Brownfield Issues in the 110th Congress

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Brownfield Issues in the 110 Congress
Mark Reisch
Analyst in Environmental Policy
Resources, Science, and Industry Division
Summary
The Brownfields Act authorizes the Environmental Protection Agency (EPA) to
award grants for the assessment and cleanup of sites that pose a less serious threat to
human health and the environment than sites addressed by the Superfund program. The
authorization expired on September 30, 2006. In the 109^th Congress, a reauthorization
bill, H.R. 5810, was reported (H.Rept. 109-608, Part 1), but went no further.
Appropriations in the last four years have been between $163 million and $170 million.
The Department of Housing and Urban Development (HUD) also has a small
Brownfields Program, and approximately 20 other agencies have programs or activities
that foster cleanup and development. In the 110^th Congress, the House passed H.R. 644,
a bill making HUD brownfields grants more accessible to smaller communities.
Because reauthorization was not enacted in the 109^th Congress, it may be an issue for the

110^th.

For more background information on the origins and development of the
Brownfields Program, see CRS Report RL30972, The Brownfields Program
Authorization: Cleanup of Contaminated Sites, and CRS Report 97-731, Superfund and
the Brownfields Issue, both by Mark Reisch.
The Superfund Program is the federal government’s main effort to clean up
abandoned, accidentally spilled, and illegally dumped hazardous waste that poses current
or future threats to human health or the environment. It focuses on the worst spills and
other releases of hazardous substances, whereas the Brownfields Program is designed to
assist local governments with the cleanup of abandoned, idled, or underutilized
commercial and industrial sites where the contamination, if any, is not as serious.
Amendments to the Superfund Act¹ in 2002 (P.L. 107-118, known as the Brownfields
Act) gave statutory authority to the Environmental Protection Agency’s (EPA’s)
Brownfields Program, which the EPA initiated administratively in 1993 under
Superfund’s authority.

¹ Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA,

42 U.S.C. 9601-9675).

The Brownfields Act authorizes a $200 million-per-year grant program to assess and
clean up contaminated sites, limits and clarifies the Superfund Act’s stringent liability
scheme to encourage reuse of brownfield sites, and authorizes assistance of $50 million
per year to state and tribal cleanup programs. The law’s authorization expired at the end
of FY2006, on September 30. On July 28, 2006, the House Committee on Transportation
and Infrastructure reported H.R. 5810, which would have extended the funding authority
through FY2012 (H.Rept. 109-608, Part 1). The bill was also referred to the Energy and
Commerce Committee, which did not act on it.
This report provides a description of the brownfield programs of EPA and the
Department of Housing and Urban Development (HUD), reviews their recent
appropriations, takes note of other federal brownfield programs, and summarizes
congressional activity in the 109^th and 110^th Congresses.
EPA Program. Entities eligible to receive grants include local, state, and tribal
governments and certain quasi-governmental authorities; private persons and corporations
are not eligible. There are four types of competitive brownfields grants:
^!Assessment grants provide funding for a grant recipient to inventory,
assess, and conduct planning and community involvement related to
brownfield sites. The grants are typically for $200,000 over two years,
but may be higher.²
^!Revolving Loan Fund (RLF) grants of up to $1 million are made to
capitalize RLFs to provide no-interest or low-interest loans for
brownfield cleanups. An RLF grant recipient may also make cleanup
subgrants that do not have to be repaid of up to $200,000 per site.
^!Cleanup grants of up to $200,000 per site provide funding for the
recipient to carry out cleanup activities.
^!Job training grants are available to certain educational and other
nonprofit organizations, as well as the eligible entities noted above.
These grants of up to $200,000 are to create local environmental job
training programs in an effort to ensure that the economic benefits
derived from brownfields revitalization efforts remain in local³
neighborhoods.
The Brownfields Act authorized $200 million per year through FY2006 to carry out
these grant programs.

² In some circumstances, grants may be made for $350,000 or $400,000. For details, see U.S.
EPA, Proposal Guidelines for Brownfields Assessment, Revolving Loan Fund, and Cleanup
Grants, August 2007, at [http://www.epa.gov/swerrims/docs/grants/epa-oswer-obcr-07-09.pdf],
pp. 6-12.
³ “Brownfields Job Training Grants,” RFA# EPA-OSWER-OBCR-07-10. Available at
[ ht t p: / / www.epa.gov/ swer r i ms / docs/ gr ant s / e pa-oswer -obcr -07-10.pdf ] .

