EPA’s Newly Authorized Brownfields Program: Federal Grants for Tribal Initiatives

Peter D. Robertson
Patton Boggs LLP
Washington, DC

Introduction

According to a definition adopted last year by Congress, a brownfields site is “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of” contamination.” The problem of brownfields sites has, over the past decade, received widespread attention from governments at all levels, but nowhere more so than from the federal government.

The Environmental Protection Agency (EPA) during the Clinton administration recognized that sites existed throughout the country that could not be redeveloped because of the presence of – or even a threat of – contamination by hazardous substances. This contamination did not rise to a level sufficient to include these sites on the Superfund list of the most contaminated sites. Nonetheless, such real or threatened contamination would frequently lead investors or their lenders to conclude that the risk of investing in such a site was too high.

These sites had become blights within their communities, and EPA Administrator Carol Browner sought a way to reverse that and to speed cleanup and redevelopment so that they could become engines of economic growth in their neighborhoods. She started what turned out to be the highly popular Brownfields Economic Redevelopment Initiative.

Brownfields Legislation in the 107th Congress

Until 2002, EPA had implemented the Brownfields Economic Redevelopment Initiative through its Superfund program, using existing authorities. This effort was not without some controversy, as some suggested that Superfund did not provide authority for a program the primary purpose of which was economic redevelopment. For the most part, however, the program was a popular one and thus a bipartisan majority in Congress was interested in codifying the agency’s brownfields program to remove any suggestion that EPA lacked authority to operate it.

Congress did that in 2001 and President Bush signed the bill into law in January 2002. Small Business Liability Relief and Brownfields Revitalization Act, P.L. 107-118, 115 Stat. 2356 (2001). For purposes important to this article, the law established an authorization for a program of site characterization and assessment grants and remediation grants. Entities eligible to receive grants explicitly include tribes. The remediation grants can be used both for capitalization of revolving loan funds and, in certain circumstances, directly for remediation.

Background

The brownfields program started small, but rapidly grew because of the size of the problem (some sources estimate the number of brownfields sites as approaching 600,000 nationwide) and the strong support from mayors, developers, environmentalists and others. Funding grew to nearly $100 million in FY 2002, and significantly more than that in FY 2003, although not as much as was authorized for the program. Growing deficits may mean no increase or even less money for brownfields funding in FY 2004, but support for the program in Congress remains strong.

The success of the program has been notable. EPA estimates that it has provided over $250 million in brownfields funding to states, tribes and local governments. Of that amount, EPA’s brownfields office estimates that some $4 million has been grants to tribes. In turn, grantees report that EPA funding so far has supported over 2600 property assessments and helped leverage more than $3.4 billion in cleanup and economic redevelopment monies. This, in turn, has created more than 14,000 jobs.

Brownfields Grants to Tribes

Originally, brownfields sites were seen primarily, if not exclusively, as an urban/surburban problem stemming from industrial activity. Because of this urban focus – and because of the lack of resources among tribes to monitor and pursue this source of government funding – tribes did not participate as much as they might have in the brownfields program. As the program evolved, however, everyone came to recognize that brownfields sites could occur anywhere – in rural areas or on tribal lands – and that tribes needed the economic redevelopment assistance that was at the heart of EPA’s brownfields program as much, if not more so, than did any other governmental entity. EPA worked successfully to include tribes in the Brownfields Economic Redevelopment Initiative.

Two of the many examples of brownfields grants to tribes follow. These two examples were selected entirely at random from EPA’s Web site detailing the grants made and projects undertaken to date, but they are good examples of the kinds of efforts undertaken with Brownfields grant funding and the flexibility that this funding gives to the grantee – flexibility that would be important to a tribe.

In July 1998, EPA gave the Turtle Mountain Band of Chippewa in North Dakota a brownfields assessment grant to address the abandoned San Haven facility, a former state mental rehabilitation hospital bought by the Tribe in 1992. The building had asbestos contamination, and even though the state had conducted abatement activities at the facility prior to its sale to the Tribe, the remaining level of contamination was unknown. The Tribe wanted to assess the property for other potential contamination before the planned rehabilitation. The Tribe planned to use the EPA funding to conduct environmental assessments on the San Haven site, create a plan for cleanup, and conduct community outreach activities to share information regarding assessment, cleanup planning and redevelopment of the site.

In May 2000, EPA awarded an assessment grant to the Cherokee Nation of Oklahoma to assist in the redevelopment of a tribal lands including a hog farm and a landfill. The Cherokee planned to use the EPA funding to conduct environmental assessments on the three targeted sites, form a Brownfields Advisory Committee of interested stake-holders, conduct economic redevelopment studies on a site-specific basis to evaluate possible site reuses, and identify additional federal, state, and private funding sources for redeveloping brownfields sites.

Tribes and the New Brownfields Legislation

Tribes may be even more successful in obtaining grants under the new brownfields law. The statutory considerations to be used in determining whether a grant should be available for direct remediation explicitly include issues related to small population and low income, both of which may be of particular significance to tribes. The criteria for ranking grant applications similarly include these factors and others that might be important for tribes, including the extent to which grants would address health threats to minority or low-income populations.

The new law authorizes $200 million per year through fiscal year 2006, effectively doubling the available funding. As noted above, funding conditions for all domestic discretionary programs has made future funding for brownfields programs uncertain. It is extremely likely that, at the least, funding above the nearly $100 million seen in previous years will be provided by Congress.

It is important to note that this article touches only on EPA’s brownfields program. Other federal government departments and agencies have also provided brownfields-related funding over the years, e.g., the Department of Commerce and the Department of Housing and Urban Development (although HUD’s program is proposed for elimination in the administration’s FY 2004 budget). A well-constructed and vigorously pursued brownfields effort could be an important source of funding for tribes with joint needs of waste remediation and economic redevelopment.

Peter Robertson is a partner with the Washington, D.C.-based firm of Patton Boggs LLP. He practices in the firm’s Public Policy and Environmental groups. Mr. Robertson served at EPA during the Clinton administration as the agency’s chief of staff and as acting deputy administrator.