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Summary of Hearings on Brownfields and Superfund (4-12-02)

Senate Environment and Public Works Committee
Superfund, Toxics, Risk, and Waste Management Subcommittee Hearing
April 10, 2002

Bottom Line
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.  In the last year, EPA has removed 28 sites from the NPL, which has ultimately slowed the pace of the Superfund cleanup projects.  Superfund faces additional problems due to the proposed fiscal year (FY) 2003 budget that would fund 40, rather than 65, NPL sites.  The Bush Administration did not reauthorize the corporate Superfund tax that aids cleanups projects.  The needed $700 million for FY 2002 will come out of the general treasury.

Hearing Summary
Sen. Barbara Boxer (D-CA) began the hearing with an opening statement expressing her great disappointment with the apparent direction of the Superfund program.  She stated that the states containing the most Superfund sites were New Jersey, California, Pennsylvania and New York.  She continued by stating that 40% of all Californians live within four miles of a Superfund site.  Boxer questioned the steep decline of projects within the Superfund program as a result of the current management.  Boxer also expressed concern over the changing proportion of polluter-funded cleanups versus taxpayer cleanups.  Industry funded 82% of cleanup projects in FY 1995 but is estimated to fund only 46% in FY 2003.

Marianne Horinko, Assistant Administrator of the Office of Solid Waste and Emergency Response, expressed the administration's commitment to Superfund.   Horinko reported that 75% of nonfederal sites on the NPL were completed and 20% completion of federal facility sites.  In addition, fewer sites were targeted due to the size and complexity for the remaining "megasites," producing a more time-consuming process.  Horinko said that the administration may reconsider the Superfund tax.  Boxer asked how this commitment translates into reality considering the current budget and site cleanup numbers under consideration for 2002/2003.  Boxer quoted  John Adams by saying that "facts are stubborn things."  She questioned whether President Bush was looking at reinstating the Superfund tax based on recent administration decisions regarding Superfund.  Boxer also stated that her staff has had great difficulty getting information regarding these issues due to an apparent hiding of information.  Horinko responded by saying, she would "be pleased to follow-up with additional information."  Sen. Bill Nelson (D-FL) testified before the committee saying, "the Bush Administration's decision to not reauthorize the corporate polluter's tax shifts the burden of clean up of these hazardous waste sites to the taxpayer."

Boxer presented the committee with an internal EPA email that requested EPA employees to deny any NPL modifications and redirect their questions to the EPA Communications Department.  Specifically, the email stated: " Marianne Horinko has asked me to contact each of you to request that if questioned about which Superfund sites will not be funded for cleanup, that such decisions are premature at this time; that no formal list of such sites exist; and that any questions directed to you regarding these site should be referred to Joe Martyak. . . . We are working on a desk statement to more fully address these issue that we will get to you as soon as possible."  Horinko responded to the email by saying that it is EPA policy not to publicize Superfund sites for enforcement reasons.  If industry catches word of lack of federal funding, the pressure to fund cleanup projects is gone.  Boxer stated that it is the people's right to know if a Superfund site in their community will not be cleaned up.

Sen. Hillary Rodham Clinton (D-NY)  asked Horinko about the progress of the Hudson River cleanup and the recent General Electric (GE) offer to fund the cleanup.  Horinko stated that she could not give any detailed information about the GE offer at this time.  Clinton expressed appreciation on the EPA's Air Quality Task Force for Manhattan.  Clinton stated that it has been difficult to continue the process due to funding.  She asked if Horinko could define the difference between testing homes in Manhattan compared to federal building like the Senate Hart office building.  Horinko stated that the EPA needs to secure funding for these additional tasks.

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.  He also expressed his support of the corporate Superfund tax.  Corzine stated: "The idea of cutting back on the number of cleanups is outside the realm of the imaginable."

