Order Code IB10114
CRS Issue Brief for Congress
Received through the CRS Web
Brownfields and Superfund Issues
in the 108th Congress
Updated October 22, 2003
Mark Reisch
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Historical Perspective
A Brief Summary of the Cleanup Program
Superfund Issues
Revenue Issues: Appropriations and the Superfund Taxes
Appropriations
The Superfund Taxes
Reauthorizing the Ombudsman
Comprehensive Reauthorization
Liability
Remedy Selection and Cleanup Standards
State Role
Natural Resource Damages
Brownfield Issues
LEGISLATION
FOR ADDITIONAL READING


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Brownfields and Superfund Issues in the 108th Congress
SUMMARY
The Superfund program for cleaning up
upcoming report from the Environmental
the nation’s worst hazardous waste sites was
Protection Agency (EPA) on the future costs
created by the Comprehensive Environmental
and direction of the program, as well as over-
Response, Compensation, and Liability Act of
sight of the new Small Business Liability
1980, or CERCLA (P.L. 96-510, as amended).
Relief and Brownfields Revitalization Act
(P.L. 107-118), enacted in 2002.
A bill, S. 515, to establish an independ-
ent ombudsman with expanded authorities
CERCLA’s stringent liability regime has
related to Superfund, brownfields, and other
drawn in many parties to pay for hazardous
programs in the Office of Solid Waste and
waste cleanup and has contributed to the law’s
Emergency Response passed the Senate by
unpopularity in some quarters, although enact-
unanimous consent on May 21; a companion
ment of P.L. 107-118 may have blunted some
bill, H.R. 347, was introduced in the House.
criticism. CERCLA also established the
Superfund trust fund that was supported by
Two brownfield-related measures have
dedicated taxes until the authorization for
had action. The Economic Development
these taxes expired in 1995. The Administra-
Administration Reauthorization Act, H.R.
tion’s decision not to request renewal of the
2535, would make brownfields eligible for
taxes as the trust fund’s balance has declined
certain grants and would establish a demon-
is another continuing issue. H.R. 610 and S.
stration program for brownfield sites employ-
173 have been introduced to reinstate the
ing solar energy technology (termed
taxes.
brightfields); it was reported on July 25, 2003
(H.Rept. 108-242, Part I), and passed the
The FY2003 appropriation for the Super-
House on October 21. Also, a bill to make the
fund program is $1.265 billion. The adminis-
brownfields program in the Department of
tration’s FY2004 request is $1.390 billion.
Housing and Urban Development more acces-
sible to small communities, H.R. 239, was
As of May 1, 2003, 813 non-federal sites
reported on March 5, 2003 (H.Rept. 108-22).
(61%) placed on the Superfund’s National
Priorities List (NPL) had been removed to the
Other matters that the 108th Congress
Construction Completed List.
might decide to address include reviewing an
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MOST RECENT DEVELOPMENTS
Brownfields are made eligible for certain Economic Development Administration
(EDA) grants in the EDA reauthorization bill, H.R. 2535, which was reported July 25
(H.Rept. 108-242, Part I), and passed the House October 21. The bill also establishes a
demonstration program to use solar energy technology at brownfield sites (referred to as
“brightfields”).
The Senate passed Senator Crapo’s S. 515 (S.Rept. 108-50), the Ombudsman
Reauthorization Act, on May 21, 2003; it is now before the House Energy and Commerce
Committee. Representative Michael Bilirakis introduced a companion bill, H.R. 347, in the
House on January 27, 2003.
The House Financial Services Committee reported H.R. 239 (H.Rept. 108-22) on
March 5, 2003. The bill improves the HUD brownfields program.
Senator Frank Lautenberg offered an amendment (S.Amdt. 408 to S.Con.Res. 23) to the
Budget bill to reinstate the Superfund taxes on March 25 which failed, 43-56. He also
offered an amendment (S.Amdt. 192, as modified) on January 23, 2003, to the Continuing
Resolution for FY2003, H.J.Res. 2, to increase the appropriation for the Superfund program
by $100 million. The amendment was tabled on a 53-45 vote.
Two bills have been introduced to reinstate the Superfund taxes: Senator Barbara
Boxer’s S. 173 on January 15, 2003, and Representative Frank Pallone’s H.R. 610 on
February 5, 2003.
BACKGROUND AND ANALYSIS
Introduction
The 108th Congress could see the beginning of a new debate over the future of the
Superfund program and hazardous waste cleanup in the United States. Created in 1980 by
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
P.L. 96-510), Superfund is the principal federal program for cleaning up hazardous waste
sites to protect public health and the environment from releases of hazardous substances.
After the taxes that fed the Superfund trust fund ended in 1995, the available balance
in the fund steadily declined. How much was needed to finish addressing the nation’s worst
sites was unknown. To help answer that question Congress directed EPA, in the conference
report dealing with Superfund’s FY2000 appropriation,1 to contract with Resources for the
Future (RFF), an independent research institute, “for an independent analysis of the projected
federal costs over the ten-year period of fiscal years 2000-2010 for implementation of the
1 H.Rept. 106-379 accompanying H.R. 2684, the FY2000 appropriations bill for the Departments of
Veterans Affairs and Housing and Urban Development, and Independent Agencies.
