left on-site. This
means that taxpayers may bear the costs of any future clean ups.
---------------------------------------------------------------------------
\45\ Greene Environmental Coalition, The State of Ohio's Voluntary
Action Program: Findings and Recommendations (Jan. 2001).
---------------------------------------------------------------------------
The report lists a number of other disturbing findings regarding
Ohio's VAP. For example, Ohio provided financial incentives for some
sites to participate in the VAP, but the sites were never cleaned.
Additionally, the report notes that the VAP process did not address
offsite contamination concerns, as required by Ohio statutes, and that
``[s]ome sites were located on or near critical resource aquifers,
wells, and/or municipal water supplies. On- and offsite [contamination]
threatened these critical resources, [and] potentially [threatened]
human health.'' 46
---------------------------------------------------------------------------
\46\ Id. at 7.
---------------------------------------------------------------------------
The VAP program also strongly relies on institutional or
engineering controls as a form of clean up, rather than requiring
contamination to be remediated or removed. For example, deed
restrictions on land use or groundwater use, the most common form of
institutional control employed, were applied at 49.5 percent of the 111
surveyed sites. Additionally, Ohio's program has an Urban Setting
Designation that allows developers to avoid cleaning up contaminated
groundwater. Thus far, the Ohio Program has issued 57 ``Covenants Not
to Sue'' at VAP sites; of these sites, 17,526 acres of groundwater have
been defined as Urban Setting Designators, while another 525 acres of
groundwater and 828 acres of land have also been restricted through
institutional controls.
Other problems continue to crop up with Ohio's clean up program.
For example, The Columbia Dispatch recently reported that that only 10
sites within Ohio have been completely cleaned up since the program
began over a decade ago.47 Additionally, owners of
contaminated property recently won a suit that bars Ohio EPA from
publicly listing contaminated sites.48
---------------------------------------------------------------------------
\47\ Columbus Dispatch, Ohio cleanup program shows only 10
successes since 1989 (Feb. 25, 2001).
\48\ Michael Hawthorne, Brownfields widespread, Confidential Ohio
industrial pollution list shows, Columbus Dispatch (Feb. 25 2001)
(discussing fact that Ohio EPA is not allowed to maintain a pub
---------------------------------------------------------------------------
Currently, citizens across Ohio are urging their state government
to improve their program by meeting EPA's standards that would allow
for a Memoranda of Agreement. Thus far, the state has failed to make
the required program improvements.
b. New York
Problems have also been found with New York's state clean up
program. In February 2001, the New York comptroller published an audit
of the state clean up program.49 The audit found that since
1979, 167 sites have been taken off of the state contaminated site
list. Of those sites, only two met the goal of being as clean as they
were before being polluted. Of the 221 treated sites that were still on
the list, 30 did not meet the state's minimum standards for protecting
public health. At five other sites, state workers had failed to meet
their own cleanup goals. At 141 other sites, the comptroller found that
state records did not demonstrate whether the state's cleanup goals
were met. The audit also noted that gaps in the system could have left
the public unaware of the continuing dangers or the restrictions on
some sites. Finally, the state administration has recently projected
that the state clean up fund will be exhausted by March, with a
projected deficit of about $50 million.
---------------------------------------------------------------------------
\49\ H. Carl McCall, New York State Comptroller, Dept. of
Environmental Conservation, Selected Operating Practices Related to the
Remediation of Inactive hazardous Waste Disposal Sites (99-S-33) (Feb.
2001) (discussing audit); New York Times, McCall Faults Pataki's Record
on Cleanup of Toxic Waste (Feb. 9 2001); and Times Union, Superfund
Cleanup Record Hit In Audit (Feb. 9 2001) (discussing audit).
---------------------------------------------------------------------------
c. California
In 1999, the California legislature failed to reauthorize the
state's Superfund cleanup law.50 On November 19, 1998, a
state agency had to adopt emergency cleanup regulations, which were
effective for only 120 days.
---------------------------------------------------------------------------
\50\ Legislative Analyst's Office, State Superfund Reauthorization
Expediting Hazardous Substance Site Cleanup, http://www.lao.ca.gov/
011199__superfund__reprint.html, 1 (January 11, 1999) (noting sunset of
law on January 1, 1999).
---------------------------------------------------------------------------
In 1998, the Los Angeles Daily News reported that at least nine Los
Angeles schools were built on sites that school district officials knew
might be contaminated.51 These findings came from a study
prepared by California's Joint Legislative Audit Committee.
---------------------------------------------------------------------------
\51\ David Baker, Nine Schools on Possibly Toxic Ground, Los
Angeles Daily News, http://democrats.assembly.ca.gov/members/
a43art98.htm (Aug. 28, 1998).
---------------------------------------------------------------------------
d. Pennsylvania
The Philadelphia Inquirer reported that ``many states [including
Pennsylvania], under the banner of so-called brownfields, have
dramatically loosened cleanup regulations and standards in recent years
to spur the development, or sales, of contaminated lands.''
52 The story quotes Rick Gimello, assistant commissioner at
New Jersey's Department of Environmental Protection as stating, ``I
don't think any state is as busy as we are . . . Our pace [of putting
properties through the program] is off the charts.''
---------------------------------------------------------------------------
\52\ Bob Fernandez, Rules let contaminants be covered, not cleaned,
zThe Philadelphia Inquirer (April 13, 1999).
---------------------------------------------------------------------------
e. Washington
On April 16, 1999, the Seattle Post-Intelligencer reported that the
state fund which pays for the cleanup of toxic spills and environmental
contamination is facing a $5.9 million shortfall, about a seventh of
the program's annual budget.53 The story noted that cleanup
work could be halted or delayed at a minimum of 12 highly contaminated,
high-priority sites. The shortfall could also severely limit monitoring
and testing operations. The paper referenced Jim Pendowski, manager of
the state toxic cleanup program, as stating that the ``shortfall would
compromise the department's ability to detect emerging toxic problems
in the environment and deal with existing ones.''
---------------------------------------------------------------------------
\53\ Heath Foster, $5.9 million shortfall for toxic cleanup,
Seattle Post-Intelligencer Reporter, http://www.ceattle-pi.com/pi/
local/eco16.shtml (Fri., April 16, 1999).
---------------------------------------------------------------------------
A series of reports by the same paper present compelling evidence
that the state's Department of Ecology failed to protect 635 Hispanic
migrant workers from drinking contaminated groundwater, while providing
other (mostly Caucasian) people with bottled drinking
water.54 The migrant workers lived for ``several years at a
camp with a well that had ethylene dibromide levels 17 times higher
than federal regulators considered safe.'' The paper quotes agency
memos from 1988 and 1989 that describe agency debate about whether to
provide bottled water to workers. The memos also express concern about
the public reaction if people learned that the agency was providing
water to white residents, but not Hispanic workers.
---------------------------------------------------------------------------
\54\ Heath Foster, Migrant workers heard nothing of pesticide
danger, Seattle Post-Intelligencer Reporter, http://www.seattle-pi.com/
pi/local/migr22.shtml (Mon., March 22, 1999).
---------------------------------------------------------------------------
f. New Jersey
In a series of stories, the Bergen Record reported that the Mayor
of Secaucus, New Jersey failed to notify citizens and city council
members about the migration of contamination from a nearby Superfund
site, under the homes of nearby residents.55 The paper also
reported that the Mayor ordered engineers to locate test wells on
municipal property where there was no requirement to notify the public.
The Mayor stated that since the waste did not pose a danger to the
residents, release of the information would have unnecessarily alarmed
the public. While some city council members agreed with the Mayor's
decision, the paper reported that homeowners and other city council
members insisted that they should have been included in the decision
making process.
---------------------------------------------------------------------------
\55\ Peter Sampson, Something foul is spreading in the ground, The
Bergen Record (Fri., May 14, 1999) & Peter Sampson, Council clears air
on toxic plume, The Bergen Record (Fri., May 21, 1999).
---------------------------------------------------------------------------
E. Problems May Be National In Scope
These problems do not appear to be relegated to the few state
programs highlighted above. A 1999 report by the National Conference of
Mayors surveyed officials in 231 cities across the nation. The survey
asked the officials to rank their state's voluntary clean up
program.56 Only 23% of the officials reported that their
state programs were excellent, while almost one out of every five
officials reported that their state program was not very good. Perhaps
more troubling, 34% could not rank their states program, pointing to a
large gap in knowledge or a lack of any coherent efforts at education,
oversight, and implementation.
---------------------------------------------------------------------------
\56\ National Conference of Mayors, Recycling America's Land (Feb.
2000).
---------------------------------------------------------------------------
F. Inadequate State Clean Up Programs Threaten Vital Public Resources
Recent EPA reports on the quality of our nation's groundwater
document the extremely high value of this resource and startling
statistics on groundwater contamination.57 These reports
find that groundwater use is of fundamental importance to human life
and is of significant important to our nation's economic
vitality.58 Groundwater supplies drinking water to half of
the nation and virtually all people living in rural areas. Some states
obtain more than 50% of their total water supply from ground water.
Groundwater supports billions of dollars worth of food and industrial
production. It also supplies the majority of streamflow in large areas
of the nation and provides much of the water in our country's lakes and
wetlands.59
---------------------------------------------------------------------------
\57\ Safe Drinking Water Act, Section 1429 Ground Water Report to
Congress, (1999) (Section 1429 Report); Environmental Protection
Agency, National Water Quality Inventory, 1998 Report to Congress,
(2000) (National Inventory).
\58\ National Inventory, 187.
\59\ Section 1429 Report, ii, 5-6 and National Inventory, 157-58,
162-23.
---------------------------------------------------------------------------
1. Hazardous Waste Sites Threaten Our Nation's Groundwater Resources
A variety of agricultural, industrial, commercial, and waste
disposal practices contaminate our nation's ground water
supply.60 Some of the most frequently cited major sources of
potential ground water contamination are landfills, hazardous waste
sites, impoundments, industrial facilities, and hazardous waste
generators.61 ``Spills [of industrial contaminants] are a
source of grave concerns among states.'' 62 Unfortunately,
because of existing data gaps, inaccurate data submitted by states, and
a lack of appropriate analytical tools, the problem of groundwater
contamination may be far worse than currently estimated.63
---------------------------------------------------------------------------
\60\ Section 1429 Report, ii, 15-16 (emphasis added); National
Inventory, 161-64.
\61\ Section 1429 Report, 12 (emphasis added) and National
Inventory, 164, 166, 168 (emphasis added).
\62\ National Inventory, 168.
\63\ National Inventory, 187, 189; Section 1429 Report, iii, 25,
35-36; and U.S.G.S., Strategic Directions for the U.S. Geological
Survey Ground-Water Resources Program: A Report To Congress, 4, 11-12
(1998) (hereinafter U.S.G.S. Strategic Direction).
---------------------------------------------------------------------------
2. More Vigorous Oversight and Enforcement Is Needed To Clean Up
Contaminated Ground Water
A wide variety of public health and environmental concerns
accompany groundwater contamination from hazardous waste
sites.64 Only through the expense of millions of dollars to
clean up contaminated groundwater have ``people [been protected] from
exposure to ground water contaminants released from sources such as
hazardous waste sites and leaking underground storage tanks.''
65 However, despite these clean up efforts, the reports
recognize that more federal, state and local coordination is needed to
prevent future contamination and to clean up contaminated ground water
resources.66
---------------------------------------------------------------------------
\64\ National Inventory, 191; Section 1429 Report, 5-6, 19-20, 35.
\65\ Section 1429 Report, 11.
\66\ Section 1429 Report, iii, 11, 35-36. National Inventory, 158.
---------------------------------------------------------------------------
G. Conclusion
Looking at clean up programs along a continuum, upfront federal
review protects public health by ensuring that state programs meet
common sense criteria, while the federal safety net protects public
health at the back end. Since prevention is often less costly, in terms
of funds expended and lives affects, than remediation, U.S. PIRG
supports an upfront federal review of state programs prior to giving
these programs the resources to ramp up their redevelopment activities.
This position is supported by data that indicates a wide disparity
between the protections afforded by state programs.
iv. conclusion
In conclusion, we look forward to working with the committee to
craft good brownfields legislation that both speeds much-needed
redevelopment of blighted inner city areas, while preserving and
increasing protections for public health. Of course, legislation that
weakens protections would certainly engender strong opposition from the
environmental community. In particular, this includes modification to
federal safety new.
Thank you very much for opportunity to testify today. I will be
happy to answer any questions that you may have.
Mr. Gillmor. Thank you very much, Mr. Cope.
We will go to questions. If I might start out with Mr.
Shinn, we have had a lot of State cleanup officials testify in
the past that all or the majority of brownfield sites will
never be placed on the NPL, they are still subject to CERCLA
liability, even after the site has been cleaned up to State
standards and that the potential for EPA overfiling for third
party lawsuits under CERCLA is beginning to cause many owners
of potential brownfield sites to simply mothball the properties
and, further, that States ought to be able to release sites
from liability once a site has been cleaned up.
