U.S. GOVERNMENT PRINTING OFFICE

40–816 CC WASHINGTON : 1997

S. HRG. 105–60

SUPERFUND CLEANUP ACCELERATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON

SUPERFUND, WASTE CONTROL, AND RISK

ASSESSMENT

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

S. 8

A BILL TO REAUTHORIZE AND AMEND THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, LIABILITY, AND COMPENSATION ACT OF 1980,

AND FOR OTHER PURPOSES

MARCH 5, 1997

Printed for the use of the Committee on Environment and Public Works

(

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington DC 20402
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED FIFTH CONGRESS

JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia

ROBERT SMITH, New Hampshire

DIRK KEMPTHORNE, Idaho

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

TIM HUTCHINSON, Arkansas

WAYNE ALLARD, Colorado

JEFF SESSIONS, Alabama

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

STEVEN J. SHIMBERG, Staff Director and Chief Counsel

J. THOMAS SLITER, Minority Staff Director

SUBCOMMITTEE ON SUPERFUND, WASTE CONTROL, AND RISK ASSESSMENT

ROBERT SMITH, New Hampshire, Chairman

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

WAYNE ALLARD, Colorado

JEFF SESSIONS, Alabama

FRANK R. LAUTENBERG, New Jersey

DANIEL PATRICK MOYNIHAN, New York

BARBARA BOXER, California

BOB GRAHAM, Florida

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(III)

CONTENTS

MARCH 5, 1997

Page

OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado ............................ 27

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 6

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 8

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 4

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 14

Letter, relative to Oklahoma cleanup sites, from EPA ................................. 378

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 2

Smith, Hon. Robert, U.S. Senator from the State of New Hampshire ................ 1

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 15

WITNESSES

Biagioni, Linda, vice president of environmental affairs, Black & Decker

Corporation, on behalf of the Superfund Action Alliance ................................. 41

Prepared statement .......................................................................................... 395

Responses to additional questions from:

Senator Lautenberg ................................................................................... 402

Senator Smith ............................................................................................ 401

Browner, Hon. Carol M., Administrator, Environmental Protection Agency ..... 10

Charts and tables ............................................................................................. 361

Letter to Senator Inhofe .................................................................................. 378

Prepared statement .......................................................................................... 345

Responses to additional questions from:

Senator Allard ........................................................................................... 368

Senator Lautenberg ................................................................................... 369

Senator Smith ............................................................................................ 366

Senator Thomas ......................................................................................... 368

de Saillan, Charles, Assistant Attorney General, Natural Resources, Environmental Enforcement Division, State of New Mexico ......................................... 60

Prepared statement of Tom Udall, attorney general, State of New Mexico 428

Responses to additional questions from:

Senator Lautenberg ................................................................................... 466

Senator Smith ............................................................................................ 465

Florini, Karen, Esq., senior attorney, Environmental Defense Fund .................. 39

Prepared statement .......................................................................................... 384

Garcia, Terry, Acting Assistant Secretary, National Oceanic and Atmospheric

Administration ..................................................................................................... 55

Prepared statement .......................................................................................... 415

Responses to additional questions from Senator Smith ................................ 421

Gimello, Richard, Assistant Commissioner for Site Remediation, New Jersey

Department of Environmental Protection, on behalf of National Governors’

Association ............................................................................................................ 37

Prepared statement .......................................................................................... 382

Heig, Rich A., senior vice president, Engineering and Environment, Kennecott

Energy Company .................................................................................................. 62

Prepared statement .......................................................................................... 473

Responses to additional questions from Senator Smith ................................ 475

Lockner, Larry L., manager for regulatory issues, Shell Oil Company, on

behalf of American Petroleum Institute ............................................................. 57

Prepared statement .......................................................................................... 423

Responses to additional questions from Senator Smith ................................ 426
Page

IV

O’Regan, Karen, environmental programs manager, City of Phoenix, on behalf

of American Communities for Cleanup Equity, International City County

Management Association, National League of Cities, National Association

of Counties, U.S. Conference of Mayors, and National School Board Association ........................................................................................................................ 45

Analysis of bill passed by Arizona Senate relative to Superfund program . 414

Prepared statement .......................................................................................... 410

Responses to additional questions from Senator Smith ................................ 413

Spiegel, Robert, director, Edison Wetlands Association ....................................... 59

Williams, Barbara, owner, SunnyRay Restaurant, Gettysburg, PA, on behalf

of National Federation of Independent Business .............................................. 43

Prepared statement .......................................................................................... 402

ADDITIONAL MATERIAL

S. 8, Superfund Cleanup Acceleration Act of 1997 ............................................... 73

Article, State to Study Possible Effects of Contaminated Water, Soil, UPI ....... 566

Comments on Executive Order 13016:

Chemical Manufacturers Association ............................................................. 502

Several energy companies ................................................................................ 487

Letters:

Bair, Sierra ....................................................................................................... 52

Chemical Manufacturers Association ............................................................. 500

Kennecott Energy Company ............................................................................ 485

National Association of Industrial and Office Properties (NAIOP) .............. 578

New Mexico Governor Gary Johnson .............................................................. 468

New Mexico Secretary of the Environment Mark Weidler ........................... 470

Sierra Club ........................................................................................................ 547

Reports:

Summary of S. 8, Superfund Cleanup Acceleration Act of 1997, Congressional Research Service ................................................................................ 332

VIACOM Merger, Sierra Club ......................................................................... 555

Statements:

Association of State and Territorial Solid Waste Management Officials

(ASTSWMO) .................................................................................................. 534

Chemical Manufacturers Association ............................................................. 539

Government Finance Officers Association ...................................................... 568

National Association of Industrial and Office Properties (NAIOP) .............. 579

National Federation of Independent Business ............................................... 406

Oregon Department of Environmental Quality ............................................. 584

Superfund Action Alliance ............................................................................... 399
(1)

SUPERFUND CLEANUP ACCELERATION ACT

WEDNESDAY, MARCH 5, 1997

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON SUPERFUND, WASTE CONTROL

AND RISK ASSESSMENT,

Washington, DC.

The committee met, pursuant to notice, at 9:34 a.m. in room 406,

Senate Dirksen Building, Hon. Robert Smith (chairman of the subcommittee) presiding.

Present: Senators Smith, Inhofe, Allard, Thomas, Lautenberg,

and Chafee [ex officio].

Also present: Senator Baucus.

OPENING STATEMENT OF HON. ROBERT SMITH, U.S. SENATOR

FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. The subcommittee will come to order.

I’d like to welcome Administrator Browner here this morning and

thank her for being here. We look forward to hearing your testimony and discussing Superfund reform.

We do have 11 witnesses this morning, 10 following you, Administrator Browner, so I’m going to be very brief in my opening remarks.

We’ve expended a lot of time and effort over the past 3 or 4 years

to try to get Superfund reauthorized. I think there are a number

of areas that we agree upon; there clearly are many that we don’t

agree upon. I hope though that we can reach common ground.

I think the American people realize that this legislation, in spite

of good intentions, has not done the job that it was designed to do.

While we continue to debate it, there are people out there who are

frankly innocent victims of this. We will hear from some of them

today who are caught up in this liability mess.

We owe it to them and to the environment to get this situation

straightened out so that more money can be put toward cleanup

and less toward administrative and legal costs. So I think we can

do a better job, we can do a faster job, we can streamline and I’m

hopeful that we’ll be able to come up with some type of compromise, if that’s what it takes, to get Superfund reauthorized.

I must say I was somewhat taken aback by the intensity of the

negative comments in your statement, Administrator Browner, regarding S. 8, but I look forward to discussing that with you. We

spent many hours, many days, many weeks of meetings both at the

staff level and at the personal level working from the committee’s

bill from last year, S. 1285, to work toward a compromise.
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I felt that we were a lot closer than the remarks that you made

in your statement seem to indicate, but maybe we’ll be able to find

some common ground along the way this morning.

Thank you.

[The prepared statement of Senator Smith follows:]

PREPARED STATEMENT OF HON. ROBERT SMITH, U.S. SENATOR FROM THE STATE OF

NEW HAMPSHIRE

Good morning. I would like to thank everyone for coming to this morning’s hearing. We are here today to receive testimony on S. 8, the ‘‘Superfund Cleanup Acceleration Act of 1997.’’

I am going to be brief in my remarks. Frankly, the American people have been

waiting too long for comprehensive Superfund reform, and I for one, don’t want to

waste any more time. We have expended a lot of effort on this subject over the past

4 years, and as a result of extensive negotiations we conducted in the last Congress,

I believe that I can say that the number of areas we agree upon, significantly outnumbers the areas that we don’t. In those areas we don’t agree, I believe that we

are close to reaching common ground.

Superfund came about in 1980 in an effort to quickly clean up the toxic waste

sites that scarred our Nation. We all agree that these sites need to be cleaned up.

It is not right that one out of four of our citizens lives near a toxic waste site. Yet,

the results of the Superfund program could be better. After 17 years, only 125 sites

have been cleaned up and deleted from the National Priorities List. There are still

more than 1200 sites left on the list and more are still being proposed. While some

will suggest that more sites are being cleaned up now than previously, recent EPA

testimony estimates cleanups are still taking 8 to 10 years to complete. The fact is,

we can and should do a better and faster job of cleaning up these sites, and I am

encouraged that everyone seems to agree on this point.

Administrator Browner, whom we will hear from today, has sincerely tried to improve the Superfund program during her tenure though the use of administrative

reforms. I think our agreement in many of these areas is indicated by the fact that

some of the provisions in S. 8 were derived from the administrative reforms, and

likewise, some of the EPA’s administrative reforms were based on proposals that I

had made in the last Congress. Yet, Ms. Browner has nonetheless, remained a vigilant supporter of comprehensive Superfund reform. I appreciate her position, and

I agree with her.

Today, I hope we get past the rhetoric that clouds this issue. It would be unfair

and untrue to state that anyone on this Committee doesn’t want to clean up toxic

waste sites. That is not the reason for this bill. Instead, this bill recognizes that

these sites are not being cleaned up fast enough. Our citizens and environment deserve better.

Today, we will hear from representatives of Federal, State and local organizations, from environmentalists, and from businesses large and small. I want to take

the opportunity in advance to thank the witnesses for coming today. By the end of

their testimony, I am sure we will have a clearer picture of how we should proceed

toward reauthorizing this important legislation.

Senator SMITH. Senator Lautenberg.

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Thanks, Mr. Chairman.

In the interest of time and showing my appreciation for your calling this hearing, I will be brief.

I particularly want to see us do the job better and more efficiently, to speed cleanups; but in the process, I am not willing to

abandon the safeguards that protect the public. I believe that it’s

possible, based on our past experience of working together—Senator Smith, Senator Chafee, Senator Baucus and I came very close

to a solution last Congress.

Perhaps this is a bit of nostalgia. I feel like Frank Sinatra—they

were very good days, but if we can be assured that the costs will
3

be distributed fairly, that the process will be closely monitored, we

may have a successful law. I think there are certainly some weaknesses in the present law. We’re going to have to work very hard,

all of us, if we’re going to pass a bill that achieves full, bipartisan

support.

I would put my entire statement in the record and Mr. Chairman, you heard from our distinguished committee chairman, that

he promises to read every word of the statement if I put it in the

record. Thusly, I’m willing to acquiesce and I will put my statement in the record.

I thank you very much.

[The prepared statement of Senator Lautenberg follows:]

PREPARED STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Mr. Chairman, I welcome this opportunity to hear from the Administration and

a cross section of stakeholders on the reauthorization of the national hazardous

waste cleanup law, known as Superfund. As you know, this is a program of great

importance to my State of New Jersey, and to innumerable communities across the

country. 73 million Americans live near toxic waste sites. That is about one in every

four of our citizens.

Although it is difficult to say precisely how dangerous there sites are, recent data

from the Agency for Toxic Substance and Disease Registry are troubling. For example, some studies found that in all but one of New Jersey’s 21 counties, cancer rates

in areas around hazardous waste sites exceeded the national average. Studies from

other parts of the country also suggest that those living near toxic waste sites suffer

disproportionately from serious health problems.

Beyond their adverse health effects, hazardous waste sites often have serious negative economic effects on our cities and neighborhoods. If we don’t clean these sites

up, we will deprive communities of good jobs and needed local tax revenues.

Unfortunately, the Superfund program got off to a slow start. However, in recent

years, the program has turned around. Under the Clinton Administration, toxic

waste cleanups have been 20 percent faster and 25 percent cheaper. We have seen

real progress in cleaning up sites, as well as an increased emphasis on fairness to

settling parties.

Still, all of us here today are trying to help make the system work better yet. We

would like very much to speed cleanups, to reduce unnecessary litigation, and make

the program work more fairly and efficiently.

I am especially eager to hear from our witnesses about the various administrative

reforms that have been implemented in the program. Many criticisms of Superfund

address problems that existed long ago. In fact, I used to be a leading critic of the

program.

However, today’s program has changed considerably, thanks largely to improvements begun by Administrator Reilly and a broad range of significant new reforms

developed by Administrator Browner. EPA’s reform efforts have led to a Superfund

program that is much faster, fairer, and more efficient than it was 4 years ago,

when these reauthorization efforts started. We need to build on those reforms,

rather than addressing problems that no longer exist.

During the last Congress, Senators Smith, Chafee, Baucus and I spent countless

hours, along with the Administration, trying to resolve our differences. I remain

committed to a process that will improve Superfund, and produce a bipartisan bill

that deserves the President’s signature. I am hopeful we will succeed. We have

made some significant process in certain areas, and have faith that this will continue.

At the same time, I am deeply concerned about some of the provisions in S. 8 that

would dramatically reduce the responsibility of many polluters. For example, S. 8

relieves from liability generators of industrially-derived hazardous wastes if they

were savvy enough to have buried their waste at a landfill that also accepted ordinary household trash. In other words, the companies who elected to use midnight

dumpers will profit. Responsible industrial generators, who paid a higher price to

dispose of their wastes at industrial landfills, will continue to be enmeshed in Superfund’s liability scheme. This makes Superfund more unfair, not less.

I am also concerned that S. 8 fails to adequately protect the safety of our drinking

water because it fails to require that groundwater be cleaned up. The bill also re-
4

peals an existing preference for cleaning up the pollution to protect future generations and the environment. Instead, S. 8 would allow the materials to remain at

sites, so long as there is a fence around them, even if the materials continue to pose

health risks.

In addition, I am very concerned about the broad authority granted to States

without a showing that they have the technical and financial capacity to adequately

protect public health and the environment.

To help us explore these issues, I look forward to the comments today of Carol

Browner and all the witnesses, in particular the two witnesses from New Jersey.

Robert Spiegel will explain the importance of community participation in Superfund

decisionmaking. His experience at the CIC site in New Jersey shows the benefits

and savings that can be achieved if the community is part of the process. I also

want to welcome one of the leading State managers of hazardous waste cleanup,

Rich Gimello, who operates the hazardous cleanup program in New Jersey and

today is representing Governor Whitman and the National Governors Association.

Senator SMITH. Senator Chafee.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Thank you, Mr. Chairman.

Yes, indeed, I will read Senator Lautenberg’s statement. I will

curl up in bed this evening with it and look forward to it as an exciting bit of reading.

It isn’t just this statement of yours, Senator Lautenberg, that I’ll

read, I make an effort to read all of your statements. The effort

hasn’t been totally successful, I will confess.

[Laughter.]

Senator CHAFEE. I will not have a long statement, Mr. Chairman.

I just want to say that we’ve made tremendous efforts to accommodate the desires that have been put forth over the years. You

and I joined together in co-sponsoring S. 8. It’s not a dream package for any particular interests; it’s an effort that I believe will

greatly improve the status quo.

I don’t think that anybody thinks that the existing law is functioning correctly. Our new liability proposal moves a considerable

distance toward the Administration and the proposals that the current minority had made in years past.

I look forward to Administrator Browner’s testimony.

Mr. Chairman, I also want to thank you for all the time and effort you’ve put into this over the years. You’ve been a stalwart in

trying to achieve success in this measure and I want to publicly

commend you for what you’ve done.

[The prepared statement of Senator Chafee follows:]

PREPARED STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE STATE

OF RHODE ISLAND

Good morning. I want to thank Senator Smith for holding this hearing on S. 8,

the Superfund Cleanup Acceleration Act of 1997. Thanks to his leadership, we are

closer to comprehensive reform of this troubled program. We are off to a very fast

start this year. Working together with the Minority and Administration, we stand

a good chance of enacting Superfund reform legislation in the 105th Congress.

I also want to thank Senators Baucus and Lautenberg. While I know they continue to have problems with provisions in S. 8, I know they are ready to roll up

their sleeves and get to work on our common agenda: real legislative reform for Superfund’s problems.

Finally, I want to thank Carol Browner, EPA Administrator and the Administration’s leader on Superfund. We have spent many hours together personally trying

to bridge our differences on Superfund. I look forward to her testimony today and
5

to a successful conclusion to the bipartisan negotiations we started but could not

finish in the 104th Congress.

I would like to say a few words about how S. 8 was developed. At the outset of

the 105th Congress, the Republican Conference collectively decided to include a

Superfund reform bill as one of its ten highest legislative priorities. S. 8 was drafted

in a short period of time in order to be introduced with other Republican Leadership

priority bills on January 21, 1997.

S. 8 is based on the discussions and negotiations conducted in the 104th Congress

on S. 1285. It differs significantly from its 104th Congress predecessor in a number

of key areas. The most significant changes in S. 8 from S. 1285 are in titles dealing

with brownfields, selection of remedial actions, liability, and natural resource damages. We intentionally drafted S. 8 to considerably narrow the differences with the

Minority and the Administration that were identified in the previous negotiations

on S. 1285. I must say, however, after reading through EPA’s testimony I fear the

Administrator may think that this bill moved away from her position and not towards it.

Superfund remains our most troubled environmental statute. The time has come

to reform this program, which was designed to clean up toxic waste sites. Instead,

it has brought about too much litigation, not enough cleanup, inefficient use of

scarce resources, and decaying cities, where many abandoned sites are not being redeveloped because potential developers fear incurring Superfund liability.

I have joined Senator Smith in cosponsoring S. 8. The bill is not a ‘‘dream package’’ for any particular interest. Rather, S. 8 is a comprehensive reform effort which,

when enacted, will be a tremendous improvement over the status quo.

As we discussed at yesterday’s hearing, a central focus of the Superfund Cleanup

Acceleration Act of 1997 is brownfields revitalization. It is our position that comprehensive reform of Superfund is necessary to spur redevelopment at low-risk sites,

and the higher-risk sites that might score high enough to be on the Superfund National Priority List. In all likelihood most of these ‘‘NPL-caliber’’ sites never will be

added to the list. There are 200 such sites in Rhode Island alone, many with redevelopment potential.

Our new liability proposal moves a considerable distance towards the Administration and Minority proposals of years past. It attempts to target relief toward three

central problems in Superfund liability: first, the unfairness of imposing joint and

several liability on parties whose liability is in fact capable of proportional allocation; second, the unfairness of a liability net that is cast so wide that it sweeps in

parties no one ever foresaw as potentially responsible parties, like small businesses;

and third, a liability system that encourages claims and counterclaims at sites with

hundreds or thousands of small-volume waste contributors. S. 8 does not create a

blanket exclusion for any class of site. Instead it focuses on the parties and their

conduct.

So who will pay for cleanup under this new proposal? If you polluted a site, you

will have to pay your proportional share of the costs of cleanup. If your liability is

excused in some way by the public policy-based liability protections in this proposal,

your share is paid by the taxes we are reimposing upon industry. What could possibly be fairer?

There are significant changes to other provisions of the bill that reflect our hundreds of hours of negotiations last year. We have clarified groundwater provisions

to ensure protection of uncontaminated groundwater and where, technically practicable, restore contaminated groundwater. We have limited more narrowly the circumstances under which an old remedy can be reopened and strengthened the roles

of governors in that process. We have loosened the cap on additions to the NPL.

We have streamlined the natural resource damages provision to focus on restoration

and not speculative damage measures. We have added money for Brownfields remediation. We feel we have moved a great distance in a short time.

The effort to reform Superfund should be a bi-partisan one. In the last Congress,

Senator Smith and I enjoyed a positive working relationship with our Minority

counterparts, Senators Baucus and Smith. I know that the Minority and Administration have concerns over the process for moving forward, and I appreciated Senator Baucus’ comments on this issue before yesterday’s hearing. I know we can work

out a process that is acceptable to all sides.

President Clinton and others in his Administration, including Administrator

Browner, have long-since recognized the need to reform Superfund. In fact, EPA has

undertaken three rounds of Administrative reforms of Superfund. While these reforms do address some of the problems inherent in Superfund, they are no substitute for a thorough legislative overhaul. I know the Administrator agrees with me

on this.
6

There is merit in many of the EPA reforms. Indeed, many of policies contained

in these reforms have long been advocated by Republicans. Two examples are cleanups based on future use of the site, and an expanded use of federal money for orphan shares. However, these administrative changes are mere exercises of EPA or

Justice Department discretion. Because these reforms are discretionary, there is no

long-term certainty in EPA-issued guidance. Guidance can be changed at the whim

of the issuing official. For these reasons, any significant changes to the Superfund

statute must be achieved through the legislative process.

It is long-past time that we reform the Superfund statute. With a concerted bipartisan effort, we can achieve Superfund reform this year. We cannot put off

Superfund reform any longer; the cost is simply too great.

