Chairman Chafee, and members of the Committee, my name is Mark Gregor and I am the Manager of the Division of Environmental Quality for the City of Rochester, New York. I am here today to testify on behalf of the National Association of Local Government Environmental Professionals,or "NALGEP." NALGEP appreciates the opportunity to present this testimony on the views of local government officials from across the nation on the need for additional federal Legislative end regulatory incentives to promote the cleanup, redevelopment end productive reuse of brownfields sites in local communities.
NALGEP represents local government of finials responsible for ensuring environmental compliance, and developing and implementing environmental policies and programs. NALGEP's membership consists of more than 100 local government entities located throughout the United States, and includes environmental managers, solid waste coordinators, public works directors and attorneys, all working on behalf of cities, towns, counties and municipal associations. Our members include many of the leading brownfields communities in the country such as Chicago, Portland, Baltimore, Salt Lake City, Los Angeles, Dallas, Cuyahoga County and others.
In 1995, NALGEP initiated a brownfields project to determine local government views on national brownfields initiatives such as the EPA Brownfields Action Agenda. The NALGEP Brownfields Project culminated in a report, entitled Building a Brownfields Partnership from the Ground Up: Local Government Views on the Value and Promise of National Brownfields Initiatives, which was issued in February, 1997. In 1997, NALGEP was invited to testify on brownfields issues and present the findings of our report to this Committee as well as to the House Commerce Committee and the House Transportation and Infrastructure Committee.
During the past two years, NALGEP has continued its work on brownfields through coordinating work groups of local of finials to address the following issues: (1) Brownfields Cleanup Revolving Loan Funds; (2) use of Community Development Block Grants for Brownfields; (3) building partnerships between business and local government of finials to promote smart growth; and (4) implementing the Administration's Brownfields Showcase Community initiative. As a result of these efforts, NALGEP is well qualified to provide the Committee with a representative view of how local governments, and their environmental and development professionals,believe the nation must move ahead to create long-term success in the revitalization of brownfields properties.
NALGEP's testimony today will focus on the following areas: ( 1 ) the continued need for federal funding to support the cleanup and redevelopment of brownfields sites across the country; (2) the need for further liability clarification to encourage the private sector to step forward and revitalize more sites; and (3) the need to facilitate the participation of other federal agencies (e.g., Army Corps of Engineers, Department of Transportation, HUD) in supporting local brownfields initiatives.
The cleanup and revitalization of brownfields represents one of the most exciting, and most challenging, environmental and economic initiatives in the nation. Brownfields are abandoned, idled, or under-used industrial and commercial properties where expansion or redevelopment is hindered by real or perceived contamination. The brownfields challenge faces virtually every community; experts estimate that there may be as many as 500,000 brownfields sites throughout the country.
The brownfields issue illustrates the connection among environmental,economic and community goals that can be simultaneously fostered through a combination of national leadership, federal and state incentives, and the innovation of local and private sector leaders. Cleaning up and redeveloping brownfields provides many environmental, economic and community benefits including:
expediting the cleanup of thousands of contaminated sites;
renewing local economies by stimulating redevelopment, creating jobs and enhancing the vitality of communities; and
limiting sprawl and its associated environmental problems such as air pollution, traffic and the development of rapidly disappearing open spaces.
ROCHESTER'S BROWNFIELDS INITIATIVE
During the last five years, the City of Rochester, New York has completed the redemption of more than 50 acres of brownfields sites including the site of Bausch and Lomb's new corporate headquarters, the site of a new Federal Aviation Administration funded Aircraft Rescue and Fire Fighting facility, and the site of the state-of-the-art Rochester/Monroe County "911" Center.
The City of Rochester was selected as one the first round of brownfields pilot cities by the U.S. Environmental Protection Agency. Rochester was also awarded a Brownfields Cleanup Revolving Loan Fund grant from EPA.
Using the EPA pilot grant funds for investigation and City funding for cleanup, Rochester has remediated 15.5 acres that were once junkyards, fuel depots, and a rail yard and is now the Erie Canal Industrial Park. Rochester is also in the process of establishing a site investigation funding program using EPA funding.
The federal government, particularly the U.S. EPA, has played an important role in helping Rochester develop and advance our brownfields redevelopment efforts. They have provided critical funding to enable us to institutionalized local program and to help investigate and clean up specific sites. They have provided technical assistance and other resources that have helped us learn from other communities and take on the many challenging obstacles to brownfields revitalization. They have helped connect us with other federal agencies that have resources and technical expertise. And perhaps, most importantly, they have provided the critical leadership needed to educate the many stakeholders and the general public that redeveloping brownfields can be done and that it can provide significant economic and environmental benefits for communities across the nation.
