Statement for the Record – Brownfields

Thank you for the opportunity to submit tesimony for the record of this Subcommittee hearing on the subject of Brownfields legislation. The Governors believe that remediation of brownfields sites is critical to the successful redevelopment of many communities. We commend the Congress for crafting legislative proposals that have the potential to significantly enhance and expand the cleanup of moderately contaminated brownfields sites across the country. The National Governors Association (NGA) supports swift passage of a bipartisan bill that can be signed by the President. Passage of brownfields legislation should be a priority for this Congress, but it must be legislation that encourages actual cleanup of the sites.

Brownfields represent an enormous potential economic development resource, one that can lead to new jobs, healthier neighborhoods, increased local tax revenues, and less suburban sprawl. Successful state brownfields programs improve the quality of life for a community, which in turn, increases that community’s economic competitiveness and helps it attract new business and workers. State brownfields programs have been operating now for about a decade, and states are very proud of their record of success. In that short period, state programs have productively facilitated reuse of more than 40,000 sites. In prior testimony before this Subcommittee in March, we outlined the investment that states have made and continue to make in bringing brownfields sites back to life.

State flexibility should be recognized, and not impeded, under federal law to stimulate brownfields redevelopment, and the federal government can help remove some of the existing impediments. State brownfields programs allow redevelopment to take place relatively quickly, with appropriate cleanup standards, and with minimal government involvement. However, some developers are afraid that their involvement in these state-managed sites may result in federal environmental cleanup liability under, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, commonly referred to as “Superfund.” As a result, valuable industrial land remains contaminated, unused, or abandoned, denying communities economic activity and the direct benefits of jobs and taxes. There is no question that brownfields redevelopment is currently hindered by the pervasive fear of federal liability under the Superfund statute. Governors believe that brownfields legislation should help address this problem, as the June 13 Discussion Draft, S. 350, and the June 18 Discussion Draft do, by providing needed liability protections for innocent owners, prospective purchasers, and owners of property contiguous to contaminated sites.

Just as importantly to Governors, legislation should preclude enforcement by anyone (other than by a state) at sites where cleanup has already occurred or is being conducted under state programs, except in exceptional circumstances. This “finality” should mean what it says – satisfactory completion of a cleanup under state law should be final. To not give this assurance to developers who are spending thousands, or hundreds of thousands, of dollars of their own money to rehabilitate a property reduces the chances that the rehabilitation will happen.

We do not disagree with those that want exceptions to this finality, but the exceptions should be limited and should give states an adequate opportunity to take appropriate action themselves before EPA is permitted to reopen the cleanup and take an enforcement action against the owner or the developer.

NGA supports the finality provisions in the June 13 Discussion Draft that would improve the effectiveness and pace of brownfields cleanups by allowing state cleanup programs to provide assurance to landowners who wish to develop their property without fear of being engulfed in the federal liability scheme.

For several years NGA has consistently sought language in both Superfund and brownfields bills regarding finality. We have supported bills in prior years that barred the Environmental Protection Agency (EPA) from imposing Superfund liability after a state-approved brownfields cleanup unless a release or threatened release required a response action was immediately required to prevent or mitigate a public health emergency and the state was not responding in a timely manner.

We have also supported bills that limited federal or judicial enforcement actions only if the state requests such action, contamination has migrated across state lines, the Agency for Toxic Substances and Disease Registry issues a public health advisory for the site, or if the President determines that response action or immediately required to prevent, limit, or mitigate an emergency when there is an immediate risk to public health or welfare or the environment and the state will not take the necessary response actions in a timely manner. Conversely, we have not supported bills that failed to preclude federal actions at sites where a cleanup had occurred or was occurring at non-NPL sites in the absence of a real emergency, believing that such provisions would make it to easy for EPA to simply second guess state decisions at sites under the state’s jurisdiction.

The finality provisions of the June 13 Discussion Draft, S. 350 and the June 18 Discussion Draft do not go as far as NGA’s prior positions have sought. The June 13 Discussion Draft, however, is the fairest compromise between the various points of view and narrowly outlines the circumstances where intervention from EPA is justifiable. In addition to the state-request, and state-line or federal property migration exceptions, the June 13 Discussion Draft bars Superfund liability unless EPA determines not only that a release or threatened release presents an “imminent and substantial endangerment” to public health or welfare, but also that an emergency situation exists, and that the state will not quickly respond. The June 13 Discussion Draft also provides a more practical 72-hour period of time for a state to reply to EPA of the action it intends to take, while maintaining an option for EPA to take immediate action if necessary. These are reasonable conditions and we are willing to support them for the sake of working with the Congress for speedy passage of a bill.

Like the finality provision, the Governors have for many years sought to include in any Superfund or brownfields bill a provision according each Governor the statutory right of concurrence on EPA’s decision to place new sites on the NPL in his or her state. The right of concurrence on new NPL listings ensures that states have the right of first action at hazardous sites, and where a state is proceeding with cleanup, or has plans to do so, the federal government will defer. As states are closer to the sites and to the affected community, such deference is entirely appropriate. We would note that this right of concurrence applies only to long-term cleanup and does not in any way limit EPA’s authority to respond to immediate problems. Nor does it in any way impede EPA’s ability to take action at the hundreds of sites that are already listed on the NPL.

Placement of new sites on the NPL without the concurrence of the Governor when a state is prepared to apply its own authority is not only wasteful of federal resources, it would be counterproductive, resulting in increased delays and greater costs. Over the years EPA has recognized that states are currently overseeing most cleanups, and has, as a discretionary matter, sought gubernatorial concurrence before listing a site. We ask merely to have this informal policy codified in law to assure that it continues throughout future administrations. We greatly appreciate the inclusion of a provision in the June 13 Discussion Draft requiring gubernatorial concurrence before a site is listed on the National Priorities List, except in limited situations.

The funding provisions in the bill that provide grants to states and local governments for both response actions as well as site assessments are very positive steps in assuring that financial assistance is available so that sites can actually move toward final cleanups. But we hope that the funding is not so restrictive that states will have no incentive to apply for the money.

We appreciate the Subcommittee’s consideration of our views, and we look forward to working with you on the development of brownfields legislation during this session.