Senator CHAFEE. Thank you, Mr. Chairman.

Senator Baucus.

OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.

Mr. Chairman, I’m not sure anybody’s going to read my statement, so I’m going to give it. It’s very brief.

As I look out in the audience, I’m struck with how many years

we’ve been at this. I’m reminded of Yogi Berra’s statement, ‘‘It’s

deja vu all over again.’’

Administrator Browner has talked to us many times about

Superfund; we’ve had a large number of witnesses at hearings and

spent many hours on this subject. During the last 4 years, we’ve

had 20 hearings on Superfund.

We’ve had 3 days of markup, and we’ve heard from 161 witnesses, whose compiled testimony comes out to 4,490 pages already

and we still don’t have a bill. It’s my hope, and I know it’s the hope

of all of us, that is going to change, that this might be the beginning of the end.

I’m reminded of Winston Churchill’s statement many years ago

during the Second World War and whether the war was at the beginning of the end, and he said that it was the end of the beginning.

It’s my hope that this effort is the beginning of the end and we’re

going to wrap this up in this Congress.

I’d like also to recall a point that I made in yesterday’s hearing—

maybe we can use the Safe Drinking Water Act as a model. We

worked together, and worked hard without a lot of fanfare, getting

the job done. As I mentioned yesterday, that bill passed because it

was a ‘‘win-win’’ situation.

It was win-win, first of all, because we did reduce Federal regulations, but we also helped improve the quality of drinking water. In

this case, I think we can and we should reduce the cost of the

Superfund program. We should make cleanups more efficient. I

think we can do that in a new law. In many respects, Administrator Browner has already done so with the regulatory powers of

the EPA Administrator. I think we can also make the liability system more fair. Those are very important goals.

On the other side of the ‘‘win-win’’ coin, I think we can also increase environmental protection. More than 70 million Americans

live within 4 miles of a Superfund site. I think those Americans

want us to pass a law that provides them with more protection, Mr.

Chairman, not less, and also a statute that gives them a greater

voice in how a cleanup will affect the future of their communities.
7

If there is an opportunity for more local involvement earlier on,

that will help improve environmental protection.

So as we work together, I urge all of us to look creatively for winwin solutions.

Turning very briefly to the specifics of S. 8, first, there is good

news. S. 8 is better than S285 from last year, in the last Congress.

That’s a fact. A month of discussions and negotiations have paid

off.

Still, we still have a long way to go. I have several significant

concerns which I have described in my prepared statement which

I know all of you will read very assiduously and I ask that be included in the record, Mr. Chairman.

I’ll mention just one, natural resource damages. I don’t want to

belabor the point, I’ve made it before, and the natural resource

damages provisions of S. 8 contain improvements over previous

versions. Let me just say this: The Clark Fork site in Montana is

the largest Superfund site in the Nation—I repeat, the largest

Superfund site in the Nation. The natural resource damage is massive; it stretches for 135 miles from Butte, MT, to Missoula, MT.

The State of Montana has filed a damage claim for more than $700

million to restore the damaged resources.

The State of Montana has pressed this case hard to Republican

administrations, to Democratic administrations in Montana for 13

years. The case finally went to trial just a few days ago on Monday

of this week.

Maybe we will prove our case, maybe we won’t; that’s for the

court to decide. For my part, I will do everything in my power to

prevent anyone from pulling the rug out from under Montana on

the courthouse steps.

These and other remaining issues are very serious, Mr. Chairman. We all know that, but they are not insurmountable. It is my

hope, with a little more hard work, and with the cooperation of the

Administration, we can get a good bipartisan bill this year finally.

[The prepared statement of Senator Baucus follows:]

PREPARED STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE

STATE OF MONTANA

Thank you, Mr. Chairman.

I never intended to make Superfund the focus of my Senate career, but it is starting to seem that way.

During the 103d Congress, we held 11 hearings and 3 days of mark up on Superfund reform. Last Congress, we held nine hearings. We’ve heard from a total of 161

witnesses, and compiled 4,490 pages of testimony.

Hopefully, today’s hearing is the beginning of the end.

I’d like to make a couple of basic points.

First, Superfund is a very important environmental program. Love Canal was not

some kind of a fluke. As our country industrialized, there was an unfortunate side

effect: the creation of toxic waste sites that threaten public health and the environment.

There are at least 1,300 of these sites, all across the country. When State and

local resources seemed inadequate to clean these sites up, Congress created the

Superfund program to get the job done. And we were right to do so.

Second, Superfund has had its problems. The program got off to a terrible start.

Some people went to jail.

Even after the initial problems were solved, cleanups were slow, paperwork piled

up, and transaction costs were out of sight.

But things have changed. First under Bill Reilly, and now under Carol Browner,

EPA has made significant improvements in the Superfund program.
8

As we will hear today from Administrator Browner, EPA has taken steps to accelerate cleanup, cut litigation, and improve the quality of cleanup. Many of those reforms seem to be working.

EPA has now cleaned up over 400 sites, begun work at more than 1,200 sites,

and settled liability with 14,000 small parties. These are positive steps.

I believe that we can go even further. For example, I support legislative changes

to make cleanups more efficient. To reduce litigation and other transaction costs,

especially for municipalities and small businesses. To enhance the State role.

I also believe that we have a good opportunity this Congress to produce a solid

bipartisan Superfund bill that the President will sign.

But we are not there yet.

Clearly, S. 8 is better than where we started last Congress. The months of discussions and negotiations seem to have paid off. But a number of serious concerns remain.

Most importantly, the new bill includes changes that allow up to 600 existing

cleanup agreements to be reopened, restudied and renegotiated. Undoing decisions

that have already been agreed to will only delay cleanup and reopen old wounds.

It also includes changes that will dramatically reduce the amount of cleanup at

some sites.

For example, it allows highly toxic wastes to remain untreated and left in place.

And it requires groundwater to be cleaned up only if doing so will cost less than

letting nature do the job or restricting the uses of that water.

It continues to prevent streams, wildlife habitats and other natural resources

damaged from long-term pollution from being fully restored.

Finally, it exempts many large, viable companies from their responsibility to clean

up toxic dumps that they helped create. By exempting these companies, it puts the

burden of paying for cleanup on the backs of the taxpayer.

The proposal would have a particularly harsh effect on my State of Montana. It

would allow signed cleanup agreements to be reopened, thereby delaying cleanups

in a dozen places throughout the State. And it would undermine efforts to restore

the damage along the Clark Fork river.

I don’t want to belabor this point. I’ve talked about it before, at some length. And

the natural resource damage provisions of S. 8 contain some significant improvements over previous versions.

But let me just say this. The Clark Fork site is the largest Superfund site in the

Nation. The natural resource damage is massive. It stretches for 135 miles, from

Butte up to Missoula.

The State of Montana filed a damage. claim seeking more than $700 million to

restore the damaged resources. Montana has prosecuted this case vigorously,

through Republican and Democratic administrations, for 13 years.

The case finally went to trial Monday.

Maybe we’ll prove our case. Maybe we won’t. That’s for the court to decide. But,

for my part, I will do everything in my power to prevent Congress from pulling the

rug out from under Montana on the courthouse steps.

These and other remaining issues are serious. But they are not insurmountable.

It is my hope, Mr. Chairman, that with a little more hard work, and the cooperation

of the Administration, we can get a good bipartisan bill this year.

Senator SMITH. Thank you very much, Senator Baucus. I have a

statement by Senator Boxer for the record.

[The prepared statement of Senator Boxer follows:]

PREPARED STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF

CALIFORNIA

Thank you, Mr. Chairman, for calling this hearing today to continue discussions

toward meaningful reform of the Superfund program. I am hopeful that your dedication, and the hard work of Senator Lautenberg and other members of this subcommittee, will make Superfund reform a reality this session.

Mr. Chairman, as you know, Superfund is one of the most important environmental laws for the people of California. California has ninety-six Superfund sites,

the third highest number of any State, and seven Natural Resource Damage sites,

more than any other State. Over forty percent of Californians live within four miles

of a Superfund site.

Superfund helps protect the health and environment of millions of Californians

by addressing some of the most contaminated sites in my State. An example is the

Montrose Chemical Corporation Site (that contaminated with DDTs and PCBs four

different groundwater aquifers, two of which are a source of drinking water. An-
9

other is the Purity Oil Sales Site in Fresno, where the soil is contaminated with

lead. This was an area where the children of migrant farm workers regularly

played.

Clearly we need to fix the problems with Superfund, but I am concerned that the

proposal before us does not adequately reflect fundamental principles that I believe

need to be the basis for reform.

We need reform that will streamline the Superfund process, speed-up cleanups at

Superfund sites, and help eliminate unnecessary litigation without compromising

the principles of ‘‘polluter pays’’ and ‘‘putting public health and safety first’’.

Provisions such as the reopening of Records of Decision (ROD’s) seem to go

against the concept of streamlining and speeding up cleanups. If ROD’s are reopened, the over 46 sites (48 percent of California National Priority List Superfund

sites) that have a final ROD in place could face ROD petitions that would stop all

ongoing cleanup efforts pending review.

If ROD’s were reopened, the San Gabriel accord (which was signed in March

1994) would be undermined. The groundwater aquifer underlying the San Gabriel

Valley is one of the most complex and contaminated Superfund sites in the country.

The site has been on the Superfund list since 1984. Over 10,000 businesses and

other parties potentially share liability for this problem. It is a truly unique site

that is being successfully worked on by PRP’s, EPA and the State of California.

At the Baldwin Park site in San Gabriel Valley, a reopening of the ROD could result in an additional year plus $800,000 to redo the documentation. The San Gabriel Valley Water Quality Authority has estimated that the delays in cleanup

would add $25 million to the cost of treatment because of further spread of contamination during the delay.

The groundwater aquifer underlying the San Gabriel Valley is one of the most

complex and contaminated Superfund sites in the country. The site has been on the

Superfund list since 1984. Over 10,000 businesses and other parties potentially

share liability for this problem. It is a truly unique site that is being successfully

worked on by PRP’s, EPA and the State of California.

Mr. Chairman, the goal of minimizing the cost of cleanup is a sound one, but I

believe that cost should come into consideration only after we agree to certain cleanup standards and remedies that have been selected on the basis of public health

and safety. Provisions in the bill emphasize cost savings over public health and environmental restoration.

I believe that if we mandate that selection of cleanup remedies be dictated by cost

considerations, it will inevitably lead to cleanups that are less protective of the public health. Putting cost first will in effect shift our emphasis away from cleanup toward less expensive short term containment strategies. We will in effect be putting

the burden of cleanup on future generations.

On the issue of remedy selection, I would also like to emphasize my concern with

provisions in the bill which could limit EPA’s ability to protect children and other

sensitive subpopulations. This could lead to the selection of cleanup remedies that

overlook the fact that children are more susceptible and more at risk from exposure.

Cleanups and even containment strategies might not be protective of our children’s

health and safety.

Mr. Chairman, our liability scheme in Superfund must reflect the ‘‘polluter pays’’

principle. This principle has been very successful in requiring polluters to pay for

cleanup. It has helped recast a corporate mind-set that once saw the careless dumping of toxic waste as every day business-as-usual and has acted to deter careless

disposal and encourage pollution prevention.

The bill before us contains very broad liability exemptions that will in effect remove cleanup responsibility from polluters and place the burden on States and taxpayers. I believe that the goals of the Superfund program can best be achieved with

a sound liability scheme and an effective funding mechanism to pay for cleanups.

Another concern I have with the bill is the provision that would not allow the

States to enforce their own stricter cleanup standards and recover costs from Potential Responsible Parties. The preemption of California’s ability to apply stricter

cleanup standards would mean that, in the case of the Baldwin Park site, the State

of California would have to pay an additional $5 million in capital and $20 million

in operation and maintenance costs to bridge the gap between Federal and State

drinking water standards.

One other concern I want to briefly mention is the bill’s provisions on groundwater cleanup which I believe would jeopardize groundwater safety. Groundwater

cleanup issues are of major concern to California. Ninety-two percent of the sites

in California involve groundwater contamination. Most (81 percent) NPL sites are

in residential areas. At least 3.2 million people get their drinking water from

aquifers over which a site is located.
10

The bill before us only requires the selection of cleanup remedies that will ‘‘prevent or eliminate any actual human ingestion of contaminated drinking water’’. The

most cost effective strategy might be to put a filter on a tap or simply provide bottled water—delaying any cleanup and allowing contaminated groundwater to spread

or go unchecked.

Mr. Chairman, thank you for the opportunity to express my concerns. I look forward to continued work with you to achieve meaningful reform and would like to

extend a warm welcome to Administrator Browner and all of today’s witnesses.

Senator SMITH. Administrator Browner, before I turn to you, I

just want to mention one of your aides, Bob Hickmott, who is the

Associate Administrator for congressional and Legislative Affairs, I

understand is leaving to go to Secretary Cuomo’s department. He

now goes with Elliott Laws. You’re driving everybody out of your

department now.

[Laughter.]

Senator SMITH. You can defend yourself on that, if you like.

Let me just say good luck to you, Bob. It’s been a pleasure working with you.

I’ll turn to you now, Ms. Browner. As you know, your statement

is made a part of the record and if you can summarize as briefly

as possible, we’d appreciate it.

Welcome.

STATEMENT OF HON. CAROL M. BROWNER, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

Ms. BROWNER. Certainly, Mr. Chairman.

Members of the subcommittee, thank you for this opportunity to

testify on the subject of reforming our country’s toxic waste cleanup

program.

Several times, I don’t think at all 20 hearings, but certainly at

a number of hearings over the past 4 years, I have had the privilege to appear before this subcommittee to discuss how we can best

work together to eliminate the toxic waste sites that plague far too

many of our communities, and to do it faster, fairer and more efficiently.

Each time, you have heard me say that legislative reform is

needed to improve Superfund. Each time, I think there has been

a consensus in this committee that something should be done legislatively to strengthen the program and to enable it to fulfill its potential for improving the quality of life in our country.

On behalf of the 1 in 4 Americans, including 10 million children

who live within 4 miles of a toxic waste dump, we must not let

Superfund fall short of its promise. We must not shrink from our

shared responsibility to find better, more effective ways to clean up

the Nation’s worst sites, to work with affected communities and to

give them hope for the future.

Mr. Chairman, it is time for us to hammer out responsible, consensus-based legislation that we can all agree on and to finish the

job of ridding America’s neighborhoods of toxic waste dumps.

Speaking on behalf of the Clinton administration and the array

of Federal agencies that have a role in Superfund, let me say to

you and to each member of this subcommittee and committee, we

are ready, willing and able to work with you, Members of Congress

from both sides of the aisle, with stakeholders, and especially with

the communities across the Nation to enact legislation that will
11

cleanup these sites, return land to communities for productive use,

and protect the health of our citizens.

I would respectfully suggest, Mr. Chairman, that a good starting

point would be to recognize the positive success of the administrative reforms that we have already put in place.

When we first took office 4 years ago, I said on numerous occasions, and the President said, that Superfund was broken, that it

needed to be fixed, and so we launched a series of innovative measures designed to improve the work within the current statutory

framework.

I think we’ve all heard the story about the man, when asked why

he kept hitting himself in the head with a hammer, replied because

it feels so good when I stop. Mr. Chairman, I’m happy to say that

we can now put the hammer away when it comes to Superfund.

The Superfund Program of today, site after site, is vastly different than it was 4, 8, 12 years ago. We have made major improvements through our administrative reforms, we have made it

faster, fairer, more efficient.

We have instilled the system with more common sense and as a

result, I think it is fair to say that many of the old criticisms simply do not apply anymore. Thanks to our administrative reforms,

today’s Superfund provides significantly faster cleanup at lower

costs. On average, we have cut more than 2 years off the time it

takes to clean up a Superfund site and we are well on our way to

a goal of saving even more time.

In addition, our reforms have protected thousands upon thousands of small parties from Superfund litigation, removing them

from the liability system, the liability net, and thus, ensuring that

their dollars are spent on actual cleanup and not on lawyers, not

on expensive legal costs.

We’ve worked to reduce transaction costs, to work more cooperatively with responsible parties, and to increase fairness. We’ve created a National Remedy Review Board to review Superfund decisions, ensure consistency, fairness and cost effectiveness. We’ve updated existing remedies to ensure they are consistent with the latest science and technology, and we have developed standardized

remedies for certain kinds of sites.

These save time, they save money by eliminating the need for

studies that, in effect, have already been performed at similar sites.

We’ve expanded our contact with stakeholders and citizens, appointing a Superfund ombudsman in each region, creating community advisory groups, and putting a wealth of Superfund information on the Internet.

We have formed a closer relationship with State environmental

agencies, helping them forge a greater role in the Superfund site

selection process, and working with them through our Brownfields

Initiative to promote the cleanup and redevelopment of lightly and

moderately contaminated sites.

Mr. Chairman, these are just some of the improvements that

have enabled us to complete a total of 250 Superfund cleanups over

the past 4 years, more than in the previous 12 years combined.

We all recognize that the job is not done. We have promised the

American people that toxic wastes should be cleaned up, should be
12

removed from their communities, and we have a responsibility to

finish what we have started.

As President Clinton mentioned in his State of the Union Address, we are determined to double our current pace and cleanup

another 500 toxic waste sites by the year 2000, literally allowing

millions of children the ability to live and play in neighborhoods

free of toxic threat.

We have provided for faster, fairer, more cost effective cleanups

and more common sense in the system and we will continue to do

so without sacrificing one iota of our commitment to protect the

public health and the environment. That is this Administration’s

No. 1 priority.

Every time we complete another toxic waste site cleanup, every

time we close the books on a Superfund site, we want to be satisfied that those who live in the community, who live nearby, can go

on with their lives free from worry that the site will one day reemerge as a health threat to their communities and to their children.

At the same time, we are also committed to ensuring that those

responsible for polluting these sites are indeed held responsible for

cleaning them up. Why should we stick the taxpayers with the bill.

Mr. Chairman, we fully agree that the bulk of Superfund money

should go to clean up activities and not to lawyers. That is why we

have acted to reduce transaction costs, that is why we have acted

to reduce litigation between the parties.

We agree that the churches, the Girl Scout groups, the mom and

pop businesses should be protected from the broadly cast litigation

net, often put in place by private sector parties. That is why we

have acted to remove more than 9,000 small parties from Superfund litigation over the past 4 years.

Let us not forget the benefits of the unfairly maligned Superfund

liability system. That system, and we admit there are problems,

and we have worked to fix those problems, is responsible for more

than $12 billion committed by responsible parties to clean up hazardous waste sites.

That is $12 billion in money that otherwise would not have been

available for the critical task of ridding the Nation of these highly

dangerous hazardous waste sites. That is $12 billion that responsible parties have committed to clean up the polluted environment.

Is the system perfect? Of course not. Can we continue to improve

it? Absolutely. That is why we believe we need consensus-based,

legislative reform.

We do have problems with S. 8. We believe that it is important

to build on the proven successes of our administrative reform. We

are concerned that S. 8 would impose a new system that could, unfortunately, result in delay of cleanup, shifting costs from polluters

to taxpayers, reducing community involvement, and preventing

hundreds of sites from being addressed.

We believe that S. 8, as we read it, is a creative system that is

less protective of the public’s health than the one we have today.

We believe it would end requirements for the treatment of even the

most highly toxic and highly mobile waste. Contaminated groundwater might not be cleaned up in perhaps most, if not all, cases.
13

It would impose redundant expense of time-consuming, new risk

requirements as well as new cost considerations on existing cleanups, cleanups actually being performed in the field today resulting

in further delay and disruption. We believe it might undermine the

efforts by the States to work with EPA in partnerships to address

their hazardous waste sites and to limit real community involvement.

We are also concerned that S. 8’s numerous liability exemptions

and limits basically reject the notion that the largest polluters provide the funds for the cleanup costs. We believe that is not something the American taxpayers will tolerate, nor should they be expected to.

Mr. Chairman, I want to be very clear that while we do have our

substantive differences, we do not believe they are insurmountable.

Many visions in S. 8 where we have problems appear to be the result of honest efforts of people in this body to address problems

that quite frankly, no longer exist in the day-to-day operation of

the program.

They seem to be focused on outdated anecdotes about goldplated,

overprotective remedies, or liability provisions that purportedly

prevent cleanup. We think that a consensus-based process must be

based on where we find the program today; that by focusing on today’s Superfund program, a program that now has more than 70

percent of NPL sites cleaned up or in cleanup construction, we

stand a much better chance of developing a consensus and enacting

responsible reform legislation in this Congress.

If I might just very, very briefly speak to the four points, the four

cornerstones of what we think would be responsible legislation.

First, it should protect public health and the environment, promote cost effectiveness, and foster the return of contaminated sites

to protective use by their communities.

Second, it should hold polluters responsible while at the same

time, allowing parties to resolve their liability as efficiently as possible and not trapping parties unfairly in the liability net.

Third, it should encourage and support citizens in their efforts to

participate in the cleanup decisions that ultimately affect their

lives. We have learned over and over again, when we involve the

citizens on the front end, we save time on the back end. Let’s bring

them to the table, let’s make them part of the decisionmaking from

the beginning.

Finally, it should support a continued working relationship between all levels of government in cleaning up the toxic waste sites.

This is not something that any one level can do alone. It will take

all of the Federal, State, and local governments working together

to get the job done.