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Superfund program....” The study was released in July 2001and found, among other things,
that the costs of cleaning up sites and administering the program will increase in the near
term and are not likely to fall below current levels until FY2008. It also identified areas
where EPA could improve its performance.
Prompted by the report, EPA convened an advisory panel to make recommendations to
the agency by 2003 on the future costs and direction of the program. Specifically, the
Superfund Subcommittee of the National Council for Environmental Policy and Technology
(NACEPT) was charged to review: (1) the role of the National Priorities List (NPL) in
cleaning up the most serious hazardous waste sites in the U.S.; (2) ways of addressing “mega
sites,” those NPL sites where cleanup costs are expected to exceed $50 million; and (3) new
ways of measuring success in the Superfund program. The subcommittee is also to consider
“the Superfund program in context with other federal and state waste cleanup programs [and
how they] can work together in a more effective and unified fashion.”2 When the NACEPT
report emerges, it will, together with the RFF report, provide the basis for a fresh look at a
program that has sometimes provoked controversy, but has not been subject to major
legislative change since 1986. Congress might choose to conduct oversight hearings on the
issue.
Thus far in the 108th Congress three relatively non-controversial bills have received
attention. The Senate passed the Ombudsman Reauthorization Act (S. 515, S.Rept. 108-50)
on May 21, 2003. The bill would establish the ombudsman’s independence and give the
officer investigative powers over programs in EPA’s Office of Solid Waste and Emergency
Response. (See “Reauthorizing the Ombudsman,” below).
And in the House, the Committee on Financial Services reported H.R. 239 on March
5, 2003 (H.Rept. 108-22). The bill would make brownfield grants administered by the
Department of Housing and Urban Development more accessible, especially to smaller
communities. The third bill is the Economic Development Administration (EDA)
Reauthorization Act, H.R. 2535 (H.Rept. 108-242), which makes brownfields eligible for
certain EDA grants. It passed the House on October 21.
Historical Perspective
CERCLA was enacted in 1980 in the wake of discoveries of abandoned hazardous
waste sites around the country. The situation was brought to public attention by the 1978
declaration of a health emergency at the Love Canal neighborhood of Niagara Falls, N.Y.,
where a residential subdivision and a school had been built atop a former chemical dump,
and chemicals were seeping into residents’ basements and surfacing in their yards. In the
following weeks news stories told of greater than normal occurrences of miscarriages, birth
defects, and cancer among the residents.3 Discoveries of other toxic sites in other parts of
the United States were leading news items in the months that followed, and congressional
committees, EPA, and the Surgeon General among others, launched investigations to
determine the number of hazardous sites and related risks to human health.
2 Meeting Summary, NACEPT Superfund Subcommittee, June 17-19, 2002, Attachment C. p. C-1.
3 Subsequent studies cast doubts that the wastes were causally related to these effects, however.
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President Jimmy Carter declared a federal emergency at Love Canal, the first (and only)
time a pollution incident was made eligible for disaster assistance. He did so because
existing federal authority was limited to two small programs under the Clean Water Act, and
to the imminent hazard provision of the Resource Conservation and Recovery Act (RCRA),4
which lacked the full range of authorities necessary to allow comprehensive emergency
action. Among other issues RCRA provided no funds for cleanup. At the state level,
response capability was either very limited or non-existent.
The legislative track for what became Superfund combined hazardous waste cleanup
with oil spill and chemical spill provisions, amending the Clean Water Act which had passed
the House and Senate in different versions in the 95th Congress. But during the 96th Congress
(1979-1980), one news report after another kept attention focused on the cleanup of dumps
containing hazardous wastes, and this issue was the driving force that ultimately brought
forth the Comprehensive Environmental, Response, Compensation, and Liability Act of
1980, or CERCLA (P.L. 96-510) known by its short title as “Superfund.” The law was
amended and enlarged in 1986 by the Superfund Amendments and Reauthorization Act
(SARA, P.L. 99-499).
CERCLA, as amended, makes potentially responsible parties5 (PRPs) liable for the costs
of response (primarily cleanup) associated with releases6 of hazardous substances, and for
damages (monetary compensation) for injuries to publicly owned natural resources. The
law’s liability standard is strict, joint and several, and retroactive. Generators of hazardous
substances, transporters who selected the disposal site, and past and present owners and
operators of the site can all be held liable. CERCLA also allows PRPs to sue other parties
(usually waste generators) to contribute to the cost of cleanup, sometimes leading to
hundreds of others — including small businesses — being brought into Superfund’s liability
net. This stringent liability regime and its consequent expenses have contributed to the law’s
unpopularity in some quarters, and is a major sticking point in reauthorization. (See
“Comprehensive Reauthorization” below.) The most common source of waste is
manufacturing operations (38.9% of total waste at Superfund sites) and common waste
destinations include municipal landfills (16.5%), recycling operations (8.5%), and industrial
landfills (6.5%).
