118th CONGRESS 2d Session |
To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to allow for brownfield revitalization funding eligibility for Alaska Native Tribes, and for other purposes.
April 18, 2024
Mr. Sullivan (for himself and Mr. Kelly) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works
To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to allow for brownfield revitalization funding eligibility for Alaska Native Tribes, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Contaminated Lands Reclamation Act of 2024”.
In this Act:
(1) ADMINISTRATOR.—The term “Administrator” means the Administrator of the Environmental Protection Agency.
(2) ALASKA NATIVE CORPORATION.—The term “Alaska Native Corporation” has the meaning given the term “Native Corporation” in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602).
(3) ANCSA LAND.—The term “ANCSA land” means land that—
(A) is or was contaminated land at the time of conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); and
(B) was conveyed pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) to an Alaska Native Corporation or Indian Tribe, including—
(i) land reconveyed by an Alaska Native Corporation—
(I) to a settlement trust pursuant to section 39 of that Act (43 U.S.C. 1629e); or
(II) pursuant to other applicable law;
(ii) land conveyed to an Alaska Native Corporation pursuant to an exchange authorized by—
(I) section 22(f) of that Act (43 U.S.C. 1621(f));
(II) section 3192(h) of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3192(h)); or
(III) other applicable law; or
(iii) land conveyed by an Alaska Native Corporation to a successor in interest to which the lands were conveyed under section 14(c) of the Alaska Native Claims Settlement Act (43 U.S.C. 1613(c)).
(A) IN GENERAL.—The term “compensatory mitigation”, for the purposes of remediating eligible land, means—
(i) restoration, including reestablishment or rehabilitation;
(ii) establishment, including creation;
(iii) enhancement; and
(iv) in certain circumstances, as determined by the Secretary, the preservation of eligible land.
(B) INCLUSIONS.—The term “compensatory mitigation” includes—
(i) on-site permittee-responsible mitigation;
(ii) off-site permittee-responsible mitigation; and
(iii) in-leu fee mitigation.
(5) CONTAMINATED LAND.—The term “contaminated land” means land, including ANCSA land and Indian land, contaminated by—
(A) petroleum;
(B) a petroleum-based product;
(C) a hazardous substance (as is defined in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601)); or
(D) any other pollutant or contaminant (as is defined in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601)).
(A) IN GENERAL.—The term “credit” means a unit of measure (such as a functional or areal measure or other suitable metric) that represents the accrual or attainment of the functions associated with the restoration, establishment, enhancement, or preservation of resources at a compensatory mitigation site, with no change in the size of the area of the compensatory mitigation site.
(B) GENERATING MITIGATION CREDIT.—Remediation of contaminated sites is an appropriate means of generating mitigation credit when the removal of hazardous substances, pollutants, or contaminants restores or enhances aquatic resource functions on ANCSA land or Indian land.
(7) INDIAN.—The term “Indian” has the meaning given the term in section 4 of the Indian Self Determination and Education Assistance Act (25 U.S.C. 5304).
(8) INDIAN LAND.—The term “Indian land” means land that—
(A) is held in trust by the United States for an Indian Tribe; or
(B) is owned by an Indian or Indian Tribe and is subject to restrictions against alienation.
(9) INDIAN TRIBE.—The term “Indian Tribe” has the meaning given the term in section 4 of the Indian Self Determination and Education Assistance Act (25 U.S.C. 5304).
(10) SECRETARY.—The term “Secretary” means the Secretary of the Army, acting through the Chief of Engineers.
SEC. 3. Department of the Interior responsibilities for Alaska Native Claims Settlement Act contaminated lands.