We all know how much Americans want these hazardous sites

removed from their communities forever; we know how much they

actually want the Superfund Program to succeed. I believe we can,

in fact, work out something for their benefit.

Mr. Chairman, if I might suggest, why don’t we get everyone together, why don’t we pull out a blank sheet of paper, why don’t we

draft a Superfund reform bill that recognizes the progress that

we’ve made, addresses the remaining problems, and sets the program on the right course for the future, with an ultimate goal of
14

ridding our Nation of hazardous waste sites and protecting the

public health.

I can assure you that we are eager to get on with the job of making America’s toxic waste cleanup program faster, fairer and more

efficient, and thus, bringing relief to many more communities. Let

us work together to forge a consensus that will protect future generations of Americans, let us all say yes to a stronger, better, more

effective, more successful Superfund process.

We look forward to working with you, Mr. Chairman. We have

enjoyed I think a very positive dialog over the last several years.

We would like to build on that. Together we can see Superfund legislation drafted and passed this year.

Thank you.

Senator SMITH. Thank you very much, Administrator Browner.

Senator Inhofe, do you have a statement you want to make at

this time?

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman.

As you know, we have a Senate Armed Services Committee also

simultaneously, so I’ll have to be leaving.

I did want to get something in the record, so I do have an opening statement, but I’ll just read a little bit of it so that I can get

the point across.

The point that I have tried to get across in many of these hearings over the past 2 years is that even though most of the people

in this room probably work for the EPA and wouldn’t agree with

this, at the local level, we’ve had such great successes. I won’t use

the old examples, we’ve got new ones this time, Madam Administrator. Instead of using OxyUSA, let me just share an experience

in Oklahoma that I think illustrates this perfectly.

Two former refineries were purchased by the same company,

Arco. Both had similar wastes and similar remedies and both

needed to be cleaned up. The difference was that the State of Oklahoma took the lead for one, while the Federal EPA managed the

other. The difference was dramatic and underscores the inherent

problem of directing a local cleanup process from Washington, DC.

The EPA site took 8 years longer and $37 million more.

Specifically, the State site was a refinery located in Vinta, OK.

Remediation began in 1989, took less than 3 years and only cost

$6 million. The Federal site was a refinery located in Sand Springs,

OK. Remediation began in 1985 and it was finished in 11 years in

1996, just finished, at a cost of $43 million. Both remedies involved

the solidification of an onsite land filling of petroleum refinery acid

sludges.

I only bring this out because we have case after case, and you

mention in your fourth point, working together, working relationships with the States and the counties and the Federal Government. I’m just saying I think we have one very expensive step that

has not demonstrated that it has been able to clean up these sites

efficiently.

I’d ask my entire statement be placed in the record.

[The prepared statement of Senator Inhofe follows:]
15

PREPARED STATEMENT OF HON. JIM INHOFE, U.S. SENATOR FROM THE STATE OF

OKLAHOMA

Mr. Chairman, thank you for calling today’s hearing and I want to commend you

for your quick start on Superfund reauthorization. I believe we will be able to move

Superfund this year, provided we have the support of the Administration. You have

done a good job of taking the Superfund discussions from the last Congress and

drafting legislation that moves the process forward. I am looking forward to working

with my colleagues on both sides of the aisle to fix a system that everyone agrees

is broken.

While I recognize that EPA has made some administrative changes in the Superfund program, it is not nearly enough and a congressional overhaul of the entire

system is desperately needed. We must:

1. We must shift the program to the States and local communities.

2. We must improve the cleanup process and shorten the time it takes to clean

up a site.

3. We must reform the liability structure to ensure that parties are responsible

for only their own actions, not others.

The best way to change the system is to get the cleanups down at the State level.

The added bureaucracy of the Federal Government only adds unnecessary costs and

red tape to the process. Cleanups are delayed and more people are exposed to hazardous waste under the Federal system. I have one example from Oklahoma that

illustrates this perfectly.

Two former refineries were purchased by the same company, ARCO. Both had

similar wastes and similar remedies and both needed to be cleaned up. The difference was that the State of Oklahoma took the lead for one while the Federal EPA

managed the other. The difference was dramatic and underscores the inherent problems of directing a local cleanup process from Washington D.C. The EPA site took

8 years longer and $37 million dollars more.

The State site was a refinery located in Vinta, Oklahoma. Remediation began in

1989, took less than 3 years, and only cost $6 million dollars.

The Federal site was a refinery located in Sand Springs, Oklahoma. Remediation

began in 1985 and was finished 11 years later in 1996 at a cost of $43 million dollars.

Both remedies involved the solidification and onsite landfilling of petroleum refinery acid sludges.

The extra Federal costs included multiple demonstrations of solidification technologies which added years to the project and extra EPA reviews of the design documents which caused the project to be delayed numerous times. It actually took

longer for the EPA to review the documents than it did to produce them.

At the conclusion, the State site cost $92 per cubic yard to clean up while the EPA

site cost $313 per cubic yard. And this was not a site that was cleaned up 15 years

ago, it was just finished last year while we were debating Superfund. We need to

get more sites cleaned up at the State level, they do it cheaper, faster, and more

efficiently than the Federal Government will ever be able to do.

Mr. Chairman, I am looking forward to working with you on this legislation so

that we can finally get these Superfund sites cleaned up and off the list.

Senator SMITH. Senator Thomas, any opening remarks?

OPENING STATEMENT OF HON. CRAIG THOMAS,

U.S. SENATOR FROM THE STATE OF WYOMING

Senator THOMAS. Mr. Chairman, I do have a statement I would

like to have entered in the record.

[The prepared statement of Senator Thomas follows:]

PREPARED STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE

STATE OF WYOMING

Mr. Chairman, thank you for scheduling this hearing, and for your hard work to

see that the Federal Superfund law is finally reauthorized. I want to commend you

and Chairman Chafee for your hard work on this important issue.

Nearly everyone agrees the current Superfund law is broken and changes need

to be made. Unfortunately, the consensus doesn’t last much past that statement. A

program designed in 1980 to clean up hazardous waste sites has cost us over $30

billion and we’ve cleaned up less than one-quarter of the over 1300 sites on the National Priorities List (NPL). More disappointing than the lack of progress is the fact
16

that by some estimates, less than half the money spent goes to actual cleanup. So

the lawyers line their pockets while the vast majority of Superfund sites see little

progress. The bottom line is that the current system doesn’t protect the environment

or preserve the health and safety of future generations.

There are several changes Congress must make to the current law if we are to

achieve our goal of protecting public health: provide a common sense approach to

cleanups, control costs, reform the liability system, accelerate cleanups, increase

State and public participation in the process, and address Natural Resource Damages (NRD). S. 8 moves us toward achieving those goals.

S. 8 injects some common sense into the cleanup program by allowing cost-effective remedies that protect human health and the environment, including groundwater. It takes the future use of the site into account when selecting the cleanup

remedy. In addition, the current rigid statutory preferences for permanence will be

replaced with flexibility to allow consideration of all cleanup options based on several important factors. These provisions will help accelerate cleanups and control

costs.

If there’s one area of the current law that has driven much of the public outrage

over Superfund, it is the liability system. All across the country, and in my State

of Wyoming, small business owners who sent a tiny amount of waste to an eventual

Superfund site are drawn into the costly litigation process. Remarkably, the system

of liability puts every potential party on an equal liability footing, so even though

a small businessman may have only contributed a small amount of contaminant,

he’s on the hook for the full amount of the cleanup, just like the major contributors

to the site. S. 8 addresses this concern by eliminating liability for small businesses,

parties that contributed extremely small amounts of waste, and religious and charitable groups among others. It also proposes a ‘‘fair share’’ allocation process for

multiparty sites. These changes will dramatically reduce the litigation costs associated with Superfund.

I regard NRD as the ‘‘sleeping giant’’ of the Superfund program. This is a program

that is just beginning to develop, and it’s clear trustees—States, the Federal Government and Indian tribes will use this portion of the law to file huge claims

against companies for questionable ‘‘values’’ of the lost use and non-use of natural

resources. I’m concerned that reforming the Superfund

Cleanup program without addressing the NRD portion of the law will only move

our problems with the current law from one portion of the program to another. I

am pleased S. 8 addresses this concern by eliminating non-use and lost use damages

for pre-1980 activities.

The opponents of Superfund reform like to talk about making the ‘‘polluter pay.’’

The fact is, however, that the Federal Government is the single biggest ‘‘polluter’’

in this country. There are over 155 Federal Superfund sites, there’s even one in my

State of Wyoming. These sites are some of the most complex and costly in the country. The inability to control costs, reform NRD and get cleanups done quickly result

in additional liability to Federal agencies, costs that are passed along to the American taxpayer. Therefore it is in everyone’s interest that we pass substantial reform

quickly.

I am sure we will hear from some of today’s witnesses that the reforms the Clinton Administration has initiated have solved the problems with Superfund. I agree

that they have made some improvements to the system. However, there remains a

good deal of work to be done. Even with these reforms, there is too much litigation,

cleanups cost too much and sites are not being cleaned up quickly. I encourage the

administration to come to the table so we can work together to pass comprehensive

legislation in order to truly reform Superfund.

S. 8 makes some very real improvements to the current mess. It’s not perfect, but

it takes us a step forward on resolving these contentious issues. S. 8 represents an

excellent effort and I hope we can move forward very soon.

Thank you, Mr. Chairman.

Senator THOMAS. I hope things are going as well as you report.

Each time you come before Congress, Madam Administrator, it

sounds like everything is perfect and the Congress just ought to

keep quiet. Frankly, I have to tell you that we have a role too and

our role comes from where we live and our experience.

You come and lecture us about how things are going so well that

we ought to shut up and go home. I just don’t agree with that and

I want you to know that.
17

Ms. BROWNER. Mr. Chairman, if I might just briefly respond.

I have absolute respect for the role of the Congress. I am here

today to ask you to please rewrite the law. I am in no way suggesting you don’t have a very important role.

Senator THOMAS. I’m not just talking about today. We were here

last year and it just seems like you always talk about partnerships,

but the partnership is like horse and rabbit stew, one horse and

one rabbit. It’s about that equal.

I think we could really get along a little better if you accepted

us as partners, real ones.

Ms. BROWNER. Senator Thomas, with all due respect, we worked

with this committee to craft very important legislation last year,

we worked in partnership.

Senator THOMAS. Yes, I was on this committee.

Ms. BROWNER. And that is what we would like to do here. In no

way do we suggest, nor have I ever suggested to this committee or

any body of this Congress, that we don’t welcome the oversight,

that we don’t welcome involvement.

We may have the need for in-depth discussion and debate, but

if we can sit down together, which is what I am asking for here

today, and look at where the program is today. It is a different program, it is not the same program of 5 years ago.

Senator THOMAS. I don’t mean to be argumentative, but I’m sharing a perception. You can dismiss it if you like, but that is the perception. I’m not the only one in the world who has that perception.

Ms. BROWNER. I’m sorry if you have that perception. I believe

that I have demonstrated personally and my agency and this Administration have demonstrated a real willingness to work. We

wrote two pieces of legislation together last year that make fundamental changes in programs for the people of this country, and

we are proud of the work we have done together.

Senator THOMAS. I’m sharing my view. You can reject it if you

choose.

Senator SMITH. Administrator Browner, let me start by first of

all saying there is no question that you have made great strides

in regards to making administrative changes during your tenure

that I think most of us would agree are certainly in the right direction.

Without being confrontational or directly critical, let me just say

people, private parties, people out in the various States say though

that although these administrative reforms are well-intentioned, in

fact, they are not being consistently implemented, and that the scenario that you paint here is not as rosy as you say it is.

Could you just respond to that briefly? Is there some evidence

that you’re having a difficult time implementing these administrative changes.

Ms. BROWNER. The changes which we have unfolded in three sets

of administrative reforms over the last 3 years are at various

phases. We’d be the first to admit, the ones we started 3 years ago

are further along than the ones we started a year ago.

There are parties other than EPA that have looked at these administrative reforms and their success. For example, the Superfund

Settlement Project, which is made up of companies like Ciba-Geigy,

Dupont, General Electric, General Motors, IBM, so on and so forth,
18

and we can provide this to the committee, looked at the first year

of implementation of our administrative reforms and what they

found is they’re working and they do make a difference.

These come on a long history, and I think we would all agree,

a sometimes painful history, but we have absolutely committed

ourselves to change, we have been willing, we have encouraged

third parties to come in and review the changes. The Chemical

Manufacturers Association, CMA, also has a project underway to

evaluate our reforms.

At the end of the day, the best thing we can all do is take those

reforms, understand them, and rewrite the law. That is what is the

most important thing to do now.

Senator SMITH. But that report does not cover all of the EPA regions is my understanding. That only covers some of them and

there are some successes in there, but there are other regions

where the success has not been that good.

Ms. BROWNER. The report looked at, in an effort to take a snapshot, if you will, of activities across the country, it did look at activities outside of Washington. I think that’s extremely important.

The reforms are going on in all 10 of the regions. The nature of

the problems in individual regions will vary. In Senator Baucus’

part of the country, we have large numbers of mining sites and

those tend to be different than the sites we see in the industrial

northeast or the midwest, for example. So there are variances in

the type of sites.

I think there is a study now underway in all 10 of the regions

and we can certainly provide that for the record.

Senator SMITH. Is it still your position that we should have comprehensive Superfund reform in spite of the administrative changes

you’ve made?

Ms. BROWNER. Absolutely. Yes.

Senator SMITH. In your comments about S. 8, if in fact some of

the changes that we make in S. 8 are based on problems that you

say don’t exist—maybe you’re right in some areas, maybe we’re

right—let’s assume that many of the problems that we say exist

don’t exist and you have taken care of them, what would be

wrong—if we codified the changes?

Ms. BROWNER. We don’t disagree with taking the administrative

reforms and placing them in legislation. Unfortunately, as we now

read S. 8, and perhaps we misread it, and we will stand corrected

if we do, the way in which the reforms are playing out, our experience of the reforms in the field is not captured in S. 8.

For example, we do believe it is important to update cleanup decisions. We absolutely agree with the need. Technology does advance, there are cost savings that can be brought to bear.

As we read S. 8, it would literally allow everything to be reopened, including where you have construction underway and we

think that is, quite frankly, going to result in significant delay at

far too may sites. So maybe it’s a judgment call.

We agree with the need, the flexibility should be embodied in the

law to allow the update of remedy decisions, but to require every

single remedy on the books to be reopened, we think will not serve

anyone well.
19

Another example would be orphan shares. We couldn’t agree

more with the need. I think every time I have testified I have spoken to the need for an orphan share fund. We are doing orphan

share allocations right now. We have more than 20 sites where

we’ve made it available, it’s more than $50 million.

The way we read S. 8 would essentially put orphan share funding in front of every other activity in the program, and so you

would again have, we think, unfortunate and unwise delays in

cleanups.

I think as both you and Senator Lautenberg said, we’ve made a

lot of progress. This is not a gap that cannot be closed. We think

it can be closed. We would just ask for the opportunity, and this

is a very detailed process, to actually sit down with your staff, with

yourselves, whomever, to go through what is actually working,

what should be put into the law in a very strict manner, and where

perhaps some flexibility would serve all of us, and most importantly, the communities where the sites are located.

I can give you a number of examples where we’ve moved, you’ve

moved, but we’re not quite there yet, and I think maybe we can get

there, but it’s going to take some real dialog.

Senator SMITH. Senator Lautenberg.

Senator LAUTENBERG. Thanks very much, Mr. Chairman.

Thanks, Ms. Browner, for your excellent statement.

As I listened to my distinguished colleagues ask some questions

about your management and your response to inquiries on oversight, I’m reminded of the fact that the Superfund program was developed at the end of 1980; that it had its first dozen years under

Presidents Reagan and Bush; and in the first dozen years, this program barely moved and we spent a ton of money.

As a matter of fact, we had one of those terrible incidents that

occur sometimes in government when the person responsible for

managing the program was accused and a deputy was punished severely for malfeasance or misfeasance, whatever the appropriate

word is, of duty. So we spent 12 years learning what was happening and we’ve begun to catch up with this thing.

We had rampdowns and rampups because we couldn’t get the

funding for it, I’d point out to my colleagues here that this is a job

I think that has developed very well in the last few years and it’s

a testimony of you, Ms. Browner. The fact is that you have been

responsive.

I have yet to hear about your unwillingness to appear before a

committee or unwillingness to answer questions. You’ve been there

when asked and I must say I admire your courage because you’ve

stood up and taken the criticism not only graciously, but also with

a follow-up to the programs that further distinguishes you and

your department.

I’m pleased to see you here and hope that we can work something out that would satisfy both parts, both ends of the spectrum.

I don’t know whether it’s possible. I think we have an obligation

to the American people to do it.

My mission is not to protect any of the parties who are responsible for pollution. Those who are exempt are exempt. We’ve agreed

with that, but to make sure that those who are responsible pay the
20

price for their deeds, but above all, that we protect the citizens who

live nearby and whose responsibility we share.

I’d like to just get a couple of questions in and time runs fast

here.

Your administrative reforms have been recently reviewed by

Superfund settlement projects, the Industrial Coalition which is

chaired by John Quarles at Morgan, Lewis & Bockius.

Can you tell us about the third round of administrative reforms

that you implemented and their results? Is that something you can

do sort of quickly so we can get in as much time as possible?

Ms. BROWNER. When you take the three rounds of administrative

reforms, there are more than 50 specific actions that they entail.

The third round did such things as create a National Remedy Review Board which actually looks at sort of the most complex, the

largest sites, in terms of what is an appropriate remedy.

That group is already meeting. They’ve been looking at sites and they currently estimate potential savings of $15 to $30 million

based on just 12 remedies at 11 sites. They expect to review an additional 10 to 12 remedies in fiscal year 1997.

Again, this is focusing on the worst, the most complex sites. That

is what it is designed to do. It comes in prior to a final decision

to make sure that the best technology is really being brought to

bear.

We have also, as I mentioned briefly, created a mechanism for

reviewing existing remedy decisions, for updating them, to take

into account the fact that technology does advance in this field.

Over 30 site remedies have been reviewed because of technology

advances and the cost savings there are estimated at $280 million

in future cost reduction, in other words as application of the new

technologies are brought to bear at the site. We will review an additional 60 remedy decisions in the coming months. We’ve offered $57 million in orphan share compensation as I

mentioned previously. We’re out there trying out this idea of orphan share. We’re finding out whether the parties come to the

table, what does it take to bring them to the table, what does it

take to get the lawyers out of the picture, to reach an agreement

on who does what in the cleanup and to actually get the cleanup

done.

Finally, we were able to reach an agreement with the Department of Treasury that the dollars that the responsible parties place

in trust funds or escrow accounts, if you will, for cleanup costs

down the road, can accrue interest and that interest goes back into

that account, so there are more dollars available for those cleanups.

It is the Site Specific Interest-Bearing Account Program.

Those are some of the Round 3 reforms. They’re up, they’re working and we can provide you with detailed information on each of

them.

Senator LAUTENBERG. Just one more. That is that S. 8 gives the

kind of crucial decisionmaking authority on remedy selection to

PRPs. EPA then has to object in 180 days if they disapprove of the

PRP-chosen remedy. What are the practical implications of the

PRP picking their own remedies?

Ms. BROWNER. The concern we would have is that a PRP might

not choose the remedy that clearly protects the public health, that
21

protects the environment. You could have a PRP choose a remedy,

quite frankly, because of dollar amounts and not the level of public

health and environmental protections that are promised to the

American people.

We think there has to be a check and balance in the system. In

many instances, the sites we’re dealing with are sites where PRPs

have not been forthcoming, have not been willing to accept the responsibility to get on with the task.

Now, to suddenly allow them to make a choice without that

check and balance, without that public participation, we don’t

think guarantees the environment and public health protections,

and moreover, we are concerned that we may be moving problems

onto future generations that we’ll just sort of deal with the surface

problem and leave the underlying problem.

Senator LAUTENBERG. Thanks, Mr. Chairman.

Senator SMITH. Senator Chafee.

Senator CHAFEE. Thank you, Mr. Chairman.

I’d just like to comment on that last point of Senator Lautenberg.

Under S. 8, and I believe under your administrative reforms, the

PRP has a say in the selection of the remedy with the oversight

of the EPA. So I don’t think it’s quite accurate to say we’re handing

it over or to suggest that we’re just turning the problem over to the

responsible party and letting them just choose cleanup remedies,

the easiest and the least expensive.

You and I met, Madam Administrator, a couple of weeks ago and

the question I asked you was, ‘‘Who is in charge here from the Administration’s point of view.’’ In your statement, you talked about

‘‘We are eager to get on with the job. Let us work together.’’ The

‘‘us’’ and the ‘‘we,’’ I assume is you?

Ms. BROWNER. It’s me.

Senator CHAFEE. It’s not Ms. McGinty from CEQ and it’s not the

Vice President, and the Department of Justice or the Department

of Energy, or the Department of Defense. It’s you, is that correct?

Ms. BROWNER. That is right. I am responsible, for the day-to-day

operation of the Superfund program. Obviously I answer to the

President, I answer to the Vice President. I am also the person that

the President has asked to work with Congress to fashion a legislative proposal. That is something he asked me to do before I even

accepted his offer of the nomination to this job more than 4 years

ago.