CERCLA also established the Superfund Trust Fund, which was created primarily from
a corporate environmental income tax, and excise taxes on petroleum and specified
chemicals. It received about $1.5 billion per year before the legislative authority to collect
the taxes expired on December 31, 1995. Congress annually appropriates monies from the
trust fund to EPA, and in most years has added a contribution from the general fund of the
Treasury. Normally the Treasury provided $250 million per year. For FY1999, however,
4 RCRA established the federal program regulating solid and hazardous waste management.
5 The party who may ultimately bear the burden of paying for the cleanup and related costs may not
be directly responsible for the activities that caused contamination at the site. Examples are insurers,
and banks that have made loans to the owner or operator of the site.
6 The term “release” is broadly defined to include not only such things as spilling and leaking, but
also the “abandonment or discarding of barrels” and other closed receptacles (CERCLA Section
101(22)). Also, courts have held that a release need not be a discrete event, but can include seepage
over a long period of time.
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as the trust fund balance declined in the absence of tax receipts, the Treasury contribution
was increased to $325 million. In each of FY2000-FY2002 $635 million came from the
general revenues, for FY2003 the President’s budget requested $700 million from general
revenues, and for FY2004 the budget request included $1.1 billion from general revenues.
Monies from the fund are used where a financially viable party cannot be found to pay
for cleanups, as well as to support the EPA’s Superfund-related enforcement, management,
and research and development activities. The lack of revenue-producing taxes adds to the
pressure to reauthorize the law. But renewing the taxes involves a political trade-off: some
call for amending CERCLA to address the criticisms of unfair liability rules, slow cleanups,
and overly stringent cleanup requirements.
Although there were serious efforts in the 103rd to 106th Congresses (1993-2000) to
change the law, and comprehensive reauthorization bills were reported in the 103rd, 105th, and
106th Congresses, none reached the floor in either chamber because of opposition by key
members. The successful amendments to CERCLA during that time period have had general
agreement and targeted a fairly narrow area: limiting the liability of financial institutions that
had made loans to PRPs, easing the transfer of military bases to local entities (related to the
Base Realignment and Closure laws), limiting the liability of recyclers, and providing a tax
incentive to encourage the cleanup of brownfields.7 Last Congress’s enactment of the Small
Business Liability Relief and Brownfields Revitalization Act (P.L. 107-118) also fit that
pattern.
Meanwhile, EPA moved to address the criticisms on its own and in 1993 started what
became three rounds of 49 administrative reforms to make the agency’s operation of the
program “faster, fairer, and more efficient.” Industry groups gave the agency credit for
improving the program, but said additional changes requiring legislation were still needed.
From their perspective, these should include replacing CERCLA’s liability regime, reforming
cleanup standards and remedy selection, changing the law’s provisions on natural resource
damages, and instituting a different means of funding the program.
By the end of 2000 the tone of the Superfund reauthorization debate had changed.
According to EPA, 92% of all sites that had been listed on the NPL since its beginning were
either undergoing cleanup construction (remedial or removal), were completed and on the
Construction Completion List, or had been deleted from the NPL because cleanup goals were
met. Attention was more focused on “brownfields,” less seriously contaminated sites where
redevelopment is complicated by potential environmental contamination.
The growth of the brownfields effort coincided with sentiment by some in Congress
(and elsewhere) that Superfund has largely accomplished its original purpose of cleaning up
the worst hazardous waste sites in the nation, and it was time to begin winding the program
down. A 1998 General Accounting Office report8 stated that of approximately 3,000 sites
identified as possible NPL sites, only 232 were named by either EPA (106 sites), a state (100
sites), or both (26 sites), as likely to be placed on the National Priorities List. The reported
7 For additional details, see CRS Report RL31154, Superfund: A Summary of the Law.
8 Hazardous Waste: Information on Potential Superfund Sites. November 30, 1998,
GAO/RCED-99-22.
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bills of the 105th and 106th Congresses also reflected this outlook. The bills enlarged the
brownfields program on the one hand and on the other hand looked to the end of Superfund
by limiting the number of sites that could be added to the NPL or by authorizing declining
appropriations to carry out the program.9
It was in this climate of an uncertain need for the program and a dwindling balance in
the trust fund that Congress commissioned Resources for the Future (RFF) to estimate future
Superfund costs. The study, Superfund’s Future: What Will It Cost?, came out in July
2001and calculated that in the 10 years from FY2000 to FY2009 the cost of cleaning up
nonfederal sites on the NPL (including estimated additions to the list) and administering the
program would range between $14.0 billion and $16.4 billion, with the best estimate being
$15.1 billion. “A ramp-down of the program is not imminent,” RFF wrote. “EPA’s need for
Superfund monies will not decrease appreciably below FY1999 expenditures of $1.54 billion
until FY2006,” when they would be $1.47 billion in the base case scenario. “Total annual
costs peak in FY2003 [$1.70 billion], driven principally by the cost of Fund-lead actions at
a few mega sites, and then begin a steady but small decline each year. In FY2009, the final
year of our estimates, the total annual cost ... is $1.33 billion.”10 “Fund-lead actions” are
financed in whole or in part by EPA, and “mega sites” are those with actual or expected costs
of $50 million or more.