Several barriers, however, continue to hamper brownfields cleanup and redevelopment in Rochester and other communities. New federal legislation to further clarify and provide some limits on the liability of "non-responsible" new owners of brownfields sites that voluntarily complete cleanups would be an important stimulus to the reuse of many brownfields. Additional federal funding in the form of grant and loan programs continues to be important especially for cities like Rochester that have a declining tax base and falling assessed properly values. It is also important that the many federal agencies that become involved in aspects of the brownfields problem recognize the important effects that funding and policy decisions can have toward promoting brownfields reuse and not encouraging sprawl conditions in our suburbs and rural areas.
BROWNFIELDS LEGISLATIVE NEEDS
1. Ensuring Adequate Resources for Brownfields Revitalization
NALGEP finds that to ensure long-term success on brownfields, local governments need additional federal funding for site assessment, remediation and economic redevelopment. The costs of site assessment end remediation can create a significant barrier to the redevelopment of brownfields sites. In particular, the costs of site assessment can pose an initial barrier that drives development away from brownfields sites. With this initial barrier removed, localities are much better able to put sites into a development/rack. In addition,the allocation of public resources for site assessment can provide a signal to the development community that the public sector is serious about resolving liability issues at a site and putting it back into productive reuse.
The use of public funds for the assessment and cleanup of brownfields sites is a smart investment. Public funding can be leveraged into substantial private sector resources. Investments in brownfields yield the economic fruit of increased jobs, expanded tax bases for cities, and urban revitalization. And the investment of public resources in brownfields areas will help defer the environmental and economic costs that can result from unwise, sprawling development outside of our urban centers.
The following types of federal funding would go a long way toward helping local communities continue to make progress in revitalizing our brownfields sites:
Grants for Site Assessments and Investigation: EPA's Brownfields Assessment Pilot grants have been extremely effective in helping localities to establish local brownfields programs, inventory sites in their communities, investigate the potential contamination at specific sites, and educate key stakeholders and the general public about overcoming the obstacles to brownfields redevelopment. Additional funding for site assessments and investigation is needed to help more communities establish local brownfields programs and begin the process of revitalizing these sites in their communities.
Grants for Cleanup of Brownfields need for federal grants to support the cleanup of brownfields sites across the country. The U.S. Conference of Mayors' recent report on the status of brownfields sites in 223 cities nationwide indicates that the lack of cleanup funds is the major obstacle to reusing these properties. For many brownfields sites, a modest grant targeted for cleanup can make the critical difference in determining whether a site is redeveloped, creating new jobs and tax revenues or whether the site remains polluted and idle.
Grants to Capitalize Brownfields Cleanup Revolving Loan Funds: Federal funding to help localities and states establish revolving loan funds (RLFs) for brownfields cleanup is another effective mechanism to leverage public and private resources for redevelopment. EPA deserves credit for championing brownfields RLFs as a mechanism for helping communities fill a critical gap in cleanup funding. Unfortunately,the effectiveness of the EPA's current brownfields cleanup RLF program is severely undermined by the lack of new federal brownfields legislation. Under current law, localities are required to jump through and over numerous National Contingency Plan (NCP) bureaucratic troops and hurdles to establish/heir local RLFs. These NCP requirements were originally established for Superfund NPL sites and not for brownfields sites. Consequently, we strongly recommend that any new legislation make it clear that local brownfields RLFs are not required to meet the NCP requirements established for Superfund sites.
II. Clarification of Superfund Liability at Brownfields Sites
On the issue of federal Superfund liability associated with brownfields sites, NALGEP has found that the Environmental Protection Agency's overall leadership and its package of liability clarification policies have helped establish a climate conducive to brownfields renewal, and have contributed to the cleanup of specific sites throughout the nation. It is clear that these EPA policies, and brownfields redevelopment in general, are most effective in states with effective voluntary cleanup programs. Congress can enhance these liability reforms by further clarifying in legislation that Superfund liability does not apply to certain "non-responsible" parties such as innocent landowners, prospective purchasers and contiguous property owners.
NALGEP has also found that EPA's initiative to negotiate "Superfund Memoranda of Agreement" (MOAs) with states that have effective voluntary cleanup programs has helped to facilitate brownfields cleanups in those states. Specifically, these MOAs defer liability clarification authority to those states. In order to further facilitate brownfields cleanups across the country, NALGEP finds that Congress should enable the EPA to delegate authority to limit liability and issue no further action decisions for brownfields sites to States with cleanup programs that meet minimum requirements to protect public health and the environment.
A strong delegation of EPA liability clarification authority to approved states is critical to the effective redevelopment of local brownfields sites. Such delegation will increase local flexibility and provide confidence to developers, lenders, prospective purchasers and other parties that brownfields sites can be revitalized without the specter of Superfund liability or the involvement of federal enforcement personnel. Parties developing brownfields want to know that the state can provide the last word on liability, and that there will be only one "policeman," barring exceptional circumstances.