Now, Mr. Chairman, as I know you are aware, Superfund involves many parts of the Federal Government. It is not something

EPA does on its own—the Department of Defense, the Department

of Transportation, the Department of Energy, the Department of

Justice all have a role to play in administering the law.

We promise you that whatever consensus-based process this subcommittee and committee create, we will undertake the responsibility, I, EPA, to ensure that we have the right Federal agencies and

departments in the discussion at the right moment, as we did on

drinking water, as we did on food safety.

Senator CHAFEE. As you know, last year, I asked, pleaded perhaps is a better word, that the rhetoric be reduced on this ‘‘polluter

pays’’ or ‘‘letting polluters off the hook.’’ I wasn’t totally successful

in my plea.
22

I’m interested in the part of your prepared testimony in which

you say, ‘‘EPA’s reforms’’—I’m talking about the section at the bottom—‘‘getting the little guy out early.’’

‘‘EPA’s reforms are removing thousands of small volume waste

contributors from the liability system.’’ Under the liability system,

there is a joint and several liability and by definition, the smallvolume waste contributors are polluters, aren’t they?

Ms. BROWNER. They are people who have certainly participated

in a site, that is true.

Senator CHAFEE. So what you have done, and I have no objection

with this, but the facts are you’re ‘‘letting the polluters off the

hook,’’ is that correct?

Ms. BROWNER. Senator Chafee, as we have said, we do believe

there are parties unfairly trapped in Superfund, absolutely, positively. I don’t think Congress, when it created this law, when it reauthorized this law, envisioned that a homeowner, that a pizza

parlor owner would become a part of Superfund.

What we’ve sought to do is honor that intent within the existing

law. So homeowners are absolutely out.

Senator CHAFEE. I’ve only got limited time, Madam Administrator, but the facts are that these are polluters. What I tried to

say last year, as I say without total success, was that we’re talking

a matter of degree. These are polluters. If you strictly enforce the

law, some dentist that had some pollution go into a site, could be

responsible and joint and several liability for the whole thing,

right? That’s the law.

Ms. BROWNER. I think that it is fair to say that courts have interpreted the law as you suggest. I do not think that’s what Congress

intended, I do not think that makes sense for the American people

and that’s why we’ve had a set of administrative reforms.

No one ever thought when Congress wrote this law that a dentist, that a pizza parlor owner would find themselves a ‘‘polluter.’’

The courts interpreted it that way, EPA has acted now to protect

them.

Senator CHAFEE. Madam Administrator, you have taken on yourself, and I don’t argue with it, but the facts are that you’ve taken

on yourself to excuse some individuals or some small companies.

You’ve done that. This is what you say right here, ‘‘EPA’s reforms,’’

and so you’ve drawn the line at a certain place. I don’t know where

the line is but whatever you call a ‘‘small-volume waste contributor,’’ here in your testimony.

Ms. BROWNER. We agree. We’ve taken them out because we don’t

think you ever intended for them to be there.

Senator CHAFEE. Despite what the law says, you’ve taken a position that you thought was our intention. You’ve done it because it

makes the whole process much easier. You can move on and, similarly, in S. 8, we have also removed some. Yet, you don’t like what

we’ve done. You think we’ve gone too far. I remind you that it’s all

part of the same process; we have removed some polluters, just as

you’ve removed some.

Ms. BROWNER. We do not disagree——

Senator CHAFEE. But what gets me is this aggressive language—

that we all have heard, about ‘‘polluters let off the hook,’’ or you’re
23

not ‘‘making the polluter pay.’’ You’re letting them off the hook and

you’re not making the polluter pay, but you call that reform.

Ms. BROWNER. I think we do have agreement here in terms of

the largest party should pay their fair share and the little people

should be out. I don’t think and you have said repeatedly you do

not disagree with my efforts to protect the small parties which the

law say it, this is how courts have interpreted it and we have

worked around those court interpretations in terms of the small

parties. This is a sensible thing to do and I think we all agree.

The question now is, and I think the question appropriately before all of us who care about legislation, is the middle and within

that middle, where do you draw a line in terms of who is clearly

out. The law would state is clearly out, and who remains in a fair

share allocation system.

We are concerned that when we read all of the various parts of

S. 8 and we connect them together—which is how we would actually do it in the field, that is how the law would come to work in

the field—that the effect of all of the various sections of S. 8 result

in large numbers of parties and sites, quite frankly, which we went

over and over and around and around on last year. We are concerned about the obligation for the largest polluters to pay their

fair share.

Senator CHAFEE. My time is up but I would appreciate it if you

would take the expression ‘‘letting polluters off the hook,’’ and bottle it and throw it away somewhere.

Thank you.

Senator SMITH. Senator Baucus.

Senator BAUCUS. Thank you, Mr. Chairman.

Mr. Chairman, I think we’re maybe making a little progress

here. This last exchange I think illustrates it. Namely, there seems

to be agreement despite the argument. The argument is whether

the Administrator is letting ‘‘some polluters off the hook.’’ That’s

pretty much irrelevant I think to the greater goal here.

The greater goal here now is what is the solution. I think we’re

agreeing, what’s the solution.

Senator CHAFEE. The greater goal is what? I missed that.

Senator BAUCUS. What’s the solution to the problem? That’s

what we’re here for, to try to solve problems, not make problems.

Congress somewhat solved the problem when it passed Superfund, but also made some problems, so our goal here is to solve the

problems that Superfund made so that we have a better Superfund

statute than we had before, namely addressing cleanups.

As I hear the exchange here, it seems to me one of the solutions

is to let the smaller dentists, outfits, off the hook, but I think most

Americans would agree, some of the largest companies who did pollute should pay the bill, not taxpayers. I think most Americans, to

repeat myself, think not only should taxpayers not pay, but the

smallest polluters, the dentists, should not pay either because

they’re unwilling parties trapped in the situation caused by the

Congress.

My question to you, Administrator Browner, is this. You’ve outlined a lot of reforms that you’ve undertaken, you’ve done as much

as I think you possibly could given the restrictions of the statute.
24

You also have said that you’d like a comprehensive bill, is that

correct?

Ms. BROWNER. Yes.

Senator BAUCUS. Could you outline for us today again—you gave

us four points in your prepared testimony, but if you could be a little more specific and say the two or three most important areas

where you think the Congress should still address reform even

given your argument, that S. 8 deals with outdated concepts or

problems that no longer are as great as they were, say, a few years

ago.

What are the two or three that you’d like to see us address, the

problems that currently exist that you cannot change given the restrictions of the statute but you’d like to see changed?

Ms. BROWNER. I think it is absolutely important that the statute,

when rewritten, guarantees public health and environmental protections. What I mean by that is let’s not exempt the requirement,

for example, that the hot spots be treated, that they actually be

cleaned up and treated.

Senator BAUCUS. And S. 8 does that in your judgment?

Ms. BROWNER. We are concerned that is what S. 8 does.

Senator BAUCUS. So don’t accept the hot spots. What’s next?

Ms. BROWNER. No. 2, in terms of public health and environmental protections, let’s not say that bottled water is an appropriate solution when we know that groundwater can, in fact, be

cleaned up and treated. Let’s not have a preference or an equal

footing. We’ve had some real confusion in understanding this section of S. 8, I’ll be honest with you.

We’ve gone back and forth with the staff, but we are concerned,

and I don’t think this is necessarily the intention, but that you can

read S. 8 as allowing for the way the cost comes into play, the cost

factors and other factors come into play, you could end up in a situation where groundwater is not addressed even though the NRC

and the National Resource Council says they can do it.

Senator BAUCUS. So groundwater is another one. What’s the

third area?

Ms. BROWNER. Then in terms of the largest parties paying their

fair share.

Senator BAUCUS. You’re getting into allocation of liability.

Ms. BROWNER. Now I’m into the second category, right. We are

concerned that S. 8 takes out a large category of sites when you

string together the various provisions. This was the issue that I

think we all spent a lot of time on last year, the co-disposal sites,

which make up a significant number of the sites on the list.

What we want to do is ensure that you don’t needlessly drag parties through an allocation system, that there’s a bright line, you’re

in, you’re out or you’re in; that it’s very clear on the face of the

statute and that these 1 percent type proposals mean a party has

to stay in perhaps for several years while we figure out the percentages as opposed to saying, if you meet the following definitions,

and let’s talk about what those definitions are.

Senator BAUCUS. Are you suggesting we enact something along

the lines of your fair share allocation?

Ms. BROWNER. We would suggest a process. I think this is an important example of where we had one position, one opinion 3 years
25

ago based on in the field experience with our administrative reforms. Today, we have a different opinion. If I might just briefly

explain it.

We all spent a lot of time 3 years ago looking at an allocation

system, where there would have to be people who were certified,

allocated, and it was very rigorous and rigid, if you will.

When we went out and actually used our administrative reform

allocation system, what we found is people didn’t want to be limited to a list of who they could choose as their allocator. They

needed more flexibility.

We would encourage you, based on that experience, and you can

talk to parties who have been involved, to provide more flexibility

in the allocation system. The real point of the allocation system, of

the orphan share, is to get everyone in the room, get the liability

resolved, move on to clean up.

Senator BAUCUS. I see my time has expired. I just want to say,

Ms. Administrator, I think you’re doing a good job.

Ms. BROWNER. Thank you.

Senator BAUCUS. You have a nearly impossible task dealing with

this statute as well as some other statutes that this Congress has

enacted, all well intended, but sometimes there are also some unintended consequences which you have to live with.

I might say for the benefit of my colleagues too that you’ve also

responded very well to a lot of local initiatives and local concerns,

particularly in my State of Montana. The best example that I can

think of right off the top is a very innovative approach I might say

to my colleagues here.

We have a huge Superfund site on the outskirts of Anaconda,

MT. It’s a problem and the local communities as part of the cleanup got the approval of EPA to do this, and turn this Superfund site

into a golf course.

Jack Nicholas has designed the course. It’s a great course and it

is going to be open this summer. It’s going to be so good, we’re

going to rival the U.S. Open. This golf course is going to put Montana on the map.

I invite my colleagues to come out the opening day of the Jack

Nicholas golf course in Anaconda, MT, which was a Superfund site

this summer.

Senator SMITH. What are the greens fees to pay for that?

[Laughter.]

Senator BAUCUS. I don’t want to get into the Senate gift rules,

but I urge you to come out this summer on opening day.

Ms. BROWNER. If I might say, this is an example of how we are

taking a very common sense approach to the cleanup plans and incorporating future land use. Sixty-three percent of the cleanup

plans now incorporate the community’s desires in terms of future

land use.

You’re providing an equal level of public health and environmental protection, but you’re making adjustments within the cleanup plan that reflect what the community wants. Here they wanted

a golf course. That does change your cleanup plan. It doesn’t

change your level of protection, but it allows for flexibility in designing cleanup plans.
26

Senator BAUCUS. I might say to the Chairman, I don’t know

about greens fees, but Jack Nicholas is going to be there on opening day.

Senator SMITH. Senator Thomas.

Senator THOMAS. Ms. Browner, I haven’t heard you mention, perhaps you did before I came in, the natural resource damage aspect.

What’s your position on that?

Ms. BROWNER. I should explain that you will have people testifying later today specifically on the natural resource damage portion

of the bill. We do believe that there should be a natural resource

damage provision in a reauthorized Superfund bill.

We’re concerned that S. 8, the language on NRD, may impede response actions. We are concerned that it may create some inflexibility, but we do think that it is an important issue. When we say

comprehensive, we mean comprehensive and we do have with us

today the natural resource trustees who will be speaking specifically to that.

Senator THOMAS. I see, but if we had the piece of paper out here,

what would you write down on NRD?

Ms. BROWNER. I wish we could write it down in a second. I think

it would take many, many sentences.

Senator THOMAS. Do you relieve the liability before 1980, for example?

Ms. BROWNER. No, we would not.

Senator THOMAS. They’re too big?

Ms. BROWNER. Excuse me?

Senator THOMAS. They’re too big a polluter? They don’t fit in

your category?

Ms. BROWNER. I think the question of dates, whether it be in the

case of NRD or in other instances, raises a new round of litigation

quite frankly and I think the goal of all of us is to reduce litigation.

What will happen is parties will come in and argue they did

something before or after a particular date and parties will be litigating a whole other set of issues. So we have, since we began this

discussion 4 years ago, consistently recommended that we not use

dates as a means of determining who is in or who is out.

Senator THOMAS. You talked about getting polluters to pay.

There is a substantial number of these sites that are Federal sites,

are they not?

Ms. BROWNER. Seventy-five percent of the cleanup expenditures

now underway are being done by the responsible parties, by the

PRPs if you will. The lion’s share are, in fact, not Federal sites.

Senator THOMAS. I was confused on the numbers. I noticed in

some of the material, it said——

Ms. BROWNER. I’m sorry, are you talking about Federal facility

sites?

Senator THOMAS. Yes.

Ms. BROWNER. I apologize.

Senator THOMAS. Like Rocky Flats.

Ms. BROWNER. You’re right, there are a number of very large

Federal facilities sites in the Superfund Program. You mentioned

Rocky Flats. There are any number of them.

I apologize, I thought you were talking about the non-Federal

sites. My confusion.
27

Senator THOMAS. We had a hearing last year on Rocky Flats. Are

we making any progress? We’ve spent how many million dollars

there and almost all of it has gone to lawyers as I understand it.

Ms. BROWNER. I apologize, I know there was a different site with

a similar name.

We continue in the dialog. This is not an easy site, as you are

well aware.

Senator THOMAS. The dialog is we pay the legal fees, while somebody else does the talking?

Ms. BROWNER. I’m not sure I understand what you mean by we

pay the legal fees?

Senator THOMAS. That’s precisely what we do, is we pay the legal

fees for the defense and two other parties are in the litigation.

Ms. BROWNER. Where you have a Federal facility, in the case of

the example you use, we seek to work with the other Federal agencies to shape a solution. There may be litigation in terms of other

parties who participated in that site, but the energy tends to focus

on finding a resolution between the Federal departments and agencies.

Senator THOMAS. It indicates in some of this material, there have

been 50 sites cleaned and deleted from NPL in the last 2 years.

Ms. BROWNER. I’m sorry, could you say that again?

Senator THOMAS. Fifty sites cleaned and deleted from NPL. You

were talking about 250 or something of that nature?

Ms. BROWNER. Right. In the last 4 years, we have completed

work at more than 250 sites now.

Senator THOMAS. So you did 200 in the first 2 years?

Ms. BROWNER. No, I apologize. I’m not familiar with the 50 number that you’re using. If you want to tell me where it comes from,

that would be helpful.

Senator THOMAS. OK, I’ll get it to you and perhaps you can respond to it.

Ms. BROWNER. The 250, no, we didn’t do 200 in the first 2 years.

They are spread out over the 4 years.

Senator THOMAS. Thank you, Mr. Chairman.

Senator SMITH. Thank you, Senator.

Senator Allard.

OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR

FROM THE STATE OF COLORADO

Senator ALLARD. Thank you, Mr. Chairman.

I missed my opening statement, so I’d ask unanimous consent

that be made a part of the record.

Senator SMITH. Without objection.

[The prepared statement of Senator Allard follows:]

PREPARED STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE

STATE OF COLORADO

Thank you, Mr. Chairman. I look forward to today’s hearing which I hope will

shed some light on the urgency of cleaning up highly toxic sites around the Nation.

In order to quickly and effectively clean up these sites, we need to modernize Superfund so it can work effectively, that’s why I am pleased to be a co-sponsor of S. 8,

the Superfund Cleanup Acceleration Act of 1997.

While there may be some concerns with certain aspects of this legislation, I believe that if all interested parties make a good faith effort we can move this legislation expeditiously through Congress. Yesterday’s hearing was a good lead in for
28

today. We heard excellent testimony from State and local officials who have done

as much as they can within their authority. We now need to build upon the progress

they have made in the States and provide them with the responsibility and power

to clean up the contaminated sites that many of them drive by every day.

If we don’t empower State environmental officials to act, we would be ignoring

the successes we heard yesterday. I believe inaction in this case is probably the

worst course we could take.

Mr. Chairman, thank you for leadership in this issue, and I look forward to today’s hearing.

Senator ALLARD. Yesterday, Ms. Browner, we had a variety of

witnesses who explained the States are doing a good job in running

their own cleanup programs. Mr. Fields was on one of those panels.

Are you wholeheartedly behind the States in controlling and running their cleanup programs?

Ms. BROWNER. That is a complicated question. If I might take a

moment to explain?

Senator ALLARD. Yes.

Ms. BROWNER. As I understand yesterday’s hearing, it was on

brownfields?

Senator ALLARD. Yes, it was. I think we’re setting down some

very basic principles in brownfields and I’m trying to figure out if

you’re willing—and they look to me like they’ve been successful.

I’m seeing if you’re willing to carry those on with the Superfund

sites.

Ms. BROWNER. We are very proud of our Brownfields Program.

We think it has been tremendously successful in addressing lightly

or moderately contaminated sites.

In terms of the worst sites, the Superfund sites, the big sites, it

is our experience that in some instances, at some sites in some

States, working with them in partnership, we would even say providing in the law that they take lead responsibility makes sense.

We have supported those proposals in the past.

The problem we have with the current proposal in terms of the

States is that we think it is incredibly rigid, that it is sort of a onesize-fits-all approach. Let me give you an example.

As we understand the current legislative proposal, if a State had

what is called a remedial action plan on a site in their State, EPA

could not become involved. New Jersey, which has a State cleanup

law, recently had a very unfortunate situation involving mercury in

an apartment building, actually in the walls, underneath the floor.

It was a former industrial site that had been converted to lots and

rented or sold.

The State had been involved in activities there previously. I

think it is fair to say they would have what amounted to a remedial action plan on that site. When they discovered this situation,

they needed us to come in. They called us, they invited us in and

we came in and worked in partnership and are working today to

address the problem.

The concern we have with S. 8 is it’s an all or nothing type approach and we would encourage the committee to recognize the

need for flexibility in dealing with the worse sites.

We had another example recently in Georgia. They discovered a

site literally 24 hours after the business shut down, decided to go

out of business. They called us and said it’s yours; we can’t deal
29

with this. We’ve already removed at this site, 415,000 pounds of

mercury. We were literally vacuuming it up at the site.

You need that kind of flexibility so if the State finds something

it can make a judgment and we can work together to address the

public health and environmental concerns. So I would just say, as

I think is true for the majority of environmental and public health

issues we face today, let’s avoid a one-size-fits-all, rigid system of

the States do everything and EPA does nothing or EPA does everything and the States do nothing. Let’s recognize the differences between the States.

Senator ALLARD. Would you be happy then to put a provision in

the bill that said if the States requested you to come in, that you

could be available as a consultant for them? That’s what your testimony said.

Ms. BROWNER. There are other problems with the State section

of S. 8. That’s one portion I was speaking to and I think what you

suggest in terms of EPA being able to come in may make some

sense, but there are other problems. I don’t want to suggest that

is the only problem, and I’m more than I’m happy to detail them

for you.

Senator ALLARD. I’m all ears. Let’s hear it.

Ms. BROWNER. One example would be when a State files under

S. 8, when the State seeks delegation of responsibility for Superfund in their State, they get to self-certify in terms of their ability

to assume the program. EPA is not allowed to request documents,

to verify that self-certification, as we understand the provision.

We have 60 days to make the decision. There is not at the conclusion of our decision, a requirement of public notice and comment. We think the stakeholders in the State should have an opportunity to comment on EPA’s decision. If we fail to act in 60

days, the program is immediately moved to the State.

Senator ALLARD. On that issue, what would be the problem with

us saying if the Superfund is strictly a State issue, let them deal

with it. If it’s on the border of the State and could have ramifications with their neighbors, then perhaps maybe the neighbors could

bring you in on that consulting basis. Would you be agreeable to

that kind of arrangement in that issue?

Ms. BROWNER. We have talked to the States about what they are

willing to do and what they’re comfortable doing. Many States, I

wouldn’t suggest all, do not want to take responsibility for every

Superfund site in their State. We don’t think they can.

Senator ALLARD. In which case, they could invite you in.

Ms. BROWNER. If you give the States the primary responsibility,

I think the question you need to address is are you going to give

them the authority in terms of ensuring the largest polluters pay

their fair share or does the State have to pick up the tab.

Senator ALLARD. I think those things are working. I don’t see a

real problem.

Ms. BROWNER. We would agree that there is a way and we made

a legislative proposal that has the support of many States to recognize the very good work that States can do, are doing at these

sites. The concern we have is that there are many authorities

which are vested in us through Congress that are important to the
30

successful cleanup of these sites and we have not seen a willingness in Congress to delegate all of those authorities to the States.

I think you may put the States, if you’re not careful, in an awkward position of having responsibility with little or no resources to

do the job of public health and environmental protection.

Senator ALLARD. I guess the point I wanted to make is that

they’re closest to the problem, they have to live with the problem,

I think there would be a real interest in them trying to clean up

that environmental problem and the sooner you get it cleaned up,

the better.

I can understand those problems that may exist on State borders

where you may have two States in conflict and we’d make some

provisions in there to adjust that. We’re getting away from the onesize-fits-all and we’re setting up a mechanism where resolutions on

conflicts can be reached, but basically you’re not going to be calling

the shots, it’s going to be coming from the local level. You’d be

brought in on a consulting basis and be supportive of what the

States are trying to do.

If we’ve got two States that can’t agree, then maybe you’d move

in as a mediator, help resolve that joint problem, working with

both those States.