According to the EPA, since the beginning of the brownfields program, the agency
has awarded 1,067 assessment grants totaling $262 million, 217 revolving loan fund
grants totaling $201.7 million, and 336 cleanup grants totaling $61.3 million. The EPA
states that this $527 million of assistance has leveraged more than $9.6 billion in private
investment, helped create more than 43,029 jobs, and resulted in the assessment of more
than 10,504 properties and the cleanup of 180 properties.⁴ The agency says that it has
awarded more than $22 million in brownfields job training grants, approximately 3,000
people have completed training programs, and more than 1,800 have obtained
employment in the environmental field, earning an average wage of $13.26 per hour.⁵
CERCLA has stringent liability provisions that impose strict, joint and several, and
retroactive liability on all past and present owners of contaminated or polluting facilities,
as well as on those who transported the hazardous substances to a facility, and on those
who “arranged for disposal or treatment” of hazardous substances at a facility owned or
operated by another.⁶ Concern over the possible applicability of this strict liability
scheme to owners and developers of brownfield properties was identified as a deterrent
to their cleanup and reuse in many cases, because CERCLA had no provisions for
relaxing the liability, even for the socially desirable goal of upgrading contaminated real
estate. The Brownfields Act helped in this regard by exempting from liability: (1) owners
of land contaminated by a source on contiguous property, and (2) prospective purchasers
of property known to be contaminated. It also explained in detail what constitutes “all
appropriate inquiry,” a phrase used in the Superfund Act as a prerequisite to a land
buyer’s “innocent landowner” liability defense.⁷ Also, even before enactment of the
Brownfields Act, the EPA revised its system of tracking sites⁸ suspected of contamination
with hazardous substances to clarify when no further action by the agency was planned
at the site and to remove the stigma of being associated with the Superfund program.
The act also included provisions to establish and enhance state and tribal response
programs, particularly for brownfields. These programs include the traditional
enforcement-driven cleanup approaches, as well as newer “voluntary cleanup” programs
that avoid some of the costs and delays of that line of action and offer incentives for
participating. Most states provide some sort of liability release, and other incentives
include a streamlined process, financial or tax incentives, and technical assistance. The
Brownfields Act authorizes $50 million per year in grants to states and tribes to support
their programs.

⁴ “EPA Awards $71 Million to Help Brownfields Bloom into Productivity,” EPA press release,
May 14, 2007. Available at [http://yosemite.epa.gov/opa/admpress.nsf/e87e8bc7fd0c11f1852572
a000650c05/c7251cab903bd8b9852572db0064a83d!OpenDocume nt].
⁵ “$2.3 Million for Environmental Jobs Training,” EPA press release, November 13, 2006.
Available at [http://yosemite.epa.gov/opa/admpress.nsf/4a5be1c25fb55afa8525702100566bbb/

3c2c0c364f5ff62f852572250067ce69!OpenDocume nt].

⁶ CERCLA § 107(a)(1)-(4).
⁷ For further discussion, see CRS Report RL31911, “Innocent Landowners” and “Prospective
Purchasers” Under the Superfund Act, by Robert Meltz.
⁸ The Comprehensive Environmental Response, Compensation, and Liability Information System,
or CERCLIS.

