[CPEO-BIF] Enviro support for S. 2700

[Lenny Siegel <lsiegel@cpeo.org>]

[The following letter in support of S. 2700 was initiated by the Natural
Resources Defense Council.]

* Natural Resources Defense Council * 
* Alternatives for Community and Environment * 
* Center for Public Environmental Oversight *
* Detroiters Working for Environmental Justice * 
* Jesus People Against Pollution *
* Partnership for Sustainable Brownfields Redevelopment * 
* Subra Company *
* Surface Transportation Policy Project * 
* West Harlem Environmental Action *

July 21, 2000

Dear Senators Chafee and Lautenberg:

The undersigned national environmental organizations and local
environmental justice organizations would like to lend our support to
your efforts to pass S. 2700, the Brownfields Revitalization and
Environmental Restoration Act of 2000.  As you know, these groups have
worked for years to promote the cleanup and redevelopment of brownfield
sites, while at the same time ensuring the protection of public health
and the environment.  This bill represents a significant step forward
and holds the potential to help break the deadlock on advancing federal
brownfields clean-up issues. Though the contamination may not rise to
the level of federal attention, brownfield sites in cities and rural
areas across the country still threaten the health of nearby residents,
of wildlife, and of the environment.  Brownfields sites also undermine
an area's economic health. At the same time that America is losing 365
acres of green space per hour to development, sites rich in existing
infrastructure and near to labor pools remain abandoned because of
contamination. 

Your bill would provide much needed funds for communities to revitalize
and clean up contaminated property, and at the same time would create a
framework for improving how these cleanups are conducted. Your bill
holds great potential for cleaning up communities, protecting health,
renewing local economies, combating sprawl and preserving or creating
open space.  First, it provides financial resources in the form of
grants, revolving loans and technical assistance grants (TAGs) to
municipalities, non-profit organizations and community redevelopment
groups for increased public participation and site-related assessment
and cleanup activities. This assistance will help provide for meaningful
community input in clean-up decisions that will have a significant
effect on that community's quality of life. Numerous studies of
clean-ups all across the country have demonstrated that early and
frequent community participation results in better and more efficient
clean-ups. 

Second, the legislation requires that states take steps necessary for
their brownfields programs to satisfy important assessment, remediation,
and public involvement criteria (or that the state has entered a
separate agreement with EPA) as a condition of receiving federal grants.
Third, the bill provides important new funding for preservation of green
space and open space in communities and makes green spaces a priority
for development. And, in Title II, S. 2700 adopts sensible liability
protections, which we have long supported.  These clarifications should
encourage brownfields activity while also preserving vital federal
enforcement authority and a baseline level of protection for all
Americans.
Wisely, the bill is narrowly tailored to achieve the goal of more and
better brownfields clean-ups. We would oppose vigorously any effort to
broaden the liability clarifications provided by the bill, including
application of the bar to statutes other than CERCLA, or any changes to
the enforcement bar provisions, which we read to embody current EPA
policy and practice for taking action under CERCLA section 106. 

We recognize that this legislation represents a delicate compromise and
a unique consensus on brownfields, which would not have been possible
without your commitment, and that of your dedicated staff, to developing
a national framework for restoring our communities and the environment
at the same time.  While our organizations support moving this
legislation forward, below we call to your attention some important
issues which we strongly urge you to address.  

Time Frames for Developing State Brownfield Programs 
We strongly support additional funding for states to develop effective
and enforceable brownfields cleanup programs consonant with the criteria
in the bill. Unfortunately, the current language appears to allow states
to continue to receive funding indefinitely for taking undefined
"reasonable steps" toward implementing a program that meets the
criteria. We presume that "reasonable steps" means that establishment of
those programs should be required to occur within some set period of
time (e.g., 3-4 years), and our support is conditioned on this
understanding. In any event, EPA should be allowed to cut funding for
those states not making significant efforts to reach the funded-program
criteria. 

Enforcement Bar and Re-openers
Under the proposed legislation, EPA would be prohibited from taking
enforcement action or seeking cost recovery at eligible sites which are
subject to a state clean-up program.  As we understand the bill, this
"enforcement bar" will apply only to cleanups that are designed and
initiated after the effective date of this bill, and not to cleanups

well underway or that those have been completed but are being maintained
or monitored. We could not support a bill that would do otherwise. We
also strongly suggest adding an exclusion from the enforcement bar that
would allow the EPA to take action at a site if the land use changes
substantially and the Administrator determines that, as a result of the
new land use, the cleanup is inadequate to protect human health and the
environment. 

