P.

41 5

1 dent shall provide the assurance required by this pararaph

2 regarding the availability of a hazardous waste disposal

3 facility. " .

4 (c) Section 104(d) of the Comprehensive Environmental

5 Response, Compensation, and Liability Act of 1980 is

6 wriended by inserting "or Indian tribe" Liter the phrase "po.

7 litical subdivision thereor, both times that phrase occurs, and

8 by inserting "or Indian tribe" after the phrase "political sub9 division" both times that phrase occurs .

10 (d) Section 107 of the Comprehensive Environmental

11 Response, Compensation, and Liability Act of 1980 is

12 amendedis (1) in subsection (a) by inserting "or an Indian

14 tribe" after "State",-

15 (2) in subsection (f) by inserting after "State" the

16 third time that word appears the following- "and to

17 any Indian tn1m for natural resources belonging to,

18 managed by, controlled by, or appertaining to such

19 tribe, or held in trust for the benefit of such tribe, or

20 belonging to a member of such tribe if such resources

21 are subject to a trust restriction on afienatiow" ; by in22 serting "or Indian tribe" after "State" the fourth time

23 that word appears ; by adding before the period at the

24 end of the first sentence the following- ", so long as, in

25 the cue of damages to an Indian tribe occurring pursu3 a 5
p. 2

416

ant to a Federal permit or license, the issuance of that

2 permit or license was not inconsistent with the fiduci3 ary duty of the United States with respect to such

4 Indian tribe"; and by inserting "or the Indian tribe"

3 after "State government";

6 (3)in subsection (i) by inserting "or Indian tribe"

7 after "State" the first time it appears; and

8 (4) in subsection ~) by inserting "or Indian tribe"

9 after "State" the first time it appe&rs.

10 (e) Section ill of the Comprehensive Environmental

I I Response, Compensation, and Liability Act of 1980 is

12 amended13 . - . (1) in subsection (b) by inserting before the period

14 at the end tivereof the following: '", or by any Indian

15 tribe or by the United States acting on behalf of any

16 Indion.46be . for navAral resources beionging to . man17 aged by, conuu~led-by ;aw_4ppertaining to such tribe, or

18 held in trust for the benek7o( such tribe, or belonging

19 to a member of such tribe if such resources are subject

20 to a trust restriction on alienation";

21 (2) in subsection (02) by inserting "or Indian

22 tribe" after "State";

23 (3) in subsection M by inserting "or Indian tribe"

24 after "State"; and
p. 3

41 7

1 (4) in subsection (i) by inserting after "State," the

2 following: "and by the governing body of any Indian

3 tribe having sustained damage to natural resources be .

4 longing to, managed by, controlled by, or appertaining

3 to such tribe, or held in trust for the benefit of such

6 tribe, or belonging to a member of such tribe if such

resources are subject to a trust restriction on

8 alienation, " .

9 (f) Section 112(d) of the Comprehensive Environmental,

10 Response, Compensation, and Liability Act of 1980 (as re11 written by this Act) is amended by adding before the period

12 at the end of the proviso the followLW. ", nor against an

13 Indian tribe until the United States, in its capacity u trustee

14 for the tribe, gives written notice to the governing body of

15 the tribe that it will not present a claim or commence an

16 action on behalf of the tribe or fails to present a claim or

17 commence an action within the time limitations specified in

18 this subsection".

19 (g) Tide I of the Comprehensive Environmental Re20 sponse, Compensation, and Liability Act of 1980 is amended

21 by adding at the and thereof the foflowing new section :

22 44MUN TRIBB8

23 "SEC. 116. The governing body of an Indian tribe shall

24 be afforded substantially the same treatment as a State with

25 respect to the provisions of section 103(s) (regarding notifica26 tion of releases), section 104(cX2) (regarding consultation on
p. 4

41 8

I remedial actions), section 104(e) (regarding access to infor2 mation), section 1046) (regarding cooperation in establishing

3 and maintaining national registries),'and section 165 (regard4 ing roles and responsibilities under the national contingency

3 plan and submittal of priorities for remedW action, but not

6 including the provision regarding the inclusion of at least one

facility per State on the national priority list)." .

8 COMMUNITY RELOCATIO N

9 SEC. 102. (a) The second sentence of paragraph (23) of

10 section 101 of the Comprehensive Environmental Response,

11 Compensation, and Liability Act of 1980 is &mended by in12 serting after "not otherwise provided for," the phrase "costs

13 of permanent relocation of residents where it is determined

14 that such permanent relocation is cost effective or may be

15 necessary to protect health or welfare," and by striking out

16 the semicolon at the end thereof and inserting in lieu thereof

1 "1 a period and the following : "In the case of a business located

IS in an area of evacuation or relocation, the term may also

19 include the payment of those instLItments of principal and

20 interest on business debt which accrue between the date of

21 evacuation or temporary relocation and thirty days following

22 the date that permanent relocation is actually accomplished

23 or, if permanent relocation is formally rejected as the appro24 priate response, the date on which evacuation or temporary

25 relocation ceases . In the cue of an individual unemployed as

26 a result of such evacuation or relocation, it may also include

sit 8
p. 5

41 9

1 the provision of assistance identical to that authorized by sec .

2 tions 407, 408 . and 409 of the Disaster Relief Act of 1974 :

3 Provided, That the costs of such assistance shall be paid from

4 the Truit Fund;".

3 (b) Section 104(cXl) of the Comprehensive Environ.men6 tal Response, Compensation, and Liability Act of 1980 is

7 amended by insen* before "authorized by subsection N of

8 this section," the phrase "for permanent relocation or" .

9 ALTERNATME WATER SUPPLIES

10 SEC . 103. Section 101 of the Comprehensive Environ11 mental Response, CompengaitiOn . and Liability Act of 1980,

12 is amended by sbiking the period at the end of paragraph

13 (30) and inserting in lieu thereof a semicolon ; and by adding

14 after new paragraph (33) the following new paragraph.

15 "(34) 'alternative water supplies' includes, but is

16 not limited to, drULking water Lad household Water

17 supplies.".

18 STATE CREDIT

19 SEC. 104. (a) Section 104(c)(3) of the Comprehensive

20 Environmental Response, Compensation, and Liability Act of

21 1980 is amended by strilLing "The President shall gmt the

22 State a credit against the sham" and all dw follows down

23 through the and of such section 104(cX3) and inserting in lieu

24 thered the (oUowiaV "In determining the portion of the

25 costs referred to in this section which is required to be paid

26 by a participating Stue, the President shall grant the State a

$an
p. 6

420

1 credit for amounts expended or obligated by such State or by

2 a political subdivision thereof after January 1, 19-,8 . and

3 before December 11 . 1980, for any response-action costs

4 which are covered by section 11 i(a) (1),or (2) and which are

3 incurred at a facility or release listed pursuant to section

6 103(8). Such credit shall have the effect of reducing the

7 amount which the State would- otherWise be required to pay

8 in connection with assistance under this section ." .

9 (b9l) Section 104(dXI) of the Comprenhensive Environ10 mental Response, Compensation, and Liability Act of 1980 is

11 amended by adding the following new sentence : "For the

12 purposes of the last sentence of subsection (cX3) of this sec13 tion, the President may enter into a contract or cooperative

14 agreement with a State under this parapraph under which

15 such State will take response actions in connection with re16 leases listed pursuant to section 105(8)(B), using non-Federal

17 funds for such response actions . in advance of and without

IS any obligation by the President of amounts from the Fund for

19 such response actions ." .

20 (2) Section 104(cX3) of the Comprehensive Environ21 mental Responw, Compensation, and Liability Act of 1980 if

22 further amende& by adding the following sentence: "The

23 President shall grant the State a credit against the share of

24 costs for which it is responsible under this paragraph for any

25 reasonable, documented, direct out-of-pocket non-Federal
p. 7

42 1

1 funds expended or obligated by the State under a contract or

2 cooperative Weement under the last sentence of subsection

3 (d)( 1 ). " . -- - -

4 FUNDING OF REMEDIAL ACTION AT FACILITY OWNED BY A

3 STATE OR POLITICAL SVBDIVISION BUT OPERATED

6 PRIVATEL Y

I 'SEC. 105 . Section 104(cX3) of the Comprehensive Envi8 ronmental Response, Compensation, and Liabilitv Act of

9 1980 is amended10 (1) by amending section 104(cX3XCXii) to read as

11 follows:

12 "Q 50 per centum (or such greater amount

13 as the President may determine appropriate,

14 taking into account the degree of responsibility of

15 the State or political subdivision for the release) of

16 the capital, future operation, and future mainte17 nance costs of the response action relating to a

18 release at a facility, primarily used for treatment,

19 storage, or disposal, that wai owned and operated

20 by the State or a political subdivision thereof at

21 the time of any disposal of hazardous substances

22 is such facility. For the purpose of subparagraph

23 (cXii) of this paragraph, the term 'facility' does

24 not include navigable waters or the beds underly25 inc those waters ."; and
p. 8

422

1 (2) by adding at the end thereof the following: "In

2 the case of any State which has paid, at any time after

3 the date of the enactment of the Superfund Improve4 ment Act of 1985, in excess of 10 per centurn of the

5 costs of remedial action at a facility owned but not op6 erated by such State or by a political subdivision there7 of, the President shall use monev in the Fund to pro8 vide reimbursement to such State for tl~e amount of

9 such excess ." .

10 SELECTION OF REMEDLALL ACTIONS

11 SEC. 106. Section 104(c94) of the Comprehensive Envi12 ronmental Response, Compensation, and Liability Act of

13 1980 is amended to read as foUows :

14 "(4XA) The President shafl select appropriate remedial

15 actions determined to be necessary to carry out this section

16 which, to the extent practicable, are in aecordance with the

17 national contingency plan and which provide for cost-effec18 tive response. In evaluating the cost-effectiveness of pro19 posed alternative remedial actions, the President shall take

20 into account the total short- and long-term costs of such ac21 tions, including the costs of operation and maintenance for

22' the entire period during which such activities will be

23 require&

24 "M Remedial actions in which treatment which signifi25 cantly reduces the volume, toxicity or mobility of the hazard26 ous substances is a principal element, are to be preferred over
P, - 9

423

1 remedial actions not involving such treatment . The off site

2 transport and disposal of hazardous substances or contami3 nated materials without such treatment should be the least

4 favored alternative remedial action, where practicable treat3 ment technologies are available.

6 "(C) Remedial actions selected under this paragraph or

4 otherwise required or agreed to by the President under this

8 Act shall attain a degree of cleanup of hazardous substances,

9 pollutants, and contaminants from the environment and of

10 control of hinher release at a minimum which assures protec11 tion of human health and the environment. Such remedial

12 actions shall be relevant Lad appropriate under the circurn13 stances presented by the release or threatened release of such

14 substance, pollutant, or contarninant.

15 "(D) No permit shall be required under subtitle C of the

16 Solid Waste Disposal Act for the portion of any removal or

17 remedial action conducted pursuant to this Act entirely

18 onsite : Provi&d, That any onsite treatment, storage, or dis19 posal of hawdous substances, pollutants, or contaminants

20 shall comply with the requirements of subparagraph (C).

21 "M Subject to the requirements of this paragraph, the

22 President shall select the appropriate remedial action which

23 provides a balance between the need for protection of public

24 health and welfare and the environment at the facility under

25 consideration, and the availability of amounts from the Fund
P. 10

424

I to respond to other sites which present or may present a

2 threat to public health or welfare or the environment, taking

3 into consideration the relative immediacy of such threats ." .

4 STATE AND FEDERAL CONTRIBUTIONS TO OPERATION A.VD

3 MAINTENANCE

6 SEC. 107. Section 104(c) of the Comprehensive En,6-

roamental Response . Compensation, and Liability Act of

8 1980 is amended by adding the following new paragraphs :

9 "(5) For the purposes of paragraph (3) of this subsec10 tion, in the case of ground or surface water contamination,

11 completed remedial action includes the completion of treat12 ment or other measures, whether taken onsite or offsite, nec13 es3&rv to restore ground and surface water quality to a level

14 that assures protection of human health and the environment .

13 With respect to such measures, the operation of such meas16 ures for a period up to five years after the construction or

1 7 installation and commencement of operation sh&U be consid18 ered remedial action. Activities required to maintain the ef19 fectiveness of such measures following such period or the

20 completion of remedia.1 action, whichever is earlier, shall be

21 considered operation or maintenance .

22 "(6) During any period after the availability of funds

23 received by the Trust Fund under sections 4611 and 4661 of

24 the Internal Revenue Code of 1954 or section MUM of

25 this Act, the Federal share of the payment of costs for oper26 ation and maintenance pursuant to paragraph (3XCXi) or

S U a
P.

425

I paragraph (5) of this subsection shall be from funds eceived

2 by the Trust Fund under section 221(bX10)

.".

3 81TING OF HAZABDOUS WASTE FACILITIES

4 SEC . 108. Section 104(c) of the Comprehensive Envi .

5 ronmental Response, Compensation, and Liabdity Act of

6 1980 is amended by adding the following new paragraph :

"(7) Effective four Years after the date of enactment of

8 this paragraph, the President shall not provide any remedial

9 actions pursuant to this section unless the State in which th e

10 release occurs first enters into a contract or cooperative

11 agreement with the President providing assurances deemed

12 adequate by the President that the State will assure the

13 availability of hazardous waste treatment or disposal facilities

14 acceptable to the President and in compliance with the re15 quirements of subtitle C of the Solid Waste Disposal Act

16 with adequate capacity for the destruction, treatment, or

17 secure disposition of all hazardous wastes that are reasonably

18 expected to be generated within the State during the twenty19 year period following the date of ruch contract or cooperative

20 agreement and to be dis~ of, treated, or destroyedL".

21 COOPZJLATrVZ A0BZZMZNT S

22 SZC- 109. Section 104(dX1) of the Comprehensive En23 vironmental Response, Compensation, and Liability Act of

24 1980 is amended by striking all of the existing paragraph

25 (other dw dw added by this Act) and substituting the

26 (onowing-

$
p. 12

426

I "(d)( 1) Where the President determines that a State or

2 political subdi%ision has the capability to carry out anv or all

3 of the actions authorized in this section, the President may .

4 in his discretion, enter into a contract or cooperative agree3 ment and combine any existing cooperative agreements with

6 such State or political subdivision to take such actions in aci cordance with criteria and prion'ties established pursuant to

8 section 105(8) of this title and to be reimbursed from the

9 Fund for the reasonable response costs and related activities

10 associated with the overall implementation, coordination, en11 forcement, training, community relations, site inventory and

12 assessment efforts, and administration of remedial activities

13 authorized by this Act. Any contract made hereunder shall be

14 subject to the cost-shwing provisions of subsection 1,) of this

15 section.".

16 HEA.LTH-BZLATED AUTHOBITIZ 8

17 Szc. 110. (a) Section 104(i) of the Comprehensive En18 vironmentLI Response, Compensation, and Uability Act of

19 1980 is amended by inserting "(1)" after "W", by redesignat20 ing paragraphs (1), (2). (3), (4), and (5) as subparagraphs (A),

21 (B), (C), (D), and (E), and by adding the following new para22 graphs:

23 "(2) The Agency for Toxic Substances and Disea'se

24 Registry sh&U provide consultations upon request on health

25 issues relating to exposure to hazardous or toxic substances,

26 on the basis of available information, to the Environmental

~J
p. 13

427

Protection Agency, State officials, and local officials . Such

2 consultations to individuals mav be provided bv States under

3 cooperative agreements established under this Act .

4 "(3XA) The Administrator shall perform a health assess3 ment for each release, threatened release or facility on the

6 National Priority List established under section 105. Such

7 health assessment shall be completed not later than two

8 years after the date of enactment of the Superfund Improve9 ment Act of 1985 for each release, threatened release or fa10 cility proposed for inclusion on such list prior to such date of

I I enactment or not later thin one year after the date of propos12 &1 for inclusion on such list for each release, threatened re13 lease or facility proposed for inclusion on such list after such

14 date or enactment. The Administrator shall also perform a

15 heLlth assessment for each facility for which one is required

16 under section 30051j) of the Solid Waste DispoW Act and,

17 upon request of the Admin-i trator of the Envirorunental Pro18 tection Agency or a State, for each facility subject to this Act

19 or subtitle C of the Sohd Waste Disposal Act, where there is

20 sufficient data as to what hazardous substances are present in

21 such facUity.

22 "(B) The Adminhrtrator may perform health assess23 ments for relems or facities where individual persons or

24 licensed physicians provide information that individuals have

25 been exposed to a hazardous substance, for which the proba-
.14

428

I ble source of such exposure is a release . In addition to other

2 methods (formal or informal) of providing s u'ch information,

3 such individual persons or licensed physicians mav submit a

4 petition to the Administrator providing such information and

3 requesting a health assessment . If such a petition is submit6 ted and the Administrator does not initiate a health assessment, the Administrator shall provide a written explanation

8 of why a health assessment is not appropriate .

9 "(C) In determining sites at which to conduct health

10 assessments under this paragraph, the Administrator of the

11 Agency for Toxic Substances and Disease Registry shall give

12 priority to those facilities or sites at which there is document13 ed evidence of release of hazardous substances, at which the

14 potential risk to human health appears highest, and for which

13 in the judgment of the Administrator of such Agency existing

16 health assessment data is inadequate to assess the potential

17 risk to human health as provided in subparagraph (E).

is "(D) Any State or political subdivision carrying out an

19 assessment shall report the results of the assessment to the

20 Administrator of such Agency, and shall include recommen21 dations with respect to further activities which need to be

22 carried out under this section. The Administrator of such

23 Agency shall include the same recommendation in a report

24 on the results of any assessment carried out directly by the

25 Agency, and shall issue periodic reports which include the
p. 15

429

results of all the assessments carried out under this

2 paragraph .

3 -(E) For the purposes of this subsection and section

4 111 (c)(4), the term 'health assessments' shall include prelimi3 nary assessments of the potential risk to human health posed

6 by individual sites and facilities, based on such factors as the

7 nature and extent of contamination, the existence of potential

8 for pathways of human exposure (including ground or surface

9 water contamination, air emissions, and food chain contami10 nation), the size and potential susceptibility of the community

11 within the likely pathways of exposure, the compojison of

12 expected human exposure levels to the short-term and long13 term health effects associated with identified contaminants

14 and any available recommended exposure or tolerance limits

13 for such contaminants, and the comparison of existing mor16 bidity and mortality data on diseases that may be associated

17 with the observed levels of exposure . The assessment sha

18 include an evaluation of the risks to the potentially affected

19 population from all sources of such contaminants, including

20 known point or nonpoint sources other than the site or facili21 ty in question. A purpose of such preliminary assessments

22 shall be to help determine whether full-scale health or epide23 miological studies and medical evaluations of exposed popula24 tions shaU be undertaken .
p. 16

430

1 "(F) At the completion of each health assessment the

2 Administrator shall provide the Administrator of the En%i3 ronmental Protection Agency and each affected State with

4 the results of such assessment . together with any recommen5 dations for further action under this subsection or othemise

6 under this Act .

"0 In anv case in which a health assessment per8 formed under this paragraph (including one required by sec9 tion 3005(j) of the Solid Waste Disposal Act) discloses the

10 exposure of a population to the release of a hazardous sub11 stance, the costs of such health assessment may be recovered

12 as a cost of response under section 107 of this Act from per13 sons causing or contributing to such release of such hazard14 ous substance or, in the case of multiple releases contributing

15 to such exposure, to all such releases .

16 "(4) Whenever, in the judgment of the Administrator, it

17 is appropriate on the basis of the results of a health assess18 ment, the Administrator shall conduct a pilot study of health

19 effects for selected groups of exposed individuals, in order to

20 determine the desirability of conducting full scale epidemlio21 logical or other health studies of the entire exposed popula22 tion. Whenever in the judgment of the Administrator it is

23 appropriate on the basis of the results of such pilot study, the

24 Administrator shall conduct such full scale epidemiological or

25 other health studies as may be necessary to determine the
FW_ p. 17

43 1

I health effects for the population exposed to hazardous sub2 stances in a release or suspected release .

3 "(3) In any case in which the results of a health assessA ment indicate a potential significant risk to human health . the

3 Administrator shall consider whether the estabilshmenE of a

6 registry of exposed persons would contribute to accomplish-

'i ing the purposes of this subsection . taking into account cir8 cumstances bearing on the usefulness of such a registry, in9 cluding the seriousness or unique character of identified dis10 eases or the likelihood of population migration from the afI I fected area .

12 "(6) The Administrator shall conduct a study, and

13 report to the Congress within two years after the date of

14 enactment of the Superfund Improvement Act of 1985, on

15 the usefulness, costs, and potential implications of medical

16 surveillance programs as a part of the health studies author17 ized by this section. Such study shall include, at a minimum,

18 programs which identify diseases for which an exposed popu19 lation is at excess risk, provide periodic medical testing to

20 screen for such diseases in subgroups of the exposed popula21 tion at highest risk, and provide for a mechanism to refer for

22 treatment individuals who are diagnosed as having such

23 diseases .

24 "M If a health assessment or other study carried out

25 under this subsection contains a finding that the exposure

75-033 0 - 90 - 2
p. 18

432

1 concerned presents a significant risk to human health . the

2 President shall take such steps as may be necessary to r .

educe

3 such exposure and eliminate or substantialiv mitigate the sig4 nificant risk to human health . Such steps may include the use

5 of any authority under this Act, including, but not limited

6 to-

"(1) provision of alternative water supplies, an d

8 "(2) permanent or temporarily relocation of

9 indiNiduals .

10 "(8) In any case which is the subject of a petition, a

11 health assessment or study, or a research program tinder this

12 subsection, nothing in this subsection shall be construed to

13 delay or otherwise affect or impair the authority of the Presi14 dent or the Administrator of the Environmental Protection

15 Agency to exercise any authority vested in the President or

16 such Administrator under any other provision of law (includ17 ing, but not limited to, the imminent hazard authority of sec18 tion "4003 of the Solid Waste Disposal Act) or the response

19 and abatement authorities of this Act.

20 "(9XA) The Administrator shall, within six months after

21 the date of enactment of the Superfund Improvement Act of

22 1985, prepare a list of at least one hundred hazardous sub23 stances which the Administrator, in his sole discretion, deter24 mines are those posing the most significant potential threat to

25 human health due to their common presence at the location
P. 19

433

L of responses under section 104 or at facilities on the National

2 Priority List or in releases to which a response under 3ection

3 104 ~~' under consideration. Within twenty-four months aiter

A enactment, the Administrator shall prepare a list of an addi .