Ms. BROWNER. I think, again this is not an easy issue in terms

of what States would like and what individual States feel they can,

in fact, assume. I think when you will find when you talk to the

States great difference among them.

I think it’s also important to understand that it’s not just a question of does a site happen to fall in two States and there are a

number of the Federal facility sites that, in fact, do involve more

than one State, but you may also have a situation in terms of

groundwater contamination that could affect the site, that would

appear to occur in one State, but could affect the groundwater supplies for any number of States.

Senator ALLARD. Obviously those things have to be worked out,

again, can be worked out between the States and maybe bring you

in as a mediator in those situations, but I don’t see why we can’t

put more confidence in the State role.

Ms. BROWNER. Again, we did make a proposal working with the

States on how to structure a program so that they could assume—

we suggested a State be able to assume responsibility for individual sites, if that’s what they wanted to do.

I’m a former State Director and let me tell you, there are sites

in Florida I’d be happy to take over day-to-day management and

they’re the worse ones I wouldn’t want to touch and I think you

have to allow for that kind of literally State-by-State dialog between EPA and the State.

Anything that lock, stock and barrel just moves everything, particularly if you don’t move all of the legal authorities that are important to ensuring that the largest polluters pay.

Senator ALLARD. That’s not what I’m talking about. I’m talking

we don’t lock, stock and barrel to the States, that we give the

States that ability to pull in the EPA as a mediator.

Thank you very much, Mr. Chairman.

Senator SMITH. I want to move on to one more round. We’ll do

3 minutes and hopefully try to get the next panel up.
31

Senator BAUCUS. Mr. Chairman, are we going to stick within our

time limits here?

Senator SMITH. We’ll do the best we can.

Senator BAUCUS. Because I notice we’ve been pretty liberal.

Senator SMITH. Pretty liberal. I haven’t been called liberal in a

while.

Senator BAUCUS. That’s why I said it. I was waiting for you to

pick up on that.

[Laughter.]

Senator ALLARD. Mr. Chairman, if we could get brief responses

to our questions, I think our time would be much better allocated.

Senator SMITH. Let me start, Administrator Browner, by going

back to Senator Chafee’s line of questioning because I think that

really goes to a major difference between us in terms of who you

define as those people who should be in and who should be out.

I think again, there’s common agreement, as Senator Baucus

said, Senator Chafee said, we agree with the de minimis parties,

they should be out, but when you start moving down the line, then

you’re starting to pick winners and losers here and that’s where we

disagree in terms of how we apply that standard.

Let me just use the example on the co-disposal. There’s been a

long debate over whether the cost of cleaning up co-disposal sites

is driven mostly by toxicity, by hazardous materials or whether it’s

by the volume that’s in the site or the solid waste.

Senator Chafee and I thought in S. 8 we had addressed this by

saying it makes a lot more sense to collect the taxes, the environmental income tax, the chemical feedstocks, the oil import, collect

those taxes and recognize that these other sites that we’re arguing

about here are a problem, take those dollars and put them in and

cleanup those sites.

You say we are letting them off the hook. You also say the taxpayer pays. I want you to explain to me how the taxpayer, any taxpayer is paying for the cleanup of those sites? Where in our bill

does it say or in any way infer that the taxpayers are paying for

this?

Ms. BROWNER. As we understand the effect of S. 8, if I might

step back for a second because I do think there is an important

agreement here.

When it comes to sole source sites, one party is responsible for

the site, I think we all agree they should pay, solve the problem.

There’s sort of three categories of sites in Superfund—one party, a

site, they deal with it; then there are what we call multiparty sites

where maybe you have six or a dozen or so parties at a site and

we have mechanisms for that. Then that leaves the third category

which are these co-disposal, largely landfills and I think that’s

where we’ve had the most difficulty in finding common ground.

Senator SMITH. But other than the taxes, if those taxes are reinstated and we do call for the reinstatement of those taxes in our

bill, those taxes, yes, they are taxes, they are paid, but I don’t want

to speak for the corporations that pay these taxes, but the frustration has been that they’ve not been used for cleanup, those dollars.

They’ve been used, in some cases, in the general fund, and in others, to pay for attorneys rather than cleaning up.
32

The point is we reinstate those taxes, those dollars then go into

these co-disposal sites. Take out this group of people that you now

want to keep in. The point is if you talk to people around the sites,

they want the sites cleaned up.

Ms. BROWNER. We agree.

Senator SMITH. They’re not looking to hunt down people as common criminals here and apply a group of penalties; they want the

sites cleaned up. You say the taxpayer pays. Where does the taxpayer pay for this?

Ms. BROWNER. First of all, the taxes that are collected for Superfund are ultimately passed onto the consumer. I think we would all

agree with that, the corporate environmental tax, the feedstock

taxes, ultimately some portion, if not all of that, is passed onto the

consumer.

Senator SMITH. You’re not advocating getting rid of them, are

you?

Ms. BROWNER. No.

Senator SMITH. Then it’s an academic argument. We accept that.

We’re on common ground here. We accept those taxes should be reinstated. The question is, why not reinstate them, take from those

funds and go to these co-disposal sites and get these people out and

stop arguing and doing litigation?

If you would agree to that, we’d have common grounds on 50 percent of the bill anyway.

Ms. BROWNER. Could I ask a question, a point of clarification? I

know you get to ask me the questions and I answer, but I do have

a question here.

Is it your proposal to take out the co-disposal sites? Is that what

you’re proposing? It would help me to understand because I admit,

and I have tried to say repeatedly throughout this hearing, that we

are confused by sections of S. 8. There were staff briefings and we

came away with one impression; perhaps it is wrong. It would be

helpful to me to understand if your position is——

Senator SMITH. Yes.

Ms. BROWNER. Yes, you want to take out the 250 co-disposal

sites?

Senator SMITH. Yes. You put degrees to it; we want to take them

out so we don’t argue about it.

My time has expired. I’m not trying to be argumentative, I’m trying to get common ground here. I think the frustration I feel is you

apply a different standard of fairness to a de minimis person or site

or an entity that happens to have a larger liability. I’m fully supportive of taking care of the de minimis people, but again, it’s still

an issue of fairness and we’re paying. We’re going to clean it up.

Ms. BROWNER. If I might respond. This is obviously the issue we

spent a lot of time on last year and we were hoping that S. 8 made

some progress in this regard. Perhaps it doesn’t make the progress

that we thought it made. If might just succinctly state our concern.

Because someone happened to choose to send their toxic wastes

to a landfill—that’s what these co-disposal sites are in large measure. We estimate there are approximately 250 under your definition, co-disposal sites. Because they happened to send it to a landfill and not to a multiparty site or didn’t keep it in their backyard,

you would say that the nature of the site where they sent it ex-
33

cludes them from a responsibility. What we’re saying is don’t do it

by site, do it by party. That’s the only difference here.

Senator SMITH. It’s because you wouldn’t agree to multiparty. I

have long been an advocate of repeal of retroactive liability, but

you won’t even get to first base on that one, so we have no choice.

So we went to co-disposals because that’s where you were headed

to try to get some common ground and now you don’t want to move

on that either.

Ms. BROWNER. No, we can address the small parties, the municipalities. There is a way to address those people that I think we all

agree are at the co-disposal sites and unfairly trapped in Superfund, if we can do it by party and not by site.

Senator last year, we costed out, we looked at what it would cost

to deal with all the co-disposal sites and there are many more coming. In fact, we would probably litigate many other sites because

everyone would try to become a co-disposal site to get out of any

obligation and quite frankly, we couldn’t afford it.

Senator SMITH. My time has expired. Go ahead, Senator Lautenberg.

Senator LAUTENBERG. Vigorous.

Senator SMITH. I was trying to get some common ground.

Senator LAUTENBERG. Yes. Madam Administrator, the present

national contingency plan expresses an expectation that aquifers be

restored to drinking water uses wherever practicable, but S. 8 establishes rules for groundwater remedies that favor natural attenuation and give equal weight to alternatives such as water treatment systems in people’s homes rather than removing the contamination from the environment.

Is this backsliding necessary? Does it accomplish what we think

that the rules ought to accomplish for the safety and well-being of

our people?

Ms. BROWNER. I think it is now well documented by independent

groups, including NRC, the National Research Council, in a 1994

study, that we can, in fact, cleanup groundwater. I think everyone

recognizes there may be a handful of places where it is more difficult than not but in large measure, the technology exists.

Our concern with S. 8 is that it seems to require a justification

that the cleanup of groundwater substantially accelerates the availability of drinking water beyond the rate of natural attenuation.

You have two problems there. No. 1, is why would you do that

if the technology exists to actually clean it up, but No. 2, is there

are many of these groundwater sites which may not today be a

drinking water supply but could easily become a drinking water

supply in the not too distant future. I think here is an example

where we are very concerned that you’re passing a problem onto a

future generation and unfairly so.

Senator LAUTENBERG. The remedy selection in S. 8 that would

elevate engineering and institutional controls to a level on the par

with treatment would eliminate the preference for permanence or

treatment from the present scheme. What might this lead to? Are

we talking about hazardous waste museums?

Ms. BROWNER. The concern we have is that there appears to be

a provision essentially if implemented would say that if cleanup,

actual cleanup, removal, treatment cost too much, then you can es-
34

sentially avoid the goal of human health and environmental protection.

The concern is that you could find in situations, sites fenced off

and again, we had a discussion about this last year. We certainly

hope that’s not what these provisions mean. We’ve gone over this

and we are concerned that institutional mechanisms being given

the kind of equal footing, if you will, in terms of solving problems,

could result in some sites not actually being cleaned up, could result in bottled water being made available as opposed to treatment

of potential drinking water sources.

Senator LAUTENBERG. Thanks, Mr. Chairman.

Senator SMITH. Senator Chafee.

Senator CHAFEE. Ms. Browner, I just want to point out that you

specifically stated that you wish a rewrite of the Superfund law

and it is very apparent that can’t be accomplished without bipartisan cooperation. There can’t be a law unless we pass one up here.

We can’t pass a law without the cooperation of the Administration.

We certainly can’t have it enacted into law.

There have been various attempts to do something about this. In

the 103d Congress, we had the situation where the Democratic

Party controlled the House, they controlled the Senate and they

controlled the presidency. They had a Superfund bill that came out

of this committee, I voted for it, but it didn’t pass in the Senate

and no Superfund bill passed in the House. So there’s really a

tough challenge. It behooves all of us to be in a cooperative mood

if we’re going to get anything.

On the co-disposal sites, it was our philosophy that the dumping

was done legally; that’s one of the requirements we had under the

co-disposal sites, it would be legal when they did it. That’s where

the biggest controversies come, that’s where they have to hire a

hall to take care of all the lawyers. Our philosophy was, let’s just

get it over with but that’s a philosophy, at this point, you don’t

agree with.

I want to say I listened to the three issues you listed. Your first

one was hot spots and the third one was the co-disposal exemption

for big industrial waste. We can negotiate these. Your second one

was on groundwater and I believe that there’s a misreading or an

ambiguity in there and that can be straightened out. So this thing

can be solved.

We’ve got to start with something. This business of taking a

blank sheet of paper, we spent a lot of time on this and we’ve got

to start somewhere. I would hope that you’d give further consideration to using S. 8 as a starting vehicle, recognizing that it’s not

written in concrete and it is subject to negotiation and to be

amended.

Thank you, Mr. Chairman.

Ms. BROWNER. Mr. Chairman, we would like nothing better than

to work on a consensus-based process with you. We would look forward to you setting out a process; we’ll be here ready to go.

We would hope, as I think you would, the importance that all of

the parties, and there are unfortunately many—I’m not talking

about Federal Government, I’m talking about communities, State,

local government, PRPs, big, small—be a part of that process also.
35

I have high hopes that we can finally see Superfund rewritten.

It remains something that I am personally committed to; it is one

of the reasons I came to EPA and it is something I would like to

see done this year.

Senator SMITH. Thank you.

Senator Baucus.

Senator BAUCUS. Madam Administrator, we all agree we want to

speed up the cleanup of sites, not slow it down. You have indicated

in your statement that there are portions of the bill before us, S. 8,

which you think will have the opposite effect, that is, it will not

speed up cleanups but rather slow down cleanups. Could you be

much more precise, please?

Ms. BROWNER. I can give you examples of provisions that we are

concerned about.

First is what we refer to as the ROD reopener, the fact that you

can go back into essentially any and all of these decisions that have

been made and reopen them. We would suggest that there be a

threshold, that cost and technology be brought into play because

we are concerned that someone could merely engage us in a sort

of round-robin of discussion where there are no new technologies.

Senator BAUCUS. As you read S. 8, could all sites be reopened?

Ms. BROWNER. Our understanding is not only can all decisions be

reopened, but even once construction has commenced, the decision

can be revisited.

Senator BAUCUS. Would you give us a sense of how that slows

things down?

Ms. BROWNER. We enter into 150 decisions in terms of cleanup

plans annually. If all of those can be reopened, that means there

are literally 1,500 right now on the books, if every single one is reopened, what is to prevent a party from reopening? Why shouldn’t

a lawyer reopen it, a private party’s lawyer? It means they don’t

have to get around to cleaning it up anytime soon. You could see

us doing almost nothing but dealing with these reopeners.

Senator BAUCUS. Is there ever a good reason to reopen?

Ms. BROWNER. Yes, and we have a program to do just that.

Senator BAUCUS. When? Give us a sense.

Ms. BROWNER. Where you have a real advance in technology, and

that does occur, where you have a new discovery, a new solution.

That is absolutely appropriate.

Senator BAUCUS. Can you give us an example, for the record if

you don’t have it right now?

Ms. BROWNER. Some of the sites where initially maybe 8 to 10

years ago the preferred treatment would have incineration, today

bioremediation solves the problem. That’s an example.

Senator BAUCUS. So you believe on this issue that there is reason

to reopen some decisions, but we shouldn’t go all the way allowing

construction or RODs to be reopened?

Ms. BROWNER. We do have a program today for updating remedies. We have a program right now for sites, to come in, to review

them, based on cost and technology advances and make adjustments. We have made adjustments and we will provide you with

a list of the sites and the projected cost savings. I think the cost

savings are $280 million for the sites that we have revisited the

remedies because of technology advances.
36

Senator BAUCUS. Thank you very much.

Thanks, The CHAIRMAN.

Senator SMITH. Senator Allard.

Senator ALLARD. Thank you, Mr. Chairman.

You would agree that the liability is a real problem with these

Superfund sites, I believe, and if we don’t get the liability issue

straight, I guess no amount of money is going to lead to clean up

of sites because everything is going to be eaten up by lawsuits and

lawyers and we’ll never get around to getting the bottom line resolved. Would you agree with that?

Ms. BROWNER. I think it’s important to understand what EPA

spends its money on. A very, very small percentage of Superfund

dollars go to parts of the program other than cleanup. This chart

shows you that 77.6 percent of the money you appropriate goes to

clean up activities from people out in moonsuits to the brownfields

work we’re doing and a very, very tiny part goes to a variety of

other efforts.

Certainly in reauthorizing Superfund, the question of who pays

is not a small question. We absolutely agree that the little parties

should be taken out, absolutely, positively. We have programs

doing that as I said. We’ve taken out more than 9,000 parties in

the last 4 years; homeowners are protected now.

I think the discussion that we will all need to engage in as we

seek to find consensus is, of the remaining parties, is it appropriate

to shift their responsibility to the fund and thereby to the taxpayer.

Senator ALLARD. Is it possible for a company that’s been cleaned

up under CERCLA, to then have RCRA applied to that same site?

Ms. BROWNER. I think the easiest way to make a distinction here

is RCRA is for facilities that are ongoing operations and it requires

a certain set of activities to prevent problems and to address any

problems that may develop in an ongoing action.

Superfund not exclusively, but does tend to focus on those facilities, those sites where the parties may have moved on or occasionally, what you have in Superfund is a situation where part of the

site is Superfund and then there is an ongoing activity adjacent.

Senator ALLARD. So it is possible for a company to have to deal

with both CERCLA and RCRA?

Ms. BROWNER. And appropriately so. They should have to deal

with RCRA because that is the permitting program we have in

place, the law in place, to ensure in part that we are not creating

future Superfund sites.

Senator ALLARD. I haven’t got any prejudged opinion on this, I’m

just asking is there a potential for a double jeopardy effect?

Ms. BROWNER. Not for the same contamination, no. They would

be handled separately.

Senator ALLARD. Because one is ongoing and the other has already occurred?

Ms. BROWNER. That’s one distinction. There are not any bright

lines, unfortunately. Another distinction would be you might have

an ongoing activity where there is historical groundwater contamination all underneath the ongoing site. That would perhaps be addressed through Superfund and then if there was some accident

that happened, some inappropriate action that had taken place in
37

the meantime, that might be addressed through RCRA, but you

don’t use both laws to address the same problem.

It is true that a company, a site, there may be RCRA problems

and Superfund problems but they are for different contaminants or

contamination activities.

Senator ALLARD. That’s all, Mr. Chairman. Thank you.

Senator SMITH. Thank you, Senator.

Administrator Browner, thank you very much for being here this

morning and I think perhaps we made some progress. I think I understand some of the concerns you have. I think we certainly are

going to pledge to you to work with you and with our colleagues

on the other side of the aisle to do our best to get a bill because

I think it’s in the best interest of the country to get it done. We’re

going to do our best to do it and we look forward working with you.

Ms. BROWNER. That is our interest too. Thank you.

Senator SMITH. The next panel could come up—I’m just going to

call the names here rather than take a recess—Mr. Richard

Gimello, assistant commissioner for Site Remediation, New Jersey

Department of Environmental Protection, speaking on behalf of the

National Governors’ Association; Ms. Linda Biagioni, vice president

of Environmental Affairs, Black & Decker Corporation on behalf of

The Superfund Action Alliance; Ms. Karen Florini, senior attorney,

Environmental Defense Fund; Ms. Barbara Williams, Sunny Ray

Restaurant, Gettysburg, PA, on behalf of the National Federation

of Independent Business; and Ms. Karen O’Regan, Environmental

Programs Manager, city of Phoenix.

Welcome ladies and gentlemen for being here this morning and

let me just indicate to you that your statements will be made a

part of the record as written. If you could summarize your statement in 3 or 4 minutes, it would be appreciated.

We’ll set the clock at 4 minutes and hopefully we can wrap it up

in 4 minutes and then go to some questions.

Mr. Gimello, why don’t we start with you. Welcome.

Senator LAUTENBERG. If I may, Mr. Chairman, Mr. Gimello is a

New Jerseyite. Unfortunately, we have grown very successfully,

Superfund sites all across our State. It happened as a result of our

proud industrial past and Mr. Gimello has had a lot of experience.

We welcome him here this morning representing the Governors’

Association.

STATEMENT OF RICHARD GIMELLO, ASSISTANT COMMISSIONER FOR SITE REMEDIATION, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ON BEHALF OF

NATIONAL GOVERNORS’ ASSOCIATION

Mr. GIMELLO. Thank you.

The testimony that I offer today is on behalf of the National Governors’ Association. As I am sure you can appreciate, the NGA has

a strong interest in Superfund reform and believes that a variety

of administrative, as well as legislative and regulatory changes are

needed to improve the Superfund Program’s ability to clean up the

Nation’s worse sites.

We realize the importance of passing legislation this year and

want to ensure that the collective interests of the States are considered carefully in development of the final bill. Funding is essential
38

for the continuation of cleanups in this country and the ultimate

objective of the Superfund Program depends on the continued funding.

The Governors appreciate the opportunity to review and comment. I’d like to begin by stating that NGA is very appreciative of

the many improvements made in the bill over last year’s bill. The

Governors acknowledge the vast compromises that the bill reflects

and commend the committee for introducing legislation that addresses many State concerns. Today, I’d like to address NGA’s

overall assessment of the bill and suggest a few areas where improvements could be made.

With regard to brownfields revitalization and voluntary cleanup

programs, the Governors believe that brownfields revitalization is

critical to the successful redevelopment of many contaminated

former industrial properties and we commend the committee for including the brownfield language.

Many States have developed highly successful voluntary cleanup

programs that have enabled sites to remediate more quickly and

with minimal governmental involvement. It’s important that any

legislation supports and encourages successful programs by providing clear incentives and by ensuring that any minimum program

criteria established by the Environmental Protection Agency be extremely flexible.

Also, in the event that EPA discovers an imminent and substantial threat to human health and the environment at a site, or at

the request of a State, it should be able to continue using its emergency removal authority.

With regard to State role, the impacts of hazardous waste sites

are felt primarily at the State and local levels. The Governors are

very supportive of the efforts of the chair, Senator Chafee and others to strengthen the role of the States in this program. We appreciate the inclusion of options for both noncomprehensive and comprehensive delegation.

We especially support allowing States to operate their programs

in lieu of the Federal program. It is critical that States, with established goals and standards, be able to apply at all sites these

standards regardless of the lead agency and without a cost shift.

We cannot support EPA being allowed to withdraw delegation on

a State-by-State basis. Withdrawal of delegation should be consistent with the approval or rejection of a State’s application for delegation.

The Governors strongly support the 10 percent cost share for

both remedial actions and operation and maintenance, and we appreciate the inclusion of this provision in the bill. However, we do

not support any change that will require the State cost share for

removal actions. States are not currently required to cost share in

this area and we don’t think it’s appropriate.