In addition, the 2002 law expanded the definition of what is considered a brownfield
for purposes of grants, so communities may now receive funding for mine-scarred lands,
sites contaminated by petroleum, and buildings or sites that were used for the manufacture
of illegal drugs (CERCLA § 101(39)).
EPA Appropriations. Since passage of the Brownfields Act in 2002,
appropriations have been as follows, after rescissions: FY2003, $166.6 million; FY2004,
$169.9 million; FY2005, $163.2 million; FY2006, $162.5 million; and FY2007, $163.0
million. For FY2008, the Administration has requested $162.2 million. The House-
passed appropriations bill for FY2008 would provide $172.9 million (H.R. 2643, H.Rept.
110-187), and the bill reported by the Senate Appropriations Committee would provide
$162.5 million (S. 1696, S. Rept.110-91) (See Table 1 for additional information.)
Table 1. Administration Request and Enacted Appropriations
(After Rescissions) for Brownfield Programs
Administered by EPA and HUD: FY2001-FY2007
⁽ⁱⁿ^m^illioⁿ^s^o^f^d^o^llar^s⁾
EPAHUD
Fiscal Year^a^b^a^b
Re que s t e d Enacted Re que s t e d Enacted
FY2001 $91.6 $91.6 $50.0 $25.0
FY2002 $97.7 $97.7 $25.0 $25.0
FY2003 $200.0 $166.6 $25.0 $25.0
FY2004 $210.8 $169.9 $0.0 $25.0
FY2005 $208.5 $163.2 $0.0 $24.0
FY2006 $210.1 $162.5 $0.0 $9.9^c
FY2007$163.3 $163.0 $0.0 $15.0
FY2008$162.2Not yet enacted$0.0Not yet enacted
^Sources^:^P^r^{epared by}^th^{e C}^oⁿ^g^r^es^sⁱ^on^{al R}^e^s^ear^ch^Ser^v^{ice w}^ith^th^{e f}^o^llo^wⁱⁿ^gⁱⁿ^f^o^r^m^atioⁿ^.
^a^.^Re^q^u^e^s^t^e^d^a^m^o^unt^{s a}^r^e^fr^o^m^a^g^eⁿ^c^y^a^nnua^l^c^o^ngr^e^ssi^oⁿ^a^l^b^u^d^g^e^t^j^u^stⁱ^fⁱ^c^a^tⁱ^o^ns.
^b^.^Eⁿ^acted^am^o^{unts ar}^{e f}^r^o^m^{the co}^nf^er^ence^r^e^p^o^r^ts^oⁿ^{annual ap}^p^r^o^p^r^iatio^{ns b}^{ills that f}^und^E^P^A^and^HUD.
^c.^C^oⁿ^g^r^es^s^{appropriated $10 m}^illion^f^o^{r HUD’}^s^browⁿ^f^ields^prog^ram^f^o^{r FY2006 bu}^{t res}^cⁱⁿ^{ded $10}
^m^illioⁿⁱⁿ^uⁿ^o^b^lig^ated^b^a^lan^ces^f^r^o^m^p^r^io^r^y^ear^s’^ap^p^r^o^p^r^iatioⁿ^s^,ⁱⁿ^ef^f^{ect r}^e^su^ltin^gⁱⁿⁿ^o^ad^d^itioⁿ^a^l
^f^uⁿ^dⁱⁿ^g^av^ai^l^a^bl^{e f}^o^{r F}^Y^{2006 bey}^oⁿ^d^am^ouⁿ^t^s^al^ready^appropri^a^t^e^{d t}^h^ro^{ugh FY}^2005.
HUD Program and Appropriations. The Department of Housing and Urban
Development (HUD) also has a brownfields program, which emphasizes economic
development projects and the increase of business and job opportunities for low- and
moderate-income persons. HUD and EPA have a long-standing Memorandum of
Understanding to maximize the coordination of community development and
environmental expertise; each agency, for example, provides representatives to serve on
the other’s review panels to select grantees. According to HUD, between 1998 and 2006,
the department awarded 164 Brownfields Economic Development Initiative (BEDI)

grants to 122 public entities, of which 154 went to Community Development Block Grant
(CDBG) entitlement cities or counties, and 10 to small cities. Grant awards have ranged
from $80,000 to $2.5 million, with the average being $1.1 million. BEDI projects have
typically been large-scale and often complex undertakings, averaging more than $40
million in total development costs, with the BEDI component averaging 2.3 % of total
development costs. On average, BEDI projects have five public and private sources of
financing, and leverage an average of $28 million in private funds and $12 million in
other public funds.⁹
Beginning with the FY2004 budget request, the Administration has not asked for any
funding for this program. Congress, however, appropriated $25 million, $24 million, $10
million, and $15 million for FY2004, FY2005, FY2006, and FY2007, respectively, prior
to applicable rescissions. For FY2008, the House bill would fund brownfields at $9.9
million, and the Senate-passed version would provide $10.0 million (H.R. 3074). The
conference report, H.Rept. 110-446, provides $10 million. The House adopted it by 270-
147 on November 14, 2007; the Senate has not voted yet. (See Table 1 for additional
information.)
Other Federal Brownfield Programs. As early as 1996, the EPA developed
cooperative relationships with other federal agencies to share knowledge on economic
redevelopment and environmental principles and to find ways of applying federal support
to brownfields redevelopment in many different types of communities. The Brownfields
Federal Program Guide lists 22 agencies that have programs developed specifically for
brownfields and other programs with financing or technical assistance suitable and
applicable to a brownfield situation. The guide is available at [http://www.epa.gov/
brownfields/part ners/2005_fpg.pdf] .
Congressional Action in the 109^th Congress. As noted above, the
authorization of the Brownfields Act expired on September 30, 2006.¹⁰ To reauthorize
the provisions, the Committee on Transportation and Infrastructure reported H.R. 5810
on July 28, 2006 (H.Rept. 109-608, Part 1). The bill would have extended the grant
authority through FY2012 at the current level of $200 million annually. In addition, it
would have required the EPA Inspector General to report to Congress every four years on
the management of the Brownfields Program and the allocation of grants. The bill also
would have eliminated a requirement currently in the law that 25% of available funding
be used for sites where petroleum is the cause for site contamination. Such sites would
still be eligible for funding but would have to compete with other brownfield sites for
priority and funding. It also added a factor for the EPA to use in ranking brownfield grant
applications — the extent to which the grant would implement green building standards
and energy efficient building standards. This would have codified the agency’s current

