Most Recent Action   Current Congress   Background   Hearing Summaries 

Superfund and Brownfields (12-11-02)

The debate in Congress over reauthorizing the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) of 1980 has transformed in the last few years.  CERCLA, more commonly known as Superfund, is the primary federal program for clean-up of sites contaminated with hazardous waste.  Many in Congress feel that CERCLA needs to undergo a comprehensive reform that reflects new priorities to clean up lesser contaminated areas or Brownfields. Separate legislation for brownfields has emerged in the past few congressional sessions. Brownfields sites would not be subject to the lengthy Superfund listing and clean-up process that proponents say prevent condemned areas from being remediated in a timely manner. Attempts to focus on Brownfields legislation in past Congresses have been defeated by those who want Brownfields to remain a part of the comprehensive Superfund reform bill.  The 107th Congress appears to have passed this hurdle and will likely pass a stand-alone Brownfields bill.

Most Recent Action
On November 13th, Environmental Protection Agency (EPA) Administrator Christie Whitman announced the launch of the new Brownfields Federal Partnership Action Agenda at a conference on brownfields. The plan outlines ways in which federal agencies will partner with community and state groups to encourage brownfields redevelopment. In her statement at the "Brownfields 2002 -- Investing in the Future" conference, Whitman stated "Together, EPA and our federal partners have already made more than 100 specific commitments to partnership. These commitments include such things as an interagency effort led by NOAA to focus on the redevelopment and reuse of ports and harbors, an Army Corps effort to undertake 8 brownfield pilot projects under its Urban Rivers Initiative, and a commitment from the FDIC to work with us to make its Money Smart financial education program available to those in our communities that want to help restore a brownfield to productive use." Whitman also noted that the enactment of H.R. 2869, the Small Business Liability Relief and Brownfields Revitalization Act, into law on January 11, 2002, set the stage for the new action plan. The plan includes actions that more than 20 federal agencies will take to help communities meet the technical, economic, social, workforce, and infrastructure hurdles to redeveloping brownfields sites. (12/11/02)

The Environment and Public Works Subcommittee on Superfund, Toxics, Risk, and Waste Management held a hearing regarding general concern over the Environmental Protection Agency's (EPA) management of the Superfund National Priority List (NPL).  The NPL compiles the nation's most heavily contaminated sites proposed for cleanup.  In the last year, EPA has removed 28 sites off of the NPL, which has ultimately slowed the pace of the Superfund cleanup projects.  Superfund faces additional funding problems, being that the proposed fiscal year (FY) 2003 budget would fund 40, rather than 65, NPL sites.  Marianne Horinko, Assistant Administrator of the Office of Solid Waste and Emergency Response, stated that fewer sites were targeted due to the size and complexity of the remaining "megasites" rendering a more time-consuming cleanup process.  In addition, the Bush Administration did not reauthorize the corporate Superfund tax that expired in 1995.  The needed $700 million will come out of the general treasury in the absence of the corporate Superfund tax.  Horinko added that the administration may reconsider the Superfund tax.  Sen. Barbara Boxer (D-CA) pointed out the changing proportion of polluter funded cleanups versus taxpayer funded cleanups.  Industry funded 82% of cleanup projects in FY 1995, but are estimated to fund only 46% in FY 2003.  Sen. Jon Corzine (D-NJ) stated the EPA should be aggressively pursuing the potentially responsible party (PRP) polluter pays program.  He added that the remaining cleanup sites are the most difficult to deal with and will require additional support.  Corzine stated, "The idea of cutting back on the number of cleanups is outside the realm of the imaginable."  A written testimony of the hearing is available from the Environmental and Public Works Committee and a detail summary is available at AGI's Brownfields and Superfund Hearing website.   (4/12/02)

Placed on the back burner for a few months while Congress worked on other more pressing issues, the House version of brownfields reform was brought up for floor consideration in the wee hours of the morning on December 20th.  H.R. 2869, introduced by House Energy and Commerce Subcommittee on Environment and Hazardous Materials Chairman Paul Gilmor (R-OH), combines a $250 million brownfields reform provision with a Superfund relief package for small businesses.  Earlier in the year, both chambers were working on Superfund reform, particularly the popular brownfields measurers, with the House focusing more on small businesses liability issues and the Senate focusing Brownfields stimulation programs.  Gilmor's H.R. 2869 combines these two approaches in a way that may pave the road for a reform bill to be passed on to the White House early in 2002.  The House approved the combined bill in a voice vote, and the Senate Environment and Public Works Committee has indicated that it will bring the bill up for consideration shortly after reconvening in January. (1/3/02)

Current Congress
The first few months of 2001 saw a flurry of activity on Capitol Hill regarding proposed Brownfields legislation.  On February 27th, the Senate Environmental and Public Works (EPW) Committee held the first hearing of the 107th Congress on Brownfields.  The hearing marked the congressional debut of Environmental Protection Agency (EPA) Administrator Christine Todd Whitman, who had appeared before EPW previously as a nominee.