The subcommittee also heard from a panel of interest groups commenting on EPA Superfund management.  The panel consisted of  Norma Lopez-Reid, council member for the city of Montebello, California; Robert Spiegel, Edison Wetlands Association; Grant Cope, U.S. Public Interest Research Group; Michael Steinberg, Morgan, Lewis & Bockius (representing the Superfund Settlements Projects); and Kenneth Cornell, AIG Environmental.  The panelists reported on EPA accomplishments and suggestions for improvement of the Superfund program.  Written testimony of this hearing is available from the Environmental and Public Work Committee.


Senate Environment and Public Works Committee
Subcommittee on Superfund, Waste Control, and Risk Assessment
Hearing on S. 350, the Brownfields Revitalization & Environmental Restoration Act of 2001
February 27, 2001

Bottom Line
Subcommittee Chair, Lincoln Chafee (R-RI), and Ranking Member Harry Reid (D-NV) have worked to build bipartisan support for a Brownfields bill that clarifies "finality" for redevelopers and encourages the development of "lightly contaminated" sites.  The hearing marked Environmental Protection Agency (EPA) Administrator Christine Todd Whitman's congressional debut in her new position.  Based on this hearing and the bipartisan support for S. 350, the Brownfields Revitalization and Environmental Restoration Act of 2001, it seems likely that a stand-alone Brownfields bill will be passed during this Congress.

Hearing Summary
The well attended hearing began with opening statement by members of the Subcommittee.  Chairman Chafee provided a brief background of S. 350 -- which was introduced in the last Congress but died due to closed-door bargaining -- that has over 60 cosponsors.  Chafee stated in his opening remarks: "This landmark, bipartisan bill which is pro-environment and pro-economic development has attracted broad support from Senators and stake holder groups."  The text of several of the opening statement, including Chafee's, along with the written testimony of the witnesses are available at the EPW's website for this subcommittee hearing.

EPA Administrator Whitman testified first, saying that the Administration supports S. 350 and would like to "offer refinements that would be consistent with the President's principles and budget."  She continued by listing several actions that could be incorporated into the legislation to strengthen the flexibility for state and local government cleanups while "ensuring those cleanups are protective of human health and environment."  Two other additions that Whitman and the Administration endorsed were federal supported "research and development efforts on cleanup technologies and techniques to clean up Brownfields" and a permanent Brownfields tax incentives -- a provision that is not under the jurisdiction of the EPW Committee.  The question and answer period after Whitman's testimony focused on the federal "safety net" that would allow EPA to assume command of a state of local remediation plan that does not meet standards and "finality" that clarifies liability for Brownfields property owners, redeveloper, and prospective purchasers from future findings regarding contamination and cleanup.

The second panel of witnesses contained two mayors -- J. Christian Bollwage from Elizabeth, New Jersey, and Myrtle Walker from East Palo Alto, California -- and a representative from the New Hampshire Department of Environmental Services, Dr. Phil O'Brien.  Bollwage testified on behalf of the United States Conference of Mayors that strongly supports the legislation and drew from Recycling America's Land: A National Report on Brownfields Redevelopment.  Two key findings of this report are that 210 cities estimated they had more than 21,000 Brownfields sites that cover more than 81,000 acres of land and that Brownfields are not only a big city problem -- many Brownfields sites are in cities with less than 100,000 people.  Walker testified on behalf of the National Association of Local Government Environmental Professionals that also strongly supports S. 350 and drew from Building a Brownfields Partnership from the Ground Up: Local Government Views on the Value and Promise of National Brownfields Initiatives.  O'Brien provided comments on the effects of Brownfields in rural and suburban areas.  He opened his testimony by saying that undeveloped Brownfields cause economic stress to smaller towns -- :it can mean local economic disaster."  The remainder of the panel discussion focused on how local and state governments could use the S. 350 legislation to support Brownfields redevelopment.

The third panel consisted of several interest groups:  Mike Ford on behalf of the National Association of Realtors, Alan Front form The Trust for Public Lands, John Arlington from the American Insurance Association, Robert Fox from Manko, Gold & Katcher LLP, Grant Cope from U.S. PIRG, and Deeohn Ferris from the Global Environmental Resources Inc.  Panelists overall supported the legislation but some noted concern about effectiveness of cleanup when standards vary from state to state.  Several of the panelists pointed out what they saw as specific limitations in the legislation.  S. 350 is expected to pass out of EPW, most likely with amendments, and be placed on the Senate calendar for floor debate.