3 tional one hundred or more such hazardous substances . The

6 Adrnin~istracor shall riot less often than once every year thereafter add to such list other substances which are frequently 30

found or otherwise pose a potentially sigridicant threat to

9 human health by reason of their physical, chemical, or b1olog10 Ical nature .

I 1 "(13) For each such hazardous substance listed pursuant

12 to subparagraph (A), the Administrator shall assess whether

13 adequate information on the health effects of such substance

14 is av"able. For any such substance for which adequate infor13 mation is not available (or under development), the Adminis16 trator shall assure the initiation of a program of research de1-6 signed to determine the health effects (and techniques for deIS velopment of methods to determine such health effects) of

19 such substance. ~Vhere feasible, such program shall seek to

20 develop methods to determine the health effects of such sub21 stance in combination with other substances with which it is

22 commonly found . Such program shall include, but not be lim23 ited to24 "(D laboratory and other studies to determine

25 short, intermediate, and long-term health effects,
p. 20

434

I "M laboratory and other studies to determine

2 organ-specific, site-specific, and 3ystem-specific acute

3 and chrunic toxicity ;

4 "(iii) laboratory and other studies to determine the

5 manner in which such substances are metabolized or to

6 otherwise develop an understanding of the blokinetics

7 of such substances ; and

8 "(iv) where there is a possibility of obtaining

9 human data, the collection of such information .

10 "(C) In assessing the need to perform laboratory and

11 other studies, as required by subparagraph (B), the Adminis12 trator shall consider13 '%) the availability and quality of existing test

14 data concerning the substance on the suspected health

15 effect in question ;

16 "(fi) the extent to which testing already in

17 progress will, in a timely fashion, provide data that

18 will be adequate to support the preparation of toxico19 logical profiles u required by subparagraph (F) of this

20 paragraph; and

21 Iiii) such other scientific and technical factors as

22 the Administrator may determine,are necessary for the

23 effective implementation of this subsection.

24 "(D) In the development and implementation of any re25 search progrwn under this paragraph, the Administrator of
p. 21

435

1 the Agency for Toxic Substances and Disease ReiristrY and

2 the Admiruistrator of the En%ironmental Protection Agency

3 shall coordinate such research progTam implemented nder

4 this paragraph %ith programs of toxicological testing estab5 lished under the Toxic Substances Control Act and the Fed6 eral Insecticide, Fungicide and Rodenticide Act. The purpose

7 of such coordination shall be to avoid duplication of effort and

s to assure that the hazardous substances listed pursuant to

9 this subsection are tested thoroughly at the earliest practica10 ble date . Where appropriate in the discretion of the Adminis11 trator and consistent writh such purpose, a research program

12 under this paragraph may be carried out using such programs

13 of toxicological testing .

14 "M It is the sense of the Congress that the costs of

15 research programs under this paragraph be bome by the

16 manufacturers of the hazardous substance in question, as re17 quired in programs of toxicological testing under the Toxic

18 Substances Control Act . Where this is not practical, the costs

19 of such research programs should be bome by parties respon20 sible for the release of the hazardous substance in question .

21 To cam out such intention, the costs of conducting such a

22 research program under this paragraph shall be deemed a

23 cost of response for the purposes of recovery under section

24 107 of such costs from a party responsible for a release of

25 such hazardous substance .

C
- p. 22

436

1 "(F) Based on all available information, including data

2 developed and collected on the health effects of hazardous

3 substances under this paragraph, the Administrator shall pre4 pare toxicological profiles sufficient to establish the likely

5 effect on human health of each of the substances listed pursu6 ant to subparagraph (A). Such profiles shall be revised and

7 republished as necessary, but no less often than once every

8 five years. Such profiles shall be provided to the States and

9 made available to other interested parties.

10 "(10) All studies and results of research conducted

11 under this subsection (other than health assessments) shall be

12 reported or adopted only after appropriate peer review . Such

13 peer review shall be conducted by panels consisting of no less

14 than three nor more than seven members, who shall be disin15 terested scientific experts selected for such purpose by the

16 Administrator on the basis of their reputation for scientific

17 objectivity and the lack of institutional ties with any person

IS involved in the conduct of the study or research under

19 review. Support services for such panels shall be provided by

20 the Agency for Toxic Substances and Disease Registry .

21 "(11) In the implementation of this subsection and other

22 health-related authorities of this Act, the Administrator is au23 thorized to establish a program for the education of physi24 cians and other health professionals on methods of diagnosis

25 and treatment of injury or disease related to exposure to toxic
p. 23

43",

substances, through such means as the X(iministrator deems

2 appropriate . Not later than one year &fter the date of enact .

3 ment of the Superf%nd Improvement Act of 19S5, the Ad4 ministrator shall report to the Congress on the implementa3 tion of this p&raraph.

6 "(12) For the purpose of implementing this subsection

7 and other health-related authorities of this Act, the President

8 shall provide adequate personnel to the Agency for Toxic

9 Substances and Disease Registry, which shall be no fewer

10 than one hundred full time equivalent employees .

11 "(13) The activities described in this subsection and sec12 tion lll(cX4) shall be carried out by the Agency for Toxic

13 Substances and Disease Registr.v established by pararaph

14 (1), either directly, or through cooperative agreements with

15 States (or political subdivisions thereof) in the case of States

16 (or political subdivisions) which the Administrator of such

17 Agency detemiines are capable of carrying out such sctivi18 ties . Such activities shall include the provision of consulta19 tions on health information, and the conduct of health assess20 ments, including those required under section 30050) of the

21 Solid Waste Disposal Act, health studies and registries ." .

22 N Section I I 1(cX4) of the Comprehensive Environmen23 tal Response, Compensation, and Liability Act of 1980 is

24 uwnded-
438

f1p, 24

1 1) by inserting "in accordance with subsection (n )

2 of this section and section 104(i)," after 1

'(4)" ; and

3 (2) by striWg "epidemlo[ogic studies" and insert4 ing in lieu thereof "epidemiologic and laboratorv stud5 ies and health assessments".

6 (c) Section I I I of the Comprehensive Emironmental

Ti Response, Compensation, and Liability Act of 1980 is

8 amended by adding at the end thereof the following new sub9 section:

10 "(n) For fiscal year 1985, not less than $18,000,000

11 and, for each fiscal year thereafter, not less than 5 per

12 centurn of all sums appropriated from the Trust Fund or

13 $50,000,000, whichever is lpss, shall be directly available to

14 the Agency for Toxic Substances and Disease Registry and

15 used for the purpose of carrying out activities described in

16 subsection (cX4) and section 104(i), including any such activi17 ties related to hazardous waste stored, treated, or disposed of

18 at a facility having a permit under section 3025 of the Solid

19 Waite Disposal Act . Any funds so made available which are

20 not obligated by the beginning of the fourth quarter of the

21 fiscal year in which made available shall be made available in

22 the Trust Fund for other purposes.".

23 (d) Section 3005 of the Solid Waste Disposal Act is

24 amended by adding the following new subsection:
p. 25

439

I -fj) EXPOST-1RE INFORMATION AND HEALTH ASSESS2 MENTS .-I I) BeZinninZ on he date nine months after he

3 enactment of the Solid Waste Disposal Act Amendments of

4 1984, each completed application for a permit under iubsec3 tion ic) for a landill or surface impoundment shall be accom6 panied by information reasonably ascertainable by the owner

Ti or operator on the potential for the public to be exposed to

8 hazardous wastes or hazardous constituents through releases

9 related to the unit. At a minimum, such information must

10 ad&essI I "(A) reasonably foreseeable potential releases

12 from both normal operations and accidents at the unit,

13 including releases associated with transportation to or

14 from the unit;

15 "(13) the potential pathways of human exposure to

16 hazardous wastes or constituents resulting from the re17 leases described under subparagraph (A); and

is "(C) the potential magnitude and nature of the

19 human exposure resulting from such releases .

20 The owner or operator of a landfill or surface impoundment

21 for which a completed application for a permit under subsec22 tion (c) has been submitted prior to such date shall submit the

23 information required by this paragraph to the Administrator

24 (or the State, in the came of a State with in authorized pro-
p. 26

440

gram) no later than the date nine months after such date of

2 enactment .

3 "(2) The Administrator (or the State, in the case of a

4 State with an authorized program) shall make the informa3 tion required by paragraph (1), together with other relevant

6 information, available to the Agency for Toxic Substances

i and Disease Registry established by section 1046) of the

8 Comprehensive Environmental Response, Compensation, and

9 Liability Act of 1980. Whenever in the judgment of the Ad10 ministrator of such Agency, the Administrator, or the State

11 (in the case of a State with an authorized program), a landfill

12 or a surface impoundment poses a substantial potential risk to

13 human health, due to the existence of releases of hazardous

14 constituents, the magnitude of contamination with hazardous

15 constituents which may be the result of a release, or the

16 magnitude of the population exposed to such release or con17 tamination, the Administrator of the Agency for Toxic Sub18 stances and Disease Registry shall conduct a health assess19 ment in connection with such facility in accordance with see20 tion 10403) of the Comprehensive Environmental Re21 sponse, Compensation, and Liability Act of 1980 and take

22 other appropriate action with respect to such risks as author23 ized by section 104 M and (i) of such Act.

24 "(3) Any member of the public may submit evidence of

25 releases of or exposure to hazardous constituents from such a
p. 27

44 1

1 facility, or as to the risks of heaith eifects associated V61th

2 such releases or exposure, to the Administrator of 'he

3 Agency for Toxic Substances and Diseases Registry, the Ad4 ministrator, or the State (in Elie case of a State with an au3 thorized program)." .

6 (e) Section 104(1)(1) of the Comprehensive En%ironmentai Response, Compensation, and Liability Act of 1980 is

8 amended by9 (1) striking "the Surgeon General of the United

10 States" and inserting in lieu thereof "the Secretary of

11 Health and Human Services",

12 (2) inserting in the second sentence thereof after

13 ,of said Agency" the following: "(hereinafter in this

14 subsection referred to as 'the Administrator')" ;

15 (3) striking "chromosomal testing" in subpar&-

16 graph (D) and inserting in lieu thereof "appropriate

17 testing" .

18 PUBLIC PABTICIPATION

19 SEC. ill. Section 104 of the Comprehensive Environ20 mental Response, Compensation, and Liabillity Act of 1980 Is

21 amended by adding at the end thereof the following new sub22 section:

23 1) Before selection of appropriate remedial action to be

24 undertaken by the United States or a State or before entering

25 into a covenant not to sue or to forebear from suit or other26 wise settle or dispose of a claim &rising under this Act, notice
p. 28

442

I of such proposed action and an opportunity for a public meet2 ing in the affected area, as well as a reasonable opportunity

3 to comment, ihall be afforded to the public prior to final

4 adoption or entry . Notice shall be accompanied by a discus.

5 sion and analysis sufficient to provide a reasonable explana6 tion of the proposal and altemative proposals considered .".

LOVE CANAL PROPERTY ACQUISITION

8 SEC. 112. Section 104 of the Comprehensive Environ9 mental Response, Compensation, and Liability Act of 1980 is

10 amended by adding a new subsection as follows :

11 "(k) In determining priorities among releases and

12 threatened releases under the Natiorial Contingency Plan and

13 in carrying out remedial action under this section, the Ad14 ministrator shall establish a high priority for the acquisition

15 of all properties (including nonowner occupied residential,

16 commerical, public, religious, and vacant properties) in the

17 area in which, before May 22, 1980, the President deterIS mined an emergency to exist because of the release of haz19 ardous substances and in which owner occupied residences

20 have been acquired pursuant to such determination.".

21 NATIONAL CONTINGENCY PLAN-HAZABD RANXZNG

22 SYSTEM

23 Szc. 113. Section 105 of the Comprehensive Environ24 mental Response, Compensation, and Liability Act of 1980 is

25 amended by inserting "W" immedately following "105." and

26 by adding the Wowing at the end thereof:
p. 29

443

Not later than twelve months after the date of en2 actment of the Superiund Improvement Act of 19~43, the

:3 President shall revise the National Contingency Plan to reA flect the requirements of such amendments . The portion of

5 such Plan known as 'the National Hazardous Subqance Re6 sponse Plan' shall be reised to pro%rl'de procedures and

7 standards for remedial actions undertaken pursuant to this

8 Act which are consistent with amendments made by the Su9 perfund Improvement Act of 1983 relating to the selection of

10 remedial action .

11 "(c) Not later than twelve monthq after the date of en12 actment of the Superfund Improvement Act of 1985 and

13 after publication of notice and opportun~itv for submission of

14 comments in accordance with section 353 of title 5, Cnited

13 States Code, the President shall by rule promulgate amend16 ments to the hazard ranking systern in effect on September 1,

17 1984. Such amendments shall assure, to the maximum extent

18 feasible, that the hazard ranking system accurately assesses

19 the relative degree of risk to human health and the environ20 ment posed by sites and facilities subject to review . The

21 President shall establish an effective date for the amended

22 hazard ruLking system which is not later than eighteen

23 months after the date of enactment of the Superfund Im24 provement Act of 1985 and such amended hazard ranking

25 system shall be applied to any site or facility to be newly
p. 30

444

1 listed on the National Priority List after the effective date

2 established by the President . Until such effective date of the

3 regulations . the hazard ranking system in effect on Septern4 ber 1, 1984, shall continue to full force and effect .".

5 STATE AND LOCAL GOVERNMENT LIABILITY

6 SEC. 114. Section 107(d) of the Comprehensive En%i7 ronmental Response, Compensation, and Liability Act of

8 1980 is amended by inserting "(1)" after "(d)" and adding

9 the following new language :

10 "(2) No State or local government shall be liable under

11 this title for costs or damages as a result of nonnegligent

12 actions taken in response to an emergency created by the

13 release of a hazardous substance, pollutant, or contaminant

14 generated by or from a facdity owned by another person ." .

15 CONTRACTOR INDEMNIFICATIO N

16 SEC. 115. Section 107(e) of the Comprehensive Envi17 ronmental Response, Compensation, and Liability Act of

18 1980 is amended by inserting after paragraph (1) the follow19 ing new paragraph and redesignating the succeeding pars20 graph accordingly:

21 "(2) The Administrator may, in contracting or arranging

22 for response action to be undertaken under this Act, agree to

23 hold harmless and indemnify a contracting party against

24 claims, including the expenses of litigation or settlement, by

25 third persons for death, bodily injury or loss of or damage to

26 property arising out of performance of a cleanup agreement
p. 31

445

1 to the extent that such claim does not anse out oi the negil2 gence of the contracting party .- .

3 DIRECT kCTIO.14

4 SEC. 116. (a) Section 108 1c) and id) of the Comprehen3 sive Environmental Response, Compensation and Liability

6 Act of 1980 'is amended to read as follows :

In anv case where the owner or operator is in bank8 ruptcy, reorganization, or arrangement pursuant to the Fed9 eral Bankruptcy Code or where with reasonable diligence ju10 risdiction in the Federal courts cannot be obtained over an

11 owner or operator likely to ~m solvent at the time of judg12 ment, any claim authorized by section 107 or 111 ma! be

13 asserted directly against the guarantor providing evidence of

14 financial responsibility . In the case of any action pursuant to

13 this subsection, such guarantor shall be entitled to invoke all

16 rights and defenses which would have been available to the

17 owner or operator if any action had been brought against the

18 owner or operator by the claimant and which would have

19 been available to the guaran#or if an action had been brought

20 against the guarantor by the owner or operator .

21 "(d) The total lit) ility under this Act of any guarantor

22 sh&U be limited to the aggregate amount which the guarantor

23 has provided as evidence of financial responsibility to the

24 owner or operator under this Act : A-~4 That nothing in

25 this subsection shall be construed to limit any other State or

26 Federrl statuLory . contractual or common law liability of a
p. 32

446

guarantor to its owner or operator including, but not limited

2 to, the liability of such guarantor for bad faith either in nego3 tiating or in failing to negotiate the settlement of any claim :

4 Provided further, That nothing in this subsection shall be

3 construed, interpreted or applied to diminish the liability of

6 any person under section 107 or 111 of this Act or other

i applicable law ." .

8 (b) Section 108(bX2) of the Comprehensive Environmen9 tal Response, Compensation, and Liability Act of 1980 is

10 amended by adding the following: "Financial responsibility

11 may be established by any one, or any combination, of the

12 following: insurance, guarantee, surety bond, letter of credit,

13 or quaMcation as a self-insurer. In promulgating require14 ments under this section, the President is authorized to "ci15 fy policy or other contractual terms, conditions, or defenses

16 which are necessary or are unacceptable in establishing such

17 evidence of financial responsibdity in order to effectuate the

18 purposes of this Act.".

19 VICTIM ASSISTANCE PEOGRAM

20 SEC. 117.

21 FUND USE OUTSIDE rEDEBAL PEOPERTY BOUNDARIES

22 SEC. 118. Section I 11(03) of the Comprehensive Envi23 rommental Response, Compensation, and Liability Act of

24 1980 is amended by inserting before the period a colon and

25 the- Wowing- "Provide4 That money in the Fund shall be

26 avagable for the provision of alterwive water supplies (in-
p. 33

447

1 cluding the reimbursement of costs incurred by a municipal2 itv) in any case involving groundwater contamination outside

3 the boundaries of a federally owned facility in which the fed4 er&llv owned facility is not the only potentially responsible

5 party. " .

6 STATUTE OF LIMITATION S

SEC. 119. Section 112(d) of the Compreheiiisve En,.i8 rorunent&l Response, Compensation, and Liability Act of

9 1980 is &mended to read u follows:

10 "(d) No claim may be presented, nor may any action be

11 commenced, under this title12 "(1) for the costs of response, unless that claim is

13 presented or action commenced within three years after

14 the date of completion of the response action ;

13 "(2) for damages under subparagraph (C) of sec16 tion 107(a), unless that claim is presented or action

17 commenced within three yean after the date on which

18 final regulations are promulgated under section 301(c)

19 or within three years after the date of the discovery of

20 the loss and its connection with the release in question

21 or the date of enactment of this Act, whichever is

22 later; or

23 "(3) for any other damages, unless that claim is

24 presented or action commenced within three years after

25 the date of the discovery ot the loss and its connection

26 with the release in question or the date of enactment of
p. 34

448

1 this Act, whichever is later: Provided, however, That

2 the time limitations contained in this paragraph shall

3 not berin to run against a minor until he reaches

4 eighteen years of agc or a legal representative 'is dulY

.5 appointed for him. nor against an 'incompetent person

6 until his 'incompetency ends or a legal representative is

7 duly appointed for him . No claim mav be presented or

8 action be commenced under this paragraph for an~

9 damages if . prior to the date of enartment of the Su10 perfund Improvement Act 1985. the statute of. limita11 tions which would otherwise apply under this para12 mph has expired.".

13 JUDICIAL REVIEW

14 "SEC . 120. Section 113(a) of the Comprehensive Envi15 ronmental Response, Compensation, and Liability Act of

16 1980 is amended to read as follows :

17 "See. 113 . (a9l) Review of any regulation promulgated

18 under this Act may be had upon application by any interested

19 person in the Circuit Court of Appeals of the United States

20 for the District of Columbia or in any United States court of

21 appeals for a circuit in which the applicant resides or trans22 acts business which is directly affected by such regulation .

23 Any such application shall be made within one hundred and

24 twenty days from the date of promulgation of such regula25 tion, or after such date only if such application is based golely

26 on grounds which arose after such one hun&ed and twentieth
p. 35

449

day . Any matter %ith respect to which review could have

been obtained under this subsection shall not be subject to

3 judicial review in any ci%il or criminal proceeding for enforce4 ment or to obtain damages or recovery of response costs .

3 "(2)(A) If applications for review of the same agency

6 action have been Filed in two or more United States courts of

Ti appeals and the Administrator has received written notice of

8 the riling of the first such application more than thirty days

9 before receiving written notice of the filing of the second ap10 plication, then the record shall be riled in that court in which

I I the first application was filed . If applications for review of the

12 same agency action have been filed in two or more United

13 States courts of appeals and the Administrator has received

14 written notice of the filing of one or more applications within

15 thirty days or less after receiving written notice of the filing

16 of the first application, then the Administrator shall promptly

17 advise in writing the Administrative Office of the United

18 States courts that applications have been filed in two or more

19 United States courts of appeals, and shall identify each court

20 for which he has written notice that such applications have

21 been filed within thirty days or less of receiving written

22 notice of the filing of the first such application . Pursuant to a

23 system of random selection devised for this purpose, and

24 within three business days after receiving such notice from

25 the Administrator, the Administrative Office thereupon shall

L
I p. 36

450

select the court in which the record shall be filed from among

2 those Identified by the Administrator. Upon notification of

.3 such ~election, the Administrator shall, promptly file the

4 record in such court . For the purpose of re%iew of agency

5 action which has preViously been remanded ro the Adminis6 trator, the recora shall be filed in the United States court of

7 appeals which remanded such action .

s "(B) Where applications have been filed in two or more

9 United States courts of appeals with respect to the same

10 agency action and the record has been filed in one of such

11 courts pursuant to subparagraph (A), the other courts in

12 which such applications have been filed shall promptly trans13 fer such applications to the United States court of appeals in

14 which the record has been filed . Pending selection of a court

15 pursuant to subparagraph (A), any court in which an applica16 tion has been filed may postpone the effective date of the

17 agency action until fifteen days after the Administrative

IS Office has selected the coun in which the record shall be

19 filed.

20 "(C) Any court in which an application with respect to

21 any agency action has been Filed, including any court selected

22 pursuant to subparagraph (A), may transfer such application

23 to any other United States court of appeals for the conven24 ience of the parties or otherwise in the interest of justice .".
p. 37

45 1

1 CLARIFICATION OF PREEMPTION LANGUAG S

2 SEC . 121 . Section i14(c) of the Comprehensive Envi3

ronmental Response, Compensation, and Liabdity Act of

4 1980 is amended by inserting after the first sentence thereof

3 the following: "Nothing in this section shall preclude any

6 State from requiring any person to contribute to & fund to

7 pay (1) the costs of the non-Feders.1 share or other State

8 responsibilities under section 104(cX3), or (2) the direct and

9 indirect costs of response actions at facilities or locations

10 where the President hu not responded under this Act or in

11 addition to response actions taken under this Act, or, (3) any

12 other management, enforcement, or administration activities

13 related to response actions or other cleanup of hazardous sub14 stances or hazardous wastes .".