⁹ HUD. Chief Financial Officer. Congressional Justifications for [Fiscal Year] 2008 Estimates,
Part I. At [http://www.hud.gov/offices/cfo/reports/2008/cjs/toc1.cfm]. Additional information
on the program can be found at [http://www.hud.gov/offices/cpd/economicdevelopment/
programs /bedi/].
¹⁰ An authorization is not necessary for appropriations; authorization for a number of
environmental programs has expired, but Congress continues to appropriate funds for them, thus
assuring their continuation.

practice. The bill also would have renewed through FY2012 assistance to states and
tribes at the current level of $50 million annually.
In addition to brownfields reauthorization and appropriations, the 109^th Congress
enacted two laws addressing the cleanup and redevelopment of brownfields. In the first
session, P.L. 109-59 (H.R. 3) reauthorized funding for federal surface transportation
programs, which included a pilot program to support planning activities for highway and
public transportation projects, including brownfields redevelopment planning.
Also enacted was an extension of the brownfields tax incentive, which allows a
taxpayer to deduct cleanup costs at a brownfield site in the same year the costs are
incurred (called “expensing”), rather than deducting the costs over a period of years
(“capitalizing”). This tax break had expired at the end of 2005, but the provision was
made retroactive to then and was extended to December 31, 2007, in the Tax Relief and
Health Care Act of 2006 (P.L. 109-432, H.R. 6111), signed by the president on December
20, 2006. (See CRS Report RL34184, The Section 198 Brownfields Tax Incentive: 2007
CRS Survey, by Mark Reisch.)
A bill that passed the House but went no further would have made HUD brownfields
grants more accessible to smaller communities. At least 20 other brownfield bills were
introduced but did not receive committee action.
Congressional Action in the 110^th Congress. As of November 29, 2007, six
brownfields bill have been introduced. The Brownfields Redevelopment Enhancement
Act, H.R. 644, is the only one to receive action. It passed the House under suspension of
the rules on February 27, 2007, and is now before the Senate Banking, Housing, and
Urban Affairs Committee. The bill allows HUD to make brownfield grants under its
existing program without utilizing the Section 108 loan guarantee program, which make
the grants more accessible to smaller communities. It also authorizes appropriations of
“such sums as may be necessary” for FY2008-FY2012. An identical bill, H.R. 280^th
(H.Rept. 109-138), also passed the House in the 109 Congress.
A second bill in the 110^th Congress is Representative Nydia Velazquez’s H.R. 43,
the Brownfields Housing and Community Renewal Development Act. It would establish
a program of grants for up to $1 million within HUD for redevelopment activities at
brownfield sites. Unlike HUD’s current program, grants would not be required to be used
in conjunction with loan guarantees. The bill authorizes appropriations of $25 million for
FY2008, $50 million for FY2009, and $75 million for FY2010.
Representative Michael Turner’s H.R. 3080 would allow a business tax credit for
50% of the expenditures for the abatement or control of hazardous substances, the
demolition of structures, the removal and disposal of property, and the reconstruction of
utilities at brownfield sites.
Three bills would make permanent the brownfields tax incentive that is discussed
above, and that expires at the end of 2007: Representative Jerry Weller’s H.R. 1753,
Representative Joe Donnelly’s H.R. 3897, and Representative Jason Altmire’s H.R. 3984.
The Weller bill would also repeal the tax break’s recapture provision. See CRS Report
RL34184, The Section 198 Brownfields Tax Incentive: 2007 CRS Survey, for more
information on the provision.