Superfund and Brownfield Legislation (4-7-05)
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 the clean-up of sites contaminated with hazardous
waste. The Superfund program has seen its budget decrease over the past years
due to end of the Superfund trust tax. Recent legislation has been focused on
funding the Superfund program. Additionally, legislation has arisen to reinstate
and strengthen the office of an independent national ombudsman at the US Environmental
In addition, the past few congressional
sessions have seen a switch in focus away from the Superfund program, to cleaning
up lesser contaminated areas, commonly referred to as Brownfields.
The Brownfield Program sites, mostly former industrial zones in urban areas, are
not subject to the lengthy Superfund listing and clean-up process that proponents
say prevent condemned areas from being remediated in a timely manner. With the
passing of Brownfield legislation in 2002, Congress is now focused on ways to
fund and make the Brownfield monies more accessible.
The House Government Reform Subcommittee on Federalism
and the Census held a hearing on April 5, 2005 to discuss the progress
of EPA's brownfields programs since enactment of the Brownfields Act
of 2002. The hearing came after the Government Accountability Office
(GAO) released a report in January suggesting the EPA could do more
to spur complete site remediation. Environment and Energy Daily reported
(April 5, 2005) that, according to John Stephenson, Director of the
GAO's Natural Resources and Environment division, the EPA currently
allocates the majority of its brownfields funding to initial site
assessments and seed money for clean-up efforts. Expert panelists
at the hearing agreed with the GAO, however, that stimulating community
redevelopment at brownfields sites must be the ultimate measure of
EPA's success. Funding site assessments and providing seed money is
insufficient to increase the country's clean-up rate. "The U.S.
Chamber of Commerce estimates that, at the current rate of remediation,
it will take 10,000 years to clean up our nation's brownfields,"
said Jonathan Philips, senior director of Cherokee Investment Partners,
which is one of the world's largest brownfields redevelopers.
Representatives from the private sector who testified at the hearing
recommended that federal tax breaks for companies who invest in redeveloping
brownfields would be the most effective solution. These views echoed
those of Subcommittee Chairman Michael Turner (R-OH), who used the
GAO report and the hearing as a springboard to reconsider his own
Brownfields Revitalization Act, which he introduced in the last Congress
as H.R. 4480. According to Turner and reported in Environment and
Energy Daily on April 5, 2005 current law deters private developers
from investing in brownfields. Turner indicated that the law should
be amended to include liability protection for potentially responsible
parties who contribute over 25 percent of remediation costs, and a
50 percent tax credit for remediation projects undertaken in poor
areas. According to E&E Daily, the GAO report included other recommendations
that are geared towards loosening eligibility criteria for landowners
who seek federal grants and loans. Thomas Dunne, deputy assistant
administrator of the EPA's Office of Solid Waste and Emergency Response
conceded that the EPA should do more to monitor use of loan money
and the progress of cleanup sites. (4/7/05)
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 the US Environmental
Protection Agency's (EPA) Superfund trust funds -- a tax levied on petroleum and
chemicals supplies -- are use to clean up the site. The Bush Administration has
not sought to reauthorize the corporate Superfund tax that expired in 1995. The
needed $700 million to meet clean-up obligations will come out of the general
treasury in the absence of the corporate Superfund tax.
The first Brownfield
legislation approved by the president and Congress was H.R. 2869, the Small Business
Liability Relief and Brownfields Revitalization Act of 2001. The Brownfields program
was designed to promote the clean up and economic redevelopment of low-level contamination
sites not on the NPL. The 1984 amendments to the Resource Conservation and Recovery
Act (RCRA), first established a National Hazardous Waste Ombudsman at the EPA.
Over time the position has evolved to aid citizens and industry in complying with
CERCLA, hazardous waste programs, and other EPA programs.
The FY05 budget request marks the first year that the Superfund program
would be funded entirely by taxpayers. Until September 30, 2003, the
surplus from the expired industry tax partially funded Superfund cleanups.
After the Bush administration signaled it would rather pay for the
fund through the general treasury, Senators Boxer, Jeffords, Lautenberg
and 23 other democrats introduced S.173, which would reauthorize the
"polluter pay" tax until 2014. The bill was defeated on
March 26, 2004 by a vote of 43-56.
On March 5, 2003, Senator Michael D. Crapo (R-ID) reintroduced bill
S. 515, the EPA Ombudsman Reauthorization Act of 2003, which passed
in the Senate the previous year. The bill would have reinstated and
expanded the powers of the office of a national independent ombudsman
at the EPA. The bill would have given the office more administrative
and investigative powers such as the power to issue subpoenas, the
ability to hold public hearings, and speak freely with members of
Congress. The ombudsman position under S. 515 would have still reported
to the EPA Administrator but would be appointed by the president and
confirmed by the Senate. The bill was referred to the Senate Environmental
and Public Works Committee (EPW) with no further action. A similar
bill, H.R. 347 was introduced January 27, 2003, by Rep. Michael Bilirakis
(R-FL) in the House. Neither of these bills were brought to a floor
Brownfield programs did win a significant victory in
late 2004 in the Corporate Tax Bill. Congress amended the bill to include a tax
break for not-for-profit corporations that clean up Brownfields. Sponsored by
Senator James Inhofe (R-OK) and Senator Max Baucus (D-MT), the amendment exempts
these corporations from a federal tax on unrelated business income. According
to the IRS, "Unrelated business income is income generated by a trade or
business activity not substantially related to the express purpose of the organization."
More information on the background of Superfund activities, including Brownfields
legislation, is available at AGI's Superfund
& Brownfield Update from the 108th Congress.
Sources: United States Senate, US House of Representatives, National Council
for Science and Environment, Library of Congress, Greenwire, E&E Publishing,
US Environmental Protection Agency, New York Times, EV WORLD, The Washington Post,
and the U.S. General Accounting Office.
Contributed by Emily Lehr Wallace, AGI Government Affairs Staff and
David Millar, AGI/AAPG 2004 Fall Intern, and Katie Ackerly, AGI/AAPG
2005 Spring Intern and Tim Donahue, AGI/AAPG 2006 Summer Intern
Background section includes material from AGI's Update on Superfund
and Brownfields for the 108th Congress.
Please send any comments or requests
for information to AGI Government Affairs
Last updated on April 7, 2005.