15 FEDERAL FACILIT08

16 Soc. 122. Section 115 of the Comprehensive Environ1 7 mental, Compensation, and Liability Act of 1980 is &mended

18 by inserting before the period at the end thereof a colon and

19 the following: "Provi&4 That with respect to a Federal fa20 cility or activity for which such duties or powers are delegat21 ed to an officer, employee or representative of the depart22 ment, agency or instrumentality which owns or operates such

23 facility or conducts such activity, the concurrence of the Ad24 ministrator (and the responsible State official where a cooper25 ative agreement has been entered into) shall be required for

26 the selection of appropriate remedial action and the adminis-
p. 38

452

trative order authorities of section 106(a) are hereby delegat2 ed to the Administrator" .

3 ADMINISTRATIVE C014PERE14CE RECOMMENDATIO N

4 SEC. 123 . The Congress finds that recommendation 84-

5 4 of the Administrative Conference of the United States

6 (adopted June 29, 1984), is generally consistent with the

7 goals ard purposes of the Comprehensive Environmental Re8 spon3e, Compensation . and Liability Act of 1980, and that

9 the Administrator should consider such recommendation and

10 implement it to the extent that the Administrator determirics

I I that such implementation will expedite the cleanup of hazard .

12 ous substances which have been released into the environ13 ment.

14 AUTHORIZATION OF APPROPRIATION S

15 SEC. 124. (a) Section 221 of the Comprehensive Env-i16 ronmental Response, Compensation, and Liability Act of

17 1980 is amended by striking "as provided in this section" in

IS subsection (a); striking paragraphs (2) and (3) of subsection

19 (b); and by striking subsection (c).

20 (b) Section 303 of the Comprehensive Environmental

21 Compensation and Liability Act of 1980 is amended to read

22 as follows:

23 AUTHORIZATION OF APPROPSIATIONS

24 "Szc. 303. (a) There are hereby authorized to be appro25 priated, out of any money in the Treasury not otherwise ap-
p. 39

453

1 propriated, to the Emergency Response Fund for fiscal

2 year3 "(A) 1981, $44,000,000,

4 "(B) 1982. S44,000,000,

3 "(0 1983, $44,000,000,

6 "(D) 1984, $44,000,000,

7 "M 1985, $44,000,000,

8 "(F) 1986, $206,000,000,

9 "(G) 1987, $206,000,000,

10 "(M 1988, $206,000,000,

11 "(D 1989, 3206,000,000, and

12 -(J) 1990, $206,000,000 ,

13 plus for each fiscal year an &mount equal to so much of the

14 aggregate amount authorized to be appropriated under sub15 pararaphs (A) through (r) as hu not been appropriated

16 before the beginning of the fiscal year involved .".

17 "(b) TxAx3FZB OF FuNDs.-There shafl be transferred

18 to the Response Trust Fund19 "M one-half of the unobligated balance remaining

20 before the date of the enactment of this Act under the

21 Fund in section .1 L 1 of the Clean Water Act, and

22 "(2) the amounts appropriated under section

23 504(b) of the Clean Water Act durirtg any fiscal year.

24 "(C) ExpzNDITUIZa Fxom RzopoNsa TxUBT

25 FUND,
p. 40

454

1 "(1) IN GENERAL .-Amounts in the Response

2 Trist Fund Shall be ttvailable in connection v6ith re3 leases or threats of reieases of hazardous substances

4 into the enVironment only for purposes of makine ex5 penditures which are described in section 111 (other

6 than subsection (j) thereof of this Act . as in effect on

I the date of the enactment of the Superfund Improve8 me-it Act of 1985, including9 "(A)response costs ,

10 "(B) claims asserted and compensable but

11 unsatisfied under section 311 of the Clean Water

12 Act,

13 "(C) claims for injury to, or destruction or

14 loss of, natural resources, an d

15 "(D)related costs described in section 11 1(c)

16 of this Act .

17 "(2) LIMITATIONS ON EXPENDITUREs .-At least

is 85 per centurn of the amounts appropriated to the Re19 sponse Trust Fund shall be reserved20 "(A) for the purposes specifed in paragraphs

21 (1), (2), and (4) of section I I I (a) of this Act, and

22 "(B) for the repayment of advances made

23 under section 223(c), other than advances subject

24 to the limitation of section 223(cX2XC).
p. 41

590

calendar No. 1 3

99TH CONGRESS

SENATE REPORT

ISt SeSSIon 99-1 1

SUPERFUND IMPROVEMENT ACT OF 1985

REPORT

OF TH E

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

TO ACCOMPAN Y

S. 51

together with

ADDITIONAL AND MINORITY VIEWS

MAR01 IS (legislative day . FEBRUARY 18) . 1985.-Ordered to be printed

U .S. r.0V1CRNNZNT PRINTING OFFICE

44-W 0 WASmINGTON : 1995
p. 42

59 1

OOMMMEE ON ENVIRONMENr AND PUBUC WORKS

ROBERT T STAFFORD. V*rmant. Chairma n

JOHN H CHAFEE. Rhode Island LLA)YD BENTSEN . Team

ALA14 K SIMPSON, Wymng QUENTIN 11, BURDICK. North Dakota

JAMES ABDNOR. South Dakota GARY HART . Colorad o

S77EVE SYMMS. Idaho DANIEL PATRYCK MOYNIHAN . New York

GORDON J HUMPHREY . Now Hampshire GEORGE J . MITCHELL Mama

PETE V DOMENICI. New Mexico MAX BAUCUS. Montana

DAVE DURENBERGER. Minnesota FRANK R. LAUTENBERG . Ne- Jersey

BAlUrV GUARD. Ssaff Director

LAz 0 FuLLim. Mmontv Staff Dtimcsor

till

75-033 0 - 90 7
p. 43

592

CONTENTS

pw' General Statement . . . . . . . . . Summarv and Discussion Title I

Sec . 101-Indian Tribes . .. Sec 102-Community Relocatio n

Sec t03-Offsite Remedial Action 7

Sec . 104-Alternacive Water Supplies . . . 7

Sec . 105-Improvements in Notification and Penaltie s

Sec 106-Hazardous Substances Inventory Sec . 107-Scope of Program . . . . . . . . .. . . . . . . . Sec . 109-Statutory Limits on Removal . . . . . . . . . . Sec . 109-State Cr~dit . . . . . . . . . . . . .. . . . . . . . . . . . . . . . Sec . I 10-Funding of Remedial Action of Facility

Sec . I I I -Selection of Remedial Actions . . . . . . . . . . . Sec . 112-State and Federal Contributions to Operation and Maintenance . .. . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . .. . 21)

Sec . 113-Siting of Hazardous Waste Facilities . . . . . . . 21

Sec . 114-Cooperative Agreements . . . . . . 24

Sec . 115-Access and Information Gatherin g

Sec . 116-Heaith-Related Authorities . . . . . . . . . . . . . . . . . . . . Sec Sec

Sec

. 117-Public Participation . 118-Love Canal Acquisition

. 119-Adminuitrative Orders for Section 104,B) Actions

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Sec. 120-National Contingency Plan tHazardous Ranking System, .19

Sec . 121-National Contingency Plan . . . . . . . . . . . . . . . . . . . . .. .. . . . . . 41

Sec. 122-Foreign Vessels . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 41

Sec. 123-State and Local Government Liability . . . . . . 42

Sec. 124-Contractor Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 42

Sec. 125-Natural Resource Damage Cla,ms . . . . . . . . . .. . . 4 :3

Sec . 126-Contribution and Parties to LiLigation . . . _ . I . . . 43

Sec. 127-Federal Lien . . .. . .. . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 .5

See . 128-Direct Action . . . . .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 46

Sec . 129-Victim Assistance . . . . . . . . . . .. . .. . . . __ . . . . . . . . . . . . . . . . . . . . . . .. 48

Sec . 130-Fund Use Outside Federal Property Boundaries 54

Sec . 131-Statute of Limitations . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . .. . -)4

Sec. 132-Judicial Review .. . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . .. .

. -'5

Sec. 133-Pre- Enforcement Review . . . . . .. . . . . . . . . . . . . . . . ~7

Sec . 134-Nationwide Service of Process . . . . . . . . . . . . . . . .. .. . . . . . . . ~9

Sec . 135--Preemption . . .. .. . .. . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . _)9

Sec . 136-Federal Facilities Concurrence . . . . . 61)

Sec . 137-Federal Facilities Compliance . . . . . 6#1

Sec Sec . 138--Citizens Suit . 139-Administrative Conference Recommendation ~ . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . ~1

;4

Sec . 140-Authorization of Appropriations . . . . . . . 61,

Title [L

Hearings

Animal Feed Exemption

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Rolleall votes . .... ... . . . . . . . . ... .. . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 69

Evaluation of regulatory impact . . . . ... .. . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . .. . 69

Cost of legislation . . .. . . . . . . . .. . .. . .. . . . . . . . . . . . ... . . . . . . . . . .. . . . . . . . . . . . . . _ . . . . . 70

Additional views of

Senator Lautenberg .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . 73

Senator Simpson . . . . . .. . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . .. . 75

Minority views of Senator

Changes in existing law . . . .

Symms

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p. 44

Calendar N() . 1 3

99TH CONGRESS REPORT

SENATE Ist S

SUPERFUND IMPROVE.MEN'r ACT OF

MARCH is ilegislative day, FEBRUARY IS), -Ordered to be printed

Mr. STAFFORD, from the Committee on Environment and Public

Works, submitted the following

REPORT

(To accompany S . 511

together with

ADDITIONAL AND MINORITY VlEWS

The Committee on Environment and Public Works . to which was

referred the bill (S. 51) to extend and amend the Comprehensive

Environmental Response, Compensation. and Liability Act of 19SO,

and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill aS

amended) do pass.

GENERAL STATEMENT

PURPOSE AND SUMMAR Y

S. 51, as amended, amends the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 to provide S7 5

billion in additional funding over a five-year period. Of this S7, .5

billion, $1 .030 billion is to be derived from general revenue and

presumably $6 .470 billion from special taxes. Jurisdiction over the

amount and nature of the tax lies with the Committee on Finance.

The overriding purpose of S. 51 is to expand and accelerate the

Federal Government's program to clean up and otherwise protect

the public health and environment from releases of hazardous substances and wastes. To this end, S. .51. not only prov .des additional

money and time, but makes changes in the law which improve the

pace and direction of those cleanup efforts. Title I of the bill estab44-6070

7y
p. 45

594

2

lishes cleanup standards to be applied so that human health and

the environment is protected in every circumstance ; a health pro- g7ram to assure that at each Superfund site a thorough review and

assessment is made of the threats posed to human health ; a chemi- cals testing program to develop adequate information on frequentiv

encountered hazardous substances ; and a grant program to assis-E

States that wish to establish demonstration systems of assistance

for victims of hazardous substances and wastes .

BACKGROUND AND NEE D

The modern chemicals technology which has contributed so

greatly to this Nation's standard of living has also left a legacy of

hazardous substances and wastes which pose a serious threait to

human health and the environment . By some estimates, there are

over 20,000 abandoned hazardous waste sites in the United States .

In large areas, drinking water supplies are contaminated by synthetic organic chemicals, including a large number of supplies

which rely upon groundwater, a resource generally thought to be

safe from contamination . Unfortunately, the Environmental Protection Agency estimates that for groundwater systems serving less than 10,000 persons, one of every six supplies is contaminated bv

volatile chemicals and nearly one of every three of the larger sv s-'

tems.

It was to deal with such problems that the Congress enacted the

Comprehensive Environmental Response, Compensation, and Li- abilit7 Act of 1980, which quickly came to be known as the "Super- fund' . The law authorized a rive-year, $1.6 billion program to clear

up releases of hazardous substances, pollutants and contaminants.

It also created a new health agency, the Agency for Toxic Sub~

stances and Disease Registry, located within the Department of

Health and Human Services . The bulk of the clean up program,

however, was delegated to the Environmental Protection Agenc y

During the four ears which have passed since enactment o(the

Superfund law, puglic concern has intensified . In some areas and

States, public opinion polls show that the public is more concerned

over the problem of hazardous substances and wastes than any other domestic issue.

The Enviornmental Protection Agency has now embarked on an

aggressive program to clean up 115 Superfund sites per year and

estimates that it will be called up to react to up to 200 emergencies annually. The Assistant Administration has testified that a fiveyear extension of this program would require an additional $5.2 bil- lion. But this estimate fails to take into account other important

and substantial demands on the Fund . It does not . for example, allow leeway for the payment of any claims for natural resource

damages, one of the law's most important, but still unimplemented,

components . The estimate also does not allow any room for increase in the cost of cleanup per site beyond the current estimate,

even though the Agency's previous proj. ections have climbed in the !past four years from $2.5 million per site to $6.5 million in 1984 and, most recently, $8.3 million. Finally, the estimate assumes that between now and 1990, which is the expiration date of the five-year extension, there will no inflation. Based on this, it seems clear that
p. 46

even ~, ,Imple extension of the CUrn--rit proaram will requir e

stantially more than 2 billion . With the addition 01 nev. re~,pt)risibilities in this bill lestirriaLed by the AL:encv to CosL :~', to -~l _1 billion over 5 vears) . the Committee concluclc~ that Lin appropriate

five-vear funding levi_-l was ~-j .7) billion . as contained in the reported bill .

STATEMENT OF PRINMPLES

During POS4 Committee consideration of a Superfund extension .

it was noted that neither that bill nor the existing law included a

statement of principles or goals and objectives, and several Members beheved that such a statement would be worthwh!1e . The existing statute was designed to help address many of the problems

faced by our country as a result of toxic chemical contamination

The statute does not and is not intended to replace other laws

which provide the regulatory foundations to address a variety of

these toxic chemical concerns . The existing statute and this reauthorization are structured to complement these laws . It is intended

to provide the authority and resources to clean up hazardous substance releases .

The problem of hazardous substances in the environment is complex. Nonetheless, certain basic principles setting out the elements

necessary to address these problems can be identified. These principles are:

First, to provide ample Federal authority for cleaning up releases of hazardous substances, pollutants and contaminants :

Second. to assure that those responsible for any damage, contamination, environmental harm or injury from hazardous substances bear the costs of their actions ;

Third, to provide a fund to finance response actions where a

responsible party does not clean up, cannot be found or cannot

pay. This fund should be based primarily (,n contributions from

those who have been generally associated with such problems

in the past and who today profit from products and services associated with such substances ; and

Fourth, to provide adequate compensation to those who have

suffered economic, health, natural resource, and other damagesBy implementinj the preceding principles, the major objective of

the statute will be accomplished : to provide an incentive to those

who manage hazardous substances or are responsible For contamination sites to avoid releases and to make maximum effort to clean

up or mitigate the effects of any such release .
p. 47

4

SUMMARY AND DISCUSSION

TITLE I

INDIAN TRIBES

SUMMARY

This section adds a definition of Indian tribes to the definitions

contained in section 101 of CERCLA. The section also provides that

the requirements for prior assurances from a State that it will pav

a share of the costs of remedial action and the costs of future main .

tenance shall not apply to remedial actions undertaken on Indian

lands; and that in such cases the Federal Government, instead of

the State, shall assure the availability of acceptable facilities to

manage any hazardous substances removed from the site . The bill

also authorizes Indian tribes to recover damages for injury to . destruction of, or loss of natural resources resulting from releases of

hazardous substances . The amendment also provides that Indian

tribes are to be afforded substantially the same treatment as States

under certain specific provisions of CERCLA .

DISCUSSIO N

CERCLA does not now expressly indicate under what terms and

conditions the Superfund program applies to Indian lands . Section

101 of the bill would eliminate the resulting uncertainty and ambiguity by specifying how the program operates within Indian lands . Subsection (a) of the amendment adds to the Act a new definition

of Indian tribes specifying that, for the purposes of CERCLA, the

Indian tribes to be covered by the provisions of this amendment include any Indian tribe, band, nation, or other organized group or

community, including an Alaska Native village, which is recognized as eligible for the special programs and services provided by

the United States. The term does not include Alaska Native regional or village corporations, which are organized for other purposes . Subsection (b) of the amendment limits the requirements of section 104(cX3) of CERCLA in the case of responses to be performed

on Indian lands. That section provides that before remedial action

is to be undertaken under the Superfund program, there must be

prior assurances from the State that it will pay a share of the remedial costs and future maintenance costs, and will assure the

availability of an acceptable facility to manage any hazardous substances which are being removed from the site . The amendment in

subsection (b) would provide that the first of these two requirements-for a State cost share-would not apply in the case of remedial action on Indian lands. The Federal government would instead y, all remedial action and maintenance costs from the

Fund

.

ge second requirement-for an available facility to manage

any hazardous substances removed from the site-would continue

to apEly if the site is on Indian land, but the Federal government,

not t e State or the Indian tribe. would be charged with the responsibility of assuring the availability of the facility . These special
p. 48

provisions are justified by the unique trust responsibilitv which th e

United States has for Indians .

The amended requirements for remediai action on Indian lands

would apply whenever the remedial action is to be taken on land

or water held by an Indian tribe ; held by the United States in trust

for Indians: hel~ by a member of a tribe~ if the land or water is subject to a trust restriction on alienation as is the case with allotment lands that are held by a member of a tribe subject to a prohibition against conveyance to anybody other than another tribal

member,; or otherwise within the boraers of an Indian reservation

isuch as non-Indian land within a reservation) ,

Subsection to of the amendment expressly provides that the Federal Government, upon determining that an Indian tribe has the

capability to carry out any or all of the response authority authorized by section 104 of CERCLA may enter into a contract or cooperaltive agreement with the tribe for that purpose and reimburse the

tribe from the Fund for the expenses incurred under that contract

or cooperative agreement . Any such contract or cooperative agreement would fall within the scope of section 7(b) of the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 450e. fb)),

which provides that "Any contract, subcontract . grant . or subgrant

pursuant to * ' * any other Act authorizing Federal contracts with

or grants to Indian organizations or for the benefits of Indians"

shall afford maximum opportunities for employment and training

of Indians. and shall require a preference for awards to be made to

Indian organizations and Indian-owned businesses in any subcontracting under the contract or cooperative agreement. Subsections (d) and (e) of the amendment provide that Indian

tribes may recover damages for injury to, destruction of, or loss of

natural resources caused by the release of a hazardous substance .

This provision would give an Indian tribe the same rights under

sections 107 and Ill of CERCLA (with respect to natural resources

belonging to, managed by, controlled by, or appertaining to the

tribe; or held in trust for the tribe ; or belonging to a member of the

tribe if the resources are subject to a trust restriction on alienation, as is the case of allotment lands held bv individual tribe

members subject to a condition that they not be~ conveyed to anybody other than another tribal member) as a State has under those

sections (with respect to natural resources belonging to, managed

by, controlled by, or appertainirif to the State). This provision does

not extinguish the United States trust responsibilities with respect

to Indian resources, but merely provides that a tribe itself may act

to recover damages instead of relying on the United States to do so

on its behalf. Accordingly, another amendment on statute of limitation (section 131 of this bill) would provide that the statute of limitations for asserting natural resource damage claims does not start

to run against an Lndian tribe until the United States either notifies the tribe that it will not seek damages on the tribe's behalf or

allows the normal time period for filing such claims to pass without riling on behalf on the tribe .

Subsection M of this amendment would add a new section to title

I of CERCLA, specifying that Indian tribes are to be afforded substantially the same treatment as a State under certain specified

provisions of CERCLA. With regard to the provisions of section 105.

an Indian tribe is to be afforded substantially the same treatment
p. 49

as a State with respect to all provisions other than the pro% ision

regarding the inclusion of at least

0

ne site per State on the nat ;onat priority list. As a result, a tribe would be able to establisn and

submit for consideration by the President priorities for remedial

action among known and potential releases affecting the tribe in

any manner. but would not be assured that at least one such site so

proposed by the tribe would be triciuded among the one hundred

highest priority sites .

COMMUNITY RFLOCATION

SUMMAR Y

This amendment expands the statutory definition of ''removal''

in section 101(23) of the CERCLA to provide the President with the

discretion to fund as part of removal : permanent relocation of businesses, residences, and community facilities~ payment of principal

and interest on business debts during a temporary relocation antil

temporary relocation ends or until permanent relocation is accomplished); and payment of unemployment compensation to individuals unemployed as a result of an evacuation or a relocation The

amendment authorizes the President to provide permanent relocation as the most appropriate remedy at a site even when the site is

not on the National Priorities List . The payment of principal and

interest on business debts is limited to those businesses which are

located in the area of an evacuation or relocation .

DISCUSSION

The language is added to clarify the Presidents authority and

flexibility to deal with situations such as that presented by ~ioxin

contamination in Missouri. Specifically, the amendment provides

that the President can move immediately to permanently relocate

the residents of a contaminated site if such a step is found o be

cost-effective or may be necessary to protect health or welfare For

example, in some cases it may make more sense-economical!

' v

and

socially-to buy up and seat off a highly contaminated residential

area immediately, rather than locate the residents and indefinitely

in temporary housing during a protracted, possibly impractical

cleanup.

The amendment also gave the President the authority to pay the

interest and principal on business debt during a peri~d of re'-nporary relocation . Temporary relocation is intended to protect the

residents of contaminated area, but when a communitv is evacuated, businesses are cut off from their customers . Their income

abruptly ceases, while their obligations continue unabated Thus,

they are not protected, but are harmed . This amendment seeks to

hold them harmless with respect to business debt only . There is no

intent to make up for lost income.

The President also would have specific authority to provide special assistance to individuals unable to work as a result of such an

evacuation. In effect, the same assistance would be available as it

already available in nature disasters-unemployment and reempioyment assistance, food stamps, and grants to meet necessary expenses of serious needs not covered by other aid programs . As
p. 50

599

7

under the Disaster Relief Act, this assistance would be provided by

Federal agencies with appropriate programs and expertise. using

money from Lhe Superfund, and not directly by the Environmental

Protection Agency . This is a clarifying amendment, not substantially altering the

scope of intent of CERCLA .

OFFSITE REMEDIAL ACTION

SUMMARY

This section amends section 101(24) of the Act to eliminate an existing bias in favor of on-site disposal as the prefe"ed remedial

action. The amendment will allow off-site disposal as part of remedial action with no need for any special findings by the President.

DISCUSSION

Section 101(24) of CERCLA, which defines "remedy or remedial

action," provides that additional threshold criteria must be met

before the President may undertake off-site disposal of hazardous

substances . This creates a bias against off-site disposal and reflects

past Congressional emphasis on disposal on-site as a preferred remedial action .

The objective of the amendment is to eliminate the statutory bias

for on-site remedies by making the statute neutral with regard to

on-site or off-site rem~dies . Off-site treatment and other alternative

technologies are often preferable to on-site land disposal .