At the same time, local officials are also concerned about delegating too much cleanup authority too fast to states. States vary widely in the technical expertise, resources, staffing, statutory authority and commitment necessary to ensure that brownfields cleanups are adequately protective of public health and the environment. If brownfields sites are improperly assessed, remediated or put into reuse, it is most likely that the local government will bear the largest brunt resulting from any public health emergency or contamination of the environment. NALGEP believes that the U.S. EPA has a key role to play in ensuring that liability authority over brownfields sites should only be delegated to states that demonstrate an ability and commitment to ensure protection of public health and the environment in the brownfields redevelopment process.
To foster expanded redevelopment of brownfields sites while ensuring the protection of public health and the environment, NALGEP finds that there should be three components to the EPA brownfields delegation program. First, the law should clearly distinguish between Superfund NPL sites and other sites subject to enforcement under CERCLA or RCRA on one hand, and the remaining sites that can be put on a "brownfields track." The delegation of liability authority to states should focus on these "brownfields back" sites. Putting sites on a brownfields back will allow the application of EPA and state policy tools specifically designed to foster expedited, cost- effective brownfields redevelopment.
Second, NALGEP finds that EPA delegation of liability authority over brownfields sites should be granted only to state cleanup programs that can ensure protection of public health and the environment. NALGEP suggests the following types of criteria for state delegation:
1. Mechanisms to ensure adequate site assessments early in the process. Good site assessments will help prevent unanticipated problems from surfacing, and facilitate efforts to direct particular sites into a "brownfields track."
2. Adequate state technical expertise, staff and enforcement authority to ensure effective implementation of cleanup activities.
3. Use of risk-based cleanup standards, that can be tied to reasonably anticipated land use, established through an adequate public approval process.
4. Institutional controls such as deed restrictions,zoning requirements or other mechanisms that are enforceable over time to ensure that future land uses tied to certain cleanup standards are maintained.
5. Commitment to establish community information and involvement processes, and assurance that state and local brownfields activities will consider community values and priorities.
6. Commitment to build the capacity, through training and technical assistance, of local government hearth and environmental agencies to affectively participate in the brownfields development process and ensure protection of public health and environment.
7. Adequate mechanisms to address unanticipated cleanups or orphaned sites where liability has been eliminated.
Finally, NALGEP believes that EPA's ability to reopen its involvement at a particular brownfields site in a delegated state should be limited to situations where there are exceptional circumstances and the state is not effectively addressing the problem. An EPA reopener for particular sites is necessary to ensure that EPA can become involved at any sites at which the state is unable or unwilling to adequately respond to a substantial and imminent threat to public health or the environment. At the same time, the reopener must be sufficiently limited to permit the state to take the lead role at brownfields sites, and to give confidence to developers, prospective purchasers, lenders and local governments that EPA will not improperly hinder or interfere in state liability decisions.
Therefore, in delegating brownfields authority for non-NPL caliber sites to the states, NALGEP proposes that: EPA should provide that it will not plan or anticipate further action at any sites unless, at a particular site, there is: (1) an imminent and substantial threat to public health or the environment; and (2) either the state response is not adequate or the state requests U.S. EPA assistance.
III. Facilitating the Participation of Other Federal Agencies in Brownfields Revitalization
The cleanup and redevelopment of a brownfields site is often a challenging task that requires coordinated efforts among different government agencies at the local, state and national levels, public-private partnerships,the leveraging of financial resources from diverse sources, and the participation of many different stakeholders. Many different federal agencies can play a valuable role in providing funding, technical expertise, regulatory flexibility, and incentives to facilitate brownfields revitalization. For example, HUD, the Economic Development Administration, the Department of Transportation, and the Army Corps of Engineers have all contributed important resources to expedite local brownfields projects. The U.S. EPA and the Administration have provided strong leadership through the Brownfields Showcase Project to demonstrate how the federal government can coordinate and leverage resources from many different federal agencies to help localities solve their brownfields problems.
Congress can help strengthen the national brownfields partnership by further clarifying that the various federal partners play a critical role in redeveloping brownfields and by encouraging the agencies to work cooperatively to meet local needs. For example, Congress should be commended for Legislation passed last year to clarify that HUD Community Development Block Grant funds can be used for all aspects of brownfields projects including site assessments, cleanup and redevelopment. This simple step has cleared the way for communities across the country to use these funds in a flexible fashion to meet their specific local needs. Similarly, Congress should take a look this year at clarifying that it is appropriate and desirable for the Army Corps of Engineers to use its resources and substantial technical expertise for local brownfields projects. In addition, Congress should consider clarifying that Department of Transportation funds can be used for cleanup activities associated with various transportation projects. Congress also should work with EPA to determine how other agencies can help facilitate more brownfields revitalization. By taking these steps, Congress can give communities additional tools, resources, and flexibility to overcome the many obstacles to brownfields redevelopment.
CONCLUSION
In conclusion, local governments are excited to work with the federal government to promote the revitalization of brownfields, through a combination of increased federal investment in community revitalization, further liability clarification, and other mechanisms to strengthen the national partnership to cleanup and redevelop our communities. NALGEP thanks the Committee for this opportunity to testify, and looks forward to working with you as the process moves forward.