A couple of questions. Is it correct that Superfund
liability does apply even after the site has been cleaned up to
State standards? And, second, would you agree with the
statement that States should be able to release sites from
liability once it has been cleaned up to State standards?
Mr. Shinn. Well, we have gone at this in several ways. We
have implemented State programs that the legislature has passed
in New Jersey. One deals with landfills that allows the
developer to recoup 50 percent of its investment.
The other is a brownfield incentive that we work with the
Department of Treasury, Department of Commerce, Economic
Development Authority, and our department that will reimburse
the developer 75 percent of his cleanup costs out of new tax
revenues. For instance, if you generate sales tax and New
Jersey State income tax, as that tax is generated, treasury
will pay back the cleanup cost of that site up to 75 percent.
I also reiterate what George Meyer said. The predictability
and liability of this site, private insurance carriers are
providing environmental liability insurance to cover that
possibility. So it is becoming more predictability.
We are putting programs together to fill these different
gaps in predictability and finality. But a little legislative
reform at this level would certainly be welcome to help us
through this process and get to another level of sites that we
all have in our States.
Mr. Gillmor. Thank you very much. Mr. Meyer, could you tell
us how Wisconsin has successfully dealt with the issue of
finality in the closure of brownfield sites?
Mr. Meyer. The recent proposal we put into place has been
insurance. Let us take the situation. Before we issue a
certificate, in a situation where we have a site that, in fact,
we have approved the cleanup, the cleanup has been done but the
final remedy involves natural attenuation, it still doesn't
meet groundwater standards, but there is a desire to have a
closure, at that point a certificate issued, what we have done
is created a master State contract for insurance. And what, in
fact, this allows someone to do now, a developer, we are not
going to close out that site because, candidly, it may not
work. We don't know for sure.
The State did not want to accept that risk. Obviously the
future buyer of that property wouldn't want to create the risk.
So what we have done is through a master State contract
required but also allowed them the completion to be certified
by that individual or that developer buying an insurance under
this program, a one-time fee.
The insurance contractors have come in, looked at our
program. There is a great deal of confidence that the sites are
going to be relatively safe. We have got a good track record.
So, in fact, there is a very favorable premium. Well, what
that does, it allows the developer to get a certificate of
completion for no further liability. And, in fact, the State
doesn't hold a liability in that situation. I think this may be
a solution to some of these finality issues.
Mr. Gillmor. Mr. Meyer, Governor Minner talked about some
of the problems or chilling effect of not being able to get
finality. Mr. Cope has testified, essentially doesn't think
that that is a problem because they seldom come back.
Your testimony points out that the problem lies not only
with instances where the EPA actually uses the overfiling
authority but the problem also to do with the perception or
fear of Superfund liability and potential involvement. Could
you describe in greater detail how that chilling effect would
inhibit redevelopment?
Mr. Meyer. That is really the case. I think once you are in
the front line of these issues, you see it every day. I think
the numbers are probably true in terms of overfiling. What we
have learned, we have put this brownfield study group together
which has developers, environmentalists, State and local
officials, and lenders. And they worked on barriers.
In fact, if you talked to the developers, some of these
projects are going to be financially closed or, in fact, they
may not be able to get the funds. And the perception that there
may be a reopener, in fact, often does drive the decisions.
We have cleaned 14,000 sites, but I can tell you there are
sites, in fact, people have walked away from because, in fact,
there may not be our protection. We sort of protected that in
our case by going to an MOA, but it still has a broad opener
with EPA. It is a perception issue, and we see it every day.
In our State because we have had this group together,
including developers, we have constantly refined the law and
came up with this insurance provision. There still is a
concern, and it does drive people away, even if there isn't a
real threat of old filing.
Dollars will go to different sites and often greenfield
sites, rather than brownfield sites.
Mr. Gillmor. Thank you very much. Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman. I have to start out
by welcoming my DEP commissioner. And I am sure he is thinking
or at least I was thinking that it is always nice to be in a
meeting where we are not talking about fish or shore
protection. We are actually talking about something other than
that. Usually I only see him on coastal issues.
Let me start out. I wanted to start out with Mr. Meyer
before I get to Commissioner Shinn. Mr. Meyer, you commented,
made reference in the written testimony to S. 350 and
specifically the finality language that says ``A release may
present an imminent and substantial endangerment,'' which we
discussed with Governor Minner and has been a major focus here.
I have to be honest with you. I know that I was kind of
amazed that S. 350 was able to get such widespread support
early in the session. I mean, you have people like Senator
Smith and Senator Helms on the one side. You have got Senators
Boxer and Corzine. This is like the liberal conservative gamut
there in the Senate.
Of course, Governor, now Administrator, Whitman also
indicated support for the bill in the Senate. So I was
surprised that you seemed to be so critical.
I know you referenced particularly that finality language,
but there are other statements that you made in the written
document that seemed to be very critical of S. 350. I mean, let
me ask right out: Has the Environmental Council of the States
taken a position in opposition to that bill? Are they against
it? Are you against it?
Mr. Meyer. I think the concerns I referenced--and they are
very similar to the concerns that NGA has referenced--are
things, in fact, we see on a daily basis; in fact, cause
difficulties in terms of cleaning up these sites.
Yes, S. 350 is a step in the right direction, but the
breadth of that language does cause difficulties. We see on a
daily basis as commissioners this perception of cleanup.
Mr. Pallone. So would you say that at this point the ECOS
is actually opposed to it? Have they taken a position?
Mr. Meyer. No, we have not taken a formal position against
that bill. We are here today before the House to try to present
improvements that can be made to that bill so that it, in fact,
will better remove barriers. Well, it is still protecting the
environment. That is our bottom line as commissioners.
There are better things that could be done that can get
more of these sites cleaned up faster and more cost efficiently
back into either residential or commercial use.
Mr. Pallone. Okay. Thank you. I wanted to ask Mr. Cope, if
I could,--I guess I am passing over Mr. Shinn again, but I
think we are going to get back to you--two issues that you seem
to highlight. One is this idea of the up-front review. And the
second one is this categorization, if you will, of brownfield
sites so that those eligible not be those that may I guess be
eligible for Superfund status at one point. You are concerned
that maybe they drop out of the Superfund program and maybe
they should be eligible.
If you could, this up-front review is not practiced now. In
other words, there is nothing in what the EPA does now that
would provide for that up-front review. How are you suggesting
that it be done? In some kind of legislative vehicle or what?
Mr. Cope. Yes. It is actually a fairly common practice. You
can look at the Clean Water Act, the Clean Air Act, or the
Resource Conservation Recovery Act. It is commonplace for the
Federal Government to delegate programs to the States, also
supply funds to run those programs.
Mr. Pallone. So you just have the example that whatever we
adopt here legislatively, you would like to have that in there
in the same way?
Mr. Cope. Absolutely. It can provide, really, at the front
end a preventative measure against inadequate State programs.
What we see is that States are just all over the map in the
levels of protection that they provide.
Of course, Representative Brown pointed to Ohio's program.
We have some real serious concerns in talking with
environmental organizations that deal on the ground on a day-
to-day basis with that program. There are other States that
have environmental organizations that also deal with those
cleanup programs that have very serious concerns. So that up-
front review is critical to ensuring minimum protection. It is
common sense protections, really.
And then the critical issue that you brought up with
respect to the type of sites that are included?
Mr. Pallone. No. You referenced a categorization of the
sites. In other words, you seem to be concerned I think that
there may be some sites that haven't been reviewed for
Superfund status that shouldn't be eligible for brownfields
cleanup. I wondered if you had a legislative suggestion there
in terms of how to make certain sites ineligible for
brownfields cleanup if that is what I think you are suggesting.
Mr. Cope. Yes, certainly. Actually, the environmental
community has put our heads together and come up with language
just on that issue. I would be happy to share it with your
staff.
The essential issue is to make certain that sites with high
level of contamination are excluded from the definition of
brownfields. So essentially when EPA or a State agency will go
onto a site, they will do a preliminary assessment and possibly
a site investigation after that.
If that initial step, that initial cut, if you will, at how
contaminated a site is, shows that it could be an NPL-caliber
site, it should be excluded from brownfields programs given
just the diversity and the levels of cleanup standards that
they have.
Mr. Pallone. Thank you. Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman from Illinois Mr. Shimkus?
Mr. Shimkus. Thank you, Mr. Chairman. I will be brief
because hopefully we can move and get to our votes. And
hopefully there is agreement on ending this problem.
I was going to ask other questions, but, Mr. Cope, just
briefly, one of the three areas you talked about was making
polluters pay. That is something we address all the time up
here. Wouldn't it be appropriate to use a causation standard
where those who actually cause environmental damage would be
responsible for the cleanup?
Mr. Cope. The problem with the causation standard is that
when you have, say, one industrial site next to a manufacturing
site, next to another site and, say, that they are all three
contaminating groundwater, you get into a toxic soup situation
whereby somebody can say, ``Well, it is not me. The other guy
caused it'' and then the other guy can say, ``Well, it is not
me. The other guy caused it'' and then you get everybody
pointing fingers.
Mr. Shimkus. Didn't that happen already?
Mr. Cope. Well, what you have, strict joint settlement
retroactive liability as in the Superfund program, which I
believe you are referring to right now, is the EPA steps in and
says: Okay. Let us take a look at your past actions. What types
of contaminants have you been handling on the site?; matches
those with the contaminants in the ground and says: Okay. We
can see a release. We can see contamination on the ground. You
have been here for 20 years. The contamination has been here
for that long. We can tell just through our studies. You are an
owner of property. Pay.
Now, what will often happen is that one particular polluter
will then sue other parties. The EPA doesn't sue them. That one
polluter will sue other parties and attempt to try to draw them
into litigation to compensate for their costs.
Mr. Shimkus. I think the problem is the law. I mean, they
have the----
Mr. Cope. Upon their ride, yes.
Mr. Shimkus. They will ride on the Superfund reform that we
are going to try to address on the other issue, but I would say
that we need to focus on brownfield cleanup and on the small
business liability with making polluters pay, holding them
accountable and making sure that the non-polluters aren't drawn
into this legislative trap and, really, the community's, too,
because they end up paying, too.
For the sake of time, Mr. Chairman, I yield back my time.
Mr. Gillmor. The gentleman yields back. The gentleman Mr.
Ehrlich?
Mr. Ehrlich. Thank you, Mr. Chairman.
Commissioner Shinn, in the interest of time, I am just
going to make this a request, rather than a question. I was
impressed and fascinated with the innovative rebate, tax rebate
program, you testified about earlier.
You said it was a first in the Nation type of initiative?
Was that your testimony?
Mr. Shinn. That was our first example. That was the first
project under the new program.
Mr. Ehrlich. And it worked and everybody is happy and the
tax revenues are coming in? Is there any problem with respect
to quantifying the tax revenues?
Mr. Shinn. This goes through a fairly elaborate process. As
you noticed, we have got economic development authority which
is a loan authority in New Jersey. We have got the Department
of Treasury, which has a special accounting system to keep
track. I think there are six taxes that it triggers that are
generated from this new remediated brownfield. This particular
site----
Mr. Ehrlich. Do you mean--I am sorry.
Mr. Shinn. This particular site has facilities like Home
Depot, Office Depot. It has a bank. It has got quite a nest of
businesses on the site. So the reason it is generating the kind
of revenues it is, it is a fairly well-populated site in
Edison, New Jersey.
Mr. Ehrlich. Obviously this had to be negotiated very
carefully. I suspect there are rules with respect to tax
revenue and the amount of money that goes----
Mr. Shinn. You have to generate it before you get paid
back.
Mr. Ehrlich. Right.
Mr. Shinn. Accounting keeps track of what is generated. And
you pay back out of that accounting. I think it has taken us
about the better part of a year to pay back the developer 75
percent of its investments cost, which I think amounted to $1.6
million in this particular project.
Mr. Ehrlich. That was an agreed-upon figure?
Mr. Shinn. That was all agreed upon up front. And any
changes in that--any new discoveries on the site, as you heard,
it was a fairly complex site--could easily be qualified as an
NPL site with all of the contaminants on that site.
So it seems to me that we are going to clean up more sites
with some flexibility on how we define sites. I will agree that
there are some sites that should be NPL sites and not
brownfields, but there is a huge opportunity in a host of
different category sites to use a brownfield strategy and
really gain some progress or clean up inventory.
What I found particularly interesting in the reimbursement
program, a State can get more of its list on the table of what
it wants to do on that site and actually achieve a better
cleanup because it is investing in part of the cleanup itself.
So it adds an interesting wrinkle to the possibilities. If
that was permissive in the statute, it would be beneficial and,
of course, having EPA be able to contribute to the actual
cleanup cost would help as well.
Mr. Ehrlich. It is an exciting idea. Would you send me a
fact sheet or information? Would you send that to my office? I
would love to learn more about it.
Mr. Shinn. Sure, absolutely.
Mr. Ehrlich. Thank you. I yield back, Mr. Chairman.