The primary effect of this amendment will be to reduce the proliferation of sites requiring monitoring in perpetuity (by consolidating wastes from many sites into one larger and closely monitored

facility), by recognizing the value of permanent off-site remedies

such as treatment.

ALTERNATIVE WATER SUPP ES

SUMMARY

The reported bill defines the term "alternative water supplies"

in new section 101(34) to include, but not be limited to, drinking

water and household water supplies

DISCUSSIO N

The current law authorizes the provision of alternative water suplies in removal and both remedial actions . The Committee was

made aware of situations in which this authority has been used to

replace drinking water but not household water . This section

makes it clear that household water must be replaced when this

authority is invoked . The prompt provision of household water supplies should minimize the unfortunate situations in which citizens

are bathing, washing clothes, and carrying out household chores

with water contaminated by a release under this Act .

The replacement of all water, not just that used for drinking, is

important for protection of human health. For many chemicals, especially volatile organics, the major exposure route is not through
p. 51

600

8

consumption in drinking water, but inhalation after the volatile

liquids enter the household atmosphere due to showering, laundering, cooking, etc . Similarly, for some chemicals skin absorption

through contaminated clothing can be a significant exposure route .

For these reasons, prudence demands that when drinking water

supplies are replaced, household water supplies should be replaced

as well .

IMPROVEMENTS IN NOTIFICATION AND PENALTIES

SUMMAR Y

The reported bill amends section 103 of the Act to require

prompt notification of State and local emergency response officials

to the release of certain hazardous substances. This requirement

applies to any release of a hazardous substance with a reportable

quantity established under section 102 of one pound or less, and to

releases of any other hazardous substance in quantities exceeding

that determined by the President by regulation potentially to require emergency responses . Section 103(b) of the Act is also amended to increase criminal

penalties for failure to report to a maximum fine of $25,000 or Lmprisonment for up to two years, or both . The penalty for subsequent convictions is a fine of up to $50,000 or imprisonment for up

to rive years, or both . In addition, the maximum fine for destruction or falsification of records under section 103(dX2) is increased to

$25,000, and the maximum fine for failure to comply with an order

under section 106 is increased to $10,000 per day .

The reported bill adds a new subsection (g) to section 103, establishing an administrative civil penalty for failures to provide

timely notification under subsections (a) or (b). The penalty is graduated, at not more than $10,000 for the first failure, $25,000 for a

second violation by the same person, $50,000 for a third violation.

and $75,000 for a fourth or subsequent violation . Such penalties

may be assessed by the President after notice and an opportunity

for hearing. District court review of the penalty is on the record .

DISCUSSION

Section 103(a) of CERCLA requires any person in charge of a

vessel or facility to notify the National Response Center as soon as

the person in charge has knowledge of any release of a hazardous

substance in an amount that equals or exceeds the reportable

quantity established under section 102. These notifications serve as

one basis for the Federal Government to determine whether response action is appropriate for the release . One problem that has

emerged, however, is that notification of the National Response

Center may not be relayed quickly enough back to the State and

local authorities who must provide the first line of emergency response . The reported bill corrects that problem by requiring immediate direct notification of State and local emergency response off-icials for releases of highly toxic substances, and particularly those

determined by regulation potentially to require response on an

emergency basis . In these emergency situations, every minute may

count in taking effective action, and immediate notification of local

authorities is essential. Ordinarily, delays in making the require d

(I
p. 52

notification should not exceed 1 .5 rninutes ,fter the per~on ! n

charize has knowledge of the release . and - ;mniediate rioLit-i-ILIon

requires shorter delays whenever practicabl e

The provision of this notice to many State -nd local wencie*~

may be a problem. particularly in areas whert . nianv jur!~,diction :~

mav be affected . It would be helpful If 10Cal CoIlLingelicv s pian, o r

emergency response plans would identify it limited number ot local

agencies tor primary notification . It this- were done . notice to ,iuch

agencies would constitute adequate notice under section 10 :3,aj and

(b)

The existing statute provides only criminal penalties Ior failure

to report. This amendment increases the criminal pendiLV and

allows the administrative imposition of civil penalties Adniinistrative civil penalties for violations of notification requirements have

several advantages . For example. civil penaities may be imposed in

situations where the violations do not merit the sanctions associated with criminal violations . In addition. the availabilitv of' an

easily-imposed civil penaltY will increase Lhe incentive to comply

with the notification requirements Any administrative hearin,~s

conducted pursuant to this section are expected to be informal . i.e .

not Subject to the requirements of sections 554 or 556 of tit!e .7) .

United States Code. Penalty actions may be brought at any time

after the failure to notify . Use or non-use of the administrative

civil penalty in no way affects or limits the President's ability to

take action under other provisions.

HAZARDOUS SUBSTANCES INVENTORY

SUMMARY

The reported bill adds subsections (h) and G) to section 103 of the

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. These subsections require affected facility owners or operators to prepare and distribute an inventory of

hazardous substances and their characteristics .

A hazardous substance for the purpose of this subsection is as defined under section 101(14) of CERCLA. A mixture containing I

percent or more of such a hazardous substance is considered to be a

hazardous substance under this subsection . The affected facilities

are those that manufacture a hazardous substance or store 6.000

kilograms or more of a hazardous substance, and have ten or moi-e

full-time employees . The inventory is required to be completed and distributed within

six months after enactment and at least every two years Ehereafter. Subsection (h) requires affected facilities to File ~heir Material

Safety Data Sheets (MSDS), alreadv required bv the Occupational

Safety and Health Administration (OSHA), as

'

part of the inventory

form. OSHA requires affected firms to indicate through the MSDS

the name of the substance, its characteristics, adverse health effects due to exposure, proper emergency procedures and handling

precautions. Additionally, this subsection requires affected facility

owners or operators to provide data on the use, emissions, discharge, and disposal of each hazardous substance . Current emi!:-

sions information used to satisfy Federal or State statutory envi-
p. 53

602

10

ronmental reporting requirements may be used on the inventorv, where appropriate.

The facility owner or operator is required to distribute the inven.

tory form to State and local emergency response personnel : the State police, health . and environmental departments ; area Police and Fire departments ; area emergency medical services ; area hospi- tals; area libraries; and the President .

The President is required to establish an -'~()O- telephone number that is staffed 24 hours per day to answer quesvons about

the inventory and information it contains . The telephone number

must also be computer accessible .

The President, or the President's designee, may verify the data

contained in the inventory using the authority of existing section

104(e) of CERCLA. Information submitted on the inventory . except health and safety data, is subject to the provisions of IS U .S.C . sec- tion 1905. The perralty for false or knowing omission of material

statements is a maximum fine of $25,000 or imprisonment for not more than one year, or both .

State laws requiring equivalent or different information are explicitly not preempted by this amendment .

The amendment also requires that the list of substances for

which the inventory is required be updated every two years bv the

Director of the National Toxicology Program i NTP), in consultation with other appropriate agencies . The list prepared by the NTP shall be promulgated by the President u .iless the President demon- strates that the risk posed by a particular chemical is not equal to or greater than the risk posed by hazardous substances already listed.

DISCUSSION

The Hazardous Substances Inventory, required under this section, is designed as an initial and continuing monitor on the movement of hazardous substances, an aid to regulatory efforts under

environmental statutes in minimizing releases of such substances,

and a method for preparing appropriate response authorities to

handle releases of hazardous substances in an effective manner . In this way, both human health and the environment can be better protected . It will remedy a deficiency in the amount and availability of current information concerning the production, use, and disposal of hazardous substances .

This amendment is based on the New Jersey right-to-know legislation, which has an inventory component . The State inventory

and distribution of the inventory to the community is widely sup- ported by recipients of the inventory, industry, and the general public. In 1978, before the passage of the New Jersey right-to-know

legislation, the New Jersey Department of Environmental Protection conducted an industrial survey. New Jersey's experience with the survey is encouraging; within two months State officials re- ceived over 7 .000 responses to their inventory form . This amendment and the notification and penalties amendment

to section 103(a) of CERCLA work in concert to upgrade the quality

and timeliness of information that is provided to State and local

emergency response and medical personnel . Other amendments,

consistent with those in the reported bill, may be considered by the Committee as possible floor amendments for the purpose of ad-
p. 54

Iressina emergency planniniz for facilities as well as reiease prevention, containment, and countermeasures

While there is broad need for additional information about

chemicals in cominerce, the inventory requirements of this section

apply only to those substances considered to be hazardous under

section llil(14) of' CERCLA. This definition encompasses substances

that are designated as hazarcinus under the Clean Water Act, the

Solid Waste Disposal Act, the Clean Air Act . and the Toxic Substances Control Actr as well as substances specifically designated

under CERCLA.

The list of' ha7.ardous substances that is covered bv this amendment is intended to be reviewed and modified by the National Toxicology Program, with the consultation of appropriate Federal ager,

cies, every two years. The Administrator is to promulgate this list

within six months unless there is a reasonable basis for concluding

that the substances added bv NTP do not present an equal or

greater risk than those substances alreadv listed . In making this

determination, it is expected that the Administrator will consider

both acute and chronic health effects and environmental effects of

the substance in question .

For the purpose of this amendment, a "hazardous substance" includes mixtures that contain one percent or more of such hazardous substances . This mixture rule is similar to that under the

Hazard Communication Standard promulgat?d by OSHA. and is

different from the RCRA rn~xture ruie, under which all mixtures

containing any amount of a hazardous waste are considered hazardous unless specificaily delisted.

This use of the mixture rule in the clefinition of "hazardous substance" does not extend the coverage of this amendment to Finished

consumer products such as those that might be found in a retail

store, where such products do not present a threat of a release

from a facility. This is consistent with the definition of a "faci

I

ity

. .

contained in existing section 101(9) of CFRLCA, and its reference to

consumer products.

Not all facilities that have hazardous substances of the premises

are covered. The scope of the amendment is restricted to include

all manufacturers of a hazardous substance or facilities that store

more than 6,000 kilograms of'such a substance after the date of enactment. This latter requirement is consistent with permitting requirements under the Hazardous and Solid Waste Amendments of

1984, which allow certain small quantity generators to store not

more than 6 .000 kilograms of hazardous waste without a permit for

up to six months (rather than the general rule of 90 days). A final

limitation is that facility owners or operators must have at least

ten full-time employees.

The contents of the inventory are based on the New Jersey rightto-know legislation and the Material Safety Data Sheet required by

OSHA. The MSDS requires primarily identification of the substance and health and safety data so emergency response and medical personnel can appropriately respond to releases of and exposure to the hazardous substance. Recognizing that this is insufficient to provide a full view of possible exposure pathways, the

amendment also requires facility owners and operators to provide

data on the emissions, discharges, and disposal of the hazardous
p. 55

604

12

substance. The inventory will therefore begin to track substances

that may be constituents of future Superfund sites .

The President should use the form that follows as a basis, eonsistent with this subsection, for the inventory form the President is

required to publish within 60 days after enactment . As stated in

the amendment, this requirement is exempt from the Paperwork

Reduction Act and the Office of Management and Budget Circular

A-40 so that this deadline will be met by the Presi4ent.
p. 56

605

1 3

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p. 57

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In compiling this information, the amendment state- tha t

sions reporting information used to satisfy Federal and State 17IM'.1- ronmental laws may also be used on the in ventor-, " here apf)r,) ori- ate. This means that such person would not have to underta

new waste monitoring program . for example, provided data colkfct

ed for other purposes are accurate . However. it is aiso importan! C)

assure unit ormity within the database when inventory repi,rt .s from various persons are combined . Therefore . the President 77,i~

require persos submitting inventory forms to convert existinL~ ~,ata

to common units for the purpose of reportinL, under lhts subsec~ ;,) n

In order to facilitate consistency in reporting, Cdcilit% owners ind

operators submitting inventories should state the method rt~~ ;,d

upon for their emissions calculations . if the origin _'d data ~, n

quantities different from those required under the hazardous UD- stances inventory . The President may wish to promote f

.urtnotor

standardization and reliability be developing methods . or inclu~-.i,-IL'

methods from other programs, when publishing the in%entor~, "-,rm

for calculating or estimating emissions . These can be used b,~ o'-

fected facility owners and operators so units are calculated or e~-imated bv reliance on the same methodology . Additionally, estimates may be used where the information is not

otherwise reasonably ascertainable . Information is reasonabi-v as . certainable under this subsection where it is generallov krown to

others similarly situated or is capable of being obtained at reasonable cost. Thus . in situations where owners or operators of simiiarl~

sized facilities generally know what their hazardous substances

emissions are, all other facilities in the same category should prcvide similar information.

The inventory is to be distributed by the facilitv owner or operator to State and local entities specifie~ in the am-endment and , ~h e

President and to the public upon request . The purpose of thi~ i!-

tribution is to provide adequate and timely circulation of the ir% ~~ n- tory so those who might be affected by a release would have ac_-z;

to relevant data concerning the hazardous substance Several

nesses testified as to the difficulties which confront emergenc -esponse personnel when they are called upon to respond to the 7-

lease of a substance with unknown characteristics and clan _~-rS

Access to the information contained on the inventorv should dirmnish this problem. In addition, the amendment creates a mechzqnism

for providing basic information about hazardous substances . tntfir

releases to the environment, and potential health effects to ~he

general public . In a report to the Committee . the Conaressionai Re- search Service estimated that 96 million persons live in proximit%

to facilities manufacturing chemicals .

In order to meet the goals of making the inventor

' v

available widely and in a timely fashion . the President is requiring in zu Ib- section (hX6) to establish a toll-free telephone nun,.ber tha, is

staffed 24 hours a day . The President is required to infurm -State

and local officials within 60 days of estabii6hrient of such zelephone number and its accessibility by computer . so States mao,. atilize this information, by computer or other means . The President

should conduct educational programs to alert the public about the

availability of the '800" number and the inventory . This provision

is intended to expand the access to the inventory . Similarly, the re-
p. 58

607

1 .5

quirement-tkat the-IMin-ber be computer accessible enlarges the

population that can gain meaningful access to information about

these hazardous substances . This information should be computerized as quickly as possible in order to make it accessible to Federal

(within EPA as well as outside the agency) and State officials and

public. The President may wish to utilize the information management systems developed by the EPA Office ot'Toxic Substances for

this purpose, rather than create a new system . Modification of the

existing system to accommodate information obtained under this

section can be accomplished within three months at a cost of approximately $50,000, according to the EPA. It is expected that the

President will maintain the inventory information .

The amendment also provides that the President may verify data

submitted in the inventory, using the authority in section 1041e) of

CERCLA. The same paragraph addresses the issue of protected

business information. Protection is afforded under 18 U.S.C. Section 1905 for qualified data . except for health and safety data iincluding release data). which is specifically denied protection under

existing section 104(e)(2) of CERCLA . As in other environmental

laws, release data is not entitled to protection . It is expected that

few, if any, claims for protection would be made, and all such

claims would be closely scrutinized by the Administrator and the

States. This is particularly true regarding any potential claims of

confidentiality for identification of the hazardous substance . The

value of the health and safety data (which is excluded from protection) and other information required in the inventory is dependent

upon some identification of the hazardous substance .

Penalties for failure to comply with the provisions of the inventory amerdment are the same criminal sanctions adopted for other

violations of Superfund: $25,000 maximum fine upon conviction

and up to one year imprisonment or both . Many states have responded to the lack of adequate data about

hazardous substances by enacting their own legislation . While this

amendment establishes a national inventory system, it in no way

preempts States from continuing or initiating their own inventory

of hazardous substances that are within their borders, regardless of

whether the information required by the States is equivalent or in

addition to the information required to be provided in this section . Compliance with this section over the next few years should provided a sound basis for determining where hazardous substances

are being produced and what is happening to them after they are

produced. This information is essential in reducing human arid environmental exposures to hazardous su61tances .

SCOPE OF PROGRAM

SUMMARY

This section amends section 104 (response authorities) to clarify

that the President should give primary attention to releases which

may present a public health threat and that the President has the

discretion to decide when responsible parties are authorized to conduct response in lieu of Fund-financed response . It also makes

more explicit the fact that certain circumstances which may
p. 59

present L~enuinu threat.-; to human hea-Ith, welfare or th-tf

ment are not within the ~,cope of* CERCLA .

DISCUSSION

Authorit to respon d

Section 104(api 1) of the Act Curr~~ntlv authorizes response 'iction

"unless the President determines that such removal or remedi .ii

action will be done properl - %, by the owner or operator of' the I'acilit'.

. . . or by any other responsi6le party ." Some parties have arc-,Uea

.

that the President cannot act unless 'the President determines that

no other person will property perform the response Such an interpretation would result in extensive negotiations and evaluation .~

that are time-consuming and that delay response . This amendment

clarifies that the Federal government may authorize the oWner or

operator of any other responsible party to perform the response

action if the gresident determines that such action will be a

. one

property . This determination need not be made in every case . The

President may undertake a response action without making Such a

determination. The Federal government is not precluded from conducting a response action, merely because responsible parties ha%e

indicated a willingness to take some from of response action .

Public health threat

Although CERCLA broadly au .horizes response to releases or

threatened releases of hazardous substances pollutants, or contaminants into the environment, threats to public health should be the

first priority of Superfund response efforts . This does not, however,

preclude response to situations which pose solely an environmental

threat if the President considers this appropriate.

Clarifying the program's scope

CERCLA response authorities are extremely broad, but there are

nevertheless situations, some of which may be life-threatenim

which are not within the law's scope . The Agency has encountered- some difficulties, primarily political . in restraining CERCLA responses to the scope of the law . For this reason, S. 51 proposes to

make more explicit certain areas which the law does not cover . Specifically, S. 51 makes more clear the exclusion from remedial

or removal action of a release or a threat of a release :

-of a naturally occurring substance in its unaltered form . or

altered solely through naturally occurring processes or phenomena, from a location where it is naturally found ;

-from products which are part of the structure of, and result

in exposure within a facility; and

-into public or private drinking water supplies due to deterioration of the system through ordinary use.

The provision on naturally occurring releases excludes from remedial and removal action situations such as : arsenic trioxide contamination of groundwater that is a result of natural processes

such as rainfall; concentrations of hazardous elements in the

earth's cusrt; naturally occurring (and undisturbed) radioactive

rocks or soils ; disease or contamination resulting from animal

waste (e.g. beaver excrement); or high concentrations of metal (e.g.
p. 60

selenium) in surface or groundwater which results from the natural leaching of these metals from the undisturbed soil . Situations that are not addressed by this amendment and that

are therefore eligible for CERCIA response action include . for example, hazardous substances in a lagoon which are released due to

overflow caused by rainfall, or drums that have deteriorated

through exposure to the elements .

The Environmental Protection Agency has received requests to

take removal or remedial action in situations where the contamination was from building materials used in the structure and was

creating an indoor hazard. This section would clarify that such situations are not subject to remedial or removal action .

In addition, although CERCLA can and does address contaminated public or private drinking water supplies, some communities

have begun to view CERCLA as a means of expanding and repairing existing drinking water supplies. If the drinking water supplies

are contaminated as a result of general deterioration of the system

rather than as a result of the release of hazardous substances,

CERCLA remedial or removal action is not within the law's scope,

even if there is a threat to human health .

Savings clause

New subsection (bX4) provides that, notwithstanding these exclusions, the President can provide remedial or removal action if the

President believes that the release or threat of release constitutes a

public health or environmental emergency and no other person

with the authority and capability will respond in a timely manner .

STATUTORY Limm ON RzMOVA L

SUMMARY

This section amends section 104(cXl) of the Act to provide an additional and independent criterion for waiving the statutory limits

on removal actions and increase the six month duration limitation

to one year. The new criterion permits removals to exceed the $1

million cost and one year duration limitations if the response

action is "appropriate and consistent with permanent remedy ."

The amendment assures that removals accomplish a more complete

response, if such response is appropriate in that situation .

DISCUSSIO N

Section l04(cXD of CERCLA limits removal actions to six months

in duration and $1 million in cost unless certain waiver criteria are

met. These criteria include: a finding that continued action is necessary to prevent or mitigate the emergency and to protect public

health and the environment, and that assistance would not otherwise be provided on a timely basis.

The primary effect of the amendment will be to enhance the

President's ability to implement the most effective response in removal situations . Generally the amendment will assure that, where

appropriate, the first operable units of remedial actions may be

considered removals . This will provide the Agency with increased

flexibility to quickly initiate the appropriate response action . This
p. 61

abilit.u4o imp~-ment a response quicklv will enhance efforts ',) :ontain t

,he migration --of1ftZarekaus- gubst'ances . Thus, it will result in

increased public health and environmenta . I protection . Responses

may also become less costly, since hazardous substances m3y be

contained before they migrate to a much larger area requiring

greater response.

STATE CREDIT

SUMMARY

Subsection (a) of this section of the bill amends section '041c,( : 0

of current law to allow a State to receive credit for its expenditures

at a Superfund site made prior to December 11, 1980, and to apply

such a credit to the State's share of cleanup costs at other Superfund sites.

Subsection (b) of this section allows States to receive credit farm

the Environmental Protection Agency for the expenditure of State

funds for cleanup costs at sites on the National Priority List . in advance of any obligation of Federal funds to those sites . The credit

could then be applied against the State share of cleanup costs at

other Superfund sites.

In order to receive this credit, a State is required to have entered

into a cooperative agreement of contract for this purpose under

new section 104(d)(1) of the Act. The credit will only be granted to

the State for reasonable, documented, direct out-of-pocket non-Federal funds, and only in accordance with the cooperative agreement .

DISCUSSION

Under current law, credit that is granted for certified State expenditures made during the "window" period of January 1 . 1 07,~. to

December 11, 1980, can he applied only toward work at the site at

which the credit was earned . This section allows the State to apply

a credit for expenditures during this period to other sites if little o r

no work remains to be done at the original site, or if the certified

expenditures exceed the State's share of the cleanup costs at ne

original site.

The purpose of the second part of this amendment is to provide

the States with incentive to initiate responses at sites for which cooperative agreements and contracts have been signed at the fastest

possible pace. This provision is intended to complement the amendment to the Act that would allow States to enter into multisite cooperative agreements. Included in these agreements could be specification of the types of actions for which credit is allowed under

this Section .

FUNDING or REMEDIAL ACTION AT FACILITY OPERATCD BY A STATE

OR POLITICAL SUBDIVISIO N

SUMMARY

The reported bill amends section 104(cX3XCXii) of the Act to

impose the 50 percent or greater cost-share only at those facilities

operated directly or indirectly by the State or political subdivision.
p. 62

1 9

DISCUSSIO N

The 50 percent cost-share will be imposed on the basis of operation rather than ownership of the facility at the time of disposal

of hazardous substances . It will apply to sites owned and operated

by the State; sites owned by the State and operated by a private

party under a contract or lease with the State ; and sites owned by

a private party but operated by the State. The objective of the

amendment is to impose the cost-share on States only in those

cases where the State is involved in the operation of the facility,

either directly or indirectly.