Selection of remedial actions, the Governors believe that changes

in remedy selection should result in more cost effective cleanups

and a simpler, streamlined process for selecting remedies and more

results oriented.

Allowing State-applicable standards to apply at both national

priority list sites and State sites is one way of ensuring such an

approach. Any caveats to the use of State RARs must be minimal.
39

The Governors believe that groundwater is a critical resource

that must be protected. The use of State applicable standards and

the opportunity for State and local authorities to determine which

groundwater is actually suitable for drinking are essential.

We also believe, however, that groundwater resources must be

forwarded a sort of receptor status to prevent any future or ongoing

impacts during the remedy selection.

The Governors recognize that there are some records or decisions

that should be reopened because of cost considerations or technical

impracticability. However, we believe the Governors should have

the final decision on whether to approve a petition for the reopening of a ROD.

With regard to liability, liability schemes employed in any hazardous waste cleanup program are critical to the success of the program. However, the current system has a history of leading to expensive litigation and transaction costs. Therefore, the Governors

can support liability reform.

In general, we support the elimination of de minimis and de

micromis parties and believe the liability for municipalities needs

to be addressed. However, we question broader releases of liability

for other categories or responsible parties.

Further, we support the concept of an allocation process so that

costs are assigned appropriately to responsible parties, but we need

assurance that funding will be available for this process, including

support for State allocation programs.

Finally, as I mentioned earlier, we fully support the release of

Federal liability at non-NPL sites where a release of liability has

been granted under State cleanup laws.

With regard to Federal facilities, the Governors support legislation that ensures a strong State role in the oversight of Federal facility cleanups. We urge you to strengthen the program by amending the statute of limitations to run for 3 years with regard to natural resource damages.

In general, I want to emphasize on behalf of the States that we

do recognize the extent of the compromises reflected in this draft

and are eager to work with this committee and Federal EPA to finalize this job that we’ve started.

I thank you.

Senator SMITH. Thank you very much, Mr. Gimello.

Ms. Florini.

STATEMENT OF KAREN FLORINI, ESQ., SENIOR ATTORNEY,

ENVIRONMENTAL DEFENSE FUND

Ms. FLORINI. Thank you, Mr. Chairman.

On behalf of the Environmental Defense Fund and its 300,000

members, thank you for this opportunity to present our views on

S. 8.

While the Environmental Defense Fund supports an improved

Superfund Program, we regret to say that, in our view, virtually

all provisions of S. 8 would not in fact lead to that result. Rather,

they would have, in many instances, the opposite effect.

For example, with regard to clean up standards, the bill seems

to regard doing cleanups fast as more important than doing them
40

right. Speeding cleanups by making them weaker is a giant step

in the wrong direction.

The cleanup provisions have numerous flaws that exacerbate

each other. Specifically, the bill largely puts polluters in control of

decisionmaking and constrains both EPA and public oversight.

Even polluters who are under criminal indictment for illegal dumping at a particular site potentially could end up with the lead role

if they hire the right consulting firm. Polluters can let cost considerations override cleanup goals including health goals.

In addition, the bill completely repeals the existing preference for

permanent treatment so that even highly toxic hot spots could remain onsite. Likewise, the bill makes no effort to promote restoration of land to productive use. Indeed, the future uses that can be

considered are specifically limited to those that are currently

planned or zoned or those that have a substantial probability of occurring. That is an inappropriately high standard, one that effectively requires a community to either have a crystal ball or limit

its consideration to today’s probabilities, instead of tomorrow’s possibilities.

All these problems are made worse by the outrageous provisions

under which polluter-written cleanup plans get approved by default

if EPA is unable to act to review it within 180 days. Cleanup decisions are complex and high stakes ones for communities, particularly site neighbors. Default approval has no place in the Superfund program.

The bill also undermines public participation in several ways. It

fails to let the public participate in decisions about which States

shall implement the program, even though State delegation greatly, and in my view, inappropriately, constrains EPA’s ability to act. It limits technical assistance grants to $100,000 without exception even though the bill’s changed cleanup standards will often

lead to remedies that demand long-term community oversight,

oversight that the bill fails to empower communities to provide.

S. 8 even lets polluters ignore existing cleanup decisions until

and unless EPA catches them at it. Then the polluters get to decide

whether to comply with the existing plan or to modify it. S. 8 reopener provision for existing decisions are also structured in a way

that thwarts effective public participation and would additionally

cause considerable delay in the program overall.

Another highly objectionable feature of the bill is inclusion of an

arbitrary cap on the number of additional sites that can be added

to the National Priority List, namely 100 until the year 2001 and

10 a year thereafter.

A cap has profound consequences because unless a site is listed,

EPA cannot undertake long-term site cleanup activities. This approach effectively dumps the problem on the States regardless of

their capacity to deal with it.

Finally, the bill’s liability provisions create new forms of what

amounts to corporate welfare. While it may well be, and in fact,

probably is appropriate to tailor the liability system as applied to

entities it will be unable to pay or have only a very limited connection with a site, S. 8 goes way too far.

The co-disposal provisions of this bill would exempt large companies as well as small ones, and would inappropriately let companies
41

that can well afford to pay off the hook. Similarly, the small business exemption applies to future as well as past conduct, thereby

wiping out Superfund’s powerful and significant incentives to avoid

future pollution. The bill requires paybacks to polluters, including

those who have already agreed to do work under existing settlements.

What’s more, there is no firewall between liability to carve out

dollars and S. 8’s other provisions, so there is no assurance that

adequate funds or indeed, any at all, will remain available for the

other elements of the program.

Mr. Chairman, a substantial and growing number of environmental and public health organizations are investing major resources in Superfund reauthorization at this point. We would welcome an opportunity to work proactively with you to improve the

program.

We are currently finalizing a set of principles on Superfund and

hope to provide those to you later this month.

Thank you.

Senator SMITH. Thank you, Ms. Florini.

Ms. Biagioni.

STATEMENT OF LINDA BIAGIONI, VICE PRESIDENT OF ENVIRONMENTAL AFFAIRS, BLACK & DECKER CORPORATION, ON

BEHALF OF THE SUPERFUND ACTION ALLIANCE

Ms. BIAGIONI. Thank you, Mr. Chairman and members of the

subcommittee for inviting me to testify.

My name is Linda Biagioni and I am vice president of Environmental Affairs for the Black & Decker Corporation.

Black & Decker is headquartered in Towson, MD, and is the

world’s largest producer of portable electric power tools, power tool

accessories, residential security hardware, and electric lawn and

garden tools. We are also leaders in small household appliances,

plumbing products and engineering fastening systems.

In the United States, we employ several thousand people in more

than 30 manufacturing facilities in 16 States and at Black &

Decker service centers throughout the country.

I’m here in support of S. 8 because of the unnecessarily high

transaction costs we have incurred due to the current liability

scheme and the tendency to select unreasonably stringent remedies. We are disappointed and frustrated by the failure of the previous Congresses to resolve the inefficiencies in the program.

Superfund was designed to clean up old hazardous waste sites,

but the existing law causes us to proceed too slowly on many serious sites and to spend too much time and money on low priority

environmental concerns and legal proceedings. Years of serious

criticism of the existing Superfund Program from almost every segment of the political spectrum have damaged its credibility and periodically paralyzed its progress.

EPA’s administrative reforms have apparently been somewhat

successful, but the most important failings can only be cured by

Congress. The program needs a new congressional mandate, public

support and assured funding. I hope that the 105th Congress can

find a middle ground and finish reauthorization this year before

electoral politics once again polarize the discussion.
42

The Senate is off to a good start. Superfund reform has been

identified as a high priority objective by the Majority Leader and

the members of this committee from both parties appear to be moving forward constructively. S. 8 looks to us like a balanced and

thoughtful attempt to resolve the crucial problems that bedevil the

Superfund Program.

Like everyone else, we recommend certain changes to S. 8, but

the desire for a more perfect bill should not obscure the fact that

overall, S. 8 would be a vast improvement over existing law. We

commend you for your diligent efforts to craft a workable approach

that can attract bipartisan support.

I’ll address two areas where the existing Superfund law is seriously flawed and needs immediate repair—the liability scheme and

the remedy selection criteria.

With one exception, Black & Decker is not the owner, operator

or a predominant generator at any Superfund National Priority

List site. Nevertheless, Black & Decker accepts that it should bear

a reasonable portion of cleanup costs where it contributed hazardous substances to a disposal site that has become an environmental

hazard.

We also recognize the necessity for the business taxes that support the Superfund, but the burden of the current retroactive,

strict, joint and several liability system is simply too high. In practice, the current law delays cleanups, misdirects the energies of responsible parties, and generates enormous transaction costs wasting money that should rightfully be directed at cleanup efforts.

The liability title of S. 8 would significantly reduce these costs.

First, the exemptions for 1 percent de minimis parties, de micromis

parties and certain other parties, along with the limitations on liability for municipalities will remove the threat of liability for

thousands of parties at hundreds of Superfund sites.

The exemptions for small quantity generators are particularly

appropriate because their volumetric contribution is usually of

minimal environmental significance and they had little or nothing

to do with the management of the original site.

Second, for the parties who remain liable for National Priority

List sites, the allocation system in S. 8 would ameliorate much of

the unfairness inherent in the current system. In my opinion, S. 8

would be fairer if it expanded the orphan share to cover fully the

unallocable shares, not just shares of known insolvent parties or

parties whose liability is capped.

There is one aspect of the liability system that S. 8 does not address: the small party exemptions and the allocation system only

apply to National Priority List sites. Private cleanup sites which

have engendered a tidal wave of litigation would still be governed

by the inequitable retroactive, strict joint and several liability provisions of the existing laws.

We believe that Congress should return the lawmaking power

over these sites to the States by limiting the application of section

107(a), to National Priority List sites and other sites where the

Federal Government has either conducted or ordered remediation.

Again, our desire for changes to the proposed liability scheme of

S. 8 does not detract from our enthusiasm for S. 8 as compared to

the status quo.
43

Remedy selection, the selection of the most appropriate remedy

for each site, is the heart of the Superfund Program. In 1986, Congress created a series of inflexible remedy selection rules requiring

a preference for permanence and treatment, compliance with applicable and relevant and appropriate State and Federal laws, and

groundwater standards that seem to require that all potentially usable groundwater at Superfund sites meet drinking water standards in the ground as soon as possible.

These inflexible standards have contributed significantly to the

misdirection of resources and remedial activities that produce little

or no benefit to the public.

In reality, Superfund sites vary widely in the nature of the risk

they present and in the nature of their geological land use, locational and other circumstances. These facts should determine what

remedial technology can usefully be employed.

S. 8 wisely drops most of these arbitrary requirements. It directs

EPA and the States to focus on the real risk to public health and

the environment posed by each site using site-specific data wherever possible to meet the protectiveness standards, taking into account long-term reliability, effectiveness, public acceptability, technical practicability, costs, and the nature of existing and reasonably

anticipated land and water uses.

Cost is just one factor to be balanced in the good judgment of the

agency, neither an overriding consideration, nor subordinate or irrelevant.

Unfortunately, S. 8 does not appear to apply this risk-based approach fully when it comes to groundwater. While it is true that

groundwater moves and many aquifers are interconnected, the

same intellectual analysis and the same criteria should apply to remediation of groundwater as elsewhere, namely identification of

real risk and the reasonable remedial measures that can be employed to ameliorate those risks.

Finally, the review of remedies already selected under the existing law is crucial. Having learned from more than a decade of experience that our existing remedy selection criteria are ill-suited to

the task, it would be foolish not to reconsider previously selected

remedies where significant cost savings could result from applying

S. 8’s new criteria.

In conclusion, let me reiterate the important point. It’s time for

Congress to act. Only Congress can correct Superfund’s crucial deficiencies and put the Superfund Program back on track.

I commend this subcommittee for its work and thank you for the

opportunity to present our views.

Senator SMITH. Thank you, Ms. Biagioni.

Ms. Williams.

STATEMENT OF BARBARA WILLIAMS, SUNNYRAY RESTAURANT, GETTYSBURG, PA, ON BEHALF OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS

Ms. WILLIAMS. Good morning, Mr. Chairman and members of the

committee. Thank you for the opportunity of appearing before you

again.
44

I am Barbara Williams. My business is Sunny Ray Restaurant

in Gettysburg, PA. I have been a member of NFIB since 1982 and

am grateful for their support.

I want clean air and water for myself and the generations that

will follow me. I am not the enemy of the environment. My trash

is not the problem. Small businesses are not the enemy of the environment. I am here to tell you again that your wonderful idea of

cleaning up our country’s environment through the EPA and

CERCLA does not work in the real world. Your intentions were not

followed. You legislated for results, you got bureaucracy, regulation

and litigation. Legions of environmental attorneys, not environmental solutions were created.

I fight not only the unjust burden of this lawsuit, but the injustice of the landfill on the Superfund National Priority List 10 years

and still no cleanup has been started. I have no graphs or charts,

no auditors’ reports. I believe we can all agree on this—too much

time, too much money, too few results.

Please remember the more than 700 third and fourth party defendants are not businesses which regularly produce hazardous or

toxic waste. We are in this suit not because of what we discarded,

but because of how much waste someone has estimated we threw

away. We simply and legally put out the trash according to local

and State regulations.

CERCLA is unfair because it imposes strict liability on the public

without any real notice as to what we should or should not put in

the trash. If ballpoint pens are hazardous waste, why are there no

directions for their disposal? There is no evidence that any third

or fourth party defendant sent hazardous substances to the site.

Our guilt is based on an expert’s report which assumes some hazardous material in all garbage, but there is no real evidence.

For small businesses, this suit can be devastating. It is an uninsured loss; the money for settlement is considered a penalty, so it

will not be deductible as a business expense. Small businesses will

have to make enough money to pay this on top of our other bills

and payroll. So here we are. The landfill is not cleaned and the litigation goes on.

When I testified last April, I was encouraged by your statement

that you understood our situation and were resolved to remedy it.

That hope was reinforced when I read S. 8. I am very pleased to

see that S. 8 addresses many areas I was concerned about—municipal solid wastes, small business defendants, and co-disposal landfills. I believe you listened and responded. It means a great deal

to learn that our voices were heard.

It appears plain to me that in S. 8, your intentions are to resolve

the issues that have been used to allow litigation to take precedence over cleanup. I believe that you know how critical the wording of this bill is.

My concern is that others will not see it so clearly. I am concerned that there will always be a well-meaning official who believes he knows better than you what you meant when the law was

written. My fear is that these officials will challenge the authority

and intentions of Congress and the President, that some judge

somewhere will listen and rule that you did not write the law to
45

say what you meant and this current course of action will continue

indefinitely.

I am one American citizen crying out against injustice. Are regulations more important than rights and results? When Lincoln

came to Gettysburg, he expressed concern for our system of government of the people, by the people, for the people. My concern is

that we are perilously close to losing the government Lincoln described, not because of outside enemies, but because of an evergrowing, all-powerful bureaucracy. You are our hope. Thank you.

Senator SMITH. Thank you very much, Ms. Williams.

Ms. O’Regan.

STATEMENT OF KAREN O’REGAN, ENVIRONMENTAL PROGRAMS MANAGER, CITY OF PHOENIX, AND ON BEHALF OF

AMERICAN COMMUNITIES FOR CLEANUP EQUITY, INTERNATIONAL CITY COUNTY MANAGEMENT ASSOCIATION, NATIONAL LEAGUE OF CITIES, NATIONAL ASSOCIATION OF

COUNTIES, U.S. CONFERENCE OF MAYORS, AND NATIONAL

SCHOOL BOARD ASSOCIATION

Ms. O’REGAN. Chairman Smith and members of the subcommittee, my name is Karen O’Regan. I’m the Environmental Programs

manager for the city of Phoenix where I have been for 6 years.

Prior to that, I had jobs in the Federal Government, State and private and now the local roles. I’ve been involved with Superfund for

about 16 years.

I’m providing this testimony on behalf of the International City

County Management Association, National League of Cities, the

U.S. Conference of Mayors, National Association of Towns and

Townships, the Municipal Waste Management Association, and the

American Communities for Cleanup Equity. We very much appreciate the opportunity to present this testimony.

We represent thousands of cities, towns and counties throughout

the United States. Because hazardous waste sites impact the

health of our citizens and the environmental and economic viability

of our communities, we are well-qualified to provide the committee

with comments on how the program can be improved.

Phoenix has been heavily involved in Superfund as a generator

of municipal solid waste, an owner-operator of a co-disposal site, a

water provider with wells closed due to contamination, and a representative of citizen concerns. We’ve also been involved with four

Federal Superfund sites and nearly a dozen State Superfund sites

without or about our borders and paid approximately $20 million

in response costs at various Federal and State Superfund sites.

We’re honored to provide you with suggestions on S. 8 beginning

with its proposed liability scheme.

Across America, local governments are burdened with millions of

dollars of liability simply because we owned or operated municipal

landfills or sent garbage or sewage sludge to landfills that were

also used by generators and transporters of hazardous waste.

Most of us are drawn into Superfund because of the past co-disposal of municipal trash with more toxic industrial waste. Our situation justifies statutory relief because we are required to provide

waste collection and disposal services for public health purposes.

There is strong consensus in support of municipal liability relief
46

and the related provisions of your bill are definitely a step in the

right direction. However, we do have some concerns.

First, limiting the local government owner, operator, generator

and transporter relief provisions to cost incurred after the date of

enactment leaves us open to potentially large costs incurred prior

to the date of enactment. We urge that liability relief that is provided to local governments for activities related to municipal solid

waste and sewage sludge should include relief and credit for costs

incurred that have not yet been settled prior to the effective date.

Second, the conditional nature of the relief for Subtitle D facilities is slightly troubling. The bill would make the Subtitle D liability cap at co-disposal sites unavailable to a facility that was not operated in substantial compliance with local laws and permits.

Granted, we administer those local laws and permits. However,

we’d request that you make the language a little more specific to

ensure that local governments are not penalized for minor infractions such as vector control.

Third, local governments who are owners and operators of co-disposal sites would be asked to pay up to 20 percent of cleanup costs

while generators and transporters of hazardous waste are exempt.

We suggest you consider a more balanced liability scheme.

Fourth, the bill should address potential liability arising from

municipal ownership and operation of public sewer systems and related treatment works. We provide this vital public service to protect the health and welfare of the community and should not be liable under Superfund.

Finally and most important, the liability scheme must be workable within the financial limits of the Fund and the demands of the

cleanup program.

Onward to remedy selection. The bill has many positive remedy

selection provisions that add needed flexibility to the statute. We

are concerned that although it may just be an ambiguity in the

way we read it, that the focus upon treatment at the point of use

may not adequately protect the groundwater resource.

We urge the committee to require containment of contaminant

plumes when drinking water or future potable water sources are

threatened.

In addition, the Remedy Review Board has broad powers and we

are concerned that this board would overturn agreements reached

after years of negotiation with stakeholders, including local governments and citizens.

While we understand that RODs need to be reviewed given new

technology, we propose instead that an advisory board be established to provide guidance on remedy selection and monitor Superfund Program activities. We urge that local governments be part of

any such body.

The brownfields grants proposed in the bill are critical to help

local governments and we very much appreciate the opportunities

to redevelop and reuse brownfields with the money it provides.

However, because many communities want to encourage private investment activities, we ask the subcommittee to consider other incentives such as Federal tax incentives.

We support the community response organizations. However, we

are concerned that the bill establishes them as the only formal
47

mechanism for local governments to participate in the decisionmaking process. We, therefore, recommend that we have a separate

and distinct route for input on decisions affecting our communities

and that the bill be amended to require EPA to directly consult

with us when developing and implementing cleanup plans.

In conclusion, the Superfund Program must ensure that sites are

cleaned up quickly and effectively without threatening the economic viability of our communities. The Superfund Program must

provide adequate funding for site remediation and establish cleanup standards that are reasonable, yet protective of human health

and the environment. This will ensure that sites are not continuing

problems for our communities.

We appreciate the opportunity to comment on the bill and if you

have any questions, I would be happy to try and answer them.

Thank you.

Senator SMITH. Mr. Gimello, let me ask you, many critics of giving the States more authority have said that there would somehow

be a race to the bottom in terms of cleanup which would result in

‘‘crummy cleanups.’’

Speaking for your own State and what you have done, do you

agree with that assertion?

Mr. GIMELLO. I couldn’t disagree more, Senator. I think that any

rational look at the way cleanups are being done in this country

must acknowledge the flexibility and the aggressive nature of

States in actions on these areas.

We, in the State of New Jersey, as an example, are looking at

1,500 voluntary cleanup applications on a monthly basis. Other

States, Massachusetts, I’d be hard pressed to point to a State that

is not experiencing a lot of action in this area and I think this notion somehow that the Feds are doing cleanups one way and the

States are doing them another way and not being protective of

human health and the environment is just categorically incorrect.

Senator SMITH. Is there any justification to the argument that

some States may not be handle it as well as you do in New Jersey?

Mr. GIMELLO. I think many States have acknowledged the fact

that program size is going to differ. I think in those situations, a

partnership with EPA is important and I think the opportunity for

that partnership exists and it will be improved by many of the provisions in this bill.

Senator SMITH. Ms. Biagioni, I also want to say that we worked

very closely with Black & Decker on legislation to provide for the

recycling of rechargeable batteries and we appreciate your help on

that.

Ms. BIAGIONI. We very much appreciate your help on that.