Other findings of the report include:
! There are more mega sites, costing an average of $140 million (versus $12
million for non-mega sites) to clean up that will be eligible for the NPL.
Whether they are listed is dependent on such factors as the availability of
funding, political leverage, technological advances, and demographic trends.
This ties into the question of the role and priorities of the NPL, and is an
issue Congress needs to address, according to RFF.11
! EPA needs to improve the quality of the 5-year reviews of NPL sites that
CERCLA requires where nonpermanent remedies (e.g., landfill caps) were
employed to verify they still protect human health and the environment.
RFF found that EPA classified many of them as “protective” despite
information in the reviews suggesting that the remedies were either not fully
implemented, not functioning as designed, or are unlikely to meet cleanup
objectives.12
! Two of EPA’s major internal management systems — the Comprehensive
Environmental Response, Compensation, and Liability Information System
(CERCLIS), and the Integrated Financial Management System (IFMS) —
need to be improved so Congress can better follow Superfund dollars.
9 In the 105th Congress: S. 8. In the 106th Congress: S. 1090, H.R. 1300, and H.R. 2580.
10 Katherine N. Probst, and David M. Konisky. Superfund’s Future: What Will It Cost?
Washington: Resources for the Future, 2001. p. xxi.
11 Superfund’s Future: What Will It Cost?, p. 85-93.
12 Superfund’s Future: What Will It Cost?, p. 65-70.
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A Brief Summary of the Cleanup Program
When a hazardous waste site or an incident such as a spill is reported to EPA, the
hazardous substance release is entered into CERCLIS (Comprehensive Environmental
Response, Compensation, and Liability Information System), the agency’s site tracking
database. There were 11,591 active sites in CERCLIS as of July 8, 2002, and 32,918 in the
CERCLIS archives; archive status indicates that EPA has completed its assessment of a site
and has determined that no further steps will be taken to list it on the National Priorities List
(NPL). A preliminary assessment is conducted at all CERCLIS sites to quickly determine
if the site poses a sufficient threat to health and the environment to warrant further
investigation, and if it might require an emergency removal. An “emergency removal” is a
short-term, fast-track response to mitigate a dangerous situation that can be ordered at any
time if conditions warrant, regardless of whether a site is on the NPL or not.
If recommended by the preliminary assessment, a site inspection is conducted, during
which environmental and waste samples are taken for laboratory analysis to determine if
hazardous substances are present and the extent of their migration. Information from the site
assessment is used in the Hazard Ranking System, and sites receiving a sufficiently high
score are placed on the National Priorities List. The term “Superfund site” generally means
a site on the NPL, and the long-term cleanup activities at an NPL site are referred to as
“remedial actions.”
As of May 1, 2003, there were 1,236 sites on the NPL, of which 158 were federal
facility sites; another 66 were proposed for listing, of which 6 were federal facility sites.
Proposed and final NPL sites total 1,302. Through December 31, 2002, EPA and the Coast
Guard had also conducted more than 7,399 removal actions, 69% of which were “time
critical” in nature. (The Coast Guard is the lead agency in coastal areas.) There are or have
been Superfund sites in all 50 states, as well as in American Samoa, Guam, the Northern
Marianas, Puerto Rico, the District of Columbia, the Trust Territories of the Pacific, and the
Virgin Islands.
After listing on the NPL, the next step is the remedial investigation, a detailed
examination of the site and the wastes present, which is followed by (or conducted
concurrently with) a feasibility study that examines alternative cleanup approaches. (These
two steps are frequently referred to together as the “RI/FS.”) In the Record of Decision
(ROD) EPA decides which alternative to pursue, and the Agency or its designee —
frequently the U.S. Army Corps of Engineers — prepares specifications and plans for the
selected remedy. Cleanup construction may be followed by a requirement to operate,
maintain, or monitor the site for a period of years (which is almost always the case if
groundwater cleanup is involved). As of May 1, 2003, 813 non-federal sites (61% of the
1,335 total non-federal sites listed since inception) had been placed on the Construction
Completion List; and 257 (19% of the 1,335) of those sites and portions of 34 others have
also been deleted from the NPL.
The National Contingency Plan (NCP, codified at 40 CFR 300) provides a blueprint of
how EPA is to respond to hazardous substance releases. It covers methods for discovering
and investigating hazardous waste sites, the roles of federal and state agencies, the
appropriate level of response activities, and other subjects. The Hazard Ranking System and
the National Priorities List are appendices to the NCP. (For details on this and other
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Superfund topics, see EPA’s Superfund web site: [http://www.epa.gov/superfund/
index.htm]).
