Brownfield Program Reauthorization Process Kicked Off

By Charlie Bartsch

The Small Business Liability Relief and Brownfields Revitalization Act provided the U.S. EPA brownfield program with a Congressional mandate along with funding and procedural tools — and authorized it for five years, a period which draws to close September 30, 2006. Congress has given every indication that the program will continue as-is even without an authorization — in fact, its appropriation is currently wending its way through both House and Senate. 

EPA strongly supports the brownfield program, and Office of Solid Waste and Emergency Response (OSWER) Assistant Administrator Susan Bodine emphasized its “impressive results” in her June 8 testimony before the House Water Resources and Environment Subcommittee. Ms. Bodine also noted that EPA would continue to implement the program, but she did not seek any changes or even promote reauthorization.

However, a group of nine private and non-profit organizations submitted a statement to the chairman to suggest potential improvements to federal brownfield programs and policies. These include:

Funding: Congress needs to recognize the complexity of the cleanup process at larger or more contaminated sites by increasing the funding limit for cleanup of a single site to at least $1 million, and revolving loan fund (RLF) to $5 million — and it needs to raise overall EPA funding commensurately.
 
Funding flexibility: To acknowledge how brownfield needs fit within the realities of the development process, communities should be allowed to apply for multi-purpose grants that can be used for the full range of brownfield needs — assessment, cleanup (both direct grants and RLFs), reuse planning, demolition and institutional controls. Furthermore, EPA should consider implementing a bi- or tri-annual grants award process, or implementing a rolling grants process to provide increased timeliness to take advantage of reuse opportunities as they arise. 

Use flexibility: To enhance communities’ ability to prioritize sites for reuse, Congress should eliminate currently defined set-asides for certain types of sites — petroleum brownfields and sites acquired prior to the January 2002 initial enactment date — and allow all brownfield sites to compete equally for all program resources.  

Eligibility: Congress needs to acknowledge that different communities tap into different partners to reach their full range of local brownfield redevelopment activity, for example, by allowing entities like non-profits to win assessment and RLF grants.  

Recognize the realities of past practices: Congress should establish more-flexible requirements for potential new users to qualify as bona fide prospective purchasers for older sites and become eligible to receive brownfield program funding. Currently, it can be difficult to prove that a locality took “reasonable steps” a long time ago prior to acquiring sites — and in many communities, these long abandoned sites may have the greatest need for cleanup funds to protect health and the environment, as well as promote reuse. 

Better leverage for RLFs: Congress should consider ways to enhance the capacity of RLFs, perhaps by  allowing funds to be used to guarantee private loans, or by permitting commingling and leveraging of funds from multiple sources (both public and private) into the RLF capitol pool.

Provide additional targeted liability relief: To encourage even more private parties to take a second look at brownfield sites, additional liability clarification is needed — for innocent easement holders, lessees and other parties in similar contractual relationships at sites.  And further protections for innocent landowners who acquired sites prior to the enactment of the brownfield law in 2002, such as changing “all appropriate inquiry” requirements to better reflect pre-enactment practices, would encourage more private interest in these sites. 

These changes, offered with the program’s successful five-year track record as their foundation, can make it even stronger, further enhancing its ability to make a difference in communities.  BFN

Charlie Bartsch is vice president at ICF International.