Senator SMITH. Do you think the allocation process we’ve outlined in S. 8 will reduce litigation?

Ms. BIAGIONI. Yes, I absolutely do because there will be more effort placed at finding the responsible parties up front rather than

finding one or two large parties and then leaving the allocation

process up to the parties to argue and fight amongst themselves.

Senator SMITH. Do you support the right for Governors to have

a veto right over any record of decision, any ROD reopener?
48

Ms. BIAGIONI. I wouldn’t be surprised that Governors would want

that right and I think they probably have the right to have that,

yes.

Senator SMITH. Ms. Florini, I know you’re very critical of the legislation and we appreciate hearing your criticisms. I don’t agree

with all of them, but let me just give you an example of the frustrations we feel in regard to trying to get to the bottom of some of

these problems and trying to come to accommodation on a bill.

Right down the road from here is the Navy Yard. There is a proposal to add the Navy Yard to the NPL and interestingly enough,

the Sierra Club Legal Defense Fund is challenging the listing. The

reason they’re challenging it is they think it’s just the Navy’s way

of creating another bureaucratic hangup.

What does that tell you about the policies and the problems faced

by the Superfund program if one environmental group thinks by

putting it under the NPL, it’s a way to get out of getting it cleaned

up?

Ms. FLORINI. Senator, I don’t think that is a legitimate characterization of the Sierra Club Legal Defense Fund’s position on the

matter. In point of fact, this is a setting where for many years the

site has been evaluated and processed and things are moving

along. The question is would putting that site on the NPL accelerate the process or not?

In addition, it’s very important to remember that what the Navy

was doing was arguing that the existing litigation that the Sierra

Club Legal Defense Club had brought in fact should be stayed

pending the process of putting it on the NPL.

What the court recently did was say there is no reason to stay

the lawsuit.

Senator SMITH. Well, the direct quote from the Washington Post

from the Sierra Club is ‘‘We feel that this is just the Navy’s way

of creating a bureaucratic hangup. We want to see some action.

The Navy wants Superfund because it’s a lengthy process and we

can’t sue them.’’

Ms. FLORINI. That’s because there is a pending lawsuit that

would be disrupted by placement of that site on the NPL. This is

an effort to dismiss the Sierra Club Legal Defense Fund lawsuit on

the basis of an NPL listing. That is why it was being resisted.

Senator SMITH. Senator Lautenberg.

Senator LAUTENBERG. Thanks very much.

Mr. Gimello, you and I know that New Jersey has one of the best

hazardous waste cleanup programs in the country, but there have

been times, several times, when New Jersey felt incompetent to

handle the cleanup and asked the Federal Government to take

over. Some of the sites, you and I will know the names, but we’ll

put them in the record—Chemsol, Montclair site, Fairlawn Wells,

Montgomery-Rocky Hills site, to name a few, Grand Avenue site in

Hoboken.

If the State prepares a remedial action plan that isn’t adequate

to do the job, whether the State lacks the competence or whether

there are so many problems that we can’t get by the court suits et

cetera, should the Federal Government come in and lend their expertise if the States aren’t getting the job done?
49

Mr. GIMELLO. I think so and I think that kind of partnership has

served us well in New Jersey as you articulate.

Senator LAUTENBERG. I think it has, but I thought from your National Governors’ Association presentation that it was intimated, if

not suggested directly, that the further the Federal Government

steps away from it.

Mr. GIMELLO. Perhaps I could be more clear. I think what the

Governors are trying to say is that the option to involve the Federal Government ought to be one that’s available, but in the absence of a need to go there in a delegated State with a clear track

record of successful cleanups, that the preference for how Superfund sites are cleaned up or other sites ought to lie with the State.

So it’s a matter of degree, Senator. I think that is what the Governors were trying to say.

Senator LAUTENBERG. You know it happens when you put down

a proposal here, either of the sides will embrace it more forcefully

than perhaps you intended. I think what we have to do is make

sure the record reflects our intention.

What do you think, Ms. Florini, about the Federal Government

jumping in? Do States always have adequate cleanup programs?

Ms. FLORINI. Unfortunately, clearly they don’t. There are some

States that really have not done a very effective job.

Senator LAUTENBERG. So should we say, let the citizens of that

State suffer?

Ms. FLORINI. No, Senator. I actually believe that it’s entirely appropriate for States that have adequate resources, adequate authorities and adequate political will to get first dibs on cleaning up

sites in those States, but those are big ifs. There needs to be a

process for assuring accountability, and that in fact those conditions are met, since they aren’t always. That’s a sad fact, but I

think it is, indeed, a fact.

Senator LAUTENBERG. Ms. Biagioni, I’m surprised and a little

confused by your testimony. My understanding is that the S. 8 proposal says that regarding groundwater remedies, contaminated

groundwater may be allowed to migrate if it’s not consumed, and

that the bill requires equal consideration of temporary remedies—

water purifiers under the sink, for example—as opposed to remedies that will allow the aquifer to be used as a drinking water

source by future generations.

I think that your testimony indicates that you think S. 8’s provisions regarding groundwater remedies don’t go far enough in taking into consideration the ‘‘real risk,’’ and that you don’t believe

that aquifers ought to be cleaned up for their own sake.

I would ask what do you think ought to happen, just kind of let

it stand and let it seethe, boil, or whatever happens in those sites?

Ms. BIAGIONI. I believe where the aquifer is a potential future

source or a current source of groundwater or drinking water, that

every effort ought to be made to clean that water up. However,

there are many situations where there is no potential future use

for that water or the technical practicability or the cost of the

cleanup is just out of proportion to the future use of that aquifer.

If that’s the case and if there are other ways to provide a drinking source or if that water is never going to be used for a drinking
50

source, then natural attenuation or some other sort of process

ought to be allowed to happen.

Senator LAUTENBERG. There could be quite a difference of view

as to what potential use of that aquifer might be?

Ms. BIAGIONI. That’s right.

Senator LAUTENBERG. Thanks, Mr. Chairman.

Senator SMITH. Thank you, Senator.

Senator Allard.

Senator ALLARD. Thank you, Mr. Chairman.

S. 8 eliminates non-use damages for natural resource damages.

Ms. Florini, how do you interpret in your mind what non-use damages for natural resources would include?

Ms. FLORINI. Senator, with respect, I do not work on the natural

resource damages issues. I believe that other environmental organizations will be submitting testimony for the record addressing

those issues, but it is simply not within my expertise.

Senator ALLARD. I apologize and I appreciate your candor in that

response.

Ms. FLORINI. I’m always happy to admit when I don’t know

something or at least willing to do so.

Senator ALLARD. Mr. Gimello, in your opinion, what three items,

maybe we’re putting you on the spot here, but what three items

would you think would be absolutely essential if we were going to

successfully reform or modernize Superfund?

Mr. GIMELLO. I think it’s interesting because you’ve been touching on them all morning and for several years. I think the whole

liability issue must be resolved. I think we’re very close and I’d

hate to see us lose that opportunity to finally figure out a way to

address the problems and have the money to do it.

I spoke to you from the National Governors’ Association testimony which is a balance between the State program and its applicability versus a potential conflict with the Federal program and it

needs to be resolved. I think it’s time for the preeminence of the

States to be recognized and not to be excluded from involvement

upon request or emergency situations, but I think the balance

needs to be assured on the side of the States because I think that’s

where the action is.

Finally, I think this whole notion of when it is we’re going to revisit RODs and how we’re going to reopen them is a critical issue.

Senator ALLARD. Ms. Florini, you deal with the liability side. Do

you agree that something needs to be done on the liability in the

current Superfund law and what is your response to the National

Governors’ Association as to reform on the liability provisions?

Ms. FLORINI. I agree that there have been grievous and unacceptable abuses of the liability system, by private parties who have

turned around and bought third and fourth party contribution actions. I am more than happy to see those abuses curtailed.

I think S. 8 goes too far, but I do agree that it is appropriate and

sensible to keep out of the liability system folks who aren’t going

to end up paying much because they don’t have an ability to pay.

I also think it’s appropriate to get de micromis parties out. There

are some concerns about the way the de minimis provisions of S. 8

are worded in detail, but the basic concept of getting the small fry

out of the liability system is one I in fact support.
51

Senator ALLARD. How would you define the small player?

Ms. FLORINI. That’s the hard part, isn’t it? I think it’s important

to have an element that is focused both on size of the company in

terms of number of employees and on annual receipts because I

think it’s inappropriate, for example, to say that a very, very small

company that was making $500 million a year would be exempted

from liability.

Exactly how those lines get drawn will be unquestionably the

source of considerable discussion and one in which I’m happy to

participate.

Senator ALLARD. You don’t necessarily think the degree of pollution the individual contributed should be a factor in that?

Ms. FLORINI. I’m sorry?

Senator ALLARD. You may have somebody who maybe is right on

the margin, for example, that maybe they contributed a lot to the

Superfund site.

Ms. FLORINI. I do agree that there should be, if you will, a kickin provision for a particular entity who would otherwise be exempted has in fact been a significant contributor. There’s language in

the bill with regard to this, I think, for the de minimis parties.

Senator ALLARD. And you’re comfortable with that?

Ms. FLORINI. Again, I’ve got some concerns about the precise way

the details are set out, but the basic concept is one that I would

support.

Senator ALLARD. Do you think you can work with the direction

of this committee and the EPA in coming up with a compromise?

Ms. FLORINI. I do have major concerns. The site carve-out approach for co-disposal sites, which lets large as well as small entities out, is very troubling to us. I would hope, however, we can find

a way to reach agreement on that. I think everybody really is primarily concerned about getting the ‘‘small fry’’ out or the small

players, if you will. I think it may well, in fact, be possible to reach

an agreement on that approach.

Senator ALLARD. Do you have any problem with combining the

Superfund legislation with the brownfields sites?

Ms. FLORINI. I’ve got a major problem with the way the latter

portion of title 1 is set up. Essentially, a relatively nebulous concept—any remedial action plan from a State—will wipe Superfund

off the book with respect to that site, irrespective of whether the

remedial action plan was developed with any public participation,

irrespective of what it says, and irrespective of whether it will actually be carried out, irrespective of whether the State has the ability to make sure that it’s carried out.

Leaving that rather large category of concerns aside, there are

grants provisions in the brownfields program that we certainly

don’t have a particular problem with. Whether it makes more sense

to move those as part of Superfund versus as an independent bill,

I don’t think is something that needs to be resolved fully at this

point.

Senator ALLARD. Thank you, Mr. Chairman.

Senator SMITH. Thank you, Senator.

Let me just ask a couple more questions and if Senator Allard

has anymore questions, I’ll be happy to go back to him.
52

Ms. Williams, along with your testimony, you submitted a letter

from a 9-year-old girl by the name of Sierra Bair?

Ms. WILLIAMS. Yes, sir.

Senator SMITH. I just want to read a couple of lines from it. ‘‘I’m

9 years old and I live in Hanover, PA. I’m writing to you because

of the lawsuit of Keystone Sanitation, my parents, grandparents

and other family members and other small businesses. I find it unfair and totally out of place for us to be involved in this horrific

mess. We paid top dollar for people who took the garbage to a place

where it was approved by the State and now we’re being sued and

we didn’t do anything.’’ She concludes by saying, ‘‘I’m hopeful that

my little voice might make a difference,’’ and I guess she sent the

letter to the President.

[The letter follows:]

Dear PRESIDENT CLINTON: My name is Sierra Bair. I am 9 years old and I live

in Hanover, Pennsylvania. I am writing to you because of the lawsuit of Keystone

Sanitation.

My parents and grandparents and other family members are in small businesses

such as ours. I find it unfair and totally out of place for us to be involved in this

horrible mess. We paid top dollar for people who took the garbage to a place where

it is approved by the State! Now we are being sued and we didn’t do anything. It

is not our fault that the landfill owners put in bad garbage. My family owns restaurants and they serve food not hazardous stuff. Since when is food bad for us.

Come on, get real; it’s not like oil.

Last year in school seminar we talked about and learned about the environment.

We were taught that oil, lead paint, batteries, roof shingles, et cetera, are bad.

Never did the topic of foods come up. The point I’m trying to make is that food is

not hazardous.

When I lay in bed, I think about my future and what the world is becoming. I

want a future, a full life of happiness, but the way things are now those things

might get taken from me and my brother. The way I see it, if there were six kids

and one was bad, all of the kids would get punished. I guess we’re just one of those

six kids being punished in this lawsuit. Isn’t it a shame so many are getting punished for a few.

If I were President, I would have stopped this before it started. Why is this happening? And why haven’t you taken charge. You know it took one black woman to

give all equal rights for all black people, one woman to take prayer out of our

schools and hopefully my one little voice will make a difference in the Keystone lawsuit when you think about what my little voice has said.

Sincerely,

SIERRA BAIR.

P.S. I pray every night that my dreams come true and you can make that happen.

Senator SMITH. What connection is there with Sierra Bair and

you?

Ms. WILLIAMS. There is none.

Senator SMITH. OK. Let me ask you, in your testimony you indicated that to the best of your knowledge the only thing you put in

the co-disposal site other than your normal restaurant garbage was

ballpoint pens, is that accurate?

Ms. WILLIAMS. When I repeatedly asked what I had thrown away

that is considered to be so hazardous and toxic, I’ve been repeatedly given the example that if I’ve thrown away one ballpoint pen

in the 24 years of the liability of this suit, that I have contributed

toxic waste.

My contention is what we all contributed was the same waste

every person creates every day and we did it legally.

Senator SMITH. Are you a polluter?
53

Ms. WILLIAMS. Do you want my personal opinion or do you want

the opinion of the law?

Senator SMITH. Under the statute?

Ms. WILLIAMS. My personal opinion, I am no more a polluter

than every person in this room and every person in this country.

Senator SMITH. But under the statute, you are defined as a polluter and have been in litigation how many years now?

Ms. WILLIAMS. I’ve been in litigation a year-and-a-half now.

Senator SMITH. Do you feel that the legislation we’re proposing

adequately addresses your concerns?

Ms. WILLIAMS. It appears very promising to me. It addresses

issues that I’ve been concerned about, the small business issue, the

co-disposal site, the municipal solid wastes are all addressed in this

bill.

What I think sometimes and what the environmental attorneys

end up telling me are sometimes different. It appears plain to me

that you have addressed the inequities that I find myself living

under.

Senator SMITH. Certainly the intent, although we don’t know the

exact, specific circumstances of your own case in terms of where

you are and your record of decision and all that, but the intent certainly is to help people like you.

This is the frustration that we all feel. We all have differences

on this legislation. We’ve been 4 years trying to reauthorize it, reform it, change it, and there are some areas we have common

ground on, but there are other areas we just can’t agree on.

That brings me to the next question. Ms. O’Regan, I’d like to ask

you the same question I asked Administrator Browner. You may

remember it if you were in the room at the time.

That is, concerning the debate over co-disposal sites, where you

have the toxicity of hazardous materials versus the volume of solid

waste. What we get into is litigation over that issue.

When Senator Chafee and I wrote this legislation, we just

thought it would make more sense to take these environmental

taxes, environmental income taxes, chemical feedstock taxes, oil

import, take those dollars and put them in the fund, spend the

money specifically to clean up sites, reinstate the taxes and use

that to clean up sites.

The difference between the Administration and us at this point,

as I understand it on this issue, is that they don’t feel that if there

is hazardous material placed in that site by someone other than a

Barbara Williams or Sunny Ray Restaurant, somehow if there’s

somebody a little bit bigger than that, they should not be removed

from the liability scheme.

I would just ask you what is your position on this? Would you

prefer to see the dollars taken from the taxes collected specifically

for Superfund reform address this concern, get the administrative

fees and the lawyers out and get the sites cleaned up or continue

along the same vein that we’re in now, which is getting no where?

What is your experience with this type of case?

Ms. O’REGAN. That’s a very long question, Senator Smith and I’ll

try and answer that concisely.

The city of Phoenix has been involved in co-disposal allocations

on several Superfund sites and it’s extremely difficult to determine
54

who disposed of what at these sites, so I think that S. 8 which provides a cap for municipal liability is clearly a step in the right direction.

The concern that we have is that municipalities will be paying

owner-operators 10 or 20 percent of the co-disposal sites based

upon our population. Phoenix is a very large city and we’d be paying the 20 percent.

At the same time then, there is an 80 percent sort of orphan

share, so we’re being asked to step up to the plate and I guess the

question is, is that completely balanced or does there need to be a

similar cap on industrial generators that disposed of the industrial

waste in our landfills because that’s quite a large orphan share and

again, we are being asked to step up to the plate.

I guess I would pose that to you and the question is really one

of funding and can those taxes take care of those sites that need

to be addressed in our communities.

Senator SMITH. Of course that’s a legitimate question and I think

you can only try to give the best estimate on that in terms of the

taxes collected, approximately $2 billion a year, but a lot of those

dollars go for paying lawyers that don’t go for cleanup.

I think again, I’ve talked to I don’t know how many hundreds of

people who have been involved in cleanup or live near sites that

are toxic and they tell me they could care less who pays, they just

want it cleaned up so that they don’t have to live next to it anymore. So they are not interested in who pays, they just want to get

it cleaned up.

It’s very frustrating as we try to go through this thing but we

are looking at degrees of definitions of polluters. You just said by

your own definition, Ms. Williams, you’re not a polluter. I agree

with you, but somebody else who did something legally in a co-disposal site in a municipality or some other place that is a larger

company than you are, perhaps has a lot more assets than you,

there is a different set of standards applied to them and that’s

where the big dollars come from in terms of these lawsuits.

It just seems to me if we can expedite cleanup, then why not just

do it. Take the environmental income taxes, et cetera, put them in

the fund. You say you’re letting people off the hook, but people

aren’t off the hook. They didn’t do anything wrong when they did

it. We’re not letting illegal dumpers out. These are people that did

what they thought was right, they put some hazardous material in

there.

What we’re saying is let’s get together, take the environmental

taxes, put them over here, get these people out of the system and

stop arguing with each other and move on, the same thing we want

to do with the de minimis folks, but we cannot get accommodation

on this issue, and that is what frustrates me.

We could, I suppose, take the short route and let all the de minimis people out and nibble around the edges in this thing and not

change the law, not dramatically change the law but it’s unfair.

You don’t think it’s unfair?

Ms. FLORINI. No. I think it is absolutely fair to hold the entities

that are able to pay for cleaning up the messes that they made, liable for doing so. I have no problem with that whatsoever. The fact

that it was not illegal at the time—actually, under your bill they
55

have to have been caught and convicted within the relevant statute

of limitations—but the fact that it was not illegal for them to do

what they did at the time is irrelevant. They made a mess, they

ought to clean it up.

Senator SMITH. Then why shouldn’t Ms. Williams clean hers up?

Ms. FLORINI. Letting the small parties out of the system is a

matter of making the system work efficiently. It would be fair, it

just doesn’t happen to be efficient. So let the small parties out.

In point of fact, I think for her kind of waste, there is a real

question as to whether in fact it generated any toxicity at all.

That’s somewhat separate question, but in terms of the big entities,

I have no problem with fairness of leaving them on the hook.

Senator SMITH. Do you have a response?

Ms. BIAGIONI. I was going to say we’re a big entity and we have

situations where we’re being sued. We’re in exactly the same position as Ms. Williams, we put only trash in a site, cafeteria waste,

probably the very same material that her restaurant put in the

site, yet because we are the big player and the big, deep pocket,

we’re in litigation. No hazardous waste went into that site.

Ms. FLORINI. For me, small refers to both the size of the company

and the quantity of the stuff.

Senator SMITH. Well, you’ve helped us to understand why we

have a difficult problem ahead of us. Thank you very much and

let’s move to the next panel. I appreciate you all being here.

The third panel consists of Mr. Terry Garcia, Acting Assistant

Secretary for NOAA; Mr. Larry Lockner, manager of Regulatory

Issues, Shell Oil Company, on behalf of the American Petroleum

Institute; Mr. Bob Spiegel, director, Edison Wetlands Association,

Edison, NJ; Mr. Charlie De Saillan, assistant attorney general for

Natural Resources, Environmental Enforcement Division, State of

New Mexico; and Mr. Rich Heig, senior vice president, Engineering

and Environment, Kennecott Energy Company.

Let me just say, gentlemen, it is kind of late and I apologize to

you all. It’s been a pretty long hearing this morning. Your statements will be made a part of the permanent record and if you could

summarize in 3 or 4 minutes, I’ll put the clock on at 4 minutes and

if you can watch it when it goes to yellow and wrap it up, we’d appreciate it.

I’ll start with Mr. Garcia. Go ahead.

STATEMENT OF TERRY GARCIA, ACTING ASSISTANT SECRETARY, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Mr. GARCIA. Good afternoon, Mr. Chairman and members of the

committee.

I’m Terry Garcia, the Acting Assistant Secretary of Oceans and

Atmosphere for the National Oceanic and Atmospheric Administration of the Department of Commerce. I’m here today representing

the interests of the U.S. Departments of Commerce, Interior, Defense, and Energy.

I would like to reassert for the 105th Congress the Clinton administration’s steadfast commitment to protecting and restoring

this Nation’s natural resources. I will begin my testimony by

quickly reviewing the progress made by the trustee agencies to-
56

ward restoring natural resources under the existing laws and rules

governing damage assessment activities.