Mr. Gillmor. Thank you, Mr. Ehrlich. We have probably a
little less than 5 minutes before the vote closes. But before
we terminate this hearing, I would like to go to Mr. Pallone
again.
Mr. Pallone. Just quickly, Commissioner Shinn, because I
don't want to think I have left you out here today. You know,
when the State brownfields program was being considered, there
was a lot of concern about eliminating the preference for
permanent cleanup and possibly not having as much public
participation, which has been so important in New Jersey.
I just wondered if you could get back to me. You don't have
to do it now necessarily because I don't know if we have the
time, but if you could get back to me with some information
about the percentage of the sites that have deed restrictions
that are using fences, caps, and covers, as opposed to removal
of contaminants or permanent treatment of toxicity because that
remains a concern that a number of the environmentalists in New
Jersey have brought up. If I could get some statistics on that,
I would appreciate it.
Mr. Shinn. Okay. Sure.
Mr. Gillmor. Very good. We will now excuse this panel, but
I do want to announce we will leave the record open for any
other questions or responses. I would like to thank you,
Commissioner Shinn and Mr. Meyer, Mr. Cope for being here.
The committee now plans to take a recess until 2:30 p.m.,
at which time we will reconvene to hear the testimony of
Christine Todd Whitman, the Administrator of the U.S. EPA, and
members of her advisory team promptly so that we can
participate at that time. Thank you very much.
Mr. Shinn. Thank you.
[Whereupon, at 12:21 p.m., the subcommittee recessed, to
reconvene at 2:44 p.m. that same day.]
Mr. Gillmor. The subcommittee will come to order. We have
been advised that the ranking member is on his way, and we will
proceed.
The Chair on behalf of the committee is very pleased to
welcome the new Administrator of the U.S. Environmental
Protection Agency, Christine Todd Whitman. Administrator
Whitman came to her post after almost 8 years serving as
Governor of New Jersey. During that time, she built a strong
environmental record on air, water, and land protection. She is
an advocate of forging smart growth partnerships that bring
together citizens, government, and business interests working
for the common good.
We are very pleased that you could join us today,
Administrator, because I do know you have a very demanding
schedule. I would like to start with your statement, and then
we will get into questions.
STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
Ms. Whitman. Certainly. Well, first of all, Mr. Chairman,
thank you and members of the subcommittee very much for the
opportunity to appear here today. I want to commend you as
subcommittee Chair and Representative Pallone as well for
focusing on what is for us and for this administration a very
critical issue.
State brownfields programs have been enormously successful,
as I know you have heard this morning. We'd like to think that
the Environmental Protection Agency has been an important
partner there. I think the way that this hearing has
highlighted those State programs has been very helpful for
everyone's understanding, but we believe that actions that
Congress will take can further expedite brownfield cleanup and
redevelopment and improve EPA's ability to act as a partner and
support State and local groups.
Enacting brownfields legislation this year is an important
priority for President Bush and this administration, as you may
well know. It provides the opportunity to remove existing
barriers to brownfields site cleanup and development. I look
forward sincerely to working with all of the members of this
committee to develop bipartisan legislation as soon as possible
and legislation that is consistent with the President's
principles and his budget.
In my confirmation testimony, as you may have noted, I
emphasized the need for flexibility when working with States
and local communities. States have developed significant
expertise in cleanup and development of brownfields properties,
together with local communities. I know they will and must
continue to play the primary role there.
I am pleased that the purpose of this hearing is to examine
ways in which we can develop smarter partnerships to help
remove barriers to brownfields cleanup and development.
Brownfields cleanup is an important urban redevelopment
tool. It provides an alternative to the development of
greenfields or open space. The administration believes that
brownfields legislation is important enough to be considered
independently of other statutory reform efforts, such as
Superfund.
I know many members of this committee are very concerned
and interested in reforming Superfund. And I am committed to
work with you and with them. But I would urge that Superfund as
well as other statutory reform issues not hold up the passage
of brownfields legislation.
President Bush is committed to strengthening State and
local brownfields programs based on several principles, which I
would like to reiterate for you. Brownfields legislation should
remove a significant hurdle to brownfields cleanup by providing
redevelopers with protection from Federal Superfund liability.
Brownfield legislation should ensure that States have the
authority and resources to run their own brownfields programs
while ensuring those cleanups are protective of human health
and the environment. Brownfields legislation should direct the
Environmental Protection Agency to work with States to ensure
that they employ high, yet flexible cleanup standards, and
allow EPA to step in to enforce those standards when and if
necessary. Brownfields legislation should streamline and
expedite the process by which grants are given to States and,
in turn, to local communities so that they have maximum
flexibility to use the funds according to their unique needs.
The Federal Government should focus additional research and
development efforts on new cleanup technologies and techniques
to clean up brownfields. And while I recognize the brownfields
tax incentive is not under the jurisdiction of this committee,
it should be made permanent. The President has included this
proposal in his fiscal year 2002 budget.
The States and the U.S. Environmental Protection Agency
have been at the forefront of encouraging the cleanup and
economic redevelopment of brownfields. EPA has awarded more
than 360 assessment pilots of up to $200,000 each to States,
tribes, and local governments to help assist them in
brownfields redevelopment. Grantees report that EPA funding
supported assessments at over 2,000 properties and helped
leverage more than $2.8 billion in economic development and
generated more than 11,000 jobs. EPA's job-training pilots have
trained more than 560 people and put more than 400 to work. In
addition, EPA has funded 104 revolving loan fund pilots,
provided over $80 million in funding for State programs, and
worked with States to perform targeted brownfield assessments
at more than 550 properties.
However, much remains to be done to facilitate rapid, high-
quality assessment, cleanup, and sustainable economic
development in communities across the nation. With your help,
this administration will provide the tools that communities
need to address the problems posed by brownfields properties
and will encourage redevelopment while fully protecting human
health and the environment.
I understand that barriers may exist as a result of the
uncertainty over Federal liability and enforcement issues. In
addressing these concerns, there should be limited
circumstances where EPA would need to take further action if
the State approves a protective cleanup.
As I discussed before the Senate Environment and Public
Works Committee, there should be compelling evidence that a
cleanup is no longer protecting human health or the environment
before EPA would step in. In fact, we know of no case in the
past where EPA has acted on its own to step in at a brownfield
site.
Brownfields legislation must strike the correct balance
between liability certainty sought by parties cleaning up
brownfields and the need to protect human health and the
environment. Legislation should also clarify Superfund
liability for contiguous property owners, prospective
purchasers, and innocent landowners.
The administration supports brownfields legislation that
encourages the identification, assessment, cleanup, and
redevelopment of a full range of contaminated brownfields
properties by specifically authorizing a Federal program for
grants and loans to States, tribes, and local governments.
In addition, legislation should relieve EPA's current
brownfields program of unnecessary Superfund regulatory
procedures for brownfields cleanup revolving loan fund and
provide for expedited grant funding of cleanup of contaminated
properties.
Brownfields legislation that is consistent with the
President's principles should provide flexible grant funding to
the States, local communities, and tribes to support their
brownfields programs in ways that will enhance the already
impressive achievement of the 47 State programs that address
brownfields currently.
According to a study by the Northeast/Midwest Institute,
more than 16,000 sites have enrolled in State voluntary cleanup
programs. States with emerging programs would benefit from the
resources and support that enable them to use creative programs
in encouraging protective assessment, cleanup, and
redevelopment of properties. States with established
brownfields programs, such as Ohio and New Jersey, would
benefit from support that enhances successful brownfield
redevelopment work.
The administration also supports funding for technical
assistance, training, and technology to encourage the best
methods and approaches to clean up brownfields. New tools that
improve the ability to conduct protective cleanups while
reducing costs can help promote the redevelopment of
brownfields across the nation.
Whether States and localities receive Environmental
Protection Agency grants for assessment and cleanup, Housing
and Urban Development grants for redevelopment, Economic
Development Administration grants, Department of Energy
research support, or whether redevelopment is encouraged by the
Federal brownfields tax incentive, this administration is
committed to strengthening State and local brownfields programs
to address the problem of derelict brownfields properties.
Thank you for the opportunity to appear before you today
and to describe the President's support for brownfields
legislation. I look forward to working with you, as I stated at
the onset, to ensure swift passage of brownfields legislation.
Mr. Chairman, I would be happy to take questions.
[The prepared statement Hon. Christine Todd Whitman
follows:]
Prepared Statement of Hon. Christine Todd Whitman, Administrator, U.S.
Environmental Protection Agency
Good morning, Mr. Chairman, and members of the Subcommittee. It is
my pleasure to appear before you today as Administrator of the
Environmental Protection Agency on the important subject of
brownfields. I commend Subcommittee Chairman Gillmor and Representative
Pallone for holding a hearing on brownfields to highlight State
brownfields programs and the actions Congress can take to further
expedite brownfields cleanup and redevelopment and improve EPA's
ability to support State and local programs.
Enacting brownfields legislation this year is an important priority
for President Bush and this Administration and provides the opportunity
to remove existing barriers to brownfields cleanup and development. I
look forward to working with all members of this Committee to develop
bipartisan legislation as soon as possible that is consistent with the
President's principles and budget.
In my confirmation testimony I emphasized the need for flexibility
when working with States and local communities. States have developed
significant expertise in the cleanup and development of brownfield
properties, and together with local communities, will continue to have
the primary role. I am pleased that the purpose of this hearing is to
examine ways to develop smarter partnerships to help remove barriers to
brownfield cleanup and development.
Brownfields cleanup is an important urban redevelopment tool that
provides an alternative to development of greenfields. The
Administration believes that brownfields legislation is important
enough to be considered independently from other statutory reform
efforts, such as Superfund. I know that some members of this Committee
are interested in reforming Superfund and I am committed to working
with them, but I would urge that Superfund, as well as other statutory
reform issues, not hold up brownfields legislation.
President Bush is committed to strengthen state and local
brownfields programs based on the following principles:
Brownfields legislation should remove a significant hurdle to
brownfields cleanup by providing redevelopers with protection
from federal Superfund liability;
Brownfields legislation should ensure that states have the
authority and resources to run their own brownfields programs
while ensuring those cleanups are protective of human health
and the environment;
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;
Brownfields legislation should streamline and expedite the
process by which grants are given to states, and in turn to
local communities, so that they have maximum flexibility to use
the funds according to their unique needs;
The federal government should focus additional research and
development efforts on new cleanup technologies and techniques
to clean up brownfields; and
While not under the jurisdiction of this committee, the
brownfields tax incentive should be made permanent. The
President has included this proposal in his Fiscal Year 2002
budget.
The States and the U.S. Environmental Protection Agency have been
at the forefront of encouraging the cleanup and economic redevelopment
of brownfields. EPA has awarded more than 360 assessment pilots of up
to $200,000 each to states, Tribes, and local governments to assist
them with brownfields redevelopment. Grantees report that EPA funding
supported assessments at over 2000 properties and helped leverage more
than $2.8 billion in economic development and generated more than
11,000 jobs. EPA's job training pilots have trained more than 560
people and put more than 400 to work. In addition, EPA has funded 104
revolving loan fund pilots, provided over $80 million in funding for
state programs, and worked with states to perform Targeted Brownfields
Assessments at more than 550 properties.
However, much remains to be done to facilitate the rapid, high-
quality assessment, cleanup and sustainable economic development in
communities across the nation. With your help, this Administration will
provide the tools that communities need to address the problems posed
by brownfield properties, and will encourage redevelopment while fully
protecting human health and the environment.
I understand that barriers may exist as a result of the uncertainty
over Federal liability and enforcement issues. In addressing these
concerns, there should be limited circumstances where EPA would need to
take further action if a State approves a protective cleanup. As I
discussed before the Senate Environment and Public Works Committee,
there should be compelling evidence that a cleanup is no longer
protecting human health and the environment before EPA would step in.
In fact, we know of no case in the past where EPA has acted on its own
to step in at a brownfields site.
Brownfields legislation must strike the correct balance between the
liability certainty sought by parties cleaning up brownfields and the
need to protect public health and the environment. Legislation also
should clarify Superfund liability for contiguous property owners,
prospective purchasers, and innocent landowners.
The Administration supports brownfields legislation that encourages
the identification, assessment, cleanup, and redevelopment of a full
range of contaminated brownfields properties by specifically
authorizing a federal program for grants and loans to states, Tribes,
and local governments. In addition, legislation should relieve EPA's
current brownfields program of unnecessary Superfund regulatory
procedures for the Brownfields Cleanup Revolving Loan Fund, and provide
for expedited grant funding of cleanup of contaminated properties.
Brownfields legislation that is consistent with the President's
principles should provide flexible grant funding to the states, local
communities, and Tribes to support their brownfields programs in ways
that will enhance the already impressive achievements of the 47 state
programs that address brownfields currently. According to a study by
the Northeast/Midwest Institute, more than 16,000 sites have enrolled
in state voluntary cleanup programs. States with emerging programs
would benefit from resources and support that enable them to use
creative approaches in encouraging protective assessment, clean up and
redevelopment of property. States with established brownfields
programs, such as Ohio and New Jersey, would benefit from support that
enhances successful brownfields redevelopment work.