Superfund Issues
Revenue Issues: Appropriations and the Superfund Taxes
Appropriations. The President’s budget for FY2004 proposes $1.390 billion for the
Superfund program, with $290 million coming from the trust fund and $1.1 billion from
general revenues. The House-passed bill, H.R. 2861, contains $1.275 billion for the
program, with $200 million coming from the trust fund and the remainder from general
revenues. In the Senate, the Appropriations Committee reported S. 1584 with $1.265 billion
for Superfund; it did not specify amounts from the trust fund and from general revenues. For
FY2003 the appropriation is $1.265 billion, of which $700 million came from the Superfund
trust fund and the remainder from the general fund of the Treasury.
For brownfields, the administration requested $210.8 million in FY2004, an increase
from the $167.7 million appropriated for FY2003. The House approved $171 million for
EPA’s brownfields program, and the Senate bill contains $190.5 million. Beginning with
FY2003 the brownfields program is no longer funded from the Superfund account.
The Superfund Taxes. Until the legislative taxing authority expired on December
31, 1995, the Superfund Trust Fund’s principal sources of revenue were excise taxes on
petroleum and designated chemical feedstocks, and a corporate environmental income tax.
The trust fund historically supplied most of the monies appropriated (about 83%) for the
Superfund program, with general revenues from the Treasury providing the rest (about 17%).
Current estimates are that the trust fund will contain about $159 million at the end of
FY2003. Superfund taxes have become an issue because the Administration did not request
that they be renewed. Congress, if it chooses, could fund the program entirely through
general revenues; there is nothing in CERCLA that would prevent that approach. The
Republican congressional leadership has said they would not allow the program to go
unfunded. Since FY1999 Congress has extended the life of the fund by increasing the
Treasury contribution from the usual $250 million in most previous years, and reducing the
amount taken from the fund.
The Natural Resources Defense Council and the Environmental Defense Fund have
expressed their “strong concern” that the taxes be reauthorized in order to keep cleanups
moving forward. Business interests, including the Business Roundtable, the American
Petroleum Institute (API), and the American Chemistry Council (ACC; formerly the
Chemical Manufacturers Association) have testified against authorizing any taxes unless
there is comprehensive reform of the law, and API and ACC want Congress to change the
overall tax structure. (For additional information, see CRS Report RL31410, Superfund
Taxes or General Revenues: Future Funding Options for the Superfund Program
.)
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Reauthorizing the Ombudsman
Congress first created an ombudsman at EPA in the 1984 amendments to the Resource
Conservation and Recovery Act (RCRA) to handle concerns and inquiries from the public,
and to help small businesses comply with the many new hazardous waste management
requirements of that law. The agency gradually increased the position’s purview to include
other programs in the Office of Solid Waste and Emergency Response (OSWER), including
Superfund. When the legislative authorization for the officer expired in 1988, the agency
continued the position, and later installed ombudsmen in each of EPA’s 10 regional offices.
In recent years the post became more visible as the ombudsman investigated citizen
complaints referred by Members of Congress, and questions arose about the adequacy of the
position’s resources and independence from agency influence.
The Senate passed the Ombudsman Reauthorization Act, S. 515 (S.Rept. 108-50), on
May 21, 2003. The bill would establish an independent Office of the Ombudsman within
EPA to receive complaints and render assistance to any person regarding the agency’s
hazardous waste programs. Introduced by Senator Mike Crapo, S. 515 passed without
amendment under unanimous consent, and is now before the House Committee on Energy
and Commerce. Representative Michael Bilirakis introduced a companion bill, H.R. 347,
on January 27, 2003.
The bills are essentially the same as S. 606 (S.Rept. 107-320), which passed the Senate
in the last Congress. They specify that the ombudsman shall be appointed by the President
and confirmed by the Senate for a 5-year term, and may be reappointed once. The
ombudsman would be empowered to conduct investigations, issue subpoenas, make findings
of fact, hold public hearings, and make nonbinding recommendations to the EPA
Administrator concerning programs under the jurisdiction of OSWER. In addition to the
Superfund and brownfield programs, OSWER administers EPA’s solid waste (RCRA),
leaking underground storage tank, oil spill, and chemical emergency preparedness and
prevention activities. The ombudsman is to appoint a deputy ombudsman in each EPA
region, and would have control over an independent staff, and an annual budget of $3 million
for FY2003-FY2004, $4 million for FY2005-FY2008, and $5 million for FY2009-FY2012.
The bills contain whistle-blower protection for anyone contacting the ombudsman, and
provide criminal penalties for obstructing the proceedings of or making false or fraudulent
statements to the ombudsman.
EPA Administrator Whitman opposed S. 515, saying in a letter to Chairman Inhofe that
it gave the ombudsman “extraordinarily broad and intrusive investigatory powers,” and
would hamper EPA’s enforcement efforts.
Comprehensive Reauthorization
Several issues proved particularly challenging in the attempts to reauthorize CERCLA
during the 1990s. The ones most debated are briefly discussed below, with a comment on
how the reported bills during that time generally dealt with the issue.