I would then like to highlight reforms to the natural resource

damage (NRD) provisions of CERCLA that this Administration proposes. The final portion of my testimony will focus on the provisions of the Superfund Cleanup Acceleration Act of 1997. S. 8, that

we feel would impede our efforts to protect and restore the Nation’s

natural resource heritage.

Significant progress is being made by the trustees toward restoring natural resources injured by hazardous substances. By working

within EPA’s remedial process, trustees have reached agreements

with responsible parties to restore habitat and injured resources at

more than 25 hazardous waste sites as part of comprehensive government settlements.

Restoration is underway at sites in Baytown, TX; New Castle

County, DE; Tacoma, WA; New Bedford, MA; John Day River, OR;

Lake Charles, LA; and the central California coast. The restoration

work at these sites is detailed in my written testimony.

Last October, the Administration forwarded to the committee

and other committees with jurisdiction a proposal for reforming the

natural resource damage provisions of CERCLA. Federal trustees

carefully considered criticisms of NRD that had been raised during

previous reauthorization efforts.

Our proposal for reform is specifically designed to shift the emphasis away from monetizing the value of injured natural resources

and litigation and refocusing it on restoring injured and destroyed

resources. The proposal is based on our practical experience with

the natural resource damage assessment and restoration process.

These reforms are designed to improve the NRD programs by

providing greater clarity concerning restoration, by assuring the

more timely and more orderly presentation of claims and by discouraging premature litigation.

NOAA and the other Federal trustees consider this proposal the

foundation for reforming Superfund’s NRD provisions during the

105th Congress.

The Federal trustees believe that revision of CERCLA’s NRD

provision should be based on two principles: No. 1, restore resources to baseline condition and No. 2, restore the losses that the

public suffers from the impairment of natural resources from the

time of injury until restoration is complete.

The Administration proposal was intended to strengthen the

focus of restoration and reduce the cost associated with damage assessment claims by eliminating or reducing unnecessary litigation.

Specifically, the proposal calls for adopting the restoration-based

approach developed in NOAA’s natural resource damage assessment regulations.

The Administration’s proposal shifts the emphasis of CERCLA

damage assessment efforts to restoration and away from the determination of economic damages or monetization of the injury. This

fundamental shift will avoid litigation and expedite the restoration

of injured resources.

We suggest amending the statute of limitations to provide that

a claim for damages be presented within 3 years from the date of

completion of a damage assessment by a trustee in accordance with
57

the regulations or the completion of a restoration plan adopted

after adequate public notice.

Further, we clarify that a natural resource damage claim may be

brought after an action for any other relief under CERCLA. These

revisions will resolve the sequential claims issue to reduce premature filings, protect against claim splitting, and provide time for

effective restoration planning, thus preserving important trust

rights.

Clarifying the judicial review provision for NRDA assessment to

provide for a publicly-available administrative record to be developed to guide the selection of a restoration plan, and the judicial

review of such plan be limited to the administrative record with an

arbitrary and capricious review standard.

Finally, relying on cost effective restoration, cost effective is defined in our proposal and in the NOAA regulations as the least

costly activity among two or more restoration measures to provide

the same or comparable level of benefits.

Moving to S. 8, the Federal natural resource trustees recognize

the efforts of this committee. We understand the hard work that

went into drafting it. As stewards of the Nation’s resources, we appreciate the provisions contained in S. 8 that reflect our concerns

regarding natural resources.

Nevertheless, we believe that S. 8 would weaken our ability to

protect and restore the Nation’s resource heritage. S. 8 precludes

the restoration of non-use values, which include both ecological and

human services provided by natural resources. Although these values are often difficult to quantify, they nevertheless are real.

The sights and sounds of the Connecticut River, the historical

significance of the Housatonic River to the people of Massachusetts

and Connecticut and the cultural significance of the Snake and

Salmon Rivers are examples. To allow them to be destroyed by pollution and not restored is not acceptable.

S. 8 requires that responsible parties be allowed to pay for natural restoration over time based on the period of time over which the

damages occurred. The trustees often agree to installment payments and negotiated settlements to reflect a responsible party’s

limited ability to pay or the time that would be needed for restoration. However, the amount of time over which the damage to resources occurred should not be considered in a settlement schedule.

Finally, S. 8 appears to preclude the recovery of all interim

losses, both use and non-use.

I’ll stop there. Thank you.

Senator SMITH. Mr. Lockner.

STATEMENT OF LARRY L. LOCKNER, MANAGER, REGULATORY

ISSUES, SHELL OIL COMPANY, ON BEHALF OF AMERICAN

PETROLEUM INSTITUTE

Mr. LOCKNER. Thank you, Mr. Chairman. I’m Larry Lockner

with Shell Oil Company and chairman of the American Petroleum

Institute’s CERCLA Task Force. API appreciates this opportunity

to present its views on reform of the Superfund Program. I’d like

to point out that API strongly supports comprehensive reform of

Superfund. We want to work with subcommittee members to accomplish this objective this Congress. S. 8 makes many needed
58

changes to the program and is an excellent vehicle to begin this

work.

The petroleum industry has a unique perspective with regard to

Superfund. It’s estimated that the industry is responsible for less

than 10 percent of the contamination at Superfund sites, yet has

historically paid over 50 percent of the taxes that support the trust

fund. This inequity is of paramount concern to API members. It’s

caused the industry to focus on those elements that affect the cost

of the program and the authorized uses of the trust fund.

When Superfund was enacted in 1980, Congress envisioned a program that would cost $1.6 billion and be complete within 5

years. Almost 17 years later, however, billions have been spent but

relatively few sites on the NPL have been cleaned up. This program appears to be without end.

API members are pleased that the Senate bill would reduce the

number of sites to be added to the NPL and commend the sponsors

for taking this important step. Limiting new additions to the NPL

ensures a more reasoned Federal program with reduced future

funding requirements. In our view, this provision in your legislation is critical to the reform effort.

Additionally, we support the bill’s provisions that would delegate

Superfund remedial authority to the States at non-Federal NPL

sites. In general, the States have well-established programs and

have demonstrated capabilities for cleaning up sites.

API member companies also support liability reform. Reform in

this area will expedite cleanups and reduce transaction costs.

Clearly under current law, too much money is wasted on legal

costs. However, as an industry that has borne a highly disproportionate share of the taxes that support the trust fund, the petroleum industry is concerned about the impact that any liability

changes would have on the program costs. For example, under the

liability provisions contained in S. 8, the fund would pick up orphan share costs as well as enactment costs, response costs at codisposal landfills for generators, transporters and arrangers who

contributed waste prior to January 1, 1997. Municipal owners and

operators liability would be capped at such landfills. In addition, de

micromis and de minimis parties and others would be exempt.

API members need to understand whether the cost savings associated with the bill’s reform measures are sufficient to offset the

additional costs arising from this shift in liability from PRPs to the

fund or whether the program as envisioned under S. 8 would place

increased demands on the fund. As the largest group of taxpayers

to the fund, API members cannot conclude their evaluation of the

legislation without fully understanding those costs ramifications.

Some of the additional costs arising from liability exemptions will

be offset by other reform measures and API supports many of the

remedies, selections, and reform measures provided in S. 8. We’ve

also outlined those areas for additional reform in our written statement.

In closing, I want to note that Superfund sites are a broad societal problem, thus taxes raised to remediate those sites should be

broadly based rather than focused on specific industries. Without

substantial reform of the underlying program and the tax system

supporting the fund, API opposes authorization of any Superfund
59

taxes. API members believe it is critical that Congress structure

the taxes that support the fund. Thank you for the opportunity to

present our views.

We’ll be happy to answer any questions.

Senator SMITH. Thank you, Mr. Lockner.

Mr. Spiegel.

STATEMENT OF ROBERT SPIEGEL, DIRECTOR,

EDISON WETLANDS ASSOCIATION

Mr. SPIEGEL. Thank you very much for allowing me to testify

today. My name is Robert Spiegel. I’m the director of the Edison

Wetlands Association, a group dedicated to the preservation of the

environment in New Jersey.

I’m familiar with Superfund’s highs and lows. New Jersey has

116 sites on the National Priorities List, more than any other State

in the Nation. However, I’m here to tell you that I’m pleased about

EPA’s Superfund presence in Edison. I know that sounds a little

strange and let me explain why.

Edison has 90 contaminated sites listed by the State of New Jersey. Of these, only three—Kin-Buc Landfill, The Chemical Insecticide Site and the Renora Site are on the Superfund List. I have

been involved in both the identification and remediation of many

of these sites, both EPA and State lead, and I must tell you EPA

leads are far superior to the cleanups that the State does.

In looking at the difference between EPA and State-led cleanups,

it breaks down to two major differences which are thoroughness of

investigation and cleanup and the second is public participation.

EPA investigations and cleanups examine in detail onsite and

offsite contamination and groundwater contamination. State-lead

sites rely on the polluter to submit data and the State rarely if ever

challenges the data. State-lead sites often ignore offsite contamination believing in the magic fence theory which states that the contamination stops at the fence line.

Only in extremely rare circumstances will the State force the polluter to investigate offsite contamination or groundwater pollution.

The EPA has also aggressively pursued public input and there is

an outreach program for every site in Superfund. At State-lead

sites, you’re lucky if you can get one of the project managers on the

phone and if you want to review documents they have, it will cost

you $100.

I’m here today to talk about an EPA Superfund success story and

how it might be affected by S. 8, the Superfund reauthorization

bill. My involvement with Superfund started in 1989 with a site

called the Chemical Insecticide Superfund Site, also known as CIC.

Chemical Insecticide manufactured pesticides, herbicides, and

fungicides including the military defoliant, Agent Orange. The site

operated from 1954 to 1971 and as a result of CIC operations, the

site became contaminated.

After EPA confirmed that the runoff had indeed leached from the

site, we decided to form a community working group. From 1991

to 1993, we had a very difficult time working with EPA. It quickly

became an us against them attitude. We battled constantly in the

press, the cleanup was stalled and it seemed as though we were

getting nowhere fast.
60

In 1993, the EPA encouraged us to apply for a technical assistance grant, also known as a TAG. We applied and received the

grant.

Since 1993, this site was turned from one of the biggest public

relations disasters into a model EPA should use for all its cleanups.

EPA has not just developed a community relations plan at the site,

but has developed a community relationship. It was no small part

due to the TAG Program.

It helped us understand the Superfund Program is a complicated

answer to a complex problem. We found that most of the problems

stem from the lack of understanding about the nature of environmental pollution and remediation and the unrealistic expectations

that Superfund can be a quick fix to these problems.

I’m happy to say that the offsite cleanup of the residential neighborhoods around the site is complete and restoration work has

begun. EPA has not only finished this ahead of schedule, but has

also finished $2 million under budget.

What’s interesting to note here about EPA cleanup is that by

going through a full public process and by being responsive to our

concerns, EPA probably ended up slowing down the pace of the

cleanup but ultimately did a better job.

The contaminated offsite areas downstream from CIC could have

been left under S. 8 because S. 8 does not protect highly exposed

or unusually sensitive groups, given the way the bill tilts risk assessment by use of central estimates. S. 8 dumps toxic pollution on

communities and is a bailout for the polluters

The Government should be looking for ways to strengthen the

Superfund instead of weakening it. Provisions that will pierce the

corporate veil need to be included in any new reauthorization bill.

The owner of the CIC site has escaped liability behind the corporate veil and has contaminated four sites, two of which are

Superfund.

In closing, I would like to say that we need a strong Superfund

Program, one that goes after polluters, protects the public and

identifies and cleans up contaminated sites. S. 8 is not this bill.

The reality is, we know industry is necessary. Everything we do,

use or have is due to industry in one form or another. However,

we refuse to accept that we have to allow polluters to poison our

water and land and allow them to walk away without liability.

I hope you will go back and revise the bill so that it does not protect the American people against what is perhaps the greatest

threat to our national security, the poisoning of our citizens, their

land and water and air. Superfund is not perfect, but it is the only

game in town.

Thank you.

Senator SMITH. Thank you.

Mr. de Saillan.

STATEMENT OF CHARLES DE SAILLAN, ASSISTANT ATTORNEY

GENERAL, NATURAL RESOURCES, ENVIRONMENTAL ENFORCEMENT DIVISION, STATE OF NEW MEXICO

Mr. DE SAILLAN. Thank you, Mr. Chairman and members of the

committee.
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I’m Charles de Saillan, assistant attorney general for the State

of New Mexico. I’m testifying today on behalf of Attorney General

Tom Udall who regrets that he was not able to be here today.

Attorney General Udall is the immediate past president of the

National Association of Attorneys General and he is on the Association’s Environment and Energy Committee.

We very much appreciate the opportunity to appear here today

and present our testimony on S. 8, the proposed Superfund Cleanup and Restoration Act that would amend and reauthorize

CERCLA. This legislation is extremely important to the State of

New Mexico and to many of the State attorneys general.

In reviewing S. 8, we immediately recognized that many of our

concerns had been addressed in this legislation. For example, the

bar on preenforcement review of remedy decisions which is currently in section 113(h) of CERCLA would have been eliminated in

the bill that was introduced in the last Congress. It has been retained in S. 8 and we’re very pleased that it is. This provision has

been very effective in limiting litigation and allowing cleanup to

proceed expeditiously. We very much appreciate that the committee

has taken into consideration our comments on this issue and others.

We view S. 8 as a significant improvement over S. 1285, the

Superfund bill that was introduced in the last Congress and we

very much appreciate the hard work that has gone into it. We, nevertheless, have very serious concerns with the bill.

One of our major, overall concerns with S. 8 is simply its length

and complexity. It would completely rewrite CERCLA. The cleanup

standards, the remedy selection process, the liability scheme, the

natural resource damage provisions would all be changed drastically and in innumerable ways. Yet, every change in the law will

need to be interpreted, first by the implementing agency and second, in too many instances, by the courts.

The result, we fear, will be the shifting of limited agency resources to writing new regulations and new guidances, the nullification of 15 years of hard-fought judicial precedent, new rounds

of litigation, more transaction costs, and most distressingly, further

delays in cleanup.

We strongly urge the committee to focus on those provisions of

CERCLA that really need revision and to draft narrow, straightforward, concise legislation to make those revisions.

Let me now summarize some of our comments on the bill. More

detailed comments are included in our written testimony.

First, in the State role title, we strongly support provisions to

delegate the Superfund Program to qualified States. We appreciate

the flexibility that the bill provides in allowing States to receive either comprehensive delegation or partial delegation.

We do strongly recommend that the bill be revised to clearly

allow an authorization option in addition to delegation. Under the

authorization approach, which is taken under RCRA and the Clean

Water Act and other Federal environmental laws, EPA would authorize qualified States to implement their program in lieu of the

Federal program.

Under this approach, the States would have the flexibility to

apply requirements that are more stringent than the Federal re-
62

quirements without needing to pick up the tab for the cost differential.

Second, although NAAG has not taken an official position on

remedy selection, we have a number of concerns regarding this

title. We are very concerned that the relaxation of remedy selection

standards will lead to less permanent remedies, and that the

States will be left to deal with problems in years to come.

Further, we’re particularly concerned that the bill does not adequately protect groundwater. We’re also troubled by the new, completely revised remedy selection procedures which allow the responsible parties to select the remedy despite the obvious conflict of interest. We believe that remedy decisions should be made by EPA

or State agencies that have a duty to protect human health and the

environment.

Third, on the liability title, we are very pleased that the bill retains the liability for preenactment disposal activities or so-called

‘‘retroactive liability.’’ This issue is a very important one to the

State attorneys general.

We’re concerned, however, that the various exemptions in the bill

are too broad. We’re particularly concerned about the co-disposal

landfill exemption which would inequitably exempt generators and

transporters of hazardous wastes simply because they sent their

waste to a site that also received a substantial amount of municipal solid waste. We further question how these exemptions will be

funded.

Fourth is the Federal Facilities Title. We generally support the

concept of transfer of EPA’s authority over Federal facilities to

qualified States. We have some concerns about how the bill would

do this, and we provide more detailed comments in our testimony.

We also strongly encourage the committee to adopt a clear and

unambiguous waiver of Federal sovereign immunity in CERCLA.

Finally, we have numerous concerns about the natural resource

damage title. These provisions would largely handicap the program

in most States. The bill would substantially limit recovery for pre1980 releases, it would eliminate recovery for passive use values,

and it fails to clarify the ambiguous statute of limitations.

On the positive side, we’re very pleased to see a record review

provision in the title.

That concludes my prepared statement and I’ll be happy to take

any questions that you have.

Senator SMITH. Thank you.

Mr. Heig.

STATEMENT OF RICH A. HEIG, SENIOR VICE PRESIDENT, ENGINEERING AND ENVIRONMENT, KENNECOTT ENERGY COMPANY

Mr. HEIG. Thank you, Mr. Chairman, for this opportunity to testify. My name is Rich Heig. I’m senior vice president of Engineering Services, Kennecott Corporation.

Kennecott supports balanced Superfund reform which will accelerate cleanups based upon good science. Reform must also include

changes to the natural resource damage provisions so that it clearly focuses on restoration of existing services. With these two points

in mind, let me say there is a lot we like about this bill.
63

Kennecott has had firsthand experience with the inefficiencies of

the current Superfund Program. At our Bingham Canyon copper

mine in Utah, once a historic mining area, Kennecott has spent

over $230 million for cleanup. This effort included cleaning up and

relocating over 25 million tons of historic mining wastes. This is

equivalent to over 1 million dump trucks of material. Over 5,500

acres have been reclaimed for wildlife habitat and recreational

uses.

Thankfully after Administrator Browner visited Utah and recognized the depth of Kennecott’s commitment to a successful cleanup

program, she supported a memorandum of understanding in which

Kennecott, EPA and the State of Utah agreed that placing the

Kennecott sites on the NPL would be deferred if Kennecott completed certain cleanup programs, most of which were already underway.

In the midst of the Bingham Canyon cleanup, Utah’s NRD

trustee filed an NRD lawsuit for contaminated groundwater.

Kennecott needed a resolution that would not require us to pay for

a cleanup twice, once for a Superfund cleanup remedy and once for

NRD. Ultimately, such a settlement was reached.

Kennecott’s Superfund experiences have led us to believe that

Superfund reform should No. 1, create a flexible mechanism to conduct responsible cleanup without the site becoming a proposed

Superfund site; No. 2, require cleanups and remedies to be based

on reasonable risk assumptions and reasonable land and water use

designation; No. 3, restrict NRD recoveries to restoration and eliminate double cleanup requirements. Restoration should be cost effective and reasonable based upon what is needed for actual restoration with a reasonable cap on ultimate liability and no NRD retroactivity.

Mr. Chairman, Kennecott is pleased to see the efforts being made

by the sponsors of S. 8 to reform Superfund. However, we respectfully ask the committee to consider the following comments.

Title 1 should include a voluntary Federal response program in

addition to that which is proposed for the States. Kennecott generally supports the concepts of remedial action provisions of title 4

which No. 1, require the selection of remedies that are cost effective; No. 2, are based onsite-specific conditions and risk assessments; No. 3, consider reasonably anticipated future uses of land

and water; No. 4, allow for the consideration of natural attenuation

and biodegradation in groundwater remediation; No. 5, recognize

institutional and engineering controls; and No. 6, eliminate the

preference for permanence and treatment.

Kennecott supports the attempt in title V to fairly allocate response costs at non-Federal multiparty sites including mixed funding for orphan shares. We ask that an additional provision be included that would allow remining of historic mining sites for the

economic recovery of metals or minerals without imposing Superfund liability for past releases. Remining may be the only practical

approach to a cost effective cleanup and in virtually all cases, could

be a boost to local economies.

We believe the changes to NRD included in title 7 are a good

start. However, there are several areas that we believe could be

clarified and we have discussed those in our written testimony.
64

The NRD Program should be modified to complement not duplicate cleanup remedies. The improvements to be gained from cleanup reforms will be lost if NRD trustees can require additional

cleanup under the guise of restoration.

While Kennecott and Utah were able to reach a compromise that

so far avoids a double cleanup, this type of result should be formalized for all NRD claims rather than left to an NRD trustee’s discretion.

A more detailed analysis of S. 8 is included in our written testimony and I ask that it be included in the hearing record.

Mr. Chairman, thank you for this opportunity to testify.

Senator SMITH. Thank you. It will certainly be a part of the written record.

Mr. Garcia, let me start with you. Again, in the testimony regarding the Administration views, we continue to have what I consider to be rather strong statements. ‘‘The Administration believes

that S. 8 does not represent an acceptable basis for achieving bipartisan consensus on Superfund reform,’’ et cetera. How does this

kind of rhetoric help the process?

The Senate puts together a bill that worked on for 2 years with

the Administration and our colleagues on the other side. Granted,

we didn’t come to accommodation, I’d be the first to admit that, but

there was no attempt here to write a bill without their input or to

impose our will upon them and yet, you still continue to use these

statements. What is an acceptable basis for achieving bipartisan

agreement, your bill only, your position only?

Mr. GARCIA. Mr. Chairman, in my oral statement I indicated

there were certain weaknesses which we had identified—non-use

values, interim losses, the time payments. Those are real weaknesses and they’re material weaknesses in terms of our ability to

conduct natural resource damage assessments.

We are willing to engage in a bipartisan effort to achieve a consensus on Superfund reform and we’ve been working with the

stakeholders for months now. We have worked with your staff,

we’ll continue to work with the staff. We welcome the opportunity

to do so. We have submitted a proposal which we believe balances,

in an appropriate manner, the legitimate interests of