The amendment also provides that, for purposes of this amendment only, the term facility will not include navigable waters or

the beds underlying those waters, and thus a 50 percent cost share

will not be imposed on States for response actions at such facilities .

SEIX=OK oir REMEDIAL AcriONS

SUMMARY

New section 104(cX4XA) requires that evaluations of the cost-effectiveness of proposed alternative remedial actions reflect longterm, as well as short-term costs . The long-term cost must include

evaluation of the operation and maintenance costs throughout the

lifetime of the proposed remedy.

New section 104(cX4XB) provides that actions leading to a permanent solution to waste contamination, such as treatment, are to be

preferred; short-term containment of relief measures such as transferring waste from one site to another is to be considered the least

favored alternative .

New section 104(cX4)(C) defines a cleanup standard for remedial

actions taken under this Act, either Fund-financed or in enforcement actions (including settlements and consent decrees) . All remedial actions must attain a degree of cleanup and control of further

release which, at a minimum, assures protection of human health

and the environment. However, the specific remedy at each site

should be relevant and appropriate to the circumstances of the site . New section 104(cX4XD) provides that on-site cleanup or containment actions are not required to be permitted under subtitle C of

the Solid Waste Disposal Act, section 402 or 404 of the Clean Water

Act, or section 10 of the Rivers and Harbors Act of 1899, but that

such actions must satisfy the protection of human health and the

environment requirements of subparagraph (C).

New section 104(cX4XE) retains language currently in the statute,

subject to the new, more specific requirements of this paragraph .

This language requires that when selecting appropriate remedial

actions, the need to protect human health and the environment at

the particular site in question must be balanced against the

amounts which would then be available in the Fund for other sites .

DISCUSSIO N

Under current law, the Administrator is required to select costeffective remedial actions. New section 104(cX4XA) requires that

evaluations of the cost-effectivenew of proposed alternative remedi-
p. 63

al actiors reflect lonIZ-term . as well as short~term costs 1_,)%~jerm

costs include evaluation of' the operation and maintenance c,).,,ts

throughout the lifeume of the proposed remedy Considecation of

long-term costs will undoubt~dlv lead to more environmentally

sound decisions in favor of treatment of hazardous wastes as rp- posed to short-term measures such as the mere relocation or tr1insfer of contaminated material to another site .

Similarly, subparagraph (B) stresses the need to move toward

complete destruction of hazardous substances . Subparagraph i0 addresses a number of issues related to the

degree of cleanup to be achievpd by remedial actions. At a minimum, all remedial actions trust assure protection of human health

and the environment. However, conditions differ at each 'site. Therefore. tine specific reniedy should be relevant and appropriate

under the circumstances present at each site . For example . the mix

of wastes and the size, topography, and geology and other important factors for one site will likely vary from any other . No ricridl-.

uniform remedy would likely be the b~st at all -of these sites .'Thi's

subsection provides flexibility to the President in the choice of

design standards selected for remedial action, rather than mandating, for example, the uniform implementation of design standards

under section 3004 of the Solid Waste Disposal Act. The basic performance standard of subtitle C, protection of human health and

the environment, does always apply. Case-by-case distinctions should b~ made in design requirements

where appropriate. Remedial actions can therefore be evaluated

under a broad spectrum of factors including cost effectiveness and

technical performance, provided that the remedy chosen always

protects human health and the environment .

The so-called Fund-balancing provision of subparagraph E) is

considered necessary to assure that sites are cleaned up to the

greatest degree possible without sacrificing the protection needed

at other sites . However, the Agency may not use this pro,'sion to

unnecessarily delay cleanuo actions because of this balancing test,

but rather should assure that avaiiable Funds are used to attack

the most important probiern sites . Human health and the environmerit must be protected in all remedial actions, at a minimum .

STATE AND FEDERAL CONTRIBUTIONS TO OPERATION AND

MAINTENANCE

SUMMARY

The reported bill adds new paragraphs to section 104(c). providing that the cleanup of contaminated ground and surface water at

sites on the National Priority List be considered remedial action

until protection of human health and the environment is achieved .

or for a period of up to 5 years after the commencement of operation of ground or surface water treatment measures, whichever is

earlier. Under paragraph 16), after the special taxes and general

fund authorizations of this reauthorization bill are obligated, the

costs of extended remedial action under paragraph (5) will be paid

out of response costs recovered to the Fund for responsible parties .
p. 64

613

21

DISCUSSIO N

This section provides that the funding for the on-site and off-site

cleanup of contaminated ground and surface water be shared on a

90 percent Federal and 10 percent State basis for five years follow .

ing the construction and commencement of operation of such treatment measures. In the cases where pumping and treating of water

or other technology is required, the five-year period would begin

after this technology is made operational for continuous use or

until protection of public health and the environment is assured,

whichever is earlier. Under current EPA policy, the costs of such

operation are provided on a 90 percent Federal share for only one

year.

The Committee felt that it was important to specify what the Financial obligation of the Superfund is in regard to the cleanup of

ground and surface water contamination at sites on the National

Priority List. The current practice of the Environmental Protection

Agency is to finance remedial action activities such as the removal

of drums, excavation of soil, and initial treatment of ground and

surface waters on the 90/10 basis provided in section I04(cX3) . Under this policy, the long-term treatment of contaminated water

becomes o State responsibility one year after all other remedial actions are completed. The continued treatment of contaminated

water, which is in actuality major part of the c~eanup program, is

considered by EPA to be an operation and maintenance cost . The distinction between remedial action and operation and maintenance should be based on the degree of cleanup that has been

achieved . This section determines that the cleanup of ground and

surface water, whether on or off-site, is a remedial action until the

protection of human health and the environment is assured. This is

the minimum requirement for remedial action under section

104(cX4), as amended .

The Environmental Protection Agency expressed some concern

about the possibility that the Agency would have to set aside funds

during this rive-year authorization period to finance long-term

cleanups of contaminated ground and surface water. The reported

bill addresses this concern by putting a five-year time limit on the

mandatory involvement of the Federal fund in such treatment expenses, and by specifying that expenses accrued after the reauthorization period of the Act be paid exclusively from responsible party

cost recoveries.

SiTiNc. or HAzARDous WA= FACILff[ES

SUMMARY

The reported bill amends section 104(c) by adding a new paragraph providing that, effective three years after enactment, a State

shall not receive Superfund money for remedial actions unless the

State provides assurances that there will be adequate capacity and

access to facilities in compliance with the hazardous waste regulatory program under subtitle C of the Solid Waste Disposal Act for

the treatment or diposal of all that state's hazardous wastes for the

next twenty years.
p. 65

61 4

2 2

DISCUSSIO N

A critical step in the implementation of a rational . sat e

ous waste program is the creation ol new facilities eniplo

-

~in., tile

most advanced waste management technologies . But to est,ibiish

newer, improved facilities. sites on which these facitities c~in ~)perate must be found and made available . AlthouLfh must Statt-s na,,~

enacted or have pending some form of siting legislation . feA ~t

have developed policies and siting programs that wiil issure :Ontinued facility capacity in the long term RecognizmL, that . as a

general rule, States are not moving aggressively to avoid tiit~ creation of future Superfund sites, an amenament on siting o f

ous waste facilities was adopted by the Committee

This section of the bill provides that. effective three Year~ -ifter

enactment, a State shall not receive Superfund monev t .or re :rt~aial

actions unless the State provides assurances that there wiil ~)t! .1dequate capacity and access to RCRA-approved facilities for th e

ment or disposal of all of that State's hazardous wastes (other -han

those wastes that will be recycled) for the next 20 years . Such assurances must be made to the President . The President is

expected to delegate the Federal responsibilities under this amendment to the Administrator of the Environmental ProLecTion

Agency.

The availability of funds for "removal actions- is not affected .

The short-term, emergency cleanup of, for example, a road side

spill or a stack of drums that are about to explode could proceed . What will be withheld are funds for "remedial actions," the longter."n . permanent clean-up of sites on the National Prioritv List.

To avoid a cutoff of funds . each State is required to dev'elop State

policies and siting programs that will make the best use of existing

facilities in the short term and will assure continued faciiit,. c-1pac- ity in the long term. The details of the sitirg process will di,,`er dppending on the circumstances of each State . A site in every State is not required . In some cases . muiti-state

efforts may be appropriate . Use of binding agreements ihrough

interstate compacts guaranteeing access to a facility is only one example of how a State may provide the requisite assurances State

or local ownership and operation of facilities or contracts with private facilities may also suffice .

The rationale for this requirement is straight-forward : Superfund

money should not be spent in States that are taking irsufficient

steps to avoid the creation of future Superfund sites . Pressures

from local citizens place the political system in an extremeiv vulnerable position. Local officials have to respon~ to the fears of tocal

citizens . The broader social need for safe hazardous waste management facilities often has not been strongly represented in the siting

process. A common result has been that raclities have not been

sited, and there has been no significant increase in hazardous

waste capacity over the past severai years.

In 1976, the Resource Conservation and Recovery Act (RCRA)

was passed, mandating the construction of needed hazardous waste

facilities and placing the responsibility for siting the facilities with

the States.
p. 66

61 5

23

Unfortunately, when RCRA was first passed, Congress failed to

anticipate the intensity of public opposition to new and expanded

waste management facilities . While everyone wants hazardous

waste managed safely, hardly anyone wishes it managed near

them. This is the NIMBY syndrome (not in my backyard) . Yet if

the RCRA and Superfund programs are to work-if public health

and the environment are to be protected-the necessary sites must

be made available.

This is not a new issue . In 1976, RCRA directed the States to develop plans for the management of their wastes, including hazardous wastes . In 1980, EPA, the National Governors' Association and

numerous other groups and institutions produced reports, handbooks and resolutions on the siting issue.

Section 104 of Superfund already requires that each State assure

the availability of a RCRA approved facility for management of

materials removed from a site before remedial action can begin . Unfortunately, that condition has been largely ignored by EPA and

the States . Most States have enacted, or have pending some form of siting

legislation. Some have chosen to establish siting approval boards ;

some have chosen to authorize preemption over local zoning laws ;

some have authorized State acquisition. operation and maintenance

of sites through existing institutions or through quasi-public corporations. Which, if any, of these approaches will work remains to be

seen. Merely having enacted such legislation, however, will not satisfy the requirements of this section. Each State must provide assurances that their legislative program can work and will be used .

There are a number of obstacles to siting new hazardous waste

management facilities. These include:

-First, lack of cooperation among interested parties who distrust one another's motives and doubt the willingness of the

other parties to make any substantial concessions to alleviate their concerns . Use of compensation, mitigation or other

measures such as land value guarantees or the posting of

bonds to finance continued water supply testing and the like

might help alleviate some of these problems .

-Second, lack of reliable, objective information or criteria for

evaluating proposals and sites and citizens' diz~----ist of technical information provided by government or in( stry .

-Third, insufficient public perception of the need for new

treatment facilities .

-Finally, the most distressing problem, leadership by government officials at all levels is sorely lacking .

A successful siting program should recognize three key principles:

First, a complete technical analysis of all proposed sites is essential prior to the selection of a particular site . This analysis should

take into account both environmental effects fe .g. from the hydrology, geology, ecology, etc .) as well as factors based on the proximity

and relation of the facility to residences and institutions . Second, site selection must be accompanied by full public participation. This involvement should start at the beginning of facility

planning, and should continue through the site selection and approval process. It should be accompanied by a broad-wale public
p. 67

61 6

24

education effort, since the public needs to become a knowledgable

partner in site selection decisions .

The opposition of the public stems in part from the fact that the

procedures for citizen involvement have been neither well thought

out nor carefully applied. Further, the standard mechanism for involving the pubhc-the public hearing routinely becomes a crowded, highly emotional exercise in mob psychology . In addition. the

media often highlight the fears of the opponents, making rational

decisions even more difficult to make . Third, the process of site selection should find a way to transcend

blaket local vetoes . No Community should be able to remove itself

from consideration on political grounds alone . Everyone must take

responsibility for assuring that adequate sites are available .

COOPERATIVE AGREEMENTs

SUMMAPY

The reported bill amends section 104(dXl) of the current law t o

make clear that contracts and cooperative agreements with States

can be on a multi-site basis. In addition, specific activities including

enforcement are identified as eligible for funding under such agreements .

DISCUSSION

The Superfund program will be most effective if, to the maximum extent possible, Federal and State governments work in a coperative manner to speed the cleanup of hazardous releases of hazardous substances, pullutants and contaminants . The Act recog- nizes the importance of the State role by authorizing the President

to enter into contracts or cooperative agreements with States for

car runT

. ng out any or all of the cleanup authorities included SuperTh e Environmental Protection Agency originally interpreted this

authority to permit only contracts or cooperative agreements on a

site-by-site basis . However, the Agency has subsequently recognized

the advantages to both the Federal Government and the States of

permitting "multi-site" cooperative agreements, so that actions at

several sites can be grouped under a single contract . S. 2892 expiicitly clarifies existing law to authorize the President to enter into

contracts or cooperative agreements with States on a multi-site

basis as well as on a single site basis and to indicate those type of

actions for which the Hazardous Substance Response Trust Fund

may be used by the States .

The amendment also authorizes the Administrator to provide

Funds to States through contracts or cooperative agreements for

the reasonable costs of undertaking enforcement actions against responsible parties for the purpose of securing site responses by those parties.

The Environmental Protection Agency only recently adopted the

policy of allowing multi-site cooperative agreements . This amendment assures- the continuity of this policy . In addition, the amendment authorizes States to enter into such multi-site agreements on

both a prospective and retrospective basis. The first multi-site coop-
p. 68

61 7

25

erative agreement granted but EPA, on a prospective basis, was to

the State of Pennsylvania, for actions at 12 sites not previoustv addressed under cooperative agreements . The amendment also permits States to combine existing cooperative agreements under new

multi-site agreements (i .e ., to enter multi-site agreements on a retrospective basis). EPA is directed to establishs guidelines whereby

States, at appropriate times . may be permitted to negotiate new cooperative agreements which combine any or all of their existing

single site agreements.

The amendment lists those types of actions which are considered

eligible costs under cooperative agreements . In addition to response

costs . these include related activities associated with the overall

implementation, coordination, enforcement, training, community

relations, site inventory and assessment efforts, and administrative

of remedial activities authorized by the act. With the exception of

enforcement costs, all of the above costs are currently eligible and

therefore do not constitute a change from current policy .

Enforcement costs are included in this list to improve the capability of States to undertake enforcement actions against responsible parties for the purpose of securing site response by those parties. Eligible enforcement costs include, but are not limited to, the

costs of information gathering, discovery, expert witnesses and

other expenses related to litigation or admini3trative enforcement,

and State oversight of private party responses to the extent such

oversight costs are not otherwise provided by those private parties . Nothing in section 104(dXl) shall preclude the President from

talcing a separate enforcement action against those parties included in a State enforcement action, nor require him to enter into a

cooperative agreement or contract prior to undertaking a Federal

enforcement action.

One substantial advantage of multi-site cooperative agreements

is that they will better enable EPA and the States to more effectively and efficiently use and target their limited resources. Under

a multi-site agreement, a State would be able, with EPA's concurrence, to shift funds from one site to another included under the

same multi-site cooperative agreement . This provision will allow

States and EPA to quickly deobligate funds from sites for which

they were originally slated but no longer needed, or not needed at

the moment, and reobligate the funds for activities needed at another site, without going through the current len hy process of

EPA withdrawing the monies to the Hazardous Tulbstances Response Trust and then negotiating a new cooperative agreement for

reobligating the funds to the State.

ACCESS AND INFORMATION GATHERING

SUMMARY

As amended by the reported bill, section 104(e) of CERCLA re-

"tee the authority of the President to est information concerning the treatment, storage, disposal, or dling of hazardous

substances, and to enter premises where hazardous substances

won generated, stored, treated, disposed, or transported . This

amendment clarifies that the President also has the power to
p. 69

61~4

D*)

compel compliance with wformatioji .and accesz; n~que-t, md

ties and confirms the broad reach of the ['resident s authwrit ~

DISCL;SSION

Currently, authority to enforce information reque,t .~; i,,iider

CERCLA is imp!icit. fn addition, there is no explicit lan_-ua _,,t- to

compel parties to provide access to the site :)r adJacerit areas,

Courts have consistently granted the government , reque~',s tor

access and information ; moreover, landowners trequentl\, provide

access and information voluntarily . Express statutor~,. authorit~ . however. will encourage private parties to consent to access and i-1-

formation requests . The amendment provides this exprtfss ~;tatutorv

authority, and aiso facilitates the process by which the President

can obtain judicial enforcement of requests for information and

access . Administrative orders issued under this spction wil! be

within the preclusion of pre-enforcement review prmided lb~,- -~ection 113 ofCERCLA as amended .

This amendment establishes procedures for the President to

issue orders for access and informaLion . The President is to notifv

potential recipients of orders and provide an opportunity for Consultation. The amendment also provides a mechanism for seeking a

Federal court injunction barring interference with information or

access requests . Penalties are specified for violations of administrative orders.

The amendment confirms the broad access authority that the

Congress originally intended when CERCLA was enacted in 19SO . Access is authorized concerning establishments or other places or

properties not only when hazardous substances are, may be . or

have been generated, stored, treated, disposal of, or transported

from, but also where there has been or may have been a release or

threatened release. Further, entry is permissible to determine the

need for response or the appropriate response or to effectuate a response . Thus, government representatives, including authorized

contractors, may not only enter sites of known or suspected releases themselves, but also may enter adjacent properties to determine whether a release of threatened release has occurred or to

undertake other activities necessary to a response acEion . The

amendment also preserves the President's authority to obtain

access or information through any other lawful means. For example, in exigent circumstances, where the President has a reasonable basis to believe that documents may be destroyed or site conditions changed if a request for access or information were made. the

President may obtain an ex parte warrant for entry, access to documents, sampling, or other needed activities.

HEALTH RELATED AUTHORITIES

SUMMARY

The reported bill amended section 104(i) of the Act by adding

tweive new paragraphs relating to health assessments, health studies, and other authorities of the Agency for Toxic Substances and

Disease Registry (ATSDR) . These are described in detail in the Discussion below. In addition, the bill amends section I I 1(c A 4) to clariA
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27

fy that all the work of ATSDR, including toxicologic and other lab.

oratory studies. health assessments, and epidemiologic studies, are to be paid out of Superfund . A new section 111(n) is added, making available not less than 5 percent of the annual appropriation out of the Fund (or $50,000,000, whichever is less) for each fiscal year, directly to the Agency for Toxic Substantes and Disese Registry . ATSDR is expected to cooperate and communicate with the Environmental Protection Agency in the implementation of these authorities.

The bill amends section 3019 of the Solid Waste Disposal Act, requiring certain information on exposure to hazardous substances

released from hazardous waste disposal facilities to be made avail- able by the owner or operator. Finally, the reported bill makes several technical amendments to section 1046) of current law.

DISCUSSION

From the outset of its efforts to address the problem of toxic

chemicals, the Congress has been concerned by the likeaood that releases of hazardous substances, pollutants and contaminants into

the invironment pose a significant threat to public health. The public, as well as the scientific community, has suggested that fa .

cilities or release of hazardous substances and other toxic chemicals may be threating the health of nearby residents due to their

presence.

Partially for this reason the Comprehensive Environmental Response, Compensation and Liabili~y Act contains section 104(i), establishing the Agency for Toxic substances and Disease Registry

(ATSDR), which is required to undertake and coordinate health-related activities for toxic chemicals generally and superfund specifi- cally.

Despite th 7quirement, ATSDR was not immediately estab- r

lished by thele etary of Health and Human Serices. A lawsuit by outside private organizations was ultimately necessary to compel

the Agency's establishment.

To date, ATSDR has failed to receive adequate funding under the

Superfund program, and without additional assured funds and personnel the Agency will be unable to ca out is mandated functions. The health-related amendments iianrY 51, as reported, are designed to improve upon the original health authorities contained in

section 104(i) of CERCLA . In general, the health-related authorities

of the Act have not been adequately exercised . Congress has addressed this issue on an ad hoc basis, year-by-year, by increasing the appropriations for ATSDR and otherwise encouraging complete

implementation of the law's provisions . The amendments in S. 51 as reported should resolve this problem by creating a permanent

earmarking of Funds which will be supplied directly to the Agency,

and not pan through the Environmental Protection Agency or be

reliant upon that Agency's budget process .

In general, protection of human health is the highest and ultimate goal of the Nation's environmental laws . Health effects data and information underlie all response actions taken under Superfund, as well as most action taken under other environmental laws.

To truly protect human health and the environment requires that
p. 71

high priority be placed on the development of reliable data on the

health effects of exp<1sures to hazardous substances and other toxic

chemicals . Only with such information can informed and rational

judgments be made as to what aCE1011S must be taken to protect

human health. Without information as to what substances are

toxic, at what concentrations and under what conditions, it is not

possible to determine with confidence which sites should be given

highest priority in the cleanup and response process .

Conducting health assessments and studies of populations ex . posed to releases of hazardous substances from sites and facilities

will not only enhance response to immediate health concerns, but

will also build a comprehensive body of data that will define the

threat that toxic chemicals pose to human health . In the long-term,

greater knowledge of the human health effects of exposure to toxic

substances will improve the prevention and control strategies required to protect and improve the health of tne citizens of this

country. New paragraph (21 of section 104(i) requireE the Agency for Toxic

Substances and Disease Registry (ATSDR) to provide consuitations

on health issues relating to exposur3 to hazardous or toxic substances when so requested by the Environmental Protection

Agency (EPA), State or local officials . Consultations to individuals

may be provided by the States under cooperative agreements . ATSDR will provide advice to the EPA, States, and local officials

when available data indicate that the hazardous materials or toxic

substances potentially have an adverse effect on the health of populations which may be exposed . This advice may include recommended exposure limits or assistance in identifying pathways of exposure so that EPA, the States, and local officials may prevent

such exposure in ordee to protect the public health . The content of

a health consultation may be communicated by a short telephone

call from a knowledgeable health professional ~r it may rEquire a

more extensive consultation with a site visit, depending on circumstances and community needs . Generally, advice to individuals, as

opposed to government entities, will be provided by officials within

the States.

