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PUBLIC LAW 107-118 H.R. 2869-Small Business Liability Relief and Brownfields Revitalization Act __________________________________________________________________ FOCUS SHIFTS TO IMPLEMENTATION Impact of Brownfields Revitalization Act on existing fiscal year 2002 Funding EPA has decided that “old money”, fiscal year 2002 funds appropriated by •
• Congress prior to enactment of the new law, will be subject to old rules and restrictions EPA does intend, though, to develop a transition process for RLF money, so that fiscal 2002 awards can take advantage of the new law’s provisions, which will allow: * recipients to shift some RLF proceeds from loans to cleanup grants * waivers of NCP and on-site coordinator requirements
Appropriations – Bush Administration fiscal year 2003 budget request of $200 million
• • $50 million for funding to enhance state voluntary cleanup or other response programs $150 million for balance of program * $120.5 million for grant programs – assessment grants, cleanup grants (which require a 20 percent match),and revolving loan fund capitalization * $29.5 million for new staffing and other program costs * petroleum project set aside is 25 percent, or just over $30 million
Emerging FY’03 appropriations issues needing resolution
• whether, and how strongly, members of Congress will push for full funding of the newly authorized brownfield programs (at $250 million, instead of $200 million) how the right balance between state response program and grant program activities will be determined (relative to each program’s authorized level) whether the 25 percent set aside for petroleum is based on all Section 104(k) funding (including administrative costs), or only the grant total
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Liability clarifications
• clarifies innocent landowner defense by incorporating ASTM standards
Charles Bartsch Northeast-Midwest Institute
March 1, 2002
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according to EPA staff at a Senate briefing on February 12, prospective purchasers can potentially take advantage of new CERCLA liability relief provisions NOW – for any property acquired after January 11, the date the President signed the brownfield bill into law
Related state program issues to be determined
• • how site cleanup certainty stemming from state VCP or response programs will be incorporated into the process during the coming year what type of “finality” transition will be defined for sites in process – those that had entered state VCPs prior to the law’s January 11 enactment, but completed it after that date how states will meet the response program criteria to make them eligible for a share of the $50 million authorized for this purpose, and what that state program allocation process will be how newly eligible state grant activities, such as adoption of insurance mechanisms or formation of risk-sharing pool, will be phased in how state efforts to maintain a public record of sites and their status will be viewed as acceptable, in terms of receiving state brownfield resources
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Issues raised by lawyers that will need to be resolved
• • • how data generated during a remedial action, prior to completion, will expose a site owner to EPA enforcement under the reopener provisions concern that the “threat” that this data suggests is, in fact, a standard without limits concern that the enforcement bar, which applies to those “conducting” or “completing” the cleanup, will discourage projects by developers and others who will not be the end-users
Other issues needing to be decided during implementation phase
• • • • • impact of revised brownfield definition in the new law how new eligible uses of grant funds, for petroleum cleanups and insurance premiums, will be phased in during FY 2003 awards how new types of eligible grant recipients, such as non-profit economic development organizations, will be brought into the process the exact nature of steps that must be taken as part of brownfield property transactions to claim the new liability relief process by which EPA will make its “case-by-case” determinations that otherwise ineligible sites and facilities can qualify for brownfield program support EPA regional office staffing needs in the face of enhanced program defining various public participation requirements, including responding to requests by any potentially impacted party to conduct site assessments
Charles Bartsch Northeast-Midwest Institute March 1, 2002
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