Liability. CERCLA’s liability scheme (joint and several liability on a strict and
retroactive basis) drew in many parties, sometimes hundreds at a particular site, in protracted
and expensive litigation. The bills of the 1990s consequently provided protection against
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CERCLA liability for more than a dozen categories of parties (although not all categories
appeared in each bill). Some of them (lenders and recyclers13) were granted relief in other
legislation, and the 2002 enactment of the Small Business Liability Relief and Brownfields
Revitalization Act (P.L. 107-118) protected a variety of groups including those who sent only
very small quantities of hazardous waste to a Superfund site, who only sent municipal solid
waste, and several categories of “innocent parties.”
To limit litigation the bills would have established an allocation process, conducted by
a neutral person, to divide cleanup costs among responsible parties. Those not accepting the
allocation would have been subject to CERCLA’s joint and several liability.
Remedy Selection and Cleanup Standards. CERCLA states a preference for
treatment of hazardous wastes (as opposed to removing them to another, safer, location).
The bills either deleted the treatment preference or limited it to highly contaminated “hot
spots.” The bills also sought to better tailor the remedy to the individual site by requiring
remedy selection to consider current and reasonably anticipated uses of land and water
resources, state and local viewpoints, and reasonableness of cost.
CERCLA also requires cleanups to meet “applicable or relevant and appropriate
requirements” (ARARs) of other federal and state environmental laws, which has caused
contention about which cleanup standards and levels should apply at each site. The bills
deleted the words “relevant and appropriate” to help clarify which federal and state laws and
regulations do apply to cleanups.
The bills all required EPA to conduct facility-specific risk assessments or evaluations
and to communicate the results in easily understood language. They all also established
modified groundwater cleanup and protection requirements, though in different ways and
with different levels of stringency.
State Role. CERCLA gives the federal government the lead role in cleaning up
hazardous waste sites, and unlike most other environmental laws, does not envision that
states would assume responsibility to run the program. All of the bills of the 1990s would
have authorized EPA either to delegate or authorize program responsibility over all or some
NPL facilities in a state, and for all or some aspects of cleanup activity, give states the
flexibility to choose which ones; federal funding would have been provided. The bills would
have reduced states’ share of operation and maintenance costs from 100% to no more than
10%; and some of them would have given state governors a veto over the addition of new
sites to the National Priorities List.
Natural Resource Damages. CERCLA requires liable parties to make good the
environmental harm they cause by restoring or replacing publicly owned natural resources
they have injured or destroyed, and by paying damages for the lost use of the resources.14
Several large lawsuits in the multi-hundred-million-dollar range, and the possibility of others,
have concerned industrial interests and led them to seek limits to the amounts of natural
13 Asset Conservation, Lender Liability and Deposit Insurance Protection Act (P.L. 104-208, division
A, title II, subtitle E), and the Superfund Recycling Equity Act (P.L. 106-113, appendix I, title VI).
14 Liability for lost use has resulted from judicial interpretation of CERCLA.
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resource damages they are required to pay. The bills would have barred recovery for “non-
use” values (values that are unrelated to actual use of the resource), and would have based
damage assessments on site-specific conditions and restoration requirements.
Brownfield Issues
The Brownfields program for cleaning up less seriously contaminated sites was formally
established by Title II of the Small Business Liability Relief and Brownfields Revitalization
Act (Brownfield Act, P.L. 107-118), signed by the President on January 11, 2002.
Brownfields are “real property, the expansion, redevelopment, or reuse of which may be
complicated by the presence or potential presence of a hazardous substance, pollutant, or
contaminant;”15 they are not traditional Superfund sites. Generally, they are not highly
contaminated and therefore present lower risks to health.
The new Brownfields Act provides for: (1) a program to provide “assessment grants”
to characterize, assess, and conduct planning at brownfield sites, and to perform targeted site
assessments; and (2) a program to provide “remediation grants” to capitalize revolving loan
funds, or to be used directly to clean up one or more sites. Assessment grants are limited to
$200,000, which EPA may increase to $350,000 based on the anticipated level of
contamination, the size, or the status of ownership of the site. The remediation grants may
be awarded on a community-wide or site-by-site basis, and are limited to $1 million. The
law authorizes $200 million for each of 5 years for these programs, and dedicates $50 million
per year (or 25% of the amount appropriated if less than $200 million) for the assessment and
cleanup of relatively low-risk sites contaminated with petroleum or petroleum products.
Technical assistance, training, and research are also authorized.
The new law also provides protection from Superfund liability for individuals in certain
situations that are said to inhibit brownfields development, namely for owners of land
contaminated by a source on contiguous property, and for prospective purchasers of property
that is known to be contaminated. These provisions essentially codify existing EPA policy.16
In addition, the Brownfields Act clarifies the Superfund law’s “innocent landowner” defense.
CERCLA provides a defense against liability for a person who unknowingly purchased
contaminated land, provided the person made “all appropriate inquiry” prior to the
transaction. The Brownfields Act spells out what comprises all appropriate inquiry for the
purchaser to qualify as an innocent landowner under the law.17 These provisions would apply
to all contaminated sites, not just brownfields.