Paragraph (3) requires ATSDR to perform health assessments at

all existing National Priority List (NPL) sites within two years of

the date ot enactment. Assessments shall be performed at all sites

added to the NPL (after the date of enactment of the bill), within

one year of their inclusion on the NPL. ATSDR shall also perform

health assessments at RCRA subtitle C hazardous waste disposai

facilities, as required under section 3019 of the Solid Waste Disposal Act, where there is sufficient data as to what hazardous substances are present in such facility, when so requested by EPA or a

State.

Paragraph 3(B) also provides individuals the oportunity to petition, or make an informal or formal request . for a health assessment where it can be shown that individuals have been exposed to

a hazardous substance . the probable source of which is a release

under the act. The petition for a health assessment can be very

brief and need only present such information on the identify and

concentrations of toxic substances as is known to the petitioners

and the nature of any health effects observed by or reported to the
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29

petitioners at the time of filing their petition . Further information

on,conditions at or near the site or on the identity and levels of

toxic substances contributing to exposure may be obtained by the

Administrator from the EPA, State agencies, or responsible parties .

If lack of information is a factor in a decision not to perform a

health assessment, the Administrator should inform the petitioners

of his need for more information. Other reasons for not providing

an assessment may be that no response is needed or that a consultation should be adequate. If a request has a low priority under the

scheme in paragraph (3XC) of this subsection, an assessment may

be deferred but not necessarily denied unless extenuating circumstances exist . In the case of any petition, if ATSDR does not initiate a health assessment, the Administrator of ATSDR shall provide

a written explanation of why a health assessment is not appropriate.

The results of consultations and health assessments performed

under this section, whether by a State or by the Administrator of

ATSDR, and any recommendations for further action shall be

made available to the individual or organization requesting the

consultation or assessment and shall be available to any other

person requesting them, except to the extent that deletions from

such results or recommendations are required by other law to protect personal privacy.

Each health assessment performed under this subsection shall include a finding as to whether the exposure asse!sed presents a potentially significant risk to human health, in order to permit the

implementation of paragraph (5) of this subsection, and shall include a finding as to whether the exposure concerned creates a significant risk to human health, in order to permit the implementation of paragraph (7) of this subsection.

The Administrator should, through existing channels such as

CDC's Morbidity and Mortality Weekly Report and through notice

in the Federal Register, assure that pr :icians and State and local

health officials are aware of the provis-as for requesting consultations and health assessments from the Agency and from the States

and of the nature of the information needed in requesting such

services.

Paragraph (3XC) directs the Administrator of ATSDR to establish

a priority system for determining in what order, and for those not

required by this paragraph, at which CERCLA and RCRA sites

health _Q ments shall be conducted. Highest priority shall be

given to those sites at which all three of the following criteria

apply: First there exists documented evidence of release of hazardous constituents into the environment; second, the potential risk to

human health as a result of the documented risk appears highest,

and; third, in the Administrator's judgment, existing health survey

data gathered at the given site and other similar sites are inadequate to assess the potential risk to human health posed by the

site. The existence of these criteria, however, is not intended to reATSDR to first survey the entire universe of sites in order to

lish a ranking before choosing to conduct health assessments

or other studies at individual sites.

Paragraph (3XD) requires that the results of any health assessmeats conducted by States or political subdivisions be reported to

-A %~j
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30

the Administrator of ATSDR, and include recomrnenciazi,,ri~_. tor

any further health-related activities which should be unciertak-en at

the site . On the basis of a health assessment, Findini~s and recommendations should also be made as to whether any Imm'-diate actions should be taken to protect human health under para_~r,iph 7,

of this section. The Administrator of ATSDR is directed to include

similar findings and recommendations in any health asseSment's

carried out directly by ATSDR. In addition, ATSDR is expected to

issue periodic reports on the results of all health assessments conducted under this authority. One possible source of publication for

these reports is the Morbidity and Mortality Weekly Report . Pubhshed by the Centers for Disease Control .

Paragraph (3XE) of the section defines "health assessmonts ' and

makes implicit reference to a standard four-steP approach ,) sitEspecific health studies developed by the ATSDR . As descrioed bv

Dr. James 0. Mason, Administrator. ATSDR. before the Senate Environment and Public Works Committee on May 24, 19~~4 . the ~irst

step is to assess the potential health hazard posed by a site on the

basis of results of environmental sampling .

"Health assessments" are defined in the amendment to include a

broad, overall examination of the release . site or facility and to

assess its potential risk to the health of the nearby population .

Health assessments should include :

First, a determination of the nature and extent of th e

(e.g., the hazardous constituents and the amounts and concentrations in which they have been released) .

Second, information on existing or potential pathways of

human exposure to the release, including contam .inated ground

or surface water, air emissions, and contamination of the food

chain.

Third, the size and potential susceptibility of the community

within the existing or potential pathwayb of human exposure

,,e .g., the number of people, their ages and fitness, et c

Fourth, a comparison of observed (measured) or expected

human exposure levels at the site with known short-terni and

long-term (acute and chronic) health effects associated .k i t h the

identified hazardous substances and anv available recommended exposure or tolerance limits for such contaminants .

Fifth, an analysis of available existing morbidity and -nortaiity data for the population under study on diseases that -nav be

associated with the observed levels of exposure, including comparison of observed versus expected morbidity and mortality

rates where appropriate.

Arid sixth, an evaluation of the risks to the potentially affected population from all sources of the hazardous substance, including known point or no point sources other than the site or

facility in question . ATSDR estimates the average cost of a health assessment to be

$4,000 per site. Under paragraph (3XG), the costs of any health assessments or further health studies conducted at CERCLA or

RCRA sites under this authority may be recovered under the provisions of section 107 of CERCLA from the owner or operator of such

site or others physically contributing to the release. If sources
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623

:,I I

other than the RCRA or CERCLA site under ,,tudv also contributed

to the release, they would ha%e to bear their share' of liabilitv . Paragraph (4) provides that if . on the basis of a health-assess. ment, potential for a serious health hazard is found, and if, in the

judgement of the Administrator it is appropriate . a pilot epidemiclogic study-cross-sectional or retrospective-of a group of people

identified as the most highly exposed is undertaken . Control groups

may also be included in the pilot study protocol . If the pilot study

appears to validate the presence of excess morbidity or mortalitv,

and if the Administrator of ATSDR believes it would be appropr'tate, the third step is to conduct a health study or full-scale epidemiologic study-including medical evaluations where indicated-of

the entire affected population .

In determining whether to conduct a full-scale health study at a

site, the Administrator should consider whether such a 'studv

would be scientifically feasible and al3o whether such a study

would be usefill to determine furthe-, beyond what is known from

health assessments, the nature and extent of potential health effects at the site . Another important consideration is whether scientifically valid studies have already been conducted in other situations or at other sites with similar conditions and exposures . The average cost of a pilot is estimated by ATSDR at $30.000.

Full-scale epiderniologic studies typically take more than six

months to perform and cost in excess of $100,000. Paragraph (5) provides that tne Administator shall consider

whether the establishment of a registry of exposed persons at each

site for which a health assessment has been completed is scientifically feasible and wou!d contribute to the purpose of this subsection. Important considerations include the usefulness of such a registry, the seriousness or unique character of identified diseases or

the likelihood of population migration from the affected area.

The issue of registries is one of the most difficult issues to address because of their costs. the mobility of the population, and the

long-term commitment of resources to maintain the registries for

10, 20, 30 or more years . Exposure registries appear to be most valuable when persistent measurable levels of hazardous agents in

which animal studies or other evidence predict significant toxic effects in humans or for hazardous agents for which current methods

exist to prevent an adverse outcome. Because of the potential migration of the population . if sufficient

evidence exists that it may be necessary to establish a registry in

the future, it may be cost effective and reasonable for the Administrator of ATSDR to obtain identifying and locator information on

the people currently exposcd so that in the event :' registry is detarmined to be useful, the Administrator of ATSDR will be able to

locate and identify those individuals to place thein on the registry. This initial list of exposed persons may include nothing more than

a list of the exposed persons by name. address . date of birth, and

some identifier, such as license number. Such a list wouid form the

basis for the late establishment of a formal registry, if the Administr~tor determines that such a registry would be appropriate . Under paragraph (6). the Administrator of STSDR is required to

conduct a study and report to Congress within 2 years on the usefulness, cost, and potential implications of medical surveillance pro75-033 0 - 90 - 8

rV
p. 75

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32

grams as part of the health studies authorized under this section

Medical surveillance programs are periodic screening programs to

identify diseases in exposed populations with periodic medical testing and provide a mechanism of referring for treatment those who

are diagnosed as having such disease . Paragraph (7 1 provides that if a health assessment or other study

conducted under paragraphs 13) or 14) contains a finding that th'e

exposure presents a si.-niFicant risk to human health . the Preskdent

is required to take such steps as may be necessary to reduce such

exposure and eliminate or substantially mitigate the risk to human

health. This authority includes, but is not limited to, providing alternative water supplies, and permanent or temporary relocation

of individuals . Most often, such decisions will be taken in response

to acute risks and hazards, which are most likeiv to be detected bv

a health assessment or pilot epiderniologic stuay . As provided i n'

this bill, the provision of alternative water supplies includes, but is

not limited to, drinking water and household water supplies .

Paragraph (8) clarifies that none of the health-related activities

authorized in this section is to be construed to delay or otherwise

affect or impair the ability of the Administrator of the EPA to exercise any authority under sections 104 or 106 of the Act or under

section 7003 of the Solid Waste Disposal Act . This paragraph is

necessary in order to assure that the public, EPA, ATSDR, or the

President, does not use the health-related authorities as a means of

impeding or delaying necessary clean-up activities at a site . In addition, this paragraph is meant to clarify that the internal peer

review process for all studies conducted under this section, under

paragraph (10), shall not preclude or prevent the EPA from taking

emergency or other actions at a site if preliminary results of a

study suggest that serious health hazards exist and must be mitigated, but before the full study can be released to the public . Under paragraph (9XA) of this subsection, the Administrator of

ATSDR is required to prepare lists of the harardous substances

which present the most significant potential threat to human

health either due to their common presence at sites or due to the

potential toxicity of the compound . Within 6 months of the date of

enactment a list of 100 such compounds will be prepared ; within 24

months of enactment an additional 100 will be added. Further substances will be added as frequently as they are identified . Paragraph (9XC) requires the Administrator to look at what is known

about the toxic material that is placed on the list and, if sufficient

information is not available, to assure that a research program is

begun to provide that information . Paragraph (9XB) provides authority for research on methods to perform toxicologic testing for

two or more compounds which exist together (i .e. mixtures, mixed

diisposal). These methods are not now generally available .

The Committee is concerned about the enormous toxicity data

gap associated with industrial chemicals . A recent National Academy of Sciences Study of the adequacy of health effects data on

chemicals found that about 80 percent have no toxicity data at all .

The Environmental Protection Agency has testified that there is

not enough health effects data on common organic chemical contaminants of drinking water to set standards for these contaminants. Many of these contaminants are asociated with Superfund
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625

sites. The general dearth of' health effects data on the~v c ~ernical,~ is hindering the Agencys efforts o Lfrapple w1th priurit% ettim~ and cleanup standards in the Superfund program . Paragraph i9i(Bj also provides detailed guidance on the t~pes ot

laboratory tests may be required Not all of' these tests neea to he

done for each substance, but a phased approach to identil'

'

v t.~e haz- ards for each substance is nece~:sarv Some substance will require very extensiv.:.- work : others less work, or perhaps none at all . The Administrator should also undertake research on methods for detecting low-level expesure or markers of prechnical effects related

to exposure to toxic substances and for evaluating sensitive indicators of exposure to such substances . Paragraph i9nl]l) provides that the research undertaken for these

materials be coordinated with toxicologic testing and research that is conducted by the National Toxicology Program and the Environmental Protection Agency under the Toxic Substances Control Act

and the Federal Insecticide, Fungicide. and Rodenticide Act . Sorne testing of chemical substances that may be listed by the Adminis- traitor is underway pursuant to the authorities of these statutes . These statutes provide authorities whereby the Environmental Protection Agency can require manufacturers and processors of chemical substances to perf(,rm the necessarv health effects testing . The Administrator should also coordinate 6ese efforts with those of the

National Toxicology Program . The purpose of coordination is to

avoid duplication of effort and to assure that listed substances are

tested at the earliest practicable date . In coordinating research

under this paragraph with toxicologic testing under other programs, the Administrator shall give due consideration to the differing goals and testing requirements of such other programs in determining the need for additional or different testing in order to meet

the goals and requirements of CERCLA . The overriding consideration is to assure that tests are conducted expeditiously and, if recourse to other authorities would result in more than mimimal

delay, work should be undertaken pursuant to the exposure Super- fund authorities.

Paragraph i9XE) expresses the sense of the Congress that the

costs of research programs under this paragraph be borne by the

manufacturers and processors of the hazardous substance in question, as required in programs to toxicologic testing under the Toxic

Subtances Control Act . Where it is impractical to secure such fund- ing from the manufacturer. the costs of the required research programs should be borne by the parties responsible for the release of the hazardous substances in question . The costs of conducting such

a research program are deeined to be efigible under section 107 of the Act for the purposes of recovery from a party respon ;ible for a

release of such hazardous substance . In particular. costs of such re

search should be sought from generators of the substance . rather than from transporters or disposal firms .

After completing research and review of al available information

for each substances included on the list, the Administrator is required to publish, revise, and republish the information as necessary, but not less than once every -5 years . so that it will be available to the States and other inLerested parties . These toxicologic profiles are required by paragraph (9XF), and should contain a suc-
p. 77

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34

cinct summary of the health effects of the substances or mixture of

substances, in a style accessible and understandable to . public health professionals who lack substantial training .

in toxicology, and with references to major clinical and research studies for those

who can make use of them. Such profiles shall be prepared for all

the substances listed under paragarph (9XA), regardless of whether

additional research on such substances is required to be initiated . Profiles on mixtures of substances shall also be prepared as such

information becomes available . All these toxicologic profiles should

be made as accessible as possible to Federal, State and local officials, as well as to health professionals . One means by which to

provide ready access would be to have the profiles included in the

National Library of Medicine computer system . Paragraph (10) requires that A,rSDR establish a mechanism of

internal peer review for all studies (other than health assessments)

and results fo research conducted under this subsection . It is the

intent of the paragraph to require such internal peer review of anv

and all such studies or results of research prior to their release to

the public . It is recognized that time may not always permit, and

the Administrator of ATSDR may not always find it appropriate . to

conduct, peer reviews of each individual site health assessment . Whenever conducted, the peer review shall be performed by panels

consisting of no fewer than three and no more than seven disinterested scientific experts, sele~ted by the Administrator of ATSDR on

the basis of their scientific objectivity and a lack of institutional

ties with any person involved in the conduct of th estudy or research under review. The support staff for the review panels shall

come from ATSDR. Peer reviewers shall remain anonymous until

such time as their findings are made known . After completion of

the peer review process, the STSDR will make the significance of

the results known to the study participants (in the case of a health

study). The background data, calculations, results, interpretations

and conclusions of any and all studies and programs of research

conducted under this authority shall be published as appropriate in

peer reviewed scientific journals . In addition. summaries will be periodically published as supplements to the Morbidity and Mortality

Weekly Report .

These peer review and reporting requirements are necessary in

order to assure that sound and valid scientific work is performed

and reTorted to theAublic, as well as to assure the objectivity and . it

credibi ity of the A DR. In addition, the ATSDR is expected to

publish periodic reports of the results of health assessments and

other studies which it conducts or oversees in order to provide further information on the overall extent and nature of the potential

threat to public health posed by hazardous waste sites .

Under paragraph (11). the Administrator of ATSDR is authorized

to establish a proqrs~m for the education of physicians and other

health professionals in the methods of diagnosis and treatment of

injury or diseases related to exposure to toxic substances. The Administrator is to report back to the Congress not late than two

years after the date of enactment on the implementation of this

paragraphIt is the intent of this authority to encourage the transfer of

medical information to practicing physicians and other health pro-
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627

fessionals who are providing care to individual pattents There Lire

several methods that may be used here. such as conferences, meet- ings. symposia. home study courses, short traininE: courses . etc . In additio'n, training centers could be set up around tile country . The

Administrator should review all options which are authorized

under this authority, determine the MOSt Cost efleC'

-

Lve . implement

the, and report to the Congress . It is desirable here that plans be

devised to provide the the necessary information to the maximum

numt>er of practicing health professionals . Under paragraph (12), to implement its authorities . the ATSDR

must be provided with adequate personnel, but no fewer than 100

full-time equivalent employees [FTE's) it is the intent of this

amendment to provide increased personnel for the ATSDR without

forcing a concomitant reduction in FTE's in other components of

the Department of Health and Human Services . Paragraph 13 grants authority to the ATSDR to enter into cooperative agreements with States or political subdivisions thereof for

the purpose of delegating any or all of tile functions of the ATSDR

under this section and providing funding for the delegated functions. which may include the conduct of health assessments of

RCRA and CERCLA sites, and the provision of health consultations. This cooperative agreement authority is modeled after similar authority provided under section 104(d), except that it allows

such cooperative agreements to cover any or all of, but not necessari1v limited to, the following : health consultations and assessmenis. health and epiderniologic studies, health referral systems. data co!lection systems, disease registries, and establishment of ongoing environmental health risk assessment programs, Other activities may also be delegated through cooperative agreements at

the discretion of the Administrator of ATSDR .

This paragraph also amends section 111(cX4) to clarify that all

the expenses of ATSDR are to be paid out of Superfund . ~ new section 111(n) is added, making available not L.7s 5 percent of the

annual appropriation out of the Fund (or S-50,000,000, which is less)

for each fiscal year, directly to the Agency for Toxic Substances

and Disease Registry . Funds which the ATSDR has not obligated

by the beginning of their fourth quarter of the fiscal year in which

made available are to be returned to the Trust Fund . These provisions, however, shall not preclude the ATDSR from seeking and receiving additiona! funds from the Environmental Protection

Agency under separate interagency agreements if the need for, and

cost of, separate health studies exceeds ATSDR's budgeted capacity.

The reported bill amends section M19 of the Solid Waste Disposal Act. That section requires that owners and operators of landfills

and surface impoundments submit to the Agency-or authorized

State-an assessment of the potential for the public to be exposed

to hazardous substances released from these units . The assessment

must address reasonably forseeable potential releases from both

normal operations and accidents . The former includes the steady

release of small quantities of volatile chemicals into the air . an~

the seepage of waste constituents through clay liners. The latter results from abnormal operating conditions and includes fires, explosions, and major liner failures, as well as transportation accidents .
p. 79

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36

Owners / operators are required to obtain reasonably ascertainable

information of types of releases, the potential path w'avs of human

exposure, the magnitude of the exposed population, an~ the nature

and toxicity of the hazardous substances . Owners/ o pe rators should already have access to most of the information required under this section Regarding accident data,

there are many reasons why such information should already have

been compiled. Concern for worker safety, avoidance of plan't shutdowns, and a desire to keep insurance premiums at a minimum all

create an existing incentive for owners, operators to identify

sources of potential accidents at their facilities and to take preventive measures to correct them. Thus, for example, it is a common

practice for plant operators to identify existing hazards with the

"standard checklist" method-see, for example, American Institute

of Chemical Engineers, Fire and Explosion Guide, 1980 . Where such assessments have been conducted . all that owners/ operators

need further do to comply with section 3019 is identify the potential pathways-for example air, surface water-for hazardous substances released during an accident, and the nature and magnitude

of the release and the potentially exposed population . Similarly, owners/ operators should already have access to data

on routine releases from their facilities . In order for insurance carriers to compute premiums for nonsudden liability coverage-as required under 40 CFR part 264-they often survey their client's facility to determine the risk of exposure of third parties to anticipated releases . Where insurance carriers provide this information to

their clients, this should largely relieve owners/ operators of the

burden of developing the date required under section 3019. This assessment must be submitted to the Agency-or an authorized State-either with the part B application or, for facilities for

which a complete part B application has already been submitted, 9

months after enactment. However, submission of an adequate exposure assessment is not a condition for permit issuance ; noncomph- ance with section 3019 is a separate violation of RCRA and should

not be viewed as a vehicle to delay the permitting process . Furthermore, owners/operators should not postpone conducting the assessment in section 3019 in anticipation that EPA will subsequently

promultate regulations interpreting the statutory requirements . The PA shall make all information collected under section 3019

available to the ATSDR . If. in the opinion of the Administrator of

the ATSDP, the Administrator of the EPA, or a State-in the case

of a State with an authorized program -conditions exist which

warrant a health assessment at a particular landfill or surface impoundment, such assessment, and any further necessary actions,

shall be conducted by the ATSDR in accordance with the provisions of section 104(i) of CERCLA. A health assessment at a RCRA

landfill or surface impoundment would be appropriate if the facility posed a substantial potential risk to human health for any one

of a variety of reasons: the existence of actual releases of hazardous

constituents; maCitude of contamination with hazardous constituents which may the result of a release, or; the magnitude of the

population exposed to such release or contamination . As reported, the bill also makes two technical amendments to existing statute. First, the bill clarifies that the ATSDR shall report

(A,
p. 80

629

. ; -1

directiv to the Secretary (d I lealth and Human Scr,. ices . not t,) tile Surveon General . Second . the bill replaces the tern i

testing" in current section 10411jf4j, with the phrase "appropriate

testing ."

PUBLIC PARTICIPATION

SUMMARY

The reported bill adds a new subsection to section 104 which requires an opportunity for public comment betbre the Federal Lfovernment or any State loperating under a cooperative aLrreerrientl

selects a particular remedial action at any site or enters into anv

settlement agreement or otherwise disposes of' any claim aLainst

any party under the act. including entry of an order aLainst such

party. Notice to the public must be accompanied by a reasonable

explanation of the proposed remedial action and major alternatives considered .

DISCUSSION

The support of communities affected by Superfund sites is important to the success of any cleanup plan . Affected communities will

demonstrate stronger support for cleanup actions if they are involved from the outset in developing and selecting the actions necessary at the sites .

Therefore, this section of the bill requires the Environmental

Protection Agency, working with the Department Of Justice. to develop procedures for assuring that the public will be made aware of

proposed remedies (including those to be implemented by the EPA . by States, and by private parties), as well as affording tl~ern the opportunity to comment upon that remedy or offer alternatives for

consideration by the EPA or States prior to the Final selection and

implementation of the remedy .

In the case of a Fund-financed remedy undertaken by EPA or a

State (acting through a cooperative agreement), this will mean publicizing and taking comment on the results of the Remedial Investigation and Feasibility Study before final selection of a remedial

action. In the case of a remedy undertaken by responsible parties

resulting from an enforcement action, this will mean publicizing

and taking comment on the proposed remedy secured through negotiations with those parties before a consent order, decree or

agreement becomes final .