The Administration also supports funding for technical assistance,
training, and technology to encourage the best methods and approaches
to cleaning up brownfields. New tools that improve the ability to
conduct protective cleanups while reducing cost can help promote the
redevelopment of brownfields across the Nation.
Whether states and localities receive Environmental Protection
Agency grants for assessment and cleanup, Housing and Urban Development
grants for redevelopment, Economic Development Administration grants,
Department of Energy research support--or whether redevelopment is
encouraged by the Federal Brownfields tax incentive--this
Administration is committed to strengthening State and local
brownfields programs to address the problem of derelict brownfields
properties.
Thank you for the opportunity to appear before you today and to
describe the President's support for brownfields legislation. I look
forward to working with you to achieve swift passage of brownfields
legislation. Mr. Chairman, I will be happy to answer any questions you
or the committee members may have.
Mr. Gillmor. Thank you very much, Administrator.
I understand that this is your first appearance before the
House. Our committee does have dominant jurisdiction over EPA
programs. I just want to ensure you that I and I think the
other members of this committee are looking forward to working
with you on a new partnership and a smarter partnership for
environmental protection. We need economic development. We need
jobs. But I think it is clear that economic development and
strong environmental protection are not mutually exclusive
goals.
I have asked several of our witnesses today about the fact
that some groups have testified that Federal reforms to boost
their finality for brownfields cleanups is not needed because
even though the EPA does have broad authority to reopen
cleanups, the agency rarely uses it.
Your testimony points out that this problem lies not only
with the circumstances where EPA actually uses the overfiling
authority, but the problem also has to do with the perception
or the fear of Superfund liability and potential Federal
involvement. Could you describe how this chilling effect
inhibits redevelopment?
Ms. Whitman. There is no question that uncertainty is what
prevents people from maximizing the opportunity to clean up
brownfield sites. And the issue to which you are speaking,
finality, is one that obviously speaks to certainty on the part
of redevelopers.
I would just reiterate what I said in the testimony, that
to our knowledge, having surveyed all of those who participated
with the EPA in brownfields redevelopment, we have never come
in to over file at a State-led brownfield site cleanup. Having
said that, we believe that it is important, however, if there
are substantive changes to the cleanup, if there becomes a time
when there is a significant question about whether or not there
is a threat to human health or the environment, that we allow
the Environmental Protection Agency to have that ability to
step in under certain very limited conditions. I would envision
that it would not occur very often. It hasn't to date.
Mr. Gillmor. Thank you, Administrator.
I guess I would ask you if you would commit to a direct
dialog with this subcommittee and with the Governors and with
the agencies involved to develop legislation that would respect
the finality and the certainty of State enforcement actions so
that the remaining EPA authority would be used only in those
exceptional circumstances where there is a clear and compelling
need for EPA actions and where States will not take the
necessary steps.
Ms. Whitman. Mr. Chairman, I commit to working with you on
any type of bipartisan language that can get us brownfields
legislation. And I recognize that an understanding that there
is some finality and some certainty as you move forward will be
an important part of that.
Mr. Gillmor. One of your former colleagues in the
Governors' Association, Governor Minner,--actually, I guess she
came in just as you were leaving--Governor Minner of Delaware,
testified this morning on behalf of the NGA that Federal law
ought to be amended to require the EPA to notify a Governor of
its concerns about an ongoing State cleanup and provide the
State with a reasonable opportunity to correct the problem
before it intervenes in a State cleanup action. Would you agree
with that view?
Ms. Whitman. Actually, that is our standing policy. That is
how the EPA approaches things at the moment. And so that is not
problematic as far as we are concerned, respecting that
relationship between the States and the Federal Government.
Mr. Gillmor. Could you touch briefly on what you envision
as some of the more serious barriers that we are facing in
terms of encouraging more, better, and faster brownfield
cleanups?
Ms. Whitman. Again, I think a lot of it comes down to the
issue of certainty, liability. That is why I think it is so
important that legislation includes some liability protection
for the innocent party that comes in to clean up a brownfield
site.
I know you received testimony this morning from
Commissioner Shinn from New Jersey's Environmental Protection
Agency. And one of those things that was so important in the
program that we put forward in New Jersey was the flexibility
applied and given to the local communities. And that would be
important in any Federal legislation so that the States and
local communities have maximum flexibility, some insurance
liability protection, some liability relief, some insurance
protection. And we provided a tax reimbursement.
Again, what we see in brownfields redevelopment is very
often the up-front costs are enormous with no guarantee that
there is going to be a whole lot of profit at the other end.
That is why this administration supports making the tax credit
a permanent part of the tax code, to provide some incentive and
some certainty for developers that expend the dollars necessary
for cleanup.
We are in the happy position of having seen many of those
sites in New Jersey become very, very economically successful,
but you can't guarantee this result and the costs are large.
The other part of that, of course, is the certainty that once
you have cleaned up, if you get a notice of no further action,
you are not going to be subject to late penalties for things
that suddenly are found on the site.
Mr. Gillmor. Thank you very much, Governor. I will now
recognize the distinguished ranking member, Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. It is really nice to
see Governor Whitman--I guess it is Administrator Whitman, but
you will always be Governor Whitman to me--here today. I know I
have congratulated you several times on your new position in
New Jersey.
Ms. Whitman. Thank you very much, Congressman.
Mr. Pallone. I know that the environment has always been a
major concern the whole time that you were the Governor and
even before that in other positions. So I think it is certainly
helpful for New Jersey and for the Nation to have you in that
position.
I have to say some of the things that have happened so far
with regard to the clean air standards and some of the other
issues is certainly a good beginning for what you are doing at
the EPA.
Ms. Whitman. Thank you.
Mr. Pallone. I know we talked this morning and you heard I
am sure about some of the other panels in the discussion. I
guess I wanted to focus on some of the questions that I asked
the previous panel and come back to you with some of the same
things.
There was a Mr. Meyer who was here this morning from the
Environmental Council for the States. And he basically was
somewhat critical, actually, of the Senate bill S. 350, which I
mentioned in my remarks seems to be sort of a remarkable
compromise because we have people on the ideological in a
spectrum from Senator Helms all the way to John Corzine to
Senator Boxer supporting this bill. He was critical of the
standard that says--I guess this is the finality--that
preserves EPA's authority where release or threatened release
may present an imminent and substantial endangerment to public
health or welfare.
I know I believe you stated on the Senate side that you
thought this was a good bill, that you supported the bill. I
just wanted to ask you if you specifically endorse and support
that standard within S. 350, which I think is a good standard.
Ms. Whitman. Well, I had indicated the administration's
general support of the legislation. But, again, I will state
this afternoon that we would be willing to work with the
committee on language necessary to get a bi-partisan
brownfields bill through.
Having said that, I think there is a history behind the use
of that ``finality'' language. It appears in a number of
Federal statutes. We are not wed to specific language. We just
want to know that there is some ability for the Environmental
Protection Agency to step in if a State should request us to do
so. If you have a migration of pollution onto Federal property
or from one State into the next, we feel that it is important
that we have that ability. And whatever language receives the
bipartisan support necessary to get the bill through, I am sure
we could work with it. We would be happy to work with you.
Mr. Pallone. The way I understand, basically you think that
in general, that is a pretty good standard and that certainly
there is no evidence that that standard has been abused by the
EPA with any State voluntary cleanup site?
Ms. Whitman. Not to our knowledge. And there is 20 years of
case law behind it. Again, I would just reiterate that the most
important thing to me is that we get the brownfields
legislation through and that we do preserve some form of
Federal safety net. I believe the public does deserve that.
Mr. Pallone. The other thing that came up,--and I guess I
asked it of Commissioner Shinn--as you know, in New Jersey when
the brownfields legislation was passed that you signed, there
was some concern on the part of the environmentalists about
whether the permanent cleanup standard was being substituted
for something less than that.
That came up again this morning in the context of the
member from PIRG who was on a previous panel, Mr. Cope. He
talked about how there are so many different kinds of State
programs and some of them don't seem to require any kind of
permanent cleanup and some of them don't seem to have much in
the way of public participation, which I know has always been
important in New Jersey.
And so I guess I wanted to say this is this whole idea of
up-front review. Do you think that at some point there needs to
be some sort of up-front review so that, for example, a State
would not be able to merely place a deed restriction on the
land or groundwater or just put up a fence around the site, no
active cleanup, as opposed to some kind of permanent cleanup
standard.
At what point would the State standard or the requirement
be so minimal that perhaps there should be some sort of up-
front review by the Federal Government?
Ms. Whitman. We are looking at this point at maximum
flexibility. We have found that most States, in fact, have done
a very good job in meeting the needs of these sites. We think
it would be good on the part of any State to seek, in their
brownfields legislation, maximum public opportunity for input.
We think it is important that they have the ability to oversee
and enforce a response action.
Requiring approval on the part of the State for cleanup
plans and documentation of when the response is completed is
important. We also would encourage that any brownfield
legislation or any State program actually make the effort to
compile a list of all brownfield sites in the State so that you
can have some way of knowing what kind of cleanup is going on
and how many sites have been cleaned up.
It depends on what final piece of legislation comes
through, but we have the ability now to work in close
partnerships with the States. We would certainly want to
continue that ability.
We haven't had to overturn any State programs in the past.
So I am not sure that there is a compelling need at this point
to assume that that is going to become necessary. But if there
are reopeners, the Federal safety net provision in any
legislation would enable us to address a specific issue if it
became problematic and became a threat to human health or the
environment.
Mr. Gillmor. The gentleman's time has expired. The
gentleman from Oklahoma, Mr. Largent?
Mr. Largent. Thank you. And we appreciate your attendance
here at our hearing. We want to welcome you to Washington.
I have just a couple of questions. The National Governors'
Association supports the requirement of receiving the
concurrence of the Governor of the State where a site resides
prior to placing it on the national priority list. Do you agree
that this is a sensible approach?
Ms. Whitman. That has been our practice. That is the
policy. It is not codified anywhere, but that is the policy
that the EPA has used to date.
Mr. Largent. Would you have a problem if it were codified
in a brownfields bill?
Ms. Whitman. Since it is what we use as our standard, that
wouldn't be a problem. I want to ensure that we get bipartisan
brownfields legislation. I think it is so important.
Mr. Largent. Let me ask you another question. That is: Do
you support the proposition of the Governors and State cleanup
directors that there is no need for increased Federal
intervention in t he form of up-front EPA approval of State
cleanup programs?
Ms. Whitman. Well, as I just was indicating in my response
to Representative Pallone, I think we have a very good
relationship now. State programs should have the goals of
providing for meaningful public participation, providing the
ability to oversee the response actions, keeping a list of
brownfields sites in the State so that there is a way of
ascertaining how the cleanup is going and where it is going,
and requiring their own approval of cleanup plans and oversight
of those cleanup plans.
To date, we have never, to our knowledge, ever had to
overfile on a brownfield site cleanup of a state. So I am
reluctant to presume that all of a sudden now we would have to.
Mr. Largent. Okay. Thank you very much. I yield back my
time, Mr. Chairman.
Mr. Gillmor. The gentleman yields back. The gentleman Ms.
McCarthy?
Ms. McCarthy. Thank you very much, Mr. Chairman.
Administrator, we are delighted to hear from you today on this
important project. I wanted to pursue with you something that
was touched upon earlier today. Superfund and CERCLA cover
remediation that is associated with petroleum, lead-based
paint, and asbestos.
Many of the potential brownfield sites that were noted as
potential projects for cleanup in my community and I think
around the Nation and also for redevelopment involved former
gas stations in the urban core that closed and are now vacant,
but they have a strategic location and the potential for future
commerce.
I wonder if you would reflect on what modifications, if
any, should be made to afford brownfields cleanup authority to
these sites and what criteria or threshold would you suggest
for modifying Superfund and brownfield law and regulations to
address contamination involving petroleum, lead-based paint,
and asbestos?
Ms. Whitman. Well, I recognize at this point you don't have
specific language before you on the House side. On the Senate
side, one of the things that is part and parcel of that
legislation is flexibility for the Administrator of the
Environmental Protection Agency on a site-by-site basis to
review those sites that are outside the traditional definition
of brownfields. We could extend brownfield grant funding to
these sites. That is important, and that is good.
I would be happy to work with you on any kind of language
we could come up with that would ensure that we have the
ability to be flexible. What we want to do is be flexible. What
we want to do is clean up these sites.
Ms. McCarthy. Yes.
Ms. Whitman. That is the basic thing here for a whole host
of reasons, environmental and economic.
Ms. McCarthy. I appreciate your enthusiasm.
Another idea that came out this morning was about the State
of Wisconsin and their brownfields program. They post an
inventory of their brownfield sites on the World Wide Web so
that citizens in the State can obtain information about the
whereabouts of the sites and the cleanup taking place. What do
you think of posting an inventory of brownfield sites
nationwide on the World Wide Web so people would be aware of
this and the opportunities posed as well as improvements going
on?