In addition, the new law authorizes $50 million per year for 5 years to assist states in
establishing or enhancing their voluntary cleanup programs, which address contaminated
15 New CERCLA §101(39).
16 Policy Towards Owners of Residential Property at Superfund Sites, OSWER Dir. No. 9834.6 (July
3, 1991), and Final Policy Toward Owners of Property Containing Contaminated Aquifers, 60 Fed.
Reg. 34790 (1995).
17 For more information, see CRS Report RS20869, The Liability Exemptions in the Senate
Brownfields Bill (S. 350)
.
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sites that do not require federal action, but need cleanup before they can be considered for
reuse. States may also use these grants to capitalize a revolving loan fund, or to develop a
risk sharing-pool, an indemnity pool, or insurance mechanism to provide financing for
response actions. The Brownfields Act also addresses the “state finality” issue,18 and forbids
the federal government from intervening at sites being cleaned up under a state program,
except where: (1) the state requests assistance; (2) the contamination has or will migrate
across state lines, or onto federally owned or controlled property; (3) EPA determines, after
taking into account the response actions already taken, that a release or threatened release
may present an imminent and substantial endangerment to public health or welfare, or the
environment; or (4) EPA, after consultation with the state, determines that information not
known by the state has been discovered that requires further remediation to protect public
health or welfare, or the environment. This ban on federal enforcement is contingent on the
state maintaining a public record of sites where response action is completed, and sites that
are scheduled to be cleaned up in the coming year. (See CRS Report RL30972, The
Brownfields Program Authorization: Cleanup of Contaminated Sites.
)
In the 108th Congress, eight bills with brownfield components have been introduced.
Representative Gary Miller has re-introduced the bill that passed the House in the last
Congress, and it was reported by the House Financial Services Committee on March 5
(H.Rept. 108-22). The bill, H.R. 239, removes the connection between HUD’s Brownfield
Economic Development Initiative (BEDI) program and the department’s Section 108 loan
guarantees. The effect is to make the BEDI grants more obtainable by a larger number of
cities, particularly smaller communities. The bill also authorizes a pilot program to set up a
common loan pool for brownfield redevelopment projects, and authorizes funds as needed
for 5 years, through FY2007. The president’s FY2004 budget request proposes eliminating
the HUD brownfields program.
The Economic Development Administration (EDA) Reauthorization Act, H.R. 2535,
among other things would make brownfield sites eligible for certain EDA grants, and would
establish a demonstration program for “brightfield” sites, which are defined as brownfields
redeveloped using solar energy technologies. H.R. 2535 was reported from the
Transportation and Infrastructure Committee on July 25 (H.Rept. 108-242, Part I), and it
passed the House on October 21. It is now before the Senate Committee on Environment and
Public Works.
A comprehensive transportation bill, H.R. 1491, also contains a brightfields
demonstration program in EDA. It authorizes $200 million over 5 years. Two other bills
would establish a brownfields program in EDA, and would authorize $60 million per year
for 5 years. They are Senator Levin’s S. 645, and Representative Quinn’s H.R. 1334. The
administration’s surface transportation reauthorization bill, S. 1072, makes brownfield
cleanup eligible for funding when associated with certain transportation projects.
Representative Andrews introduced H.R. 402, which would amend the Internal Revenue
Code to allow a limited tax credit to holders of qualified brownfields cleanup bonds that are
issued by state or local governments. It sets a national limit on the amount of such bonds and
provides for allocation among the states. Another tax-related bill is Representative Weller’s
18 New CERCLA §128(b).
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H.R. 2815, which would make permanent the brownfields tax incentive that is scheduled to
expire at the end of 2003. The bill removes the “recapture” provision, making the tax break
more valuable (and brownfield redevelopment more attractive), and expands the class of
substances eligible for tax-favored cleanup to include petroleum and other material.
LEGISLATION
H.R. 239 (Gary Miller)
Facilitates HUD assistance for redeveloping brownfields. Introduced January 8, 2003;
referred to Committee on Financial Services; reported (H.Rept. 108-22), March 5, 2003.
H.R. 347 (Bilirakis)
See S. 515.
H.R. 402 (Andrews)
Provides a limited tax credit for qualified brownfields cleanup bonds issued by state or
local governments. Introduced January 28, 2003; referred to Committee on Ways and
Means.
H.R. 610 (Pallone)
Reinstates the taxes funding the Superfund Trust Fund, and the Oil Spill Liability Trust
Fund through FY2008, and extends the taxes funding the Leaking Underground Storage
Tank Trust Fund through FY2008. Introduced February 5, 2003; referred to Committee on
Ways and Means.
H.R. 805 (Houghton)
Amends the Internal Revenue Code to exempt from tax certain “settlement funds”
(escrow accounts) established under CERCLA to be used for cleanup if the U.S. government
is effectively the beneficial owner, and other conditions are met. Introduced February 13,
2003; referred to Committee on Ways and Means.
H.R. 1334 (Quinn)
See S. 645.
