Brownfields Legislation: Making the Grass Greener on the Other Side (11/01)

The following column by GAP Intern Chris Eisinger is reprinted from the November 2001 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

In its first few months, the 107th Congress has eagerly addressed the topic of brownfields reform, a rare bipartisan issue. As defined by the EPA, brownfields are commercial properties where "expansion or redevelopment is complicated by real or perceived environmental contamination." The total number of U.S. brownfield sites is thought to be between 450,000 and 500,000, with the majority located in urban areas. Typical sites include abandoned gas stations, former factories, and commercial operations that used hazardous materials. Redevelopment of these sites can improve a local environment, create jobs, increase tax revenues, and promote economic growth and environmental health in communities. With good policy, brownfields remediation can make the grass greener for both the environment and the economy.

Getting away from Superfund
At the Federal level, the current mechanism for dealing with lightly contaminated sites is contained in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Enacted in 1980, CERCLA (also known as "Superfund") gives the Environmental Protection Agency (EPA) and others the ability to recover clean-up costs from anyone ever associated with a contaminated site at any point in time. This approach, considered to be necessary for seriously contaminated sites, is excessive for most brownfields. Large cleanup expenses combined with a lack of legal finality leads potential developers and investors to choose uncontaminated suburban land (greenfields) over the more risky brownfields. Consequently, older industrial areas are left derelict and urban sprawl thrives. Also a big concern are the construction delays that can be encountered in complying with the complicated CERCLA laws. There is bipartisan agreement that successfully reforming the national brownfields program will require legislation providing funding and liability relief independent of CERCLA.

Dealing with brownfields
Brownfields are not a new topic for Congress. In fact, this is the fourth session to have addressed them, and during the 106th Congress almost 30 bills were introduced involving contaminated sites. So why hasn't a brownfields bill been passed yet? In part, brownfields legislation has simply been too low a congressional priority. Faced with more immediate problems, the leadership has relied on the fact that CERCLA does address brownfield remediation to some degree, albeit in a cumbersome, inefficient manner. Also, Congress has had to deal with environmental concerns that are hesitant about weakening the EPA's strict environmental policies regarding potentially responsible parties, and pressure by states to give them more leverage in developing their brownfield sites. But, the political momentum behind new legislation in this congressional session is very strong. Brownfield programs are currently popular among constituents, businesses, and environmental groups. Additionally, states have been developing their own initiatives, which need federal funding and support to be successful.

State programs
Every state, except North Dakota, Wyoming and South Dakota, has a brownfield program of some sort. They differ widely in how they regulate, how comprehensive they are, how much liability relief they offer, and how they decide what sites can and will be redeveloped. The amount of interaction with the federal government is also variable. Fourteen states have signed agreements with the EPA that give them a sense of finality if their own program follows certain EPA guidelines. This arrangement encourages developers to undertake site cleanups free from the risk of federal liability and EPA penalties. A brownfields bill from Congress would improve the process and financing of cleanups and thus allow more sites across the country to be returned to productive use.

What can we expect from this Congress?
On April 25th, the Senate passed a brownfields bill (S. 350) by a 99-0 vote, and throughout the summer the House has been holding its own legislative hearings. Although cleaning up contaminated sites is a priority for both parties, contentious areas still remain. These include liability clarification that would protect potential developers and nearby property owners; direct funding support, such as grants to states and cities; tax incentives, including tax credits and tax-exempt financing; and state versus federal authority on certain process-related initiatives. Defining the proper levels of state and federal control is most prominent. Not surprisingly, Republicans favor more state authority, while Democrats want to make sure the federal government does not lose its ability to intervene in state-supervised brownfield cleanups. House Republicans, in a recent legislative draft, have also proposed to both expand the states' authority to define brownfield sites for funding purposes and to eliminate the requirement for federal permits in states where authority has not been delegated. Further, great concern is being expressed over a state's ability to defer sites from being listed on the Superfund's National Priority List. Only after these issues are addressed will the House likely pass a brownfields bill.

Another avenue through which federal legislation can help brownfield programs is to increase funding for community development programs at the Department of Housing and Urban Development, the Economic Development Administration, and the Small Business Administration. Currently, two bills in the Senate (S. 1078 and S. 1079) and one in the House (H.R. 2064) authorize brownfields funding for these agencies.

In March of this year, two House Subcommittees held hearings on state-federal brownfield partnerships. At both these hearings, many success stories illustrated the environmental and economic benefits of brownfields reclamation. They also reminded Congress that in order for future brownfields projects to be successful, federal funding and management cooperation are crucial. The 107th Congress appears poised to address this need and make passing a brownfields bill a top priority.

Chris Eisinger has returned to Arizona State University, where he is pursuing a master's degree in volcanology

This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.

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

Posted May 13, 2002

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