On March 7, 2013, senators introduced bipartisan legislation in the U.S. Senate that would reauthorize U.S. Environmental Protection Agency's Brownfields Program through 2016 while strengthening the program and providing additional tools and resources to those engaged in brownfields redevelopment. Senate Bill 491, known as the “Brownfields Utilization, Investment, and Local Development Act of 2013” or “BUILD Act,” is sponsored by senators Frank R. Lautenberg, D-N.J.; Tom Udall, D-N.M.; James M. Inhofe, R-Okla.; and Mike Crapo, R-Idaho. Highlights of the legislation are as follows:

• Expanded Eligibility For Non-Profit Organizations - The legislation would expand eligibility for non-profit organizations to include site assessment grants. Currently, non-profits are eligible for only cleanup grants. The legislation would allow 501(c)(3) non-profits, certain limited liability corporations and partnerships, and qualified community development entities to qualify for site assessment grants under Section 104(k)(1) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended;

• Multipurpose Brownfields Grants - The legislation would authorize U.S. EPA to award grants for multiple purposes, including inventory, characterization, assessment, planning or remediation activities at one or more brownfields sites in a proposed area. The legislation would limit each multipurpose grant to $950,000.00 and cumulative grant amounts to no more than 15% of the funds made available for the fiscal year for CERCLA Section 104(k) grants. Multipurpose grants must be used within three years after the date on which the grant is awarded unless the U.S. EPA administrator exercises his or her discretion to provide an extension. Criteria for a multipurpose grant would include an overall revitalization plan, demonstration of capacity to conduct the range of eligible activities to be funded by the grant and a demonstration that a multipurpose grant will meet the needs of one or more brownfields sites in the proposed area. The multipurpose grant, according to Sen. Lautenberg’s press release, offers more certainty for long-term financing and should also help to accelerate cleanups;

• Treatment of Certain Publicly Owned Brownfields Sites - The legislation would provide a limited exemption from bona fide prospective purchaser requirements for certain publicly owned brownfields sites. Specifically, a governmental entity would be eligible to receive a site characterization and assessment grant for property acquired by the governmental entity before Jan. 11, 2002 (the date of enactment of the Small Business Liability Relief and Brownfields Revitalization Act of 2002, commonly called the Brownfields Amendments), even if the governmental entity does not qualify as a bona fide prospective purchaser, e.g., did not conduct all appropriate inquiry;

• Increased Funding for Remediation Grants - The legislation would increase the maximum amount of cleanup grants. Currently, cleanup grants cannot exceed $200,000. The legislation would increase that amount to $500,000 and would allow the U.S. EPA Administrator to waive the $500,000 limit, not to exceed a total of $650,000, for each site, based on the anticipated level of contamination, size, or ownership status of the site;

• Allowing Administrative Costs for Grant Recipients - The legislation would allow up to eight percent of the grant to cover administrative costs. By statutory definition, administrative costs would not include investigation and identification of the extent of contamination, design and performance of a response action, or monitoring of a natural resource. Currently, grant recipients are prohibited from using grant funds for administrative costs;

• Small Community Technical Assistance - The legislation would direct the U.S. EPA Administrator to prioritize small communities, Indian tribes, rural areas or low-income areas with a population of not more than 15,000 individuals when awarding grants for training, research and technical assistance;

• Waterfront Brownfields Sites - The legislation would require U.S. EPA to give consideration to waterfront brownfield sites, defined as a brownfield site that is adjacent to a body of water or a federally designated flood plain when making grants under CERCLA Section 104(k);

• Clean Energy Brownfields Grants - The legislation would authorize U.S. EPA to establish grants up to $500,000 for brownfields properties suitable for a facility that generates renewable electricity from wind, solar or geothermal energy and any energy efficiency improvement project at a facility, including combined heat and power and district energy. District heating is a system for distributing heat generated in a centralized location and, in the United States, is used on some college campuses and in some large cities for residential and commercial customers. The New York City steam system, for example, serves Manhattan Island from the Battery through 96th Street; and

• Targeted Funding for States - The legislation would allow the U.S. EPA Administrator to use not more than $2 million to provide grants to states for purposes authorized under Section 128(a) of CERCLA. In order to qualify for this funding, legislation would require that states must have used at least 50 percent of the amount made available to that state in the previous fiscal year to carry out assessment and remediation activities under Section 128(a).

Since 2002, the Brownfields Program has provided approximately $1.5 billion in grants, which has leveraged $19.2 billion in additional investment. While the Brownfields Program has funded the rehabilitation of abandoned and contaminated properties and turned them into productive communities, U.S. EPA estimates that 450,000 brownfields sites remain throughout the United States. The BUILD Act, if passed by Congress, will improve the chances of West Virginia communities and other states with small populations of receiving federal brownfields grants and loans.

Rubrecht is a member in Jackson Kelly's Charleston office.

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