Ms. Whitman. Well, we have done that same thing in New
Jersey. And we have looked at it very much as an investment
tool. We have had developers who have developed an expertise in
reclamation of brownfield sites and they have wanted to find
the sites. And, rather than having to have the developers try
to track the sites down themselves, we have been able to show
them with an overlay and a map in our GIS system so they would
be able to identify the sites quickly. Again, that kind of
thing has great promise. I would be happy to work with you
toward that.
Ms. McCarthy. Thank you. In your testimony this morning and
even in your comments, there is talk of protecting the innocent
party who comes in to clean up, who wants to make this better.
It is my understanding that in the Brownfields Act in New
Jersey, the liability protection, that covenant not to sue, is
extended to a party, not just who is innocent, you know, the
protected from suit, but also to the party responsible for the
discharge or creating the problem. Am I correct on New Jersey
law?
Ms. Whitman. No. We still believe in polluter pays. And
polluters pay in New Jersey. One of the things that we did in
New Jersey, though, was to provide the polluter with protection
from further liability if the polluter conducted a cleanup that
resulted in a notice of no further action.
Ms. McCarthy. Well, I am glad for the clarification because
I would not want to entertain a Federal notion that those who
create the problem are not responsible.
Ms. Whitman. No. We believe they should be responsible.
Ms. McCarthy. Thank you very much. Thank you, Mr. Chairman.
Mr. Gillmor. Thank you. The gentleman Mr. Shimkus?
Mr. Shimkus. Thank you, Mr. Chairman. It is great to have
you, Administration. Congressional prerogative is when we get
someone from the administration, even though we are on a
certain topic, to maybe veer off while we have a chance.
The whole debate on polluter pays just lends into the
aspect of the failed Superfund small business liability
protection we talked before the hearing. Why we are asking for
codification of some issues is because we weren't successful in
getting a codification, even on agreed principles with the
previous administration, even using their language at times to
write legislation.
And so I am excited about the aspect and your confirmation
of polluter pays. We want to make sure that that is enforced in
these brownfield cleanups, but we also want that to be involved
as we address the small business liability aspects. Everyone
agrees it is another issue.
My position, we don't want to merge. I think we can move
them separately. I am going to be working with the ranking
member of this committee to try to roll out a bipartisan bill
that we can get support from the administration. We think that
is critical. But for too long, there have been people that have
not polluted that have paid across this country. I just tell my
colleagues that their turn is coming when they have a site that
is on the NPL list and then years and years later, someone is
going after their mom and pop doughnut shop in their small town
square of 3,000 people for their whole yearly income, gross
income, to pay some extorted amount to the EPA to help them out
or from the government where it would help.
And so that is my little filibuster. I appreciate getting
this opportunity. The question that I am going to refer to is
based upon previous testimony from Mr. Cope also, who was here
this morning from the U.S. Public Interest Research Group. It
addresses the polluters pay and the effect that we should have
ether the causation standard in legislation proposed; in other
words, our ability to identify the polluters, instead of
assuming that they were polluters.
Would you be supportive of some type of language on a
causation standard?
Ms. Whitman. Again, I would be very supportive of working
with you toward achieving the goals that you are setting there
because obviously those make sense. And we would be happy to
work on specific language. I hope we could get something that
would receive that bipartisan support so we could move the
legislation forward, but we would be happy to work with you.
Mr. Shimkus. this in trying to address this finality
debate. The EPA now issues status of comfort letters on a case-
by-case basis to provide what has been said is some letter of
finality. Do you see the use of these status comfort letters as
a real issue of providing finality to these sites as far as our
ability to redevelop them, fear of litigation in the future?
Ms. Whitman. Were there an appropriate reopener provision,
that is what they are intended to do. ``An appropriate
reopener'' means some significant new knowledge has come
forward that the site is no longer protecting human health or
the environment. For example, there may be a migration of the
pollution to a Federal site across State lines or the Governor
may ask us to come in. These would represent the kind of
limited circumstances under which we would come back in. As I
say, we have never had to do that on a brownfield site.
So it can be assumed that those letters of comfort have, in
fact, provided just that. The track record is there to indicate
that, in fact, they have been just what they say they are.
Mr. Shimkus. And I think the reason why I bring that up,--
and I didn't get a chance to follow up with questions on this
because of votes and we closed the hearing--it was my
impression that the folks who testified from New Jersey and
from Wisconsin were crying for more finality. And the
implication was the status of these letters were not presenting
as much finality as would have been hoped.
With that, Mr. Chairman, I am finished. I thank the
administrator, and I yield back my time.
Mr. Gillmor. The gentleman yields back. I recognize the
gentleman from Texas, Mr. Green, and then go to Mr. Terry. Mr.
Green?
Mr. Green. Thank you, Mr. Chairman. Again, I welcome our
administrator. I am just glad my colleague from Illinois didn't
ask about ethanol versus MTBE, but I am sure that will be
something on another hearing.
My colleague from Missouri mentioned a concern, and
Commissioner Shinn this morning in his testimony identified
abandoned service stations as an example of a typical
brownfield site that a community might have and how to render
the current brownfields restrictions, it is my understanding
that with few exceptions, notwithstanding simple petroleum
contamination, would render sites like the corner gasoline
station ineligible to be redeveloped under brownfields.
Since my district is in Texas in a very urban area in
Houston, where, like New Jersey, the petrochemical industry is
a very thriving part of our economy, I would be interested in
your thoughts on how the fact we can deal with petroleum-
contaminated sites are generally ineligible for brownfields
redevelopment and what we can do to make it maybe better.
Ms. Whitman. As I indicated, the language in S. 350 on the
Senate side does provide and allow for a case-by-case review by
the Administrator to determine whether sites that are not
within the traditional definition of brownfield can, in fact,
be addressed.
We would welcome the ability to be proactive with sites
that States want to have cleaned up under a brownfield program
that they have established and would look forward to working
with you to establish the appropriate language that would get
the bipartisan support necessary to see the legislation move.
Mr. Green. Thank you, Mr. Chairman. I look forward to
working with you to see if we could do that.
Mr. Gillmor. Thank you, Mr. Green. With the concurrence of
my colleagues on the majority side, we will recognize Mr. Terry
out of order. He has to go to another meeting. Mr. Terry?
Mr. Terry. Thank you, Mr. Chairman. I appreciate your
flexibility.
I mentioned in my opening statement several hours ago--you
are from another side of the city--I am from Omaha, Nebraska.
And when I served 8 years on the city council, probably the
most significant, bloodiest, ugliest battle I was ever involved
in was reclamation of a brownfield that we wanted as city
property as part of our Back to the River project. An old
smelting plant was around for over 100 years on a river bank in
Omaha.
The issue is that since it was a voluntary cleanup by the
owner, the State has supplied their plans to the state,
Nebraska Department of Environmental Quality, approved a
significant cleanup of removing several feet of dirt, capping.
So I think it was about a 5 or 6 millon-dollar cleanup of this
property before they transferred the ownership to the city.
One of the major issues in this process that the
environmental groups used and even put it in the basis of their
lawsuit in which they named me personally for my vote, which I
will hold that forever, but we won't go there today, was the
uncertainties, legal uncertainties, not only in the sense that
you have a subsequent holder that could be liable for whatever
contamination would be left, but what they kept saying--and
this was the subject of their lawsuit again--was the letter
that we had from the EPA saying, ``Looks like a good cleanup to
us'' was really meaningless because the EPA could come in at
any time and require different standards.
And I was on the city council then or the subsequent
holders. We are really putting all of the taxpayers at risk. So
we should not do the project.
So my issue becomes: in order to create some sort of legal
finality because there was no doubt in my mind. I spent a lot
of hours and with a lot of experts. And I fundamentally believe
this was a great cleanup, probably exceeding anything that EPA
would have demanded. That letter from the EPA and its
importance was the focal point of the whole battle.
So what can we do? Where does the EPA stand? And what can
we do in the legislation in order to provide some finality
where a city of Omaha or a new investor in a piece of property
if they wanted to do a commercial project on a brownfield, that
they could rely. I think the finality, legal finality, and
certainty is so important here. Otherwise I think everything is
meaningless because you always have that open-ended ``What
if?'' And you can testify before us today that it has never
happened before and we would not do it. But the very fact that
it is still open-ended really prevents a lot of people from
taking over a brownfield. So where do you stand on the
finality? How can we do it? Is it a good idea?
Ms. Whitman. Well, Congressman, what I have said previously
and any time we talk about this, is we want to do everything
that we can to assure that we are providing all the protection
that people want and need to go ahead and redevelop brownfield
sites. We provide them with the certainty that they require and
desire.
However, we have also said that we do think it is important
for the public and for all of us to have some form of Federal
safety net still there, for extraordinary circumstances where
we would have to come back in. There needs to be some ability
to do that under very refined and specific circumstances, where
it is no longer protecting the public health and the
environment.
We look forward to the opportunity to work with this
committee in drafting language that would address the issue
that you are touching on because it is the key issue. It is a
very, very important part of what I in my response to the
chairman indicated is one of those drawbacks to development of
brownfields sites. They tend to be very expensive. They tend to
be very complicated to do. And it is the lack of certainty that
scares away many of the developers.
However, again, I think it is important that we do have
some kind of ultimate Federal safety net. I could suggest what
we did in New Jersey. We did a prospective purchaser provision
that provided some protection for a prospective purchaser.
Those kinds of things are good.
There are a number of State programs that I am sure you
have heard about today that do provide some certainty in the
State program. Of course, their problem is you still have the
question of Federal authority. So that has always been what
they felt to have been a drawback.
I can speak as a Governor on that. But there are things
that you could do that would help ensure that there was reason,
enough certainty and real reason, with potential for reaping
the benefits of the investments you put in to start this
redevelopment.
And we would be very happy to work with you to find
legislation that would meet the bipartisan criteria that are
going to be necessary to get this legislation through. I
believe we can do that. There is a record out there.
Mr. Terry. Do you have any proposed language which would
help create at least a perceived finality?
Ms. Whitman. We don't have specific language. I have in
general supported S. 350. But, again, as I indicated to the
senators on their side, I would be happy to work with them to
get bipartisan legislation, legislation where everyone can be
comfortable that we are going as far as we can.
The only thing that the agency is asking is that we do feel
it is responsible to have some form of reopener in case there
is the kind of change that sometimes we have seen, never on a
brownfield site. And that is the delicate balance that we have
to make here.
Mr. Terry. That is a delicate balance because the broader
the authority to go in, the less certainty that exists.
Ms. Whitman. Right. I appreciate that.
Mr. Terry. Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman's time has expired. Now the
gentleman from New York, Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman. Let me join
my colleagues in welcoming you to Washington.
Ms. Whitman. Thank you, sir.
Mr. Towns. Let me just say, first of all, I agree with your
testimony, very much so, in terms of the fact that brownfield
legislation should be independent and we should move that. I
mean, I agree with that.
Now, your testimony also provides an impressive description
of the EPA's brownfields program accomplishments. Will you
inform the subcommittee of the funding levels for the EPA
brownfield program for the President's fiscal year 2002 budget?
Ms. Whitman. Well, as you know, Congressman, we haven't
done the details yet of the budget which will be submitted in
April. You have seen the broad numbers. But I can assure you
there will be more money for brownfields in EPA's budget.
The overall budget at $7.3 billion is the second largest
administrative request that has been ever sent with a
President's budget. There will be increased funding for
brownfields. I can tell you that. I just can't tell you the
exact number because we haven't gotten to that yet.
Mr. Towns. What about for site assessment grants? Would you
have any idea as to the revolving fund program?
Ms. Whitman. We are looking at increasing the overall
spending on brownfields. We have not broken it out yet as to
which program is going to get which dollars.
Mr. Towns. All right. Thank you. The balance of the bills I
sponsored in the last Congress, there were several criteria
that we wanted State voluntary cleanup programs to meet in
order to obtain an assurance that EPA would not overfile on
brownfield cleanups under the State program. I would like to
know.
Did you have a chance to sort of look at that to see in
terms of the areas? If not, I could just very quickly run down
the list, but I don't want to take too much time, Mr. Chairman.
I could run down the list very quickly. Should a program
provide for cleanup that ensures adequate site assessment and
protect human health and the environment? Should programs
provide for meaningful opportunities for public participation
on issues that affect the community? Does this include prior
notice and opportunities? In other words, will the community
have a lot of input in the process?
Ms. Whitman. Well, EPA thinks that it is very important
that any State program have the goals of providing meaningful
opportunity for public participation. That is a critical part.
It should be a critical part of any State program that
there is an ability to oversee and enforce response action by
the State, that the State program have the goal of requiring
approval of the cleanup plans and documentation of completion
and response actions. That also there be developed and
maintained a list of the brownfield sites throughout a State we
think is important. And we touched on perhaps the desirability
of being able to expand that.
We think those are important goals and public participation
is one of the most important of those goals of a State program.