In March, Brownfields hearings were held by the House Energy and Commerce Committee and the House Transportation and Infrastructure Committee.  One hearing explored the roles of local, state, and federal governments in Brownfields initiatives.  The other hearing heard testimony from case examples of current or recently completed projects.  Witnesses for these hearings included EPA administrators, state and local environmental officials, and representatives from several public interest groups.

On June 28, 2001, the House Energy and Commerce Subcommittee on Environment and Hazardous Materials held a hearing to review federal Brownfields legislation.  Reviewed were S.350, the Brownfields Revitalization and Environmental Restoration Act of 2001, and two discussion drafts of potential legislation: one by subcommittee chairman Paul Gillmor (R-OH) and the other by subcommittee Democrats.  Proponents of the Gillmor draft argued that finality should be given to state and local governments, and those in favor of the Democratic draft stated that the Environmental Protection Agency's (EPA) authority should not be overly compromised. Also up for debate are provisions that would expand the Brownfields classification to include contaminated sites that may currently be covered under Superfund regulations; require minimum standards in local cleanup programs; and eliminate the need for the EPA's clean-up permits under certain conditions.  All three bills contain a $200 million annual grant allocation for site assessment and remediation.  Additionally, each of the bills helps to clarify liability issues for potential developers and innocent landowners.

The Environmental Protection Agency (EPA) issued a press release on September 17, 2001, entitled New Hazardous Waste Sites for National Priorities List.  According to the press release, 11 new hazardous waste sites have been added to the National Priorities List (NPL), and 17 more sites have been proposed.  When a preliminary investigation done on a site reveals that further action is needed, the site may be proposed for the NPL.  The NPL's job is to help the EPA determine which sites should undergo further investigation.  There is a 60-day public comment period on the 17 proposed sites before they can be officially added to the list.  For information on how to contribute comments, visit the EPA website's comment page.  There are now 1,248 finalized sites on the NPL, including the recent additions.  (9/19/01)

The House was set to vote on September 24th to approve legislation introduced by Rep. Paul Gillmor (R-OH) that combines Senate-approved language (S.350) reforming the Brownfields program and House-approved legislation (H.R.1831) allowing small businesses relief from Superfund liability.  Legislation was stalled, however, by House Democrats who were concerned that the bill (H.R. 2869) did not assure that jobs created by the legislation would be eligible under the Davis-Bacon Act of 1931 that guarantees high wages for workers on federal construction projects.  The Democrats are holding out for a letter from the administration assuring them that the Davis-Bacon Act would apply to state cleanup projects that result from the bill.  This marks the second time that legislation dealing with H.R. 2869 has been postponed.  A vote was to take place on September 11th, but had to be rescheduled due to the terrorist activities of that week.   (9/25/01)

Background
The Superfund hazardous waste cleanup program was created by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).  Major revisions were made by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The Superfund  program provides a system requiring polluting parties to take responsibility for remediating seriously contaminated areas.  In the case of lands where the responsible parties cannot be determined, the area is placed on the Superfund National Priorities List (NPL) where EPA's Superfund trust clean up funds come from a tax levied on petroleum and chemicals supplies.  Over the last 19 years, nearly half of the approximately 1300 sites on the NPL have been remediated.

The popular Brownfields section of Superfund faces debates over whether or not it should be part of and funded by CERCLA moneys.  The Brownfields program was designed to promote the clean up and economic redevelopment of low-level contamination sites not on the NPL.  Recent legislation proposes to authorize Brownfields as its own program that would provide tax incentives to spur more cleanups.  The National Council for Science and the Environment has several in-depth papers from the Congressional Research Service explaining the statute.  More information on the background of Superfund activities, including Brownfields legislation, is available at AGI's Superfund Update from the 106th Congress.



Sources: Greenwire, E&E News, Congressional Greensheets, hearing testimony, U.S. Senate website, and U.S. House of Representative website, Washington Post website.

Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Contributed by 2001 AGI/AAPG Intern Mary H. Patterson, 2001 AGI/AAPG Summer Intern Chris Eisinger, Fall 2001 AGI/AAPG Intern Catherine Macris, 2002 AGI/AAPG Intern Heather R. Golding, and Margaret A. Baker, Government Affairs Program.

Posted May 21, 2001; Last Updated December 11, 2002


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