Policy and Advocacy
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Great Lakes Commission Recommendations for Reauthorization of the Great Lakes Legacy Act
Approved by the Great Lakes Commission Board of Directors - December 2007
The Great Lakes Commission calls on Congress to reauthorize the Great Lakes Legacy Act in 2008. The Legacy Act authorizes funding to remediate contaminated sediments in Great Lakes Areas of Concern designated under the Great Lakes Water Quality Agreement. The Legacy Act program has been highly successful in implementing contaminated sediment cleanups and has become a cornerstone of restoration efforts for the Areas of Concern. The program enjoys strong support from the Great Lakes states, the business community, regional environmental organizations, and local Area of Concern advisory councils.
It is critical that Congress reauthorize the Great Lakes Legacy Act and maintain this vital program for restoring the Great Lakes. Reauthorizing the Act is among the Great Lakes Commission’s top legislative priorities for 2008.
This statement presents the Great Lakes Commission’s recommendations for reauthorizing the Legacy Act. This reflects the collective views of the eight Great Lakes states, which have been the nonfederal sponsor for most Legacy Act projects implemented to date. With their “real-world” experience developing and implementing contaminated sediment projects under the Legacy Act, the states’ recommendations provide important guidance for improving the Act. The Commission’s recommendations are generally consistent with those from the Great Lakes Regional Collaboration and the views of other regional partners.
The Great Lakes Legacy Act, signed into law in 2002 (P.L. 107-303), authorizes $270 million over five years to remediate contaminated sediments in Great Lakes Areas of Concern. The Act authorizes $50 million annually to monitor, evaluate or remediate contaminated sediments, or prevent new contamination. The Act also authorizes $3 million annually for research on innovative remediation technologies; and $1 million annually for public outreach and education. The Act requires a minimum of 35% nonfederal cost share for remediation projects. (Additional information is available from the U.S. Environmental Protection Agency’s Great Lakes National Program Office at www.epa.gov/GLLA.)
To date, five cleanup projects and seven projects to monitor and evaluate contaminated sediments have been implemented under the Legacy Act with a federal cost share of $55.4 million. Eight additional projects are under review with a federal cost share of approximately $92 million. U.S. EPA is accepting proposals and negotiating agreements under the Legacy Act on an ongoing basis.
In 2005 the Great Lakes Regional Collaboration restoration strategy called on Congress to revise and reauthorize the Legacy Act and made numerous recommendations toward this end. In 2006 U.S. EPA published a final rule for implementation of the Act that addressed some, but not all, of the Collaboration’s recommendations.
Current Great Lakes restoration legislation (Great Lakes Collaboration Implementation Act of 2007, H.R. 1350/S. 791) would reauthorize the Legacy Act but does not address all of the issues raised by the Great Lakes Regional Collaboration. Stand-alone reauthorization legislation is expected to be introduced in 2008.
Recommended Amendments to the Great Lakes Legacy Act
The Great Lakes Commission’s recommendations for amending the Legacy Act are described below (these are not presented in priority order). Incorporating these amendments during the reauthorization process will benefit the Great Lakes states and improve the Act’s effectiveness and efficiency in remediating contaminated sediments in the Great Lakes.
- Reauthorize the Legacy Act Through 2013 and Increase the Authorization of Appropriations to $150 Million Annually: The appropriations authorized for the Legacy Act program should be increased from the current level of $54 million annually to $150 million annually, consistent with the recommendations of the Great Lakes Regional Collaboration. This authorization level better matches the long-term costs of completely remediating contaminated sediments in the Areas of Concern, projected to be between $1.5 billion and $4.5 billion. This also will enable U.S. EPA to support particularly large contaminated sediment remediation projects that may be developed in coming years.
- Allow the Use of General Legacy Act Funds for Pilot or Demonstration Projects: Funds from the general appropriations provided for the Legacy Act should be allowed for pilot or demonstration projects. To date, appropriations have not been provided for the component of the Legacy Act program that supports research on innovative remediation technologies. Thus, the Act's definition of "eligible projects" should be amended to include demonstration and pilot projects using innovative approaches, technologies, and techniques. Funds from the general Legacy Act appropriations should be allowed for this purpose, at the discretion of the Administrator and in consultation with the state in which the pilot project is to take place. However, the Commission believes that highest priority should be given to projects that focus on remediating contaminated sediments. The recommended order of priority is 1) remediation projects; 2) projects that prepare a site for remediation (e.g., support for remedial investigations and feasibility studies); and 3) pilot projects.
- Allow the Use of Legacy Act Funds to Restore Habitat: Legacy Act funds should be available to support habitat restoration at sites where contaminated sediment remediation has occurred under the Act. High quality habitat need not have been present on the site prior to remediation for Legacy Act funds to be used for this purpose.
- Contributions of Nonfederal Cost Share from Potentially Responsible Parties: The Commission supports allowing contributions from potentially responsible parties (PRPs) to be counted as all or part of the nonfederal cost share for Legacy Act projects as long as that contribution is above and beyond what is required under a legal settlement (this situation is commonly referred to as a “betterment”). In addition, the Commission supports allowing such PRP contributions to be counted as nonfederal cost share for Legacy Act projects at other sites or geographic areas in an Area of Concern beyond where the PRP’s original, legally-required remediation work is conducted.
- Accounting for Nonfederal Contributions to Legacy Act Projects: The Commission believes that the timing of nonfederal contributions to Legacy Act projects should not disqualify those contributions from counting as nonfederal cost share as long as they contribute directly to the development of the project. Thus, even if nonfederal contributions precede a signed project agreement, they should be eligible to be counted as nonfederal cost share as long as they contribute directly to the development of the Legacy Act project.
- Remove the Maintenance of Effort Requirement: The Act currently requires the nonfederal sponsor to maintain a level of effort in an Area of Concern where a Legacy Act project takes place at or above the average level of such expenditures in the two fiscal years preceding the start of the project. This requirement is not appropriate for sediment projects whose expenditures can widely fluctuate from year to year. Moreover, project sponsors should not be penalized for – or discouraged from – investing in restoring an Area of Concern prior to the start of a Legacy Act project. This provision could inadvertently disqualify an otherwise worthwhile project when a nonfederal sponsor spends large sums in an Area of Concern prior to the start of a Legacy Act project that it cannot maintain in subsequent years.
- Allow the Disbursal of Legacy Act Funds to Nonfederal Contractors: The Legacy Act should permit the disbursal of funds under the program to nonfederal contactors if doing so enhances the timing and effectiveness of a project. This option should be available and should be incorporated into project agreements, where appropriate.
- Extend the Life of Appropriated Legacy Act Funds Beyond Two Years: Funds appropriated under the Legacy Act should remain until they are contracted in support of an eligible project. When reauthorizing the Legacy Act, Congress should fix this artificial limit to avoid funds being lost in the future. Given the lengthy and complex nature of contaminated sediment cleanups, and the possibility of significant, unanticipated delays in completing projects, the two-year limit is particularly inappropriate for the Legacy Act program.
- Reduce the Current 35 Percent Nonfederal Cost Share Requirement to 25 Percent for Orphan Sites: At sites where no responsible party is available to support the nonfederal cost share, the required cost share should be reduced to 25 percent from the current level of 35 percent. Doing so will help advance contaminated sediment remediation at orphan sites by the states and local communities with limited financial resources.
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