In all cases, effective notice must first be given to the interested

public. The notice must be accompanied by a discussion and analysis which provides a reasonable explanation to the interested

public of the proposed remedial action and alternative proposals

under consideration. The Federal government or State must then

provide an opportunity for a public meeting in the affected area

and a reasonable opportunity to comment on the proposed remedial

artion and alternatives . A comment period of 30 days would be proper in most instances.

When the remedial action is selected, the Administrator should

make public the plan for the selected action, review comments received on the proposed plan and alternatives, and make any appro-
p. 81

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3s

priate changes to the plan . A brief explanation to the community

of why changes were made, or not made, may also be helpful .

If the remedial action proceeds in two or more distinct phases

and separate studies and alternatives are developed at different

times for different phases . the process of notice and opportunity for

comment shall apply to each phase .

If the public is to make maximum use of a relatively brief comment period on the remedial plan, it must be well informed before

that period begins. To this end, the Administrator should make

data, studies, reports, and other information on the contents or

conditions of the site and its likely effects on health and the environment, and any preliminary information on possible remedial actions and feasibi~lity studies, promptly available at a central location near the site and accessible to interested members of the

public. However, this must not become unreasonably burdensome

for the Administrator, and the Administrator need not send ever,'

single datum or communication on the site to the central locacion ,

The Environmental Protpction Agency advised the Committee

that this amendment is consistent with current Agency policies

concerning community participation .

This provision should not impose excessive burdens on EPA . Reasonable time limits on the notice and comment period should

assure that the final selection and implementation of the remedy is

not unduly delayed. While this will require some additional time,

adding some steps to the selection of any cleanup plan to provide

public participation will engender public confidence and ultimately

save both time and resources .

LOVE CANAL PROPERTY ACQUISITION AMENDMENT

SUMMARY

The reported bill adds a new subbection to section 104, which directs the Administrator of the Environmental Protection Agency to

place a high priority on the purchase of the remaining properties

in the Love Canal emergency declaration area in Niagara Fails,

New York.

DISCUSSIO N

Under a 1980 agreement between the Federal Emergency Management Agency (FEMA) and the State of New York, funds are

available to purchase all the owner-occupied homes in the Love

Canal emergency declaration area. Non-owner-occupied homes,

commercial properties, community facilities, and vacant properties

are not eligible for purchase under the ~EMA-State agreement .

This section specifies that the Administrator use monies available under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to purchase the remaining properties . The estimated cost of the properties involved is $4 million .

f)'A
p. 82

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:39

ADm(N[STRATIVE ORDERS FOR SECnON 104(b) Ac-rioNs

SUMMAR Y

This section authorizes the President tu issue administrative

orders on consent to potentially responsible parties fo'r conduct of a

Remedial Investigation/ Feasibility Study (RI/FS). Enablirtg the President to issue these orders will increase the prospect that responsible parties will agree to conduct RI/FS' and cleanups consistent with the requirements of CERCLA.

DISCUSSION

In many circumstances it may be appropriate for responsible parties to conduct the remedial investiFations and feasibility studies

(RI/FS') which guide the Presidents remedial decisions . Private parties are more likely to assunie responsibility for conduct of

cleanup action if they have had opportunities for involvement in

the decision concerning the appropriate remedy . Private-party RI/ FS' are a valuable part of the CERCLA cleanup program ' hen they are technically sound and conducted in a timely fashion, th w e

alternat ves are consistent with the requirements of CERCLA, and

their development is subject to adequate oversight by the govern- ment.

The government's oversight can be most effectively conducted

when the responsible parties conducting the RI/FS are subject to

an administrative order. CERCLA currently au .horizes the Presi- dent to issue administrative orders under section 106. However, the start of an R1/FS under section 106 may be delayed while the government and responsible parties debate the existence of an "imminent and substantial endangerment," as specified in section 106. Therefore, in appropriate circumstances, it will be useful for the

President to issue orders on consent for private party RI/FS' which

are not based upon the criteria of section 106. These section 104(b)

orders will increase the likelihood that potentially responsible parties will conduct RI/FS' and ultimately consent to undertake cleanup, thus making available Fund resources for additional sites . Settlements for the design and construction of the remedy would

continue to be ratified by sect-Ion 106 orders or consent decrees.

NATIONAL CONTINGENCY PLAN-HAZARD RANKING SYSTE M

SUMMAR Y

The reported bill adds two new subsections to section 105 of the

Comprehensive Environmental Response, Compensation and Liability Act. New section 105(b) requires the President to revise the National Hazardous Substance Plan not later than twelve months

after the date of enactment of these amendments to provide procedures and standards for remedial actions undertaken pursuant to

CERCLA which are consistent with the amendments made by this Act.

New section 105(c) requires the President by rule, not later than

twelve months after the date of enactment of these amendments, to

promulgate amendments to the hazard reanking system it. effect on September 1, 1984 . These amendments shall assure, to the maxi-
p. 83

4 0

mum extent feasible . that the hazard ranking system accurately assesses the relative degree of risk to human health and environ m'ent

posed by sites and facilities subject to review These amendments

shall take effect as of the date established by the President, not

later than eighteen months after the enactment of the Superfund

Amendments of 1984. The amended hazard ranking svstem shall be

applied to any site or facility to be newly listed on the National

Priority List after the effective date of the amendments The

hazard ranking system in effect on September 1, 1984, shall contin .

ue in full force and effect until the new regulations are in effect .

DISCUSSION

The President is directed to update the National Contingency

Plan originally published for section 311 of the Clean Water Act so

that the plan reflects the responsibi I i ties and powers created by &

51 . The original CERCLA legislation required the revisions of the

National Contingency Plan to add a new section giving some consistency and cohesiveness to response planning and actions for hazardous substance response actions . The Plan includes among other

items:

(1) appropriate roles and responsibilities for Federal, State

and local authorities and non-governmental entities ;

(2) methods for discovering and investigating sites of disposed hazardous substances and in-place concentrations of such

substances;

(3) methods and criteria for determining the appropriate

extent of response measures;

(4) methods for evaluating remedial actions ; and

(5) provision for obtaining prepositioning and maintaining

necessary response capabilities .

After the revised plan reflecting the current amendments is published, removal and remedial actions should be in accordance with

the Plan to the greatest extent possible.

The present hazard ranking system based on the so-called Mitre

Model has been criticized for failing to assess accurately the relative degree of hazard posed by various sites and facilities . The purpose of the hazard ranking system is to indicate degree of hazard

or risk in order to determine whether a site or facility should be

placed on the National Priority List. In particular, the validity of

the present hazard ranking system has been questioned for identifying the degree of hazard or risk posed by mining sites. The

hazard ranking system appeared to identify the most hazardous

constituent a site, quantify the total amount of wastes at the site,

then assume that all of the waste is comprised of the most hazardous constituent. This could introduce a bias in the hazard ranking

system against large quantities of waste with the presence of trace

toxic metals, such as typical mining wastes.

In order to determine whether such a bias exists and establish a

system which accurately assesses the relative hazard in candidates

for remedial action. the bill requires the hazard ranking system to

be revised through a rule-making proceeding .

The provision is meant to deal with this problem without interfering with continued EPA progress toward assessing potential site

AN
p. 84

hazards . li~,tim~ ~ltvs, or bei.~inning clean-up ictttm [I %.,-ouj,J :~,)t

affect any site or lacilit_~ 11-sted prior to the actual (,[fk~Crj%-e (JJt, . 't

the new hazard ranking svstc-ni . nor would it require the ranKir,_,

or tisttng of ariv site or faciiitv to be delaved But by asurm,",

greater accuracy in the hazard ranking system . hi~,rhest priorlt_~ ittention would be focused on the sites posing genuinely the

danger.

The amendment meets this objective bV ~ I i ~!ettim: up a re~ :C~%

and public comment procedure and requiring prornulgauon of re,,

sions in one year; 0 assuring that the new system*~%ill -,o into

effect by a date established by the President, to be not later Itnan

IS months after enactment ; (3) establishing a substantive stana,ird

for the hazard ranking system that to the maximum extent feasiblt

is an accurate assessment of the relative dei,~ree of risk to human

health and the environment of the sites to be reviewed : and 4,

leaving the present hazard ranking system in operation until the

more accurate hazard ranking system can be put into effect "or

sites to be listed thereafter.

NATIONAL CONTINGENCY PLAN

SUMMARY

The reported bill amenu 3ection I0,'xaX8Xl3) fas designated b y

this Act) to eliminate the requirement th, t the National Contingency Plan include at least 400 facilities and clarify that States are

allowed only one highest priority designation for tl~ie life of the list .

DISCUSSIO N

Under current law, the National Priorities List must contain at

least 400 top priority facilities. Deletion of this phrase will allow

the EPA to select and place on the NPL only those facilities which

present "the greatest danger to public health, welfare. or the environment," based on the criteria of section 10.5 of the Act .

The second part of the amendment would be a ratification of

EPA's present policy of permitting States to make only one hLgheSt,

priority designation. This policy is reflected in the most recent proposed revisions to the NCP.

If a State's highest priority facility is cleaned up and delete~

from the NPL, the State will not get another highest priority desiznation. Allowing another priority designation would pro'..1de ,he

States with an opportunity to circumvent the hazard ranking

system developed under the NCP.

FoREIGN VESSELS

SUMMARY

The reported bill deletes from section 1071ax 1) of CERCLA a

clause which excluded from liability under CERCLA all foreign

vess is not otherwise under Unitpd States jurisdiction .

)7y
p. 85

6 :3 4

42

DISCUSSION

This amendment clarifies that foreign vessels which release hazardous substances in areas subject to United States jurisdiction are

subject to liability under section 107 of CERCLA even where the

foreign vessel itself is not subject to United States jurisdiction

under any other law.

STATE AND LOCAL GOVERNMENT LIABILITY

SUMMARY

The reported bill amends section 107(d) to modify the potential

liability of State and local governments that respond to emergencies created by the release of a hazardous substance. pollutant or contaminant generated by or from a facility owned by another

person . State or local governments shall not be liable for costs and

damages as a result of non-negligent actions taken in response to

such emergencies.

DISCUSSIO N

Under current law, there may be disincentive for State and local

governments to respond to emergencies covered by CERCLA because the same liability standards may be applied to these entities

as is applied to private parties who are responsible for a spill or

other release of a hazardous substance, pollutant or contaminant . Under this amendment, when a State or local government takes

an emergency action to abate a hazard on a non-negligent way,

that government will not be subject to the liability provisions applicable to the parties that created the hazard .

CONTRACTOR INDEMNIFICATION

SUMMAR Y

This section amends section 107(e) of the Act to authorize the Administrator to provide indemnification to contractors who are engaged by the Agency or the States to respond to the release of hazardous substances, against potential liability that might arise as a

result of their actions .

DISCUSSION

The potential for being held jointly and severally liable for

injury or property damage under existing law may discourage competent contractors who would otherwise offer their services and expertise to respond to releases at specific sites .

Indemnification under this provision may cover claims for death,

bodily injury and property damage, and may include the expenses

of litigation that would arise as a result of the contractor's conducting activities under contract with the Agency or the States . Indemnification cannot extend to contractors where the injury or damage

was caused by a negligent action of the contractor.

The decision to extend such indemnification is descretionary

with the Administrator. Indemnification does not arise without a

specific contractual arrangement that extends such protection.
p. 86

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4 : 3

NATURAL RESOURCE DAMAGE CLAIMS

SUMMAR Y

The reported bill clarifies and relocates from section 111(h~ to

section 107if) existing language regarding the relative responsibil .

ities of Federal and State natural resources trustees . In addition,

the provision requires the promulgation of damage assessment regulations under section 301(c) of the Act not later than six months

after enactment of this Act . The bill also amends section llliex2)

to provide that no money in the Fund/may be used to pay claims

for natural resource damages in any fiscal year for which the Predident determines that all of the Fund is ~eeded for responses to

threats to public health.

DISCUSSIO N

Generally, the Federal or State trustee would perform assessments of damage to resources under its own jurisdiction . Federal

trustees may perform assessments on behalf of States if they are

rimbursed by States for performing the assessments . Assessments by Federal or State trustees using the damage assessment regulations being prepared by the Department of the Interior would continue to be entitled to a presumption of validity . While the amendment to section 111(eX2) makes it possible that in any given year

during this reauthorization period, no Fund moneys may be available to pay natural resource damage claims, responsible party liability for such damages under sections 106 and 107 continues, and

claims against the Fund are delayed, not extinguished . This provision does not preclude either response or payment of response

claims where the damage to natural resources constitutes a threat

to public health (e.g. as in the contamination of drinking water aquifers).

CONTRIBUTION AND PARTIES To LITIGATION

SUMMARY

The reported bill clarifies and confirms existing law governing liability of potentially responsible parties by adding a new subsection 107(e) providing:

-that parties found liable under sections 106 or 107 have a right

of contribution, allowing them to sue other liable or potentially liable parties to recover a portion of the costs paid ; and

-that parties who reach a judicially approved good faith settlement with the government are not liable for the contribution

claims of other liable parties.

The amendment also provides that, where a civil or administrative

action is underway, any related contribution or indemnification actions by defendants or third-party defendants may be brought only

after a judgment has been entered or a settlement in good faith

has been reached in the initial civil or administrative action .
p. 87

6 :3 6

44

DISCUSSION

It has been held that, when joint and several hability is imp(_,~ed

under section 106 or 107 of the Act, a concomitant rig ht of contribution exists under CERCLA . United States v . Ward. S Chem &

Rad. Waste Litig . Rep. 484 . 487-88 (D . N .C . Nlay 14 . 19,'--4). Other

courts have recognized that a right to contribution exists Without

squarely addressing the issue . See, e.g., United States v South

Carolina Recycling and DiVosal. Inc. . 7 Chem & Rad . Waste Ling Rep . 674, 677 (D . S.C. February 23. 1984). This amendment clarifies

and confirms the right of a person held jointly and severallv liable

under CERCLA to seek contribution from ot~er potentiall v' liable

parties, when the person believes that it has assumed a share of

the cleanup or cost that may be greater than its equitable share

under the circumstances . In cases where the United States has

been required to pay response costs as a generator or facility owner

or operator, the United States may also seek such costs from other

responsible parties .

The amendment should encourage private party settlements and

cleanups . Parties who settle, or who pay judgments as a result of

litigation, may attempt to recover some portion of their expenses

and obligations in subsequent contribution litigation from parties

who were not sued in the enforcement action or who were not parties to the settlement. Private parties may be more willing to

assume the financial responsibility for cleanup if they are assured

that they can seek contribution from others .

In addition to encouraging settlement, the amendment will help

bring an increased measure of finality to settlements. Responsible

parties who have entered into a judicially approved good faith settlement under the Act will be protected from paying any additional

response costs to other responsible parties in a contribution action . The amendment will also promote more expeditious management

of litigation. Response sites often involve dozens or even hundreds

of potentially responsible parties with differing types and degrees

of involvement with the release. While the govern ment mav sue all

potentially responsible parties, it need not sue all these parties . It

may instead sue a limited number of parties to secure complete

cleanup or all costs of cleanup under the principle of joint and several liability. Generally, the government seeks to obtain complete

cleanup or to recover all of its costs. In some instances, where the

government has sued major contributors of hazardous substances to

a site but not lesser contributors, the parties named by the United

States have in turn sued other potentially responsible parties in

the same judicial action . In several cases this has resulted in massive and potentially unmanageable litigation .

The amendment provides that if an action under section 106 or section 107 of the Act is underway, any related claims for contribution or indemnification may not be brought until a judgment or

settlement is reached in such action . This provision is intended to

postpone counterclaims, cross-claims, and third-party actions ; parties with counterclaims deemed compulsory under the Federal

Rules of Civil Procedure shall pursue such claims after completion

of the case-in-chief. This postponement allows the government to

limit the number of parties and claims in its actions, so that litiga-
p. 88

tion mav be resolved in a more elf-icient and expenditious fashion . This provision is not intended to have any retroactive effect on

third-party actions that were Fled prior to the enactment of this

amendment. District courts ~;hould carefully manage cases Filed

prior to enactment in a way tnat avoids prejudicing the government's ability to resolve its cases expeclitiously and without the significant delavs and expenses that third-party litigation mav create . As with joint and several liability issues, contribution claims will

be resolved pursuant to Federal common law . Courts are to resolve

such claims on a case-by-case basis . taking into account relevant

equitable considerations.

FEDERAL LIEN

SUMMARY

The reported bill amends section 107 to add a new subsection 1m )

to enable the United States to recover its response costs through an

in rem action against the real property that is the subject of the

response action . Such protection for the United States will also

enable it to recover the increase in land value resulting from the

response action, thus preventing unjust enrichment of the property

owner.

DISCUSSION

The amendment provides that all costs and damages for which a

person is liable to the United States under section 107(a) of the Act

shall be a lien on all real property affected by the response action.

The lien arises at the time the United States first incurs response

costs, but is not perfected as against purchasers, security interest

holders, and judgment lien creditors (all as defined in the tax lien

statute, 26 U.S.C. section 6321 et seq.) until notice of the lien is recorded or filed . The notice provision does not apply with respect to

any person who knows or should have known that the United

States has incurred response costs .

The federal lien does not have any special priority over the perfected security interests of other creditors. Instead, it has priority

over other secured creditors only as of the date they have constructive or actual notice of the creation of the lien. Nonetheless . the

lien provides protection to the United States in instances where

the owner of the land on which a response action has occurred becomes insolvent or cannot be found . The federal government retains the right to proceed in personam against all persons liable for

response costs and damages under section 107(a).

The creation of this lien does not itself in any way make the

United States a liable party under CERCLA or any other laws, nor

does it affect any rights the United States may enjoy under other

Federal or State laws .
p. 89

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DIREcT ACTION

SUMMAR Y

This amendment clarifies certain aspects of existing financial responsibilitv requirements and provides for direct action against

guarantors :n appropriate cases .

Specificali.v, the amendment : i I) provides claimants in appropriate circumstances with the right of direct action against guarantors (defined as persons who provide evidence of financial responsibilitv to an owner or operator, (2) permits a guarantor when subject to a direct action suit to invoke as a defense the terms and conditions contained in the guarantor's policy of insurance with the

owner or operator, (3) confirms. without diminishing any other

statutory, contractual or common law, liability of a guarantor . rhat

the total liability of a guarantor is limited to the aggregate amount

that the guarantor has provided as evidence of Financial responsibility to a particular owner or operator . and (4) authorizes the Administrator to establish appropriate rules and defenses with respect to such actions.

DISCUSSION

The amendment modifies an existing right of direct action

against a guarantor. With direct action, a claimant may File a lawsuit naming an insurance company o

- -

other entity serving as guarantor as a defendant in the case . Absent the right of direct action,

an insured party would file an action only against the person who

allegedly had caused the injury, and it is that person's liability

which is litigated in the action . the insurer's initial obligation is to

its insured, with whom the insurer has a contract. If the insured is

found liable, then the insurer is obligated to make payment to the

insured in accordance with and subject to the terms of the contract.

In some instances, however. an injured party, who is the intended beneficiary of the Financial responsibility requirements in

CERCLA, may not be able to bring an action against the owner or

operator to recover from that owner or operator or their guarantor .

There are two specific circumstances where this may occur . Fi-st,

it is possible that a claimant may not be able to obtain court jurisdiction over the owner or operator. Second, and perhaps more

likely, the owner or operator either volunta, ily or involuntarily

may be a debtor in bankruptcy . These two circumstances inciude

cases where an owner or operator may be identified and subject to

court jurisdiction, but clearly unlikely to be solvent (i .e ., capable of

paying the judgment) at the time the litigation is resolved . The

amendment would afford a claimant the right of dirccE action Ln

both instances.

Policy terms and conditions

In a direct action lawsuit, the amendment permits the guarantor

to invoke not oniv the defenses that would have been available to

the owner or operator, i .e ., -acts of God, acts of war, unrelated third

party acts in limite I circumstances . but also the terms and conditions that the insurer had agreed upon with the insured in their
P. 90

639

47,

policy of insurance. By authorizing a guarantor to invoke these

rights and defenses, this amendment should foster the development

of a competitive marketplace for insurance certified as evidence of

financial responsibility. A competitive marketplace should lead to

the greater availability of reasonably priced insurance certified as

evidence of financial responsibility . This, in turn should encourage

increased compliance with CERCLA's financial responsibility provisions (and the availability of direct action) which will ultimately

benefit the claimants by providing them with greater financial protection.

In addition, a major goal of the financial responsibility requirements is to enlist insurers to provide additional policing and incentives to monitor the behavior of their insureds . The preservation of

an insurer*s policy terms and conditions vis-a-vis its insured may

assist in meeting this objective. It is often policy terms and conditions, as well as inspection and rate-making, that form the basis of

the insurer's ability to influence the insured to act carefully and

responsibly .

At the iime of enactment of CERCLA, there was some concern

that a guarantor might use its policy terms and conditions to diminish the risk it was undertaking, and therefore the value of the

financial responsibility it had provided . We hope the cause for this concern will be minimized by several factors. One factor is the intensely competitive nature of the property-casualty insurance

market. Owners and operators should have little incentive to purchase insurance certified as evidence of financial responsibility

that does not provide meaningful coverage when insurance that

would provide valid protection for their assets is readily available .

Moreover, insurance companies are subJect to comprehensive regulation at the State level so that, if this problem ever did arise,

there would be an available procedure to correct it promptly. Nevertheless, as a further safeguard the amendment authorizes the

Environmental Protection Agency to specify policy or other contractual terms, conditions or defenses which EPA deems to be necessary or to be unacceptable in establishing evidence of financial

responsibility.

Liability limits

The amendment also clarifies and derines more precisely the ultimate liability of a guarantor when providing evidence of financial

responsibility. As written, present section 108(d) of CERCLA could

be interpreted so as to expose an insurer to the full amount of the

risk regardless of the insurer's policy limits should an insurer be

found to have acted not in good faith. Section 108(d) does not define

the term "good faith" nor does it specify to whom the guarantor

must act in good faith. To cure this uncertainty, the amendment

specifies that a guarantor's policy limits shall be binding, but that

nothing in CERCLA is intended to limit any other statutory, contractual or common law liability of a guarantor, including an insurer's traditional common law obligation to act in good faith

toward its insured. Moreover, the amendment also makes explicit

that the liability limit of a guarantor in any specific instance is to

be determined by the aggregate amount which the guarantor has
P. 91

64 0

provided as evidence of' flitiancial responsibility to tl,(,

owner or operator involved in the matter. While a guarantor's liability under CERCLA is limited to the aizgrtV,aLe amount which the guarantor has provided is tvicience of

Financial responsibility to the owner or operator unde .- CERCL:X.

this section does not limit the guarantor's liability to 'he arnount

for which Financial responsibility must be demonstrated . For t2ximpie, it' the owner or operator secured a guaranty Cor all amount

greater than the amount required pursuant to section 1()-. the

guarantor's liability is limited by the amount of the 1,uarantv . not

the amount required pursuant to section 108 .

