Skip Gibson memo, September 9, 2001

Memo To: RLE, SLK From: Skip Gibson Subject: S. 350: Brownfields legislation Date: September 9, 200 1 On September 10, 2001 Chairman Gilmore will introduce a new bill which incorporates H.R. 1831, The Small Business Liability Reform Act and S. 350, the Brownfields Revitalization Act. This new bill is expected to move through both the House and Senate simultaneously by the end of the week with passage as a suspension vote. Problems with S. 350 - Finality is the most significant issue regarding brownfields legislation. Finality is a guarantee that federal or state authorities will require additional cleanup of sites either undergoing cleanup or completed brownfield remediation. Sec 106 of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows the EPA to require additional cleanup, at any time, at any contaminated or previously contaminated site. While S. 350 provides some finality under Title III for sec. 106 of CERCLA by providing finality for State administered cleanup actions, it continues to allow the EPA to reopen sites under the Resource Conservation and Recovery Act (RCRA) secs. 7002 and 7003. The RCRA statutes which are identical to sec 106 of CERCLA states "may present an imminent and substantial endangerment to public health or welfare or the environment . ." - Courts consistently interpret this standard very broadly because the presence of imminent and substantial health endangerment is not a question of fact. The RCRA statute continues to provide the EPA with broad authority to overfile which creates a "chilling effect" on the finality that Title III of S. 350 intends to provide for state administered cleanups. Leaving RCRA provisions in place is viewed by the business community as counter productive to producing a stable market to attract the private capital needed to redevelop these sites. - S. 350 authorizes the EPA to require brownfield sites to be cleaned up to National Contingency Plan (NCP) specifications, even though by definition brownfields sites are "low risk." Liability, therefore, still exists because the EPA can require additional cleanup action to NCP levels from the site owner and other liable parties. - Under S. 350, petroleum sites qualify for the CERCLA National Priorities List (NPL) and are not eligible for cleanup grant funding authorized by S. 350. The goal of S. 350 is to remediate leaking underground petroleum storage facilities (gas stations), however, S. 350 uses ambiguous language which allows only "low risk” petroleum sites to qualify under the brownfields provisions of the bill. In addition, S. 350 excludes petroleum contaminated sites from liability protections and federal enforcement protection even though a cleanup is in compliance with state approved cleanup specifications.