Mr. Towns. Yes. Okay. Well, let me just say that I look
forward to working with you. I think that brownfield
legislation is something that we really should put forward, and
we should do it right away. I am happy that you support that.
Thank you very much. I yield back, Mr. Chairman.
Mr. Gillmor. The gentleman yields back. The gentleman from
Indiana, Mr. Buyer.
Mr. Buyer. Welcome, Administrator.
Ms. Whitman. Thank you.
Mr. Buyer. Congratulations on your new job.
Ms. Whitman. Thank you.
Mr. Buyer. On April 4th of 1997, I drove to Chicago to meet
with EPA's Region 5 administrator, Valdas Adamkus, who,
incidentally, now is the new President of the Republic of
Lithuania. During that meeting, he expressed great concern that
the Clinton administration had removed decisionmaking authority
of contaminated Superfund sites away from these regional
directors and they sent it directly to Washington. Washington
had removed this decisionmaking authority and was holding it
here. He could not even give recommendations for priority of
sites within his own region.
When I brought this up this morning with Governor Minner,
who was testifying on behalf of the Governors' Association, I
noticed her shaking her head. So I asked for her input. She
shared with me and stated testifying on behalf not only of
herself but of the Governors' Association, ``Trust us at the
local level.''
So I want to ask you, Administrator Whitman, has the new
administration looked into returning decisionmaking authority
back to the regional administrators and let them give
recommendations to you with regard to the priorities of sites
for which they know? They work closely with these sites and
know them very well. What are you doing on the inside of your
administration?
Ms. Whitman. Well, Congressman, first of all, let me say to
you that our focus really has been on brownfields and this
brownfields legislation. We have not spent to date a lot of
time on Superfund and the administration position on Superfund
relative to changes in Superfund. As I have indicated, we look
forward to working with any kind of Superfund reform that the
committee wants to work on.
In general, as far as my attitude toward local
decisionmaking, I am very supportive of it. That is one of the
reasons why in the testimony I indicated that we should have
flexibility in brownfields legislation to allow States and
municipalities to design programs to meet the needs of their
State and their municipality within obviously some broad
parameters.
I anticipate working very closely with the regional offices
because they do know the problems in their various regions, but
at this point we have not done any assessment of Superfund
reform at the agency. We have been focusing on brownfields. But
I would be happy to do that.
Mr. Buyer. I take personal interest and am most hopeful
that when you look at it, you empower the regional directors.
Ms. Whitman. That is what we have got them there for. We
pay them a lot of money.
Mr. Buyer. That is right.
Ms. Whitman. They have got good staff. They should know
what they are doing.
Mr. Buyer. All right. That makes me feel better. I just
wanted to raise it on your radar screen.
The other question relates to that which Mr. Cope testified
earlier. You brought up this issue about the Federal safety
net. He gave us testimony that States constantly compete with
neighboring States in attracting business and residential
development, some States may relax cleanup standards and
liability systems. He called it a race to the bottom on
protections. So it sort of beckons that should there be some
form of Federal minimum standard or when you in this quote give
flexibility to the States? I am trying to define the nebulus.
Ms. Whitman. Congressman, you used the phrase that as a
Governor I dealt with quite extensively on welfare reform. I
heard time and again it would be a race to the bottom.
I think our experience has been just the opposite. That is
not to say, as I have testified before the Senate and here
today, that I believe there should not be a Federal safety net
and some ability for the Federal Government to reenter if a
site is no longer protective of human health or the
environment.
There is language that is proposed. There has been language
proposed in the bills in the last session that I believe set us
on the right path to allow us to do that.
But I believe it really would be a mistake to assume that
States will engage in a race to the bottom. If I may set aside
my hat as administrator for a moment and speak as a former
Governor, I will tell you we hear very directly from our
constituents. And we have a very direct responsibility to those
constituents. To assume that any Governor would enter into a
program knowingly or allow any agency or department within
their government to knowingly embark on a program that was not
going to meet the stated goals of cleaning the environment and
protecting the public is a leap that I think is going too far.
And so while we have ideas with respect to the goals that
State programs should have--and those are pretty clear--and the
history would bear this out as far as brownfields is
concerned--the Federal Government has not had to intercede in
brownfields. We haven't overfiled on brownfield sites to date
because the States have been doing a good job of it.
The important thing here is we are talking about between an
estimated 450,000 and 600,000 sites across this country. These
are sites that are currently sitting unused and are polluting.
If we can encourage people to start to move toward at least
encapsulating and controlling the pollution that is leeching
into the environment, we will be doing a good thing. If we can
return these sites to economically viable sites, we will be
doing a very good thing. That is going to be the desire of
Governors, and I don't know that we need to presume ahead that
we are going to have severe problems.
Again, I would just remind you that I have said that I do
believe that some form of reopener is important. Some form of
Federal safety net is important. But I am reluctant to
subscribe to the presumption that States are going to do the
wrong thing if given flexibility. We simply have not seen that
in what was a very important debate that Congress took very,
very seriously on welfare reform.
Mr. Buyer. Thank you for the thoughtful answer to this
question. Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman's time has expired. The
gentleman Mr. Luther?
Mr. Luther. Thank you, Mr. Chairman. Administrator Whitman,
it is a pleasure to have you here today.
Ms. Whitman. Thank you.
Mr. Luther. As I mentioned when I introduced myself before
the hearing, I represent suburbs around the Minneapolis-St.
Paul area. Like so many areas, we are experiencing exploding
growth and all of he problems associated with that.
Local officials in my district and in the suburban area
would like flexibility with the use of Federal cleanup dollars.
In other words, they have instances where, for example, they
might want to develop a park or open space, rather than an
office building or another commercial establishment. As you
know, current law emphasizes commercial uses, rather than
recreational or open space uses.
So the question that I would have is: What are your
thoughts on allowing Federal cleanup dollars to be used for
open space or recreational purposes?
Ms. Whitman. Well, Congressman, if you are talking about
cleaning up a brownfield site to allow for that sort of use,
that is the kind of thing we have done and we did in New
Jersey. I was very supportive of that.
We need to understand that the way we redesigned our
legislation recognized the potential and future use of that
property. We put constraints on it depending on the level of
cleanup, and then use was restricted. But open space,
particularly urban parks, was very much a part of that effort
because that, again, is a worthy goal.
That is where the flexibility comes in to allow States and
municipalities to meet their particular needs. One size does
not fit all, and we should not be trying to impose that from
Washington.
Mr. Luther. I am pleased to hear that response. As I
indicated before the meeting, I would be very interested in
having you tour. As you know, Minnesota has been in the lead in
this area. I appreciate your willingness to see if you could
fit that kind of a tour into your reviewing your various
regions. I will follow it up with correspondence to you.
Ms. Whitman. Thank you.
Mr. Luther. I very much appreciate that openness on your
part. Thank you.
Ms. Whitman. I would just like to add that, of course, HUD
now does recognize that. EPA traditionally hasn't because our
responsibility is the environment and public health. But I look
forward to working with my colleagues to see what ways we can,
in fact, encourage brownfields redevelopment, containment of
pollution, and the ability of municipalities and States to meet
their specific and particular needs.
Mr. Luther. Thank you.
Mr. Gillmor. The gentleman Mr. Walden?
Mr. Walden. Thank you very much, Mr. Chairman. Governor,
welcome. It is a delight to have you at the helm of the EPA,
and I appreciate your testimony today, especially that which
talks about things like flexibility and clarity and local
involvement in the decisionmaking process. I think that is
going to be very important as we work together on brownfields
legislation. I commend the legislation for that.
Do you agree that the source of some of that uncertainty
and lack of finality includes a number of EPA enforcement
authorities, including those under RCRA, which has very similar
language to Superfund law?
Ms. Whitman. I would hope that brownfields legislation
clarifies all of the applicable law for reopeners and would
ensure that we did provide the kind of certainty that was
necessary to get these sites cleaned up. And that is why I look
forward to working with this committee as you draft the
language that is going to be your bipartisan effort to get this
legislation through.
Mr. Walden. One of the issues is, as you know, out in the
Northwest right now is the whole combined animal feeding
operation laws and AFL and CAFL. There we seem to have some
conflict going on between what the States do and what EPA does.
I am hearing from a lot of constituents now as the State
tries to get its rules in order to comply fully with the
Federal Government that the agency is back in doing
overflights, back in doing enforcement. And there seems to be
some real conflict occurring there as trying to determine who
is doing what right now.
It is an issue that I think begs the question of the need,
I believe, to establish some sort of provision in the law for
the ability for people to consult, to come to an agency and
seek guidance so that they can conform the law without the fear
of also getting hammered by the very same agency they seek to
get guidance from.
I would just wonder if you might be interested in pursuing
that avenue in legislation. I know there is a bipartisan group
of us in the Oregon delegation that is looking at trying to
come up with something that would allow for that.
Ms. Whitman. Congressman, I would be happy to work with you
on that and have the agency work with you on that. I would also
appreciate hearing from you and your staff on the particulars
of the situation you are describing because I would like to
look into that and see if we can't get some certainty.
Mr. Walden. I appreciate that, and I appreciate the
openness of your staff.
The final comment I would make, my colleague Congressman
Buyer mentioned about turning the authority over to these
regional directors and really using them. I understand and
support that concept in general. I hope, too, that we will look
at making sure those regional directors are not only
accountable but responsible to the agency and perhaps aren't
overzealous in their enforcement activity.
Sometimes it is one thing to go by the book and the letter
of the rule. It is another to actually solve the problem.
Ms. Whitman. I would agree with you, Congressman. While I
would expect that the staff and the Regional Administrators
would use their local knowledge to help guide the best way to
solve the problem, policy will be made here in Washington, the
overriding policy.
I will tell you from the very beginning that one of the
messages that I am sending to people, actually, it is a twofold
message. One is that we want to accomplish things. We want to
clean the environment. We want to make the environment
healthier than we find it today. And we should be looking for
ways to promote that.
To the extent that we find ourselves in court, we find
ourselves fining States or localities. We ought to look at
ourselves to see if we haven't failed. If we can't be more
creative, we still will always use the stick.
Mr. Walden. Sure.
Ms. Whitman. The stick is going to be an important part of
how we manage the environment. But I would far prefer to see us
work out collegial ways to solve problems and move cleanups
forward than have to resort to sanctions.
Mr. Walden. I think you mentioned the figure between
450,000 and 600,000 brownfield sites.
Ms. Whitman. Yes.
Mr. Walden. There are probably a few out there that some
owner is hoping nobody ever figures out because they don't
necessarily want to do anything about it. They are afraid they
will get fined. But maybe if there were a mechanism where they
could come forward, we could get the pollution cleaned up.
Ms. Whitman. We would be happy to work with you on that.
Mr. Walden. Okay. Thank you, Mr. Chairman. Thank you,
Governor.
Mr. Gillmor. Thank you. The gentleman Mr. Doyle?
Mr. Doyle. Thank you, Mr. Chairman.
First let me congratulate you on your confirmation as the
new head of EPA.
Ms. Whitman. Thank you.
Mr. Doyle. I know that I am the only thing standing between
you getting out of here. So I will try not to be too long. I
hope and I want to echo the comments that my colleague Greg
Walden just made, too, that one of the top priorities of EPA
will be to try to improve the manner in which you collect all
types of data, particularly when it comes to combined sewer
overflows and sanitary sewer overflows, so that we don't see a
disparity in the way that different regions enforce the law.
You know, when you talk about empowering the regions, we
have seen different regions act very differently on the same
sets of problems and the same sets of data. Some are quick to
slap on consent decrees. Others work with local communities.
I am optimistic that Region 3 will continue its partnership
with the communities I represent in Pittsburgh and Allegheny
County. I can tell you, especially on the SSOs and CSOs, it is
a big problem in Allegheny County. We have half of our
communities in the county under this order.
I can tell you the level of confidence in moving forward to
solutions to these problems would be greatly enhanced if we
received the same kind of consideration as projects such as
Rouge River Demonstration Project has in Michigan. So we are
looking for that type of cooperation.
And while we like things at the local level, we don't want
the administrators to become too powerful because sometimes it
is a double-edged sword.
Just a couple of questions. We heard George Meyer from the
Wisconsin Department of Natural Resources talk about the fact
that they have a comprehensive cleanup program for all types of
properties and all contaminants. And, as such, he doesn't
advocate for the need to have a definition of what constitutes
a brownfield site.
Now, EPA defines brownfields as abandoned, idled, or under-
used industrial and commercial facilities where expansion or
redevelopment is complicated by real or perceived environmental
contamination. Let me ask you: Do you think that the current
definition is sufficient? Should it be narrowed or broadened to
leverage the program to its maximum potential? And should
materials such as petroleum be included under the brownfields
definition without requiring them to be characterized as
hazardous material?
Ms. Whitman. Well, Congressman, as I indicated, I am
looking for maximum flexibility and will be happy to work with
you and this committee to determine what is appropriate as far
as that flexibility in language to ensure that we are
addressing the public's health and concerns.
There is some impending legislation to allow the
Administrator on a case-by-case basis to make a determination
to include sites that go beyond the traditional definition of
brownfields.