H.R. 1420 (Andrews)
Requires anyone who undertakes a Superfund response action to make publicly
available an accounting of the funds used for the response. Introduced March 25, 2003;
referred to Committees on Energy and Commerce, and on Transportation and Infrastructure.
H.R. 1491 (Oberstar)
Authorizes programs and activities to improve energy use related to transportation and
infrastructure facilities. Among other things, authorizes $200 million over 5 years for the
Secretary of Commerce to provide demonstration grants for the development of “brightfield”
sites (brownfields redeveloped using solar energy technologies). Introduced March 27, 2003;
referred to Committees on Transportation and Infrastructure, Science, Ways and Means,
Resources, International Relations, and Financial Services.
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H.R. 2116 (Brad Carson)
Directs EPA to provide relocation and other assistance for residents at the Tar Creek,
Oklahoma, Superfund site. Introduced May 15, 2003; referred to Committees on
Transportation and Infrastructure, and on Energy and Commerce.
H.R. 2535 (LaTourette)
Economic Development Administration Reauthorization Act. Among other things,
authorizes grants for brownfield sites. Also authorizes $5 million per year for 5 years for
demonstration program for “brightfield” sites. Introduced June 19, 2003; referred to
Committees on Transportation and Infrastructure (T&I), and on Financial Services (FS);
reported, amended, from T&I, July 25, 2003 (H.Rept. 108-242, Part I); FS granted an
extension for consideration not later than September 2; FS discharged, September 2, 2003;
passed House October 21; referred to Senate Committee on Environment and Public Works.
H.R. 2815 (Weller)
Makes permanent the brownfields tax incentive, expands the class of substances eligible
for tax-favored cleanup, and eliminates the recapture provision. Introduced July 22, 2003;
referred to the Committee on Ways and Means.
S. 173 (Boxer)
Toxic Clean-up Polluter Pays Renewal Act. Reinstates the Superfund taxes until
January 1, 2014. Introduced January 15, 2003; referred to Committee on Finance.
S. 515 (Crapo)/H.R. 347 (Bilirakis)
Ombudsman Reauthorization Act of 2003. See text. S. 515 introduced March 5, 2003;
referred to Committee on Environment and Public Works; reported without amendment
(S.Rept. 108-50) and passed Senate by unanimous consent, May 21, 2003; referred to House
Committee on Energy and Commerce (E&C). H.R. 347 introduced January 27, 2003;
referred to E&C.
S. 645 (Levin)/H.R. 1334 (Quinn)
Creates a brownfield program in the Economic Development Administration, and
authorizes $60 million per year for 5 years. S. 645 introduced March 18, 2003; referred to
Committee on Environment and Public Works. H.R. 1334 introduced March 18, 2003;
referred to Committees on Transportation and Infrastructure, and on Financial Services.
S. 1072 (Inhofe, by request)
The surface transportation reauthorization bill; among other things makes eligible for
funding the remediation of brownfield sites associated with the construction of certain
transportation projects. Introduced May 15, 2003; referred to Committees on Environment
and Public Works, and on Commerce, Science, and Technology.
S.Amdt. 192, as modified, to H.J.Res. 2 (Lautenberg)
Increases the FY2003 Superfund appropriation, $1,272,888,000, in H.J.Res. 2 by $100
million. Proposed January 23, 2003; tabled by vote of 53-45. (Cong. Rec. p. S1429-S1431)
S.Amdt. 408 to S.Con.Res. 23 (Lautenberg)
Reinstates the Superfund taxes. Proposed March 25, 2003; not agreed to by 43-56 vote.
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FOR ADDITIONAL READING
Klee, Ann R. and Ernie Rosenberg. “The Moribund State of CERCLA Reauthorization,”
Natural Resources & Environment, Winter 1999, p. 451 ff.
Probst, Katherine N. “Superfund’s Future,” The Environmental Forum, March/April 2002,
p. 32-41.
Probst, Katherine N. and David M. Konisky. Superfund’s Future: What Will It Cost?
Washington: Resources for the Future, 2001. 294 p.
U.S. EPA. Office of Inspector General. EPA Regional Superfund Ombudsmen Program
Needs Structure. March 13, 2003. 11 p. Report No. 2003-S-00004
U.S. General Accounting Office. Issues Raised by the Reorganization of EPA’s
Ombudsman Function. October 2002. 23 p. GAO-03-92
____. EPA’s National and Regional Ombudsmen Do Not Have Sufficient Independence.
July 2001. 35 p. GAO-01-813
____. The Role of Ombudsmen in Dispute Resolution. 49 p. April 2001. GAO-01-466
CRS Reports
CRS Report RL30972. The Brownfields Program Authorization: Cleanup of Contaminated
Sites.
CRS Report RL31911. “Innocent Landowners” and “Prospective Purchasers” under the
Superfund Act.
CRS Report RL31154. Superfund: A Summary of the Law.
CRS Report RL31410. Superfund Taxes or General Revenues: Future Funding Options for
the Superfund Program.
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