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Small Business Liability Relief and Brownfields Revitalization Act

The site, the Millenium Corporate Center is the 1,000th site redeveloped under Pennsylvania's successful Land Recycling Program.  The Center is built on the former site of the Schuylkill Iron Works.  When completed, it will be the centerpiece of a $115 million, 40-acre office, recreation and residential development.

Title II of the new legislation ("Brownfields Amendments") is called the Brownfields Revitalization and Environmental Restoration Act.  Key features of the Brownfields Amendments can be summarized as follows:

• Innocent landowner defense: prospective purchaser, not only must have had no reason to know (after all appropriate inquiry) of any hazardous substance releases at the site, but must provide full cooperation, assistance, and access to responders, comply with any land use restrictions established in connection with the response action, and not impede the effectiveness of any institutional control employed in connection with the response action.
• New Bona Fide Prospective Purchaser (BFP) defense: allows landowners or tenants who knowingly acquire or lease contaminated property after January 11, 2002 to avoid CERCLA liability if they satisfy a number of conditions--e.g., satisfy innocent purchaser standards (regarding appropriate inquiry and cooperation), all hazardous substance disposal occurred pre-acquisition, "appropriate care" is taken to stop any continuing release and limit harm, and have no relationship to a Potentially Responsible Party (PRP) for the site.
• Windfall lien authority: where EPA steps in to perform a response action at a site owned by a BFP and does not recover its response costs, when the property is sold EPA may be entitled to the increase in fair market value of the property attributable to the response action.
• Property contiguous to contaminated sites: the owner of a property contiguous to a contaminated site that is or may be threatened by a hazardous substance release from that site will not be considered a CERCLA owner or operator solely by virtue of the contamination--if it did not cause, contribute, or consent to the release, is not affiliated with any PRP for the property, takes reasonable steps to stop any continuing release and prevent or limit harm, provides full cooperation, assistance and access, complies with any land use restrictions or institutional controls, complies with any reporting requirements and information requests, and had no reason to know of the contamination after conducting all appropriate inquiry.  A qualifying contiguous property owner shall not be required to conduct ground water investigations or to install ground water remediation systems (unless it would have been required to do so under EPA's 1995 Contaminated Aquifer Policy).
• Statutory brownfield funding program:  increases funding for assessment and cleanup of brownfield sites from about $96 million to $250 million a year--including up to $50 million (or 25% of the annual appropriation) to characterize, assess and remediate petroleum-contaminated sites. 

  *  New statutory "brownfield" definition: "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant."  Excludes a facility subject to a planned or ongoing removal action, listed or proposed for listing on the NPL, the subject of a unilateral adminstrative order, court order, or administrative or judicial consent decree, a facility subject to corrective action or closure notification under RCRA, subject to the jurisdiction, custody or control of a federal agency, at which there has been a PCB release subject to remediation under TSCA, or for which assistance has been obtained from the Leaking Underground Storage Tank Trust Fund.

  *  Additional EPA funding authority:  EPA may provide financial assistance to sites excluded from the statutory definition--if it determines on a site-specific basis that financial assistance will (a) protect health and the environment, AND either (b) promote economic development, or (c) enable the creation, preservation, or expansion of parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes.

   

• Brownfield grants: new CERCLA section 128 makes grants available to inventory, characterize and remediate brownfield sites to local governments, quasi-governmental land clearance authorities supervised by local governments, governmental entities created by a State legislature, regional councils (or groups of local government units), State-chartered or -sanctioned redevelopment agencies, a State, or an indian tribe.  Funds may be used to capitalize State or local revolving loan programs; for direct grants to eligible entities or non-profits to remediate brownfield sites they own; for use (up to 10%) by a local government to develop and implement a brownfields program that includes health monitoring and monitoring and enforcement of institutional controls; and to pay environmental insurance premiums, develop a risk-sharing or indemnity pool, or other insurance mechanism to provide financing for response actions under State law.  It eliminates the requirement that applicants must comply with the NCP (National Contingency Plan under Superfund), but EPA may impose selective NCP requirements by regulation if it determines they are "relevant and appropriate."  Eligible entities may use brownfield grant funds in conjunction with other funding sources as long as funds are used to characterize, assess or remediate brownfield sites.  There is a 20% matching share (except in cases of "undue hardship").  EPA may also issue grants to eligible entities or nonprofits to provide training, research, and technical assistance to facilitate the inventory of brownfield sites, site assessments, remediation, community involvement, or site preparation.  To be eligible for the $50 million to establish or support state cleanup programs, as state must either have executed an MOA with EPA, or must have a response program with 5 minimum elements.  One of these is "timely survey and inventory" of state brownfield sites.
• Minimum standards for state response programs: (new CERCLA section 129)  EPA may not use its CERCLA authority to compel a cleanup or recover response costs where a response action has been completed at an eligible response site in accordance with state law--unless the state requests EPA assistance, EPA determines that contamination has or will migrate across state lines, EPA determines that contamination has or is likely to migrate onto federal property, EPA determines, after considering the actions already taken, that a release or threatened release may present an imminent and substantial endangerment unless additional response actions are taken, or EPA determines after consulting with a state that new information indicates that further response action is necessary.  For these purposes, sites that pose a threat to a sole-source drinking water aquifer may not be considered an "eligible response site."
• NPL deferral:  EPA shall defer final listing of an eligible response site on the NPL if requested by a state, where a response action is being conducted that will be protective of health and the environment, or the state is actively pursuing an agreement with a person the state believes is capable of conducting a response action. 

Title I of the legislation is the Small Business Liability Protection Act.  Among its key provisions (which largely codify administrative changes previously made by EPA) are the following:

• De Micromis PRP exemption: excludes from CERCLA response action liability generators or transporters who arranged for the disposal or transport of less than 110 gallons of liquid waste or 200 pounds of solid waste before April 1, 2001.  Plaintiffs in a contribution action will have the burden of establishing that these conditions do not apply.  (There are also exceptions where EPA determines that the hazardous substances involved could contribute significantly to the cost of the response action or natural resource damages.)
• Municipal solid waste exemption: applies to an owner, operator, or lessee of residential property that generated MSW, small businesses that employ 100 or fewer workers, and non-profits that employed fewer than 100 paid individuals.  Essentially covers MSW with the characteristics of household hazardous wastes or specified exempt municipal solid wastes.  Not exempt are combustion ash generated by municipal incinerators (or RRFs), and waste from manufacturing or processing operations (other than pollution control operations).  The exemption is also inapplicable to transporters for municipalities that own or operate an MSW landfill.
• Inability to pay exemption:  a PRP that can demonstrate an inability or limited ability to pay response costs may enter into an expedited settlement to resolve its CERCLA liability on terms that allow it to still maintain its basic business operations.