Brownfields Testimony
March 7, 2001
Good morning, Mr. Chairman and members of the Subcommittee. I’m Ruth Ann Minner, Governor of the State of Delaware, and am here today representing the National Governors Association.
I currently serve as a member of the NGA’s Committee on Natural Resources, and we appreciate the opportunity to provide testimony today on brownfields issues.
The Governors believe that brownfields revitalization is critical to the successful redevelopment of many contaminated former industrial properties. In fact, it is a vital part of the smart growth agendas being pursued by many Governors this year. Therefore, we commend and thank the Subcommittee for focusing on the brownfields issue so early in this session.
We agree with you that 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. State brownfields programs have been operating now for about a decade. In that short period, state programs have successfully facilitated reuse of more than 40,000 sites.
But there are still challenges states face in redeveloping brownfields -- real and perceived barriers that are keeping us from eliminating these blights on many of our communities. State programs have flexibility that should be recognized, and not impeded, under federal law to stimulate brownfields redevelopment. We think the federal government can help remove some of the impediments that currently exist.
Owners of contaminated industrial sites often desire site cleanup in order to sell the property and return it to productive use. However, some developers are afraid that their involvement in these state-managed sites may result in environmental cleanup liability – liability for contamination they did not create – under the 1980 Superfund Act.
Many potential developers of brownfields have been deterred from investing in a contaminated site. That’s because they know that even if a state is completely satisfied that the property has been properly cleaned up, there is potential for the EPA to take action against them under the Superfund liability scheme.
If there is legislation on brownfields, Governors believe that it should address this problem by providing needed liability protections for innocent owners, as well as owners of property contiguous to contaminated sites.
Just as importantly, 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. This “finality” should mean what it says – completion of a cleanup under state law. To not give this assurance reduces the chances that restoration of the site will occur.
We do not disagree with those who want exceptions to this finality, but the exceptions should be limited. And the exceptions should give states an opportunity to take appropriate action themselves before the EPA is permitted to reopen the cleanup and take enforcement action.
What the Governors would strongly recommend is language that puts the burden on the EPA to demonstrate the Governor was notified of a problem, and that the state was unwilling or unable to take appropriate action.
Of course, if the EPA needed to take emergency action to protect public health or the environment, and the state was unwilling to respond, intervention by the federal government might be appropriate. Similarly, a state could ask for federal assistance in cleaning up any site if the circumstances warrant it.
Another provision that we believe is very important in any bill is to require the concurrence of the state’s Governor before a site may be added to the National Priority List. It is currently EPA policy to seek the concurrence of a governor before listing a site, and we ask that you codify this practice.
We also would like to see a section of the Superfund act clarified regarding the state cost share at Superfund sites. The Governors believe that the law should clearly provide that the Superfund response trust fund can be used to support operation and maintenance activities at the same state match as cleanup actions – that is, a 10 percent cost share.
Lastly, we would like to see a bill that includes a waiver of sovereign immunity for federal facilities, so that states can enforce state environmental laws. Such authority has been provided in the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. We seek to hold the federal government to the same standard of compliance for its brownfield sites as other parties in our states.
We appreciate your consideration of our views, and we look forward to working with you on the development of brownfields legislation during this session.
Thank you.