 -- M.A.B

House Committee on Energy and Commerce
Subcommittee on Environment and Hazardous Materials
Hearing on A Smarter Partnership: Removing Barriers to Brownfields Cleanups
March 7, 2001

Bottom Line
Opening statements from Subcommittee Chairman Paul Gillmor (R-OH), Ranking Member Frank Pallone (D-NJ), and full committee Chairman Billy Tauzin (R-LA) set Brownfields cleanups as an environmental and economic priority.  Despite strong bipartisan support for Brownfields legislation, the exact details of the bill still need to be ironed out.  Important issues include the role of State and Federal governments in funding and management, the risk to public health versus the cleanup value, and the liability to private and public entities that are involved with reclamation work.  At this hearing, testimony was received from state and local organizations and the Environmental Protection Agency (EPA).

Hearing Summary
Twelve members of the Environment and Hazardous Materials Subcommittee made opening statements demonstrating the great interest in this topic.  Comments addressed Brownfields successes and failures, and generally acknowledged the need to reform the current policies at the federal level.  Liability, tax credits, and environmental concerns were most commonly mentioned.

Testifying before the Subcommittee were Governor Ruth Ann Minner for the National Governors' Association (NGA); Mr. Robert C. Shinn, the Commissioner for the New Jersey Department of Environmental Protection; Mr. George Meyer, head of the Environmental Council of the States; Mr. Grant Cope, an attorney with the US Public Interest Research Group; and Ms. Christine Todd Whitman, Administrator of the EPA.

Governor Minner opened her testimony by stating that Brownfields legislation should be a priority for this Congress.  She went on to discuss the economic potential of Brownfields cleanups including new jobs, environmentally healthy neighborhoods, increased tax revenues, and less suburban expansion.  She highlighted programs in Delware and other states that have successfully reclaimed thousands of sites through state remediation incentives and reforms.  Liability under the federal Superfund law and  finality for state-approved Brownfields cleanups (including indemnity for land owners and developers from post-cleanup EPA action) are of great concern to the Governors Association.  Also, the NGA recommends three Superfund-related provisions be included in any Brownfields bill:  governor concurrence before sites are added to the National Priority List, a clarification of matching state funds required for cleanup actions, and a waiver of the CERCLA immunity clause for federal facilities.  Online is Governor Minner's full testimony.

On the second panel, Mr. Meyer echoed much of what was stated by Governor Minner including that states should have a larger role in designing a Brownfields cleanup model, better grant administration to the states, finality to cleanups, and a better method of getting local input.  Mr. Shinn emphasized that Brownfields redevelopments are not limited to large cities. Finally, Mr. Cope mentioned concerns about the safety and speed at which redevelopment occurs, improvements in the federal safety net for public health, and the exclusion of heavily contaminated sites from the Brownfields program.  Further, his testimony identifies public awareness as an important component of any cleanup program.

Administrator Whitman described the EPA's approach to Brownfields as needing "flexibility when working with States and local communities."  She testified that the states in conjunction with local communities should continue to play the primary role in cleanup efforts. Further, she made the point that Brownfields legislation should be kept independent of Superfund reforms.  In her written testimony, Whitman outlined President Bush's guiding principles for Brownfields program, which are generally in line with points raised by the committee members and other witnesses.


House Committee on Transportation and Infrastructure
Subcommittee on Water Resources and Environment
Hearing on Brownfields: Lessons from the Field
March 15, 2001

Bottom Line
Testimony was heard from six city and county officials to discover what works and what does not in Brownfields reclamation work.  Undoubtedly, strong partnerships between the local, state, and federal governments are important.  Still debatable is to what extent the Environmental Protection Agency (EPA) should oversee remediation, and who should have legal "finality."