Institutional Controls
To its credit, the bill contains important language that would provide
for a public inventory of brownfields cleanups in each state, and
information on how the institutional controls in place (e.g., deed
restrictions) will protect the public when a clean-up does not remove
all wastes at brownfields sites. The text lacks a critical component,
however, for effective legislation in this area: the bill should ensure
that public information on institutional controls indicates how and by
whom these controls will be enforced and maintained in the future. 

Eligible Entities
Non profit and community development organizations (CDOs) are not
currently listed among the entities eligible to receive funds under the
pilot site assessment program. We strongly urge you to expand
eligibility beyond governmental entities and at the very least allow
CDOs and non profits to apply for funds if no other eligible entity in
the area applies. We also urge you to include gas stations in the pilot
site assessment program.  Gas stations may well be the biggest category
of sites affecting communities. Since the site assessment funds do not
come from the CERCLA trust fund, the CERCLA petroleum exclusion is
irrelevant.  And including these sites in the pilot assessment program
would not involve opening up other statutes, while it would help
communities gain a better picture of the full range of contamination
problems they face. 

Cost Recovery
We are concerned that the bill would bar the EPA from using its current
authority in CERCLA section 107(a) to recover costs at brownfields sites
even if a state does not have at least a minimally adequate state
cleanup program. Federal taxpayers should not have to bear the cost for
an inadequate brownfields cleanup when a state is not demonstrating a
commitment to a strong and effective state cleanup program, and
responsible parties exist who could and should pay for the federal
response action. Although we recognize that the funding in this bill
will be a strong incentive for states to ensure that their state cleanup
programs satisfy your bill's minimum criteria, we would suggest
requiring that a state meet the grant criteria listed in the legislation
before the enforcement bar would apply to those states.  

Community Advisory Groups
We suggest that the legislation allow for the creation of community
advisory groups in state brownfields programs where sites may warrant
additional public involvement. These community advisory groups would
facilitate greater public participation in the decision-making process,
particularly at sites where there may be significant community health
concerns. Additionally, the legislation should define the evaluation
criteria of the TAG program in more detail and ensure consistency by
incorporating characteristics of CERCLA's TAG program (e.g., time frame
for filing applications). Maintaining a consistent framework for all
federal TAG programs would lead to increased predictability and success
for interested communities to apply and receive federal financial
assistance.

Community Outreach Plans
While the bill would help communities to become more involved in
decisions regarding brownfield sites, it could be stronger in seeking
community participation.  We urge you to give states more guidance and
encouragement to develop programs which seek active community
involvement.  For example, California's voluntary clean-up program
requires the development of a community profile for sites going through
a full clean-up.  If the community profile reveals sufficient interest,
the program directs development of a community relations plan as part of
the overall planning at a brownfield site or group of sites.  Elements
of such a plan include: identifying community leaders, others who may be
concerned, and level of interest in the site; deciding how community
members will be notified of planning and other events; determining how
documents and information will be made available; and establishing how
comments will be sought.  This avoids prescribing one approach for all
circumstances, but encourages early consideration of and planning for
community outreach.

Long-term Notice through State Lists, and Easy Access to the Information
The bill's language regarding the state lists is not completely clear on
whether those sites with remaining contamination and institutional
controls will remain on the lists until such time as the site is cleaned
up to a level allowing unrestricted use. The bill appears to envision
this sort of treatment, which makes sense if part of the purpose is to
provide a way of providing notice of the need for caution to current and
future users of the relevant property and surrounding areas. In addition
to clarifying this language, we also suggest making this information
available electronically to gain the full benefit of making this
information easily available to the public.  

We hope that our comments on S. 2700 are helpful. We look forward to
working with you as this legislation advances.

Sincerely,

Jacqueline Hamilton
Senior Attorney, Natural Resources Defense Council, Washington, DC

Don Chen
Smart Growth Program Director, Surface Transportation Policy Project,
Washington, DC

Charlotte Keys
President, Jesus People Against Pollution, Columbia, MS

Penn Loh
Alternatives for Community and Environment, Roxbury, MA

Vernice Miller Travis
Executive Director, Partnership for Sustainable Brownfields
Redevelopment, Baltimore, MD

Peggy Shepard
Executive Director, West Harlem Environmental Action (WHEAct), New York,
NY

Lenny Siegel
Director, Center for Public Environmental Oversight, San Francisco, CA

Wilma Subra
President, Subra Company, New Iberia, LA

Donele Wilkins
Executive Director, Detroiters Working for Environmental Justice,
Detroit, MI

-- 



Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org

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