Senate Brownfields Bill Needs a Clean-Up

On Point No. 79


If there has been one lesson learned concerning government’s ability to clean up abandoned waste sites, it’s that the states’ efforts have been enormously successful, while the federal government’s attempts have been dismal. Collectively, the states have cleaned up more than 40,000 waste sites over the last decade,[1] rejuvenating impoverished urban centers with new jobs and investment, and protecting undeveloped land from urban sprawl. Conversely, EPA, mired in costly and lengthy legal battles over liability and the definition of “clean,” has failed to clean up hazardous-waste sites in a cost-effective or timely fashion. Moreover, recent attempts of myriad reform measures to improve EPA’s response actions have largely failed.[2]


The cleanup of brownfields, or low-risk abandoned waste sites,[3] falls within the jurisdiction of the states, while the more complicated and potentially hazardous sites known as Superfund—governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—are handled by the federal government. According to the General Accounting Office and others, the states’ approach to cleanup, which emphasizes liability relief for innocent parties, flexible and risk-based remediation requirements, and tax incentives, is far superior to the federal “stick” approach.[4]


Over the last six years, however, federal policy has created enormous roadblocks for state cleanup efforts through two primary means: 1) maintaining the threat of intervention in brownfield cleanups through CERCLA laws; and 2) operating pilot projects that provide grants to states and localities only if they follow CERCLA and other federal requirements. Both policies have hindered the states from getting the job done; the former has discouraged cleanup by inflating the risks and costs for all parties involved, similar to the Superfund program; the latter has enabled EPA to enforce onerous inventory-list and public-participation requirements at the expense of site assessment and cleanup needs.[5]


While congressional attempts to address these problems have stalled in the past, this year legislation is moving quickly with the support of the Bush administration. Sponsored by Sen. Lincoln Chafee (R-R.I.), S. 350 will limit EPA’s ability to override state cleanup efforts and will provide needed liability reform. Nevertheless, it suffers from a number of serious problems.


S. 350 doesn’t provide needed “finality.” S. 350’s limitations on EPA’s ability to interfere with state cleanups are rendered meaningless by other parts of the bill that prevent it from providing “finality.” Finality is the essential commitment that, once a cleanup meets the state’s approval and required standards, neither federal, state, nor local authorities will renege on their agreement with private parties by imposing additional cleanup standards. In situations where sites are already in the process of being remediated or have already been fully remediated under state cleanup programs, S. 350 still enables EPA to “reopen” the site and apply failed federal Superfund laws. Without providing developers the needed assurance of “finality,” the risks to involved parties are simply too high to warrant their interest in brownfield-cleanup projects.


Specifically, the root of the problem is two “exceptions” to the bill’s limits on EPA enforcement authority:


1. EPA can take enforcement action under CERCLA if a release “or threatened release may present an imminent and substantial endangerment” to public health, welfare, or the environment. Under this exception to the rule, the federal government is not required to base its actions on fact. It does not require knowledge of actual endangerment but merely “a threat.” This could include any material perceived to be a risk, whether it’s an actual risk or not. Moreover, a threat isn’t required to be actually present; it simply “may” be present, opening the door for mere hunches or suspicions to justify federal intervention. Nor does this exception give the states the opportunity to refute the federal agency’s allegation. Finally, the provision doesn’t even give the states the opportunity to correct any problem before applying Superfund laws.


2. EPA can take enforcement action under CERCLA if new information reveals that a brownfield site already remediated and approved under state law continues to pose a threat. Again, this provision does not include the proper assurances that EPA intervention is warranted. There is nothing to ensure the “information” is accurate or even peer-reviewed. Any organization or individual opposing the cleanup project could release misinformation which, according to the bill’s language, could trigger EPA obstruction under Superfund laws.


S. 350 should allow for true finality. That is, when a state determines a site has been satisfactorily cleaned up according to state law, that determination should be final.


S. 350 doesn’t provide assurance against site placement on the National Priorities List. Once property is placed on the National Priorities List (NPL), the official federal listing of Superfund sites, it is taken completely out of the jurisdiction of the state. Based on EPA’s track record for cleaning up NPL localities, a site’s chance of being remediated within the next decade is slim.[6]


Despite the harmful stigma of NPL placement, EPA has been known to step in and add sites to NPL, even in cases where the site was already in the process of being cleaned up under a state program. According to Sen. George Voinovich (R-Ohio), one such case occurred in his own state, back in 1989. EPA added an Ohio brownfield site to the list, despite the fact it had been cleaned up under the state program three years previously. Once the site was on NPL, EPA took few steps to clean it up, and it lay there abandoned for over a decade.[7]


Sen. Chafee’s bill stipulates that at a state’s request, EPA will “generally” not place a site on NPL if a state is conducting a response action and if, after a year, EPA “determines” the state is making “reasonable progress.” To avoid the inherent problems and delays with sites added to NPL, Congress should prevent EPA from placing a site on the list unless a state requests the listing in writing.