(a) Congressional findings.—Congress finds that—
(1) for more than 50 years after the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) was enacted, Alaska Native Peoples and their communities continue to face obstacles in the pursuit of self-determination, resulting in ongoing economic, social, and cultural instability due to the contamination of lands conveyed to them by the Federal Government pursuant to that Act;
(2) in 1971, the Secretary of the Interior failed to identify and remediate 44,000,000 acres of land conveyed to Alaska Natives pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
(3) in 1990, Congress directed the Secretary of the Interior to submit a report identifying lands and properties transferred to Alaska Native Corporations pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) that at the time of transfer were represented or disclosed by the Federal Government as being free from contaminants, and which subsequently were discovered to be contaminated;
(4) the Secretary of the Interior never submitted the report described under paragraph (3);
(5) in 1995, Congress amended the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) by adding section 40 to that Act (43 U.S.C. 1629f), which directed the Secretary of the Interior to submit a report addressing issues resulting from the presence of contaminants on lands conveyed or prioritized for conveyance to Alaska Native Corporations under that Act;
(6) in 1998, the Secretary of the Interior responded to the directive from Congress described in paragraph (5) by submitting to Congress a report entitled “Hazardous Substance Contamination of Alaska Native Claims Settlement Act Lands in Alaska”, the findings of which Congress recognizes, including that the United States conveyed numerous contaminated lands to Alaska Native Corporations pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) for the settlement of aboriginal land claims;
(7) in 2014, in the joint explanatory statement for the Department of the Interior, Environment, and Related Agencies accompanying the Consolidated and Further Continuing Appropriations Act, 2015 (Public Law 113–235; 128 Stat. 2130), Congress directed the Secretary of the Interior—
(A) to provide an update on the inventory of contaminated sites conveyed pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), including sites identified subsequent to the 1998 report described in paragraph (6);
(B) to provide an updated status on the 6 duties listed in the 1998 report described in paragraph (6); and
(C) to provide a detailed plan on how the Department of the Interior intended to complete a cleanup of each contaminated site conveyed pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
(8) in 2016, the Secretary of the Interior updated the report described in paragraph (6), the updated findings of which Congress recognizes, including that 920 contaminated land sites were conveyed to Alaska Native Corporations pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
(9) the full number of currently contaminated lands that were contaminated at the time of conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) is unknown;
(10) it is not, and never was, the intent of Congress to convey lands that would still be contaminated in 2024 to Alaska Native Corporations for the settlement of aboriginal land claims in 1971;
(11) there is an immediate need to address the environmental and health risks to Alaska Native Peoples due to the United States conveying contaminated lands and lands at risk for contamination to Alaska Native Corporations; and
(12) addressing the environmental and health risks to Alaska Native Peoples due to the conveyance of contaminated lands by the United States to Alaska Native Peoples should be done rapidly, with certainty, without litigation, and in conformity with the real economic, social, and cultural needs of Alaska Native communities.
(b) Duties of the Secretary of the Interior.—Not later than 180 days after the date of enactment of this Act, the Secretary of the Interior shall—
(1) perform the duties established in the 2016 update to the Department of the Interior 1998 report entitled “Hazardous Substance Contamination of Alaska Native Claims Settlement Act Lands in Alaska”; and
(2) develop a cleanup plan for ANCSA land.
(c) Report to Congress.—Not later than 180 days after the date of enactment of this Act, and each year thereafter for a period of 10 years, the Secretary of the Interior shall submit to Congress a report that describes the status of the performance of the duties required under subsection (b).
SEC. 4. Brownfield revitalization funding eligibility.
(a) Alaska Native eligibility.—Section 104(k)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(k)(1)) is amended—
(1) in subparagraph (G), by striking “other than in Alaska”; and
(2) in subparagraph (H), by striking “and following) and the Metlakatla Indian community” and inserting “et seq.)”.
(b) Grants and loans for Brownfield remediation.—Section 104(k)(3)(A)(ii) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(k)(3)(A)(ii)) is amended by striking “$500,000 for each site” and all that follows through the period at the end and inserting “$1,000,000 for each site to be remediated.”.
SEC. 5. Alaska Native Claims Settlement Act conveyed land grant program.
(a) Definitions.—In this section:
(1) ELIGIBLE CONTAMINANT.—The term “eligible contaminant” means—
(A) solid waste (as defined section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903));
(B) a hazardous substance (as defined in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601));
(C) a pollutant or contaminant (as defined in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601)); and
(i) crude oil or any fraction thereof; and
(ii) any other petroleum product excluded from the definition of “hazardous substance” in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
(2) ELIGIBLE RECIPIENT.—The term “eligible recipient” means—
(A) a Regional Corporation (as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602));
(B) a Village Corporation (as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602));
(C) an Indian Tribe in the State of Alaska;
(D) an Alaska Native nonprofit organization;
(E) an Alaska Native nonprofit association; and
(F) an intertribal consortium (as defined in section 35.502 of title 40, Code of Federal Regulations (or successor regulations)), that meets the requirements described in subsections (a) and (c) of section 35.504 of that title.
(1) IN GENERAL.—The Administrator, acting through the Regional Administrator for Region 10 (referred to in this subsection as the “Administrator”), may provide grants to eligible recipients to address contamination by eligible contaminants on ANCSA land that—
(A) subject to paragraph (4), is or was contaminated by an eligible contaminant at the time of conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); and
(B) is on an inventory of that land maintained by the Environmental Protection Agency.
(2) SUPPLEMENT.—An eligible recipient may use a grant awarded under this subsection to supplement other funds provided by the Environmental Protection Agency or any other Federal agency for identical or similar purposes to the purposes described in paragraph (1), in accordance with such conditions as the Administrator may establish.
(3) USE OF FUNDS.—Subject to such conditions as the Administrator may establish, an eligible recipient may use a grant awarded under this subsection to address contamination by eligible contaminants on ANCSA land through planning, assessment, remediation, and activities necessary to prepare the land for reuse.