Hearing Summary
Brownfields are defined as abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.  There are over 500,000 of these properties in the United States, but only a limited market demand for them.  Liability issues, cleanup funding, and the need for environmental property assessments are reasons cited for the low demand.  Brownfields programs at the federal level are currently tied to CERCLA (more commonly known as Superfund), which many consider to be overly restrictive and ineffective for Brownfields cleanup.

Representatives from the cities of Chicago, IL; Wichita, KS; Chattanooga, TN; Worcester, MA; and Charlotte, NC, discussed Brownfields redevelopment in their respective communities (complete witness testimony).  Important issues addressed by their cleanup programs include tax revenues lost when industry leaves a neighborhood, development of new industrial sites for economic opportunities, creating new job opportunities, and dealing with environmental problems associated with contaminated or vacant properties.

All of the witnesses agree that the federal government needs to expand its role in reclamation.  Financially cities would like to see more support from the federal government for site assessments, jump-start programs, and subsidies for absent shares.  More important perhaps, is legislation that would give states and cities the responsibility and authority to grant protection to "innocent purchasers and prospective landowners."  A concern for several witnesses is that the EPA still maintains final oversight authority.  Mr. Jack Brown, the Environmental Health Director for the City of Wichita, also mentioned the need for the EPA to recognize more realistic risk assessments and cleanup goals.


House Committee on Energy and Commerce
Subcommittee on Environment and Hazardous Materials
Brownfields Legislation
June 28, 2001
Bottom Line
On June 28, 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 Democrats.  Proponents of the Gillmor draft feel that finality should be given to state and local governments, and those in favor of the Democratic draft feel 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.

Hearing Summary
Testifying before the committee were Ms. Linda Fisher, Deputy Administrator of the EPA; Mr. Gordon Johnson, National Association of Attorney Generals; Mr. Javier Gonzales, National Association of Counties; Mr. J. Christian Bollwage, United States Conference of Mayors; Mr. Leon Billings, National Conference of State Legislatures; Mr. Ed Hopkins, Sierra Club; Mr. Daniel DeMarco, National Association of Industrial and Office Properties (NAIOP); Mr. John Lynch, National Association of Realtors; Mr. Larry Roth, American Society of Civil Engineers; and Mr. Gary Garcyzynski, National Association of Home Builders.  Witnesses were separated into three panels representing the federal government, state/local governments, and public interest groups.

As at previous hearings, the EPA voiced its concern about giving final remediation authority to the states.  This position does not preclude the states and local governments from having the primary clean-up role, as long as the federal government is allowed the final say.  Fisher's written testimony made this important point, noting that the EPA has never "stepped in on its own at a Brownfields site."  Further, he said that the Brownfields program should be separate from Superfund, that new federal funding should be made available for additional Brownfields research and development efforts, and that the Brownfields grant program should be streamlined to expedite the funding process.

On the second panel, Christian Bollwage listed the three most important issues to state and local governments as "funding, liability relief, and the federal/state relationship."  Additionally, this panel's members stressed the importance of bipartisan support to pass Brownfields legislation as soon as possible.  Getting the money flowing is clearly a top priority for state and local governments. Unfortunately, there are still important details to be worked out between the Republicans and Democrats.  The witnesses' full testimony can be found online.

The Sierra Club, represented by Mr. Hopkins, is in favor of S. 350 and strongly opposes the Gillmor draft.  One of its major contentions is that the Republican draft would remove the authority of the federal government to "protect public health and the environment." Further, they are concerned the bill would not ensure that minimum standards are being met by state clean up programs.  Witnesses representing industrial properties, realtors, and other developers show a generally favorable response to all three Brownfields bills.  Liability is important to all parties, especially the NAIOP.  For specific details refer to the written testimony.


Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by Margaret A. Baker, AGI Government Affairs, Summer 2001 AGI/AIPG Intern Chris Eisinger Spring 2002 and AGI/AAPG Intern Heather R. Golding.

Posted April 4, 2001; updated April 12, 2002

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