S. 350 imposes mandates on state brownfield programs. To qualify for federal funds and for protection from federal intervention, S. 350 would require states to jump through a number of hoops. Given the federal government’s terrible track record on waste cleanups, such hurdles will likely complicate state cleanups.


For example, the bill’s mandate that states keep an inventory of brownfield sites stigmatizes the properties the same way NPL stigmatizes Superfund sites, scaring away potential developers because of real or perceived risks associated with polluted locals. In addition to the property, it stigmatizes the communities, any one of which might contain an above-average number of sites. In most situations, these communities are located in the inner city, where efforts to attract business are crucial to their economic survival. Who is going to want to move to a community or area of a city that is documented as having numerous brownfields? Even though these sites are low-risk and not hazardous, they are typically perceived as being a health threat.


Equally nonsensical are S. 350’s proposed federal controls over states’ public-participation programs. These programs concern the community, and decisions concerning how the public is notified and informed are best handled by the states or localities, not the federal government. Why should federal requirements override state efforts in this area? Forty-seven states already operate a public-participation program that informs residents about cleanup efforts and enables them to have a voice in implementing procedures.[8]


Through CERCLA and its National Contingency Plan (NCP) component, inventory and public-participation requirements have been a major feature of EPA’s brownfield pilot programs. CERCLA and NCP requirements have been identified in numerous government reports as major reasons why pilot projects fail to meet their key objectives.


As EPA’s inspector general observed in his audit of the agency’s brownfield pilot program, “the requirements of the NCP, such as addressing community concerns, holding community meetings, and setting up and maintaining administrative records require a great deal of resources to carry out…and the administrative requirements to the lender are burdensome.”[9] For example, at five pilot sites observed in the report, auditors found that out of $1 million authorized for assessing the condition of the sites, only $65,000—just 6 percent—was actually spent on site assessments; the rest was spent on public-participation and inventory-list requirements.[10]


Federal funding should not be used as a means for mandating federal standards and approaches. As a 1997 GAO report found,[11] state programs have been successful largely because they have abandoned the federal government’s standards and “stick” approach, opting for innovative methods that rely on incentives and flexibility.


S. 350 gives EPA power to impose other NCP requirements. S. 350 states that EPA may include any requirements in its NCP, “to the extent that the requirement is relevant and appropriate to the program.” This language is vague and open-ended, giving EPA full authority to apply NCP requirements at any time it so desires. CERCLA should be fully de-linked from brownfield cleanup efforts, including any NCP requirements.


There is no middle-road approach to federal brownfields reform. Compromises and half-steps will fail to provide the states, localities, and parties involved in cleanup with the needed assurances that the federal government will not step in when the state is already conducting a cleanup. The bottom line is this: Unless parties involved in the cleanup are convinced that the federal government will not override state programs, existing brownfields will continue to lie abandoned, impeding economic opportunity and creating potential threats to public health and the environment. And unless federal grants are provided free from regulations that hinder cleanup, federal “aid” is costly and meaningless.



[1] These include sites cleaned up through state voluntary cleanup programs and other hazardous-substance cleanup programs. They do not include sites on the National Priorities List. Environmental Law Institute, “Development in State Programs,” An Analysis of State Superfund Programs: 50-State Study, 1998 Update, October 16, 1998, p. 61.

[2] See General Accounting Office (GAO), Superfund: Extent to Which Most Reforms Have Improved the Program Is Unknown, GAO/RCED-00-118, May 12, 2000.

[3] EPA defines brownfields as “abandoned, idled, or underutilized industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.” EPA, Office of the Inspector General (OIG), “Brownfields: Potential for Urban Revitalization,” Report of Audit, March 27, 1998, p. i.

[4] See GAO, Superfund: Proposals to Remove Barriers to Brownfield Redevelopment, GAO/T-RCED-97-87, March 4, 1997, p. 1. Also see Dana Joel Gattuso, Revitalizing Urban America: Cleaning Up the Brownfields, CEI, July 2000.

[5] For example, since 1997, EPA has awarded over $44 million in grants for close to 100 state revolving-loan pilot programs, yet only four have produced actual loans, and only one has resulted in full remediation. According to EPA’s inspector general, “The primary reasons for delay are the barriers imposed by Superfund legislation (CERCLA and the associated [National Contingency Plan] requirements).” EPA, OIG, “Update on Brownfields Initiative To Revitalize Urban Areas,” Audit Report, September 29, 2000, p. 24.

[6] As former EPA Administrator Carol Browner observed, “Once a site was on the [National Priorities] list, there was no way to get it off…The mere fact of being on the list was enough to scare investors away. It’s like a bad credit rating that never goes away.” Sabrina Eaton, “Superfund To ‘De-list’ Sites To Spur Urban Development,” The Plain Dealer, January 26, 1995.

[7] Statement of Sen. George Voinovich regarding the Brownfields Revitalization Act of 2000, May 18, 2000, before the US Senate.

[8] Environmental Law Institute, “Development in State Programs.”

[9] EPA, OIG, Report of Audit, p. 20.

[10] Ibid., pp. 10-11.

[11] GAO, Superfund: Extent to Which Most Reforms Have Improved the Program Is Unknown.