(A) IN GENERAL.—The Administrator may waive the requirement described in paragraph (1)(A) if the owner of the land at the time a grant is awarded under this subsection did not cause or contribute to the contamination on the land.
(B) EFFECT OF WAIVER.—Land with respect to which a waiver is provided under subparagraph (A) shall be eligible for a grant under this subsection if the land was contaminated by an eligible contaminant after the time of conveyance of the land pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(5) PRIORITIES.—In awarding grants under this subsection, the Administrator shall give priority to ANCSA land with respect to which—
(A) the contamination by eligible contaminants presents an imminent and substantial risk to human health or the environment, regardless of the specific circumstances that created the risk; or
(B) the Federal Government caused or contributed to the contamination by eligible contaminants prior to the conveyance of the land pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(6) INELIGIBILITY OF CERTAIN LAND.—
(A) IN GENERAL.—Except as provided in subparagraph (B), the Administrator shall not award a grant under this subsection for land with respect to which the Administrator determines a financially viable non-Federal party (or successors to such a party) or an affiliate of such a party is primarily responsible for the contamination by eligible contaminants.
(B) EXCEPTION.—Subparagraph (A) shall not apply to land described in paragraph (5)(A).
(A) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to carry out this subsection $35,000,000 for each of fiscal years 2025 through 2030, to remain available until expended.
(B) RESERVATION.—The Administrator may reserve up to 10 percent of the amount appropriated to carry out this subsection for salaries, expenses, and administration.
(C) PROHIBITION.—No funds appropriated to carry out section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(k)) may be used to carry out this subsection.
(c) Brownfields program funding.—
(1) IN GENERAL.—Notwithstanding any other provision of law, an eligible recipient may use funding provided under paragraphs (2)(A)(i), (3), and (4) of section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(k)) to address contamination on ANCSA land that—
(A) subject to paragraph (2), is or was contaminated by an eligible contaminant at the time of conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); and
(B) is on an inventory of that land maintained by the Environmental Protection Agency.
(A) IN GENERAL.—The Administrator may waive the requirement described in paragraph (1)(A) if the owner of the land at the time funding described in paragraph (1) is provided did not cause or contribute to the contamination on the land.
(B) EFFECT OF WAIVER.—Land with respect to which a waiver is provided under subparagraph (A) shall be eligible to use funding for the purpose described in paragraph (1) if the land was contaminated by an eligible contaminant after the time of conveyance of the land pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(1) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Administrator shall update guidance relating to eligibility for brownfields funding under section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(k)) for land described in paragraph (2) to provide that the Federal Government shall not be considered a viable responsible party.
(2) LAND DESCRIBED.—The land referred to in paragraph (1) is ANCSA land that—
(A) contains contamination by a contaminant described in subsection (a)(1)(D) that the Federal Government caused or contributed to prior to conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); and
(B) is on an inventory of that land maintained by the Environmental Protection Agency.
(3) CESSATION OF EFFECTIVENESS.—The update to the guidance required under paragraph (1) shall cease to be effective on the date on which funding made available for the program under subsection (b) through fiscal year 2030 is fully obligated.
SEC. 6. Authorization or contaminated land remediation in compensatory mitigation programs.
(a) Remediation of contaminated lands.—The Secretary shall allow a person who has been issued a permit for the discharge of dredged or fill material under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) to enter into an agreement with an Indian Tribe to remediate ANCSA land or Indian land for the purpose of compensatory mitigation for a permitted activity.
(b) Regulations.—Not later than 180 days after the date of enactment of this Act, the Secretary and Administrator shall jointly promulgate regulations and issue guidance, as necessary, to establish performance standards and criteria for determining credits generated through the remediation of contamination under this section on ANCSA land or Indian land that—
(1) maximize opportunities for mitigation;
(2) provide flexibility for regional variations in conditions, functions, and values;
(3) apply equivalent standards and criteria to each type of compensatory mitigation;
(4) include procedures for consulting with eligible entities; and
(5) provide that decontamination undertaken to generate credits must be done in compliance with applicable Federal and State standards and applicable Federal or State cleanup programs authorized under section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604).
SEC. 7. Tribal project implementation pilot program.
(a) Definition of eligible project.—In this section, the term “eligible project” includes siting, design, engineering, and construction work for—
(1) a project of the Secretary authorized for construction;
(2) a project carried out under a continuing authority program (as defined in section 7001(c)(1)(D)(iii) of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 2282d(c)(1)(D)(iii)));
(3) a project or activity eligible to be carried out under the Tribal partnership program under section 203 of the Water Resources Development Act of 2000 (33 U.S.C. 2269); and
(4) a project carried out under section 219 of the Water Resources Development Act of 1992 (106 Stat. 4835; 110 Stat. 3757; 113 Stat. 334; 136 Stat. 3808).