So that is an indication of the fact that we are desirous
of being flexible and would work with you very closely to
determine the appropriate language that would allow for maximum
use in cleanup.
We want to see these sites cleaned up. We would be happy to
work with whomever will help us with that.
Mr. Doyle. We heard several of my colleagues talk about the
underground storage tanks and how there may be as many as 100
to 200 thousand of these in the approximately 450,000
brownfield sites nationwide and that many of these sites could
go undeveloped as a result.
Let me ask you the question a different way. Do you think
that the leaking underground storage tank program is sufficient
to address the petroleum in underground storage tanks?
Ms. Whitman. We know that we have a huge problem with
underground storage tanks. It has been addressed differently by
different States. And some have had good finances and been very
proactive in dealing with the issue. Others have been less able
to take those similar steps. As combined sewer overflow it is
an important area.
I don't know if there is ever enough money or resources to
do it all. I am not sure there ever would be. So we need to
prioritize. We need to move forward and target our dollars
appropriately. And that would be one part I would presume of
any State effort at cleanup.
And as the State targets and puts together its brownfields
program, I would not be at all surprised if given sufficient
flexibility that they wouldn't look for some help in the area
of underground storage tanks as well because. I know it is an
enormously expensive and complicated problem in New Jersey and
other States .
Mr. Doyle. Thank you very much. I look forward to working
with you. Thank you, Mr. Chairman.
Mr. Gillmor. Thank you, Mr. Doyle. Are there any further
members wishing to comment? I know Mr. Shimkus wishes to be
recognized for a brief comment or question.
Mr. Shimkus. Thank you, Mr. Chairman.
Just because I was challenged by my colleague from Texas, I
would be remiss if I didn't put in my plug for ethanol. The New
York Times had that editorial over a week ago calling us the
children of corn. I am a child of corn. So my lobbying would be
keep the Clean Air Act and deny the California waiver.
If there are moves to do otherwise, I would think it would
be advisory to work very closely with members of the House,
especially this committee. I know on the Senate side with
Senator Grassley, there may be things we can do, but we need to
tread very, very carefully. And we would like your help as we
move forward for clean air and clean water.
Ms. Whitman. We look forward to working with you on that.
Mr. Shimkus. Thank you.
Mr. Gillmor. Thank you, Mr. Shimkus.
If I could recognize myself for just one very brief comment
and very brief question? I mean, it does appear that the really
tough nut to crack on this issue when we get into it is going
to be how we define finality, how we define those very extreme
circumstances where EPA is going to have to reopen. In that
respect, would you contemplate that reopening would require the
discovery of something totally new and unknown from the time
that the comfort letter is given or can we go back with
something that was already known?
Ms. Whitman. If the legislation sets up the appropriate
standards for a State plan to move forward that would require
careful review of the site and would require keeping the
appropriate records, we don't think that the reopener would
need to be employed, that the likelihood of it being employed
would be very great.
Having said that, it only makes sense to have the ability
for the Environmental Protection Agency to come in if a State
were to request it, if, in fact, it were found that the site
was posing a threat and/or was no longer protective of the
public health and the environment, if there had been a movement
of contaminant across States lines or into Federal property.
Those would be the circumstances under which at the present
time we are considering reopeners.
As I said before, I look forward to working with you on it.
You are right in having identified that as probably being the
crux and one of the more difficult issues in crafting language.
It is going to take all of your skill as legislators to do that
in a bipartisan way that will allow us to move forward, but I
think we can reach that and would be happy to work with you.
Mr. Gillmor. I think we know what we agree on. Now we have
got to figure out a way to put it in words. That is going to be
real tough.
Well, Administrator, I want to take this opportunity to
thank you for your testimony and thank you for your time that
you have very generously spent with us. I would ask unanimous
consent to keep the record open for 10 days for members to
insert statements, questions, and additional material for the
record. Without objection, it is so ordered. And the committee
stands adjourned.
[Whereupon, at 3:51 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of The American Water Works Association
introduction
The American Water Works Association (AWWA) appreciates the
opportunity to present its views on removing barriers to brownfields
cleanups. AWWA is the world's largest and oldest scientific and
educational association representing drinking water supply
professionals. The Association's 55,000 plus members are comprised of
administrators, utility operators, professional engineers, contractors,
manufacturers, scientists, professors and health professionals. The
Association's membership includes over 4,000 utilities that provide
over 80 percent of the nation's drinking water. Since our founding in
1881, AWWA and its members have been dedicated to providing safe
drinking water.
AWWA commends Chairman Gillmor and the members of the subcommittee
for their leadership in moving the legislative process forward by
holding hearings on improving the brownfields cleanup and reuse
program. AWWA supports reforming the brownfields program to make it
more efficient and productive. However, AWWA members are concerned
about the liability exposure of utilities that must work at a
brownfield site. AWWA respectfully recommends that the brownfields
program should be improved by providing the same exemption from
liability for utilities that work at a brownfield site as is provided
to a response action contractor in Section 119(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) of
1980 (42 U.S.C. 9619).
brownfields redevelopment liability
The brownfields initiatives raise liability issues for public water
suppliers as well as for others who work in a brownfield site. Both
administrative and legislative efforts have been initiated to address
the need to reuse properties that have been contaminated in the past
and are now potential sites for productive use. Broadly, these efforts
include provisions to fund the revitalization of brownfield sites,
efforts to protect innocent landowners and prospective purchasers of
brownfield sites from liability related to their use of the land, and
reliance on state clean up programs to manage existing contamination
which could include leaving contaminated ground water or other
contaminants in place under the brownfield site.
Certainly, the concept of returning property to productive use
should be facilitated and barriers need to be removed. However, AWWA is
concerned that previous initiatives to improve the brownfields program
did not directly addresses potential liability for public water
suppliers and others who work at a brownfield site. For many of these
brownfield sites, the expansion, redevelopment or reuse will require
new or modified utilities--water, sewerage, electric, gas,
communications cables, etc. These underground utility connections will
require deep disturbance of the ground under a brownfield site and
construction of utility trenches to connect the site to the offsite
utility grid. It is possible that these trenches could create a route
for hazardous substances remaining on the site to move off the
brownfield site. Given the broad scope of liability and the many novel
ways in which liability has been interpreted, there is a risk that
actions taken to provide essential utilities to a brownfield site will
result in a liability claim against the utility. This would be an
unintended and inappropriate consequence and could further limit the
reuse of many properties. Contractors may be reluctant to work at a
brownfield site because of the liability exposure. Congress needs to
clearly protect the essential services provided by utilities and others
working at a brownfield site from this liability threat.
The situation of public water suppliers and others working at a
brownfield site is analogous to the response action contractors working
at a Superfund site. If contractors were reluctant to work at Superfund
sites, the sites would not get cleaned up. Congress recognized the
liability exposure and threat of litigation facing such contractors and
provided them with liability protection in the CERCLA statute. The same
rationale by which Congress provided response action contractors with
liability protection applies to providing liability protection for
utilities that work at a brownfield site. AWWA respectfully recommends
that brownfields legislation considered by this subcommittee provide
the existing response action contractor liability protection in CERCLA
to utilities that work at a brownfield site. We believe that this will
greatly enhance brownfields legislation by removing a potential barrier
to returning brownfields to productive use.
conclusion
AWWA thanks you for the opportunity to present comments on removing
barriers to brownfields cleanup. We hope that our comments will be
helpful to the subcommittee in its deliberations.
This concludes the AWWA statement for A Smarter Partnership:
Removing Barriers to Brownfields Cleanups hearing.
______
Chamber of Commerce of the United States of America
Washington, D.C.
March 16, 2001
The Honorable Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
United States House of Representatives
Washington, D.C. 20515
Dear Chairman Gillmor: Thank you and the members of the
Subcommittee on Environment and Hazardous Material for your leadership
on developing Brownfields legislation and for setting the debate in
Congress on this issue. Although the U.S. Chamber did not participate
in the hearing ``Removing Barriers to Brownfields Cleanups'' that the
subcommittee held on March 7, 2001, please include our attached written
testimony in the hearing record.
Sincerely,
R. Bruce Josten
Executive Vice President, Government Affairs
Enclosure
Prepared Statement of R. Bruce Josten, Executive Vice President,
Government Affairs, U.S. Chamber of Commerce
Chairman Gillmor, Ranking Member Pallone, and members of the
Subcommittee on Environment and Hazardous Materials, I am R. Bruce
Josten, Executive Vice President of Government Affairs for the U.S.
Chamber of Commerce (``U.S. Chamber''), the world's largest business
federation representing more than three million businesses of every
size, sector, and region.
We commend you for conducting this important hearing on
redeveloping abandoned and potentially contaminated former industrial
and manufacturing properties, commonly referred to as ``Brownfields''
sites. Thank you also for the opportunity to submit this testimony for
the record on ``Brownfields: Lessons from the Field.''
The U.S Chamber believes legislation is necessary to encourage
Brownfields redevelopment by reducing the uncertainty regarding the
cleanup of Brownfields sites, and the separation of Brownfields
redevelopment from the Comprehensive Environmental, Responsibility,
Compensation, and Liability Act (``CERCLA'' or ``Superfund'') liability
structure for sites with little or no contamination.
In my testimony, I present recommendations that, if adopted, the
U.S. Chamber believes will greatly accelerate the pace at which
Brownfields sites are cleaned up and redeveloped for commercial,
industrial and community uses.
brownfields redevelopment should be a national priority.
Among the members of the U.S. Chamber's federation are 3,000 state
and local chambers. Perhaps no other environmental issue impacts these
chambers and their respective communities as much as Brownfields
redevelopment. Various estimates indicate there are as many as 500,000
Brownfields sites throughout the United States. These sites are blights
on communities, drain the local tax base, hinder economic growth, and
often pose environmental risks. The vast majority of Brownfields sites
remain abandoned, derelict and unattractive to developers--even though
these sites are usually located in areas with access to a strong
workforce, and transportation and utility infrastructure--because of
uncertainty regarding:
The nature and extent of potential contamination;
Potential liability to be imposed on the owners and operators of the
site by the retroactive, strict and joint, and several
liability provisions of CERCLA; and
The ability of state voluntary cleanup programs to enable Brownfields
restorations without undue federal intervention.
the u.s. chamber is a longstanding advocate of brownfields reforms.
The U.S. Chamber has worked to bring together state and local
governments, environmental regulators, local chambers, developers, the
financial and insurance industries, and major sports organizations,
such as the U.S. Soccer Foundation, to discuss strategies for
Brownfields redevelopment. As part of this strategy, the U.S. Chamber:
Hosted the ``Brownfields to American Dream Fields'' conference in 1999
to explore methods to redevelop sites into athletic fields;
Hosted the ``Let's Make it Happen'' conference in 2000 that centered on
approaches to redevelop Brownfields sites as commercial and
community facilities; and
Will convene the ``Brownfields Summit'' on June 18, 2001 to highlight
strategies for implementing new Brownfields legislation, should
it be enacted, or efforts to promote and support Congressional
Brownfields legislation.
brownfields restoration initiatives are beginning to demonstrate
success.
Over the past few years, the U.S. Environmental Protection Agency
(``EPA'') has established a process, through a series of policies
described in guidance documents, that encourages states to assert
control over the restoration of Brownfields sites.1
Currently, 35 states have voluntary cleanup programs designed to
remediate Brownfields.2 Of the more than 12,273 sites in
these state programs, 2,691 have been restored and redeveloped.
Pennsylvania's program has been the most successful, cleaning up 583 of
the 654 sites--89 percent--in its program.
---------------------------------------------------------------------------
\1\ See http://www.epa.gov/swerosps/bf/gdc.htm for a list of
guidance documents. For information on EPA Brownfields efforts, see
http://www.epa.gov/swerosps/bf/index.html.
\2\ Of these states, 12 have entered into Memoranda of Agreement
(``MOA'') with EPA and follow the Agency's guidance. The remainder have
state-sponsored voluntary cleanup programs that are similar to EPA's
programs but independent of EPA oversight. The primary difference
between these two efforts is that cleanups in those states working
under MOAs receive a release from federal CERCLA liability when a site
is remediated according to the appropriate plan. These MOAs include
provisions that allow EPA to reopen the cleanup based on a set of
conditions. Sites remediated in states with voluntary cleanup programs
that do not have MOAs with EPA only receive a release from state
liability and remain subject to CERCLA liability should there be
subsequent discovery of significant contamination of the site. The
state voluntary programs, however, have cleaned up 1,530 Brownfields
sites and 1,161 sites have been cleaned up pursuant to EPA MOA
programs. The vast majority of final cleanups have occurred in five
states--Pennsylvania, Illinois, Texas, Washington and California.
---------------------------------------------------------------------------
Although this progress is praiseworthy, at the current pace it will
take centuries to remediate 500,000 Brownfields sites. To accelerate
the pace of redevelopment for Brownfields sites, Congress needs to
build on the progress made by these 35 states and EPA. Redevelopment of
Brownfields sites will bring jobs, significant economic development, an
expanded tax base, and a better quality of life to the communities
where these sites are located.
congress must recognize the differences among brownfields sites.