Evidence of financial responsibilit

-

v

Finallv, the amendment makes explicit and uniform how evidence of financial re-.ponsibility is to be provided . First. the amendment requires that evidence of financial responsibility is to be provided in accordance with regulations promulgated by the Administrator of EPA. Thus, for example. the mere purchase of insurance

by an owner or operator is not sufficient, in and of itself, to meet

the financial responsibility provisions of CERCLA . Rather. in order

to meet the statutes' requirements. an owner or operator must

obtain from a guarantor insurance or some other form of financial

guarantee that qualifies as evidence of financial responsibility pursuant to the EPA's regulations . Second, the amendment provides

that evidence of financial responsibility may be provided by any

one, or any combination, of the following : insurance. letter of

credit, guarantee, surety bond or qualificatior as self-insurer .

VicTim ASSISTANCE DEMONSTRATION PROGRA.%I

SUMMARY

S. 51, as reported, establishes a five-year demonstration progra m

of assistance to victims of exposure to hazardous substances released into the environment, to be operated in five to ten areas of

the country.

The bill adds the cost of grants under this program to the list of

permissible uses of the Fund, and specifies that only the general

Revenue/contribution to the Fund is available for this purpose .

This provision adds a new subsection (m) to section III of the

law. Subsection (mXD sets out the eligibility criteria which must be

met by an area in order to be nominated by a State to EPA for

participation in the program. The prerequisites for eligibility are :

First, a health assessment or other health study required under

section 104(1) of the Act must have been performed .

Second, the health assessment or other health study must con .

tain certain information. Specifically, the study must indicate that :

1 . There is a disease or injury for which the population o f

such area is placed at significantly increased risk as a result of

a release of a hazardous substance ;

2. Such disease or injury has been demonstrated by peer reviewed studies to be associated (using sound scientific and medical criteria) with exposure to a hazardous substance ; and
p. 92

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49

3 . The geographical area contains individuals within the population who have been exposed to a hazardous substance in a

release. Any area which in the judgment of a State meets these criteria

may be nominated by the State in which it is located to the Environmental Protection Agency for selection . Selection is to be made by the President or his delegee in its sole

discretion. However, selections must be made taking into account

the experience of the State and local governments in administering

programs dealing with hazardous substances, as well as ~Ihe representative nature of the hazardous substance releases and exposure

in terms of the identities and toxic characteristics of the substances

found, the manner and degree of exposure, and the seriousness and

duration of the diseases or illnesses caused .

The President shall select no fewer than Five and no more than

ten areas for participation in this program, assuming that at least

that number of applications is received . If no applications are received, no grants will be made. Grants must be made in different

States, to the extent possible . Assuming that several States submit

applications, the amendment directs the President to make grants

to areas located in at least five different States . The amendment

also specifies that each grant is to made for not less than $1 million per year and not more than $10 million per year. No area or class of individuals may receive assistance from a program established under this subsection if therF_ is a solvent responsible party who may be liable under section 107 and who is already

providing medical assistance comparable to the assistance available

under this program.

Paragraph (5) specifies the elements that must be included in

any State program operated under this subsection . A participating

State shall operate, for at least three years and not more than five

years, a program which provides for the area selected the following

assistance:

1 . Medical screening examination and testing as necessary to

determine the presence in individuals of the disease or injury

for which the population of the geographic area is at significantly increased risk ;

2

ol

r r persons with no present symptoms of such disease or

injury, a secondary group medical benefits insurance policy for

the costs of periodic medical screening to determine the presence of such symptoms;

3. For persons with present symptoms of such disease or

injury, or who develop such symptoms, reimbursement of past

out-of-pocket medical expenses for such disease or injury not

already recovered, and a secondary group medical benefits insurance policy for the costs of treatment associated with such

disease or injury.

The insurance benefits available under this assistance program

are to be secondary to and nonduplicative of benefits available

under other insurance policies running in favor of an individual,

and to any benefits from public programs for which an ind.ividual

is eligible. Initial eligibility for benefits under this program is to be

determined as of thirty days prior to the date a State applies for

participation in this program . If at a future date a person who was
p. 93

6 4 2

.-m

initially ineligible becomes eligible, secondary insurance assistance

should be made available under this program Persons initially eligible who at a future date become ine[igib!e may receive insurance

coverage only to the extent that it is nonduplicative of other beneFits . Assistance under this program is provided on the conaicion

that any payment received will be repaid to the Fund out of the

proceeds of any award from or settlement with a responsible party .

The amendment requires the submission of several studies to

evaluate this program . rhe President is required to submit annual

reports to the Congress, beginning in January, 1987 . Each State

which participates in this demonstration program must submit to

the President and the Congress a report on its program by January, 1990.

DISCUSSIO N

This amendment establishes on a demonstration basis a program

of medical assistance to victims of exposure to hazardous substance

releases into the environment. This approach is an attempt to develop information required to make a reasoned judgment on the

extent of need for a broader victim compensation program and the

workability of an administrative assistance program.

The subject of administrative compensation for the victims of

hazardous substances and toxic chemicals is one which has been

before the Congress since the mid-1970's, when the Clean Water

Act was amended to provide a response program for environmental

emergencies. The oil and chemical Superfund bill reported by the

Committee on Environment and Public Works during the 94th Congress (which passed the Senate, but was not enacted), S. 2900, contained an administrative compensation program, as did the Superfund bill reported from this Committee in 1980 . When the 1980 legislation was brought to the Senate floor, however, an agreement

was reached which eliminated the victim assistance program and

required a study of the adequacy of existing remedies to compensate persons injured by exposure to the release of toxic substances

into the environment .

The study requirement is contained in section 301(e) of the current law. Pursuant to that section, three representatives of each of

four major legal organizations* were appointed to form what

became known informally as "The 301(e) Study Group" . The four

organizations contributing members to the study group were the

American Bar Association. The American Law Institute, the American Trial Lawyers Association, and the National Association of Attorneys General .

The Study Group submitted its report to the Congress on July 1,

1982. Having been charged with the responsibility of determining

"the adequacy of existing common law and statutory remedies in

providing legal redress for harm to man and the environment

caused by the release of hazardous substances to the environment,"

the Group made ten recommendations . One of these was that a

system of administrative compensation be established :

First Recommendation: Federal Administrative Compensation

and State Judicial Remedies :
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51

In light of the limited availability and the inadequacy in

many situations of existing remedies, and particularly- in

light of the inadequacy of the present tort system to deal

with relatively small claims, the Study Group recommends

a remedial program that is intended to provide means of

recovery for victims of exposure to hazardous wastes, utilizing both administrative and judicial remedies, as may be

appropriate.

In broad outline, the Study Group recommends a twotier system of remedies . The first tier, which is expected to

be the part of the system most heavily relied on by persons LnJured by exposures, will provide an administrative compensation remedy without a showing of fault. The administrative compensation scheme would be established by federal legislation, but would be operated largely by the states pursuant to federal law . Its major purposes would

include the provision of limited compensation to meet the

economic and medical needs of persons injured in a

manner which is more prompt and less costly than tort

litigation. Such a compensation system would also provide

a useful method of cost allocation and sharing, and a socially responsible method of internalizing the emerging

costs of industrial and technological development .

The amendment contained in S. 51 does not fully implement the

recommendation of the Study Group . Rather, it provides $30 million per year to selected States to implement the recommendation

in specific areas which contain individuals who are at statistically

significant increased risk of illness from exposure to hazardous substances . The amendment provides no economic compensation . Al- though the grants for such programs will be made available from

the general revenue contribution to the Superfund, the actual establishment of the assistance programs will be by the States them- selves.

Throughout the course of this debate competing assertions have

been made that on the one hand, such assistance is not needed, and

on the other hand that a program of victim assistance would overwhelm the resources of the Fund. The approval of a demonstration

program reflects a recognition that this is an area of uncertainty,

and more information is needed . The amendment focuses on geographic areas which could provide such information in two ways .

First, the amendment sets out specific area eligibility criteria. Only an area for which a health assessment or other health study

has been performed pursuant to section 1046) of CERCLA and

which contains specified information, is eligible . A health assessment, to be performed at every site on the National Priorities List

under section 1046i, is defined in that section as follows :

The term "health assessments" shall include preliminary assessments of the potential risk to human health

posed by individual sites and facilities, based on such factors as the nature and extent of contamination. the existence of potential for pathways of human exposure (including ground or surface water contamination, air emissions.

and food chain contamination), the size and potential sus-
p. 95

644

02

ceptibility of the community within the likely pathww,~ )i

exposure. the comparison of expected human exposure

levels to tile short-term and long-term health effects as~ociated with identified contaminants and anv available recommended exposure or tolerance limits for such contaminant,s, and the comparison of' existing morbidity and mortality data on diseases that ma

'

v be associated with the ohserved levels of exposure . The assessment shall include in

evaluation of the risks to the potentially affected popul&

tion from all sources of such contaminants . includim-,

known point or nonpoint sources other than the site or Cacility in question . A purpose of such preliminarv assetments shall be to help determine whether full-scale health

or epidemiological studies and medical evaluations of exposed populations shall be undertaken .

The Agency for Toxic Substances and Disease Registrv iS to

specifv in its health assessments the geographic area in which Such

exposures are occurring .

The requirements that area designation is to be based on information contained in a health assessment is to limit eligibility to

those areas where populations have been placed at a staEiSticallv

significant increased risk as a result of exposure :o a hazardou's

substance released into the environment . There is a likelihood that

areas around National Priorities List sites will be a focus of this

program, due to the requirements that health assessments be conducted at each of these sites .

The amendment requires that the health assessment indicate

that the population of a particular area is at significantly increased

risk as a result of exposure to a hazardous substance release . The

term "significantly" means statistical significance . It does nor add

a legal criterion for eligibility but rather clarifies the kind of risk

assessment information that must be in a health assessmen~ for

purposes of area eligibility . Information with this degree of reliability is expected to be in a health assessment or other health study

in any case .

The State in which such an area is located is to apply for participation in the program after its review of the health assessment or

other health study performed under section 104(i) for compliance

with the eligibility criteria set forth in subsection i m) (1).

Second, the selection criteria which are to guide the President's

grant decisions will focus this program on geographic areas with

real need and provide a useful body of information . Paragraph 12)

directs the President to take into account the experience of State

and local governments in administering toxic chemical regulatory

programs. States with such experience as to be preferred, in part,

because of their familiarity with the dangers of such substances to

human health. The President is also directed to take into account

the seriousness of the health threat posed by exposure to hazardous

substances in an sires, as well as the representative nature of the

hazardous substances to which individuals are exposed . This will

assure that the information developed will have broad applicability

to situations which exist in other States, so that if necessary. ~olu_

Ad
p. 96

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53

tions can be sought to address the most serious and most prevalent

problems .

The amendment directs States to apply to the Environmental

Protection Agency for participation in this program . This is a urely ministerial function . The authority to select participating

tates is vested in the President . The President should delegate

this authority to a federal agency with experience in heaith-related

activities. The Committee expects the Agency for Toxic Substances

and Disease Registry to be consulted, at a minimum, about grant decisions. However, selection of specific participating States is in the discretion of the President or the President's delegee . The approval or

denial of a specific application is not subject to judicial review,

except to the extent the President fails to select at least five such

applicants, as required by section 11 1(mX2). Paragraph (5) describes the elements that must be included in

any State program of assistance established under this subsection . Each State program will provide medical screening to all members

of the population defined to be at increased risk of a disease or

injury in the health assessment. The purpose of this analysis is to

identify excess disease or injury associated with exposure to a hazardous substance already present in the population at risk, and to

set in motion for those without present symptoms a process

through which such a disease or injury can be detected at an early stale.

Two different forms of medical assistance are available under a

State's program. For persons with no present symptoms, a secondary group medical benefits policy will provide for periodic medical

screening. For persons who have symptoms of such a disease or

injury, the State will provide a secondary group medical benefits

policy to cover costs of treatment . Individuals in this category will

also receive from the State program reimbursement for past medical costs associated with that illness, if not paid by any other

source.

This general approach using an insurance mechanism was suggested in the Keystone Toxic Exposure Compensation Report of

January, 1985. The group which participated in this project over

many months last year represented interests from academia, industry, citizen and environmental organizations, labor, medical and

legal professionals, and federal and state officials . The K,e7stone group concluded "that an administrative system

for haza. ous substance exposure would best be directed at immediate welfare needs that are public health concerns . While there

are other possible goals or objectives related to this issue, such as

encouraging conduct to prevent such exposures, it was decided that

the immediate public health needs of potentially affected individuals should be the principal objective in the system being suggeted". With respect to the use of insurance to address long-term health

needs, the Keystone group saw this proach as having some benefits for all parties, and recommend:Fthe implementation of such

an administrative compensation system on a trial basis .

The reported bill will rovide experience in this regard. Although the provision speci Fles the insurance benefits that must be
p. 97

64 6

provided by a State demonstration program of' assistancu . :,, jo,s

not require the use of any part icular ~ystern of' inSLLranc e

will be free to establish a rne,-nanisin for providing the ~ppci!-wd

benefits which seems most appropriuLe given the geui4raphic Arpa

selected. and the State s ex.stinv health care deliver v

Such mechanisms :ould include group health orL~an izat ions . aomiristrative services only contracts. risk retention plans . or other -Arrangements to deliver care on a group basis .

FL:ND USE OUTSIDE FEDERAL PROPERTY BouNDARIES

S UNIM A R Y

The reported bill amends section 11 De93 ; of the Act to

'

:)rcwide

that the fund can be used to pay for alternative water supplies in

cases involving fecieraliv owned facilities, where ground%ka-er .-,(,)ntamination exists beyond the Fecierei property boundary and the

federallv owned facility is nut the only potential1v resPonzibit

party . This would include reimbursement of funds alread%,.

spent b,.

a municipality .

DISCUSSiON

Current law prohibits the use of funds from Hazardous Substances Response Trust Fund for remedial action at sites where the

potentially responsible parties include an agency or department of

LFe Federal Government. Conc-ress intended that costs at such sites

should be born by the agencies respcnsibie through apprupriated

funds, rather than from the trust fund derived from taxes on the

chemical manufacturing industry .

This prohibition has caused considerable hardship at many sites

across the Nation because Federal agencies have been slo%k to respond in cases where they are responsible . The Committee has

been made aware of the problems at specific sites which h .i,.e required immediate response with State and local resources -o provide a alternative water supplies . In cases such as New briz-1ton,

Minnesota, responses to protect the pubic health have reqULr-ed the

expenditure of several million dollars by a !ocall government ~~IEh

no opportunity to recover these expenses from the responsible Federal agency in the foreseeable future .

The language of this section would make a limited moditication

in the current prohibiton. It would allow use of monies from the

fund to respond at sites where the potentiaily responsible parties

include an agency of the Federal government but also include

other non-Federai parties . At such sites, the fund may be uspd to

provide alternative water supplies and to reimburse municipalities

to the extent that they have incurred costs to make available alternative water suptilies.

STA,rUTE OF LiMITATIONS

SUMMARY

The reported bill strikes the current statute of limitations language in section 112(d) of the Act and adds a new subsection to section 133 setting out u revised statute of limitations. Under this new
p. 98

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55

provision, the statute of limitations is ta) for recovering the cost of

response, 6 years after the date of completion of the response

action-, 1b) for natural resource damages . 6 years after the date

damage assessment regulations are promulgated under section

301(c) or 3 years after the discovery cf the loss and its connection

with the release, whichever is later; (c) for any other damages. :3

years after discovery of the loss and its connection with the release

or 3 years after enactment, whichever is later, id) for contribution

actions, :3 years after entry of judgment or good-faith settlemeat~

and (e) for subrogated rights under section 112, 3 years after payment of the claim.

DISCUSSION

CERCLA currently includes no explicit statute of limitations for

the filing of cost recovery actions under section 107 There are differing interpretations concerning the time period within which :ost

recoveries must be Filed. Consistent with its position under section

311 of the Clean Water Act, the United States has maintained that

there is no statute of limitations in the law and that if one is applicable. it begins to run six years from the completion of site response .

This amendment establishes a six-year statute of limitations for

the filing of cost recovery actions. The statutory language also

specifies that cost recovery actions can be initiated upon the expenditure of Federal funds . The six-year period is the same as the

period established by a clear line of cases for the parallel provisions in section 311 of the Clean Water Act. It will assure that no

cost recovery actions will be precluded by any shorter time limit

that responsible parties may raise, because of any potential ambiguities in the statute. Nevertheless, there is a need to file cost recoverv actions in a

tirne!y fashion, to assure that evidence concerning liability and response costs is fresh, to help replenish the Fund . and to provide

some measure of finality to affected responsible parties . Because response actions may extend for a number of years, the government

is not precluded from commencing an action for recovery of costs

at any time after such costs have been incurred . When the government brings an action on an operable unit of response and that matter

is resolved by judgment. the government is nOL precluded trom

bringing a subsequent action regarding a subsequent reEporse .

For purposes of recovery of costs by the Federal Government

under this section, the response action is regarded as completed

upon completion of operation and maintenance activities funded by

the Federal Government .

JUDICIAL REVIEW

SUMMARY

This section revises the provisions of section 113(a) governing th e

judicial review of regulations promlilgated pursuant to the Coniprehensive Environmental Response, Compensation, and LkabiliLy Act

of 1980 (CERCLA).
P. 99

- A ;

Ne~,%- section I 1 :~(ai(l) provides that Lin Jr,)PIIC~IL1011 for tw- 1(.%% 4 1

CERCLA revulation may be Filed in the U S Circuit Court ior ,nt,

District of Columbia or in the U S . Court of Appeals for i circuit in

which the applicant resides or transacts business which is dire,-k

affected by such regulation within one hundred and twent%, d,v .,

after such~ regulation is promulgated, Under current law, ' ! u J i c i,l 1

review may only be had in the U .S. Circuit Court of Appeji~, tor

the District of' 6lumbia, and applications for ret. ie%,,, inu~t 'ne ! 1!ed

within ninety davs . New section 11 :3(aX2) establishes a random selection procedure .

to be administered by the Administrative OfFice of the United

States Courts, to determire in an orderiv fashion the court ot ~ippeals in which a regulation is to be reviewed when applications tor

review have been Filed in two or more courts of appeals .

Following the selection of a single court of' appea lIs . other courts

in which applications have been Filed are directed to promptiY

transfer such applications to the court in which the Agenc~ . recurd

has been filed. Notwithstanding the outcome of the randoin uzfiection procedure, any court in which aii application for revie,,% has

been filed would retain the power to transfer the case to ariv ocher

court of appeals for the convenience of the parties or otherwise in

the interest of justice.

DISCUSSION

The principal purpose of this amendment is to allow the Filing of

applications for review of CERCLA regulations in U.S. Courts of

Appeals other than the U.S. Court of Appeals for the District of Columbia. which currently has exclusive jurisdiction over such applications .

The justification for centralized judicial review of environmental

regulations is that it eliminates the possibility of conflic,ing interpretations of the law in different circuits and allows a single court

to develop expertise in this complex area of the law . However. in

the judgment of the Committee these advantages, to t he extent

they exist, are insufficient to offset the disadvantages of centralized

judicial reivew, which include inconvenience to litigants who do

not reside in Washington, D.C. and an unwarranted concentration

of power in a single tribunal, which may in turn generate undersirable political pressures on the appointment of judges . Centralizing

review in a single court may also deprive the law of diverse views

on complex legal issues, and as a result may make the task of the

Supreme Court more difficult.

Although other Circuit Courts of Appeal may not possess as

much technical expertise as the D. C. Circuit, the responsibility of

a Court of Appeals is to review regulations for conformity with faw,

not to undertake technical review of regulations and the Committee has no reason to believe that other Courts of Appeal lack competence to review regulations promulgated under the Comprehensive Environmental Response, Compensation, and Liability Act of

1980.

The random selection process created by section 107(aX2) is intended to avoid the "race to the courthouse" phenomenon and provide for an orderly means of consolidating applications for review
P. 100

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57

of the same Agency action . This process does not preclude any

court of appeals from .exercising its inherent power of transferring

an application for review to any other court of appeals for the convenience of the parties or otherwise in the interest of justice .

The amendment also changes the period within which an application for review of any Agency action must be Filed from ninety to

one hundred and twenty days. In view of the seriousness of the possible consequences of a failure to challenge an action of the Administrator within the prescribed time period, persons who will be directly affected by a regulation should have ample opportunity to

assess the consequences of such regulation and flile an application

for review. A period of one hundred and twenty days provides such

an opportunity .

PREENFORCEMENT REVtEW

SUMMARY

The reported bill amends sections 113 and 106 to clarify the process for judicial review of government decisions on the appropriate

extent of response and the liability of responsible parties. The

amendments explicitly provide that:

-judicial review of all Presidential decisions concerning response is on the administrative record .

-there is no pre-enforcement review of section 106 administrative orders or section 104 response actions or orders : and,

-administrative orders may be subject to judicial review once

response action is completed.

DISCUSSION

Record review

Although CERCLA does not explicitly state how decisions concerning response actions will be judicially reviewed, courts have

suggested that review of decisions concerning the response, like

other administrative decisions, is on the basis of the administrative

record. This amendment clarifies and confirms that judicial review

of a response action is limited to the administrative record and

that the action shall be upheld (and all government response costs

shall be awarded) unless the action was arbitrary and capricious or

otherwise not in accordance with law.

Reliance on an administrative record helps assure that the basis

for the response decision is clearly articulated and open to scrutiny

by the public and responsible parties . Limiting judicial review of

response actions to the administrative record also expedites the

process of review, avoids the need for time-consuminf and burdensome discovery, and assures that the reviewing court s, attention is

focused on the information and criteria used in selecting the response.

If major deficiencies are shown to exist in the administrative

record that has been assembled, judicial review of the response in

an enforcement or cost recovery action may be de novo, i .e., open to

the introduction of evidence by all parties. Existing administrative

law principles will govern whether supplementary materials explaining or clarifying the record may be introduced at trial ; howev-