(b) Authorization.—Not later than 120 days after the date of enactment of this Act, the Secretary shall establish and implement a pilot program under which Indian Tribes may directly carry out eligible projects.
(1) IN GENERAL.—In carrying out the pilot program under this section, the Secretary shall—
(A) identify not less than 5 eligible projects, including, in each of fiscal years 2025 and 2026—
(i) not less than 1 eligible project in the South Pacific Division of the Corps of Engineers; and
(ii) not less than 1 eligible project in the Pacific Ocean Division of the Corps of Engineers;
(B) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the identification of each eligible project under the pilot program under this section;
(C) in collaboration with the Indian Tribe, develop a detailed project management plan for each identified eligible project that outlines the scope, budget, design, and construction resource requirements necessary for the Indian Tribe to execute the project or a separable element of the eligible project;
(D) on the request of the Indian Tribe and in accordance with subsection (e)(3), enter into a project partnership agreement with the Indian Tribe for the Indian Tribe to provide full project management control for construction of the eligible project, or a separable element of the eligible project, in accordance with plans approved by the Secretary;
(E) following execution of the project partnership agreement, transfer to the Indian Tribe to carry out construction of the eligible project, or a separable element of the eligible project—
(i) if applicable, the balance of the unobligated amounts appropriated for the eligible project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the eligible project and the pilot program under this section; and
(ii) additional amounts, as determined by the Secretary, from amounts made available to carry out this section, except that the total amount transferred to the Indian Tribe shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and
(F) regularly monitor and audit each eligible project being constructed by an Indian Tribe under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.
(2) DETAILED PROJECT SCHEDULE.—Not later than 180 days after entering into an agreement under paragraph (1)(D), each Indian Tribe, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule, based on estimated funding levels, that lists all deadlines for each milestone in the construction of the eligible project.
(3) TECHNICAL ASSISTANCE.—On the request of an Indian Tribe, the Secretary may provide technical assistance to the Indian Tribe relating to—
(A) any study, engineering activity, design, or construction activity carried out by the Indian Tribe under this section; and
(B) expeditiously obtaining any permits necessary for the eligible project.
(d) Cost share.—Nothing in this section affects the cost-sharing requirement applicable on the day before the date of enactment of this Act to an eligible project carried out under this section.
(1) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Secretary shall issue guidance for the implementation of the pilot program under this section that, to the extent practicable, identifies—
(A) the metrics for measuring the success of the pilot program; and
(B) the laws and regulations that an Indian Tribe must follow in carrying out an eligible project under the pilot program.
(2) MONITORING.—The Secretary shall monitor the progress of each Indian Tribe participating in the pilot program under this section to ensure that, in siting, designing, engineering, or constructing an eligible project, the Indian Tribe—
(A) is complying with all applicable laws and regulations, including any requirements that would apply if the Secretary was carrying out the project; and
(B) is meeting the standards of the Corps of Engineers for design and quality.
(3) NEW PROJECT PARTNERSHIP AGREEMENTS.—The Secretary may not enter into a project partnership agreement under this section until the date on which the Secretary issues guidance under paragraph (1).
(1) IN GENERAL.—Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report detailing the results of the pilot program under this section, including—
(A) a description of the progress of Indian Tribes in meeting milestones in detailed project schedules developed pursuant to subsection (c)(2); and
(B) any recommendations of the Secretary concerning whether the pilot program or any component of the pilot program should be implemented on a national basis.
(2) UPDATE.—Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update to the report under paragraph (1).
(3) FAILURE TO MEET DEADLINE.—If the Secretary fails to submit a report by the required deadline under this subsection, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed explanation of why the deadline was missed and a projected date for submission of the report.
(g) Administration.—All laws and regulations that would apply to the Secretary if the Secretary were carrying out the eligible project shall apply to an Indian Tribe carrying out an eligible project under this section.
(h) Termination of authority.—The authority to commence an eligible project under this section terminates on the date that is 5 years after the date of enactment of this Act.
(i) Authorization of appropriations.—In addition to any amounts appropriated for a specific eligible project, there is authorized to be appropriated to the Secretary to carry out this section, including the costs of administration of the Secretary, $15,000,000 for each of fiscal years 2025 through 2029.
SEC. 8. Report on remediation of contaminated ANCSA land.
Not later than 1 year after the date of enactment of this Act, the Administrator, in consultation with the Secretary, Secretary of the Interior, and other Federal agencies, as the Secretary determines to be appropriate, shall submit to Congress a report that describes—
(1) the status of remediating ANCSA land pursuant to this Act; and
(2) recommendations on what additional authorities are needed to identify and remediate ANCSA land.
Nothing in this Act or an amendment made by this Act conflicts with the requirements of any existing program established for the purpose of remediating ANCSA land or Indian land.