Any Brownfields reform legislation should treat sites according to
the risk they pose to human health and the environment. Superfund was
established to respond to the most highly contaminated sites that posed
imminent and substantial endangerment to human health and the
environment. However, as currently interpreted, any site that contains
a detectable level of a hazardous substance--down to a few molecules--
is potentially subject to CERCLA liability. Due to this extremely
broad, ridiculous interpretation of CERCLA, the number of Brownfields
sites has grown from a few thousand to approximately 500,000.
However, the vast majority of Brownfields sites are not
contaminated at levels that require Superfund National Priority List
(``NPL'') listing and Superfund liability. Among the 500,000
Brownfields sites in the United States, there are three categories.
Each type of site requires a different remediation strategy:
Sites with significant contamination. Sites in this category are high-
risk sites under EPA or state screening criteria, listed or
proposed NPL sites, and sites subject to CERCLA enforcement
action should remain under CERCLA jurisdiction. Superfund is
the appropriate mechanism for restoring these highly
contaminated sites.
Sites not contaminated or sites with insignificant amounts of
contaminants. Sites with little or no contamination should be
released immediately from the CERCLA liability structure and
restored through state voluntary cleanup programs. Using
Superfund to clean up these sites is like using a bulldozer to
build a sandcastle. The Superfund ``bulldozer'' may work, but
for many Brownfields sites, it is not the right tool.
Sites that need additional investigation. Many sites require further
testing to determine the quantity and amount of contamination.
Sites that have not been characterized but are believed to be
contaminated should be studied to determine the nature and
extent of contamination and the best course of remediation.
To this end, the U.S. Chamber provides the following three common
sense recommendations for Brownfields legislation.
recommendation 1: support efforts to fully characterize site
contamination.
Brownfields legislation should provide funding to encourage the
full, comprehensive characterization of Brownfields sites. Funding,
which could include grant programs and state revolving loan funds, will
greatly reduce the uncertainty surrounding the extent of contamination
at sites, and identify and implement the measures necessary for
remediation.
This type of financial support would greatly expedite Brownfields
redevelopment because the potential number of sites with little or no
contamination is significant. A report published by the U.S. General
Accounting Office (``GAO'') in December 2000 stated that of the 1,666
site assessment that had been completed pursuant to EPA Brownfields
Restoration Pilot Program funding, 623 sites--approximately 37
percent--did not require cleanup activities.3 If the GAO
study is representative of the entire inventory of Brownfields sites,
this data may indicate that 30--40 percent of the estimated 500,000
Brownfields sites may require little or no remediation, totaling
150,000 to 200,000 sites. Of the remaining sites, characterization
would determine how to best cleanup and redevelop sites, through state
voluntary cleanup programs, Superfund, or other statutes.
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\3\ U.S. General Accounting Office, Report to the Chairman,
Committee on Commerce, House of Representatives, ``Brownfields:
Information on the Programs of EPA and Selected States,'' Report Number
GAO-01-52, (December 2000), at 31.
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recommendation 2: enact cercla liability reforms.
Certain site remediation should be managed through Superfund. As
previously stated, sites that are proven to be significantly
contaminated should be cleaned up and restored pursuant to CERCLA.
Working with the states, EPA is the appropriate government body to
ensure these sites are cleaned up and restored.
Contamination below NPL listing criteria should be managed by state
programs. For sites contaminated at levels below NPL listing standards,
parties redeveloping sites should be able to work with state
environmental agencies to establish cleanup plans under which the site
will be remediated. Upon completion of the remediation, the state would
certify to EPA that the site had been remediated according to the plan
and appropriate cleanup standards. As long as the retroactive, strict
and joint, and several liability provisions of CERCLA continue to apply
to all sites that may contain any hazardous substance, the site owners
and operators will be reluctant to redevelop these sites.
To authorize this process, Brownfields reform legislation should
release from CERCLA liability contiguous property owners, prospective
purchasers, innocent landowners, and parties that redevelop Brownfields
sites in accordance with a state approved plan. These provisions would
remove potential uncertainty that could deter parties from cleaning up
or purchasing restored Brownfields sites by ensuring that developers
and purchasers of redeveloped sites will not be held responsible for
any contamination on the site that occurred in the past.
This reform would enable cleanups in accordance with other
traditional federal and state environmental laws and common law
liability requirements. Although Superfund would not apply in these
cases, other federal and state statutes that regulate the treatment,
storage, handling, transport and disposal of hazardous waste would
ensure that cleanups are conducted in a manner that protects public
health and the environment. These statutes contain severe sanctions for
violators, and specify measures for addressing improper disposal,
corrective action and other activities that endanger human health and
the environment. Should unknown site contamination be discovered in the
future, responsibility for cleanup would be assigned to potentially
responsible parties (``PRPs'') pursuant to the CERCLA liability scheme.
Release uncontaminated sites. As noted above, there may be 150,000
to 200,000 sites classified as Brownfields that are not contaminated or
do not pose a risk to human health and the environment. Provisions of
legislation should allow developers to file with a state environmental
permitting agency an audit report establishing the site as ``not
contaminated.'' Should site characterization clearly demonstrate that
Brownfields sites are free of environmental degradation, the site would
be released from CERCLA liability.
This categorization process will promote the expedited restoration
and redevelopment of low-risk sites by encouraging state voluntary
cleanup programs to harness and leverage private sector resources. It
will also limit federal intervention in state cleanup programs
concerning sites with minimum contamination and those restored to
minimum state standards.
recommendation 3: establish finality for state cleanups.
Brownfields legislation must limit the role of the federal
government in non-CERCLA, state voluntary cleanups to instances of
imminent and substantial endangerment. Other more expansive provisions
would lead to EPA meddling in state cleanups. Such an expansive ability
to second-guess the states will discourage state cooperation.
Under existing cleanup programs, many states have already proven
reluctant to cooperate with EPA. Although 35 states currently have
voluntary cleanup programs, only 12 have entered into agreements with
EPA.4 The 23 remaining states have established independent
voluntary cleanup programs to escape EPA micro-management of activities
that states are very capable of performing.
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\4\ See footnote 2.
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Clearly, EPA should not have a blank check to micro-manage state-
led remediation efforts. Without limiting EPA authority over state
voluntary cleanups, a significant degree of uncertainty will continue
to deter parties from redeveloping Brownfields sites. Such a degree of
EPA oversight is unnecessary. As noted, state voluntary cleanup
programs have already resulted in more than 2,600 restored Brownfields
sites. Congress needs to build on the progress made by the states--not
establish new statutory provisions that will undercut state
responsibility.
Once again, thank you and the members of the committee for your
leadership on the Brownfields issue. The U.S. Chamber appreciates your
consideration of our views on restoring Brownfields sites. These
efforts are necessary to improve the economic prosperity and
environmental conditions of communities throughout the nation.
______
Prepared Statement of The American Institute of Architects
introduction
The American Institute of Architects (AIA) is a professional
society representing approximately 67,000 licensed architects and
associated professionals located in 305 chapters throughout the United
States. They are leaders in their community and understand the
contribution architects make to the economic vitality of America.
Working together with other elements of the design and construction
industry, the AIA promotes a better quality of life through good
design.
brownfields development opportunities abound
Architects throughout this nation understand the enormous
significance of redeveloping former industrial sites--brownfields--into
mixed uses including parks, shopping areas, learning centers, and
affordable housing. Brownfield sites appear in every state and nearly
every community, many in prime locations.
Architects view brownfields redevelopment legislation as an
opportunity to redesign and enhance America's communities. A simple act
like redeveloping a brownfields site has profound effects on the
community. It increases the local tax base, creates jobs, revitalizes
neighborhoods, and extends environmental protection for all citizens.
The benefits of brownfields redevelopment can been seen throughout the
community for years to come. It is not only an investment in a parcel
of land, it is an investment in our communities.
The AIA commends Congressman Paul Gillmor (R-OH), Chair of the
Environment and Hazardous Materials Subcommittee, and Congressman Billy
Tauzin (R-LA), Chair of the Committee on Energy and Commerce, for
holding these hearings on much-needed brownfields reform. This is a
strong, positive step to providing much-needed relief to thousands of
communities from coast to coast and the AIA stands ready to support the
design and passage of brownfields legislation.
The AIA urges the House to consider brownfields legislation that
includes long awaited financial and liability remedies. Successful
legislation would spur the cleanup of troublesome sites by providing
financial resources and liability relief in a manner that both public
and private sectors can endorse and wholeheartedly embrace. The
financial remedies should include a combination of tax incentives and
direct funding that is flexible and addresses the specific needs of the
states and localities. Futhermore, liability reform needs to be
included in the brownfields legislation to assist in the cleanup and
redevelopment of these industrial sites while protecting parties not
responsible for the contamination.
Last week, the AIA endorsed the Brownfields Revitalization and
Environmental Restoration Amendments Act of 2001 (S. 350), sponsored by
Sen. Lincoln Chafee (R-RI) and Sen. Bob Smith (R-NH). S. 350 is a good
legislative model because it would provide the financial and liability
remedies necessary for successful brownfields redevelopment.
For example, S. 350 would build on the Environmental Protection
Agency's (EPA) current brownfields program by providing funding through
a $150 million grant and loan program for fiscal years 2002-2006. These
grants and loans are designed to help state and local governments
identify and cleanup properties that are abandoned. EPA is authorized
to provide grants to state or local governments and to set up the
Revolving Loan Fund for remediation grants.
Successful brownfields legislation must recognize that one size
does not fit all and, thus, offer community-friendly solutions. It
should provide flexibility to communities through grants and access to
loan capitalization funds. These remedies must be designed to address
both urban and rural communities that are experiencing problems with
contaminated sites.
In addition to commitment of federal financial resources, liability
reform is critical to the success of brownfields redevelopment efforts.
According to a recent Conference of Mayors (USCM) report, the most
frequent impediments in redeveloping brownfields sites are liability
concerns and lack of cleanup funding. Brownfields legislation should
provide liability protection for landowners--who did not contribute to
the contamination--whose property may be contaminated by a contiguous
contaminated site, as well as relief for purchasers of contaminated
property. These are the types of liability reforms that the private
sector developers, entrepreneurs and architects view as necessary
ingredients to recycle the estimated 500,000 brownfields properties in
our nation.
It is imperative that brownfields legislation passed in the 107th
Congress address this issues in the manner that best facilitates the
needs of the communities.
realizing the potential: two case studies
Two successful case studies of brownfields redevelopment where
architects played a major role can be found in East Palo Alto,
California, and Atlanta, Georgia. Both case studies demonstrate the
unique skills architects bring to the brownfields redevelopment debate.
Silcon Valley Gets a New Front Door
East Palo Alto is a Brownfields Regional Pilot, a federal
Empowerment Zone, and an Enterprise Community. At the doorstep of the
Silicon Valley, the town, incorporated for only about 15 years, is a
prime location. It is still distancing itself from a disreputable past.
The former downtown area was known as Whiskey Gulch and lived up to the
moniker, according to those familiar with the area. East Palo Alto also
had the dubious distinction of being the 1992 murder capital of the
U.S. Enough was enough for community leaders who have begun to turn the
tide, with the help of police from adjacent jurisdictions, eager
developers, and The American Architectural Foundation (AAF).
With a grant from the AAF, and with assistance from AIA San Mateo
County and other area leaders, including Lee Lippert, AIA, and D.
Michael Kastrop, AIA, East Palo Alto is in the process of planning to
redevelop the 130-acre Ravenswood Industrial Area, an EPA-designated
Regional Brownsfield Pilot site. Cleanup of the site was initially put
at $30 million, killing any chance of development. A more thorough
evaluation put the cleanup cost at $2 to $5 million and set a plan in
motion. With an AAF grant funding a charrette, East Palo Alto residents
finally have a chance to bring in such basics as grocery stores, other
retail shops, and small businesses. Prior to this effort, East Palo
Alto had virtually no tax base to speak of. Architects have made a
difference in how this community tackled its brownfields problem.
Restoring Steel Town
In Atlanta, Thompson, Ventulett, Stainback & Associates, Inc.(TVS),
has completed the master plan to redevelop the 138-acre former midtown
site of Atlantic Steel. Combining 3,600 residential units, 6.25 million
square feet of retail and entertainment space, and 1,000 hotel rooms,
developers Jacoby Development, Inc., and CRB Realty Associates are
creating a new in-town community. ``The long-term benefit of the
redevelopment of this site is not only the amenities, but that the
project also extends and complements the existing mass transit and
pedestrian infrastructure,'' said Philip A. Junger, AIA, TVS project
manager. ``This project is big enough to make a real difference.''
There were no public funds for remediating the brownfield, said Thomas
W. Ventulett, FAIA. Junger added that other than slag residue, a
construction obstacle because it is expansive, there is minor
contamination apparent. Architects view this not only as a financial or
business opportunity but also as a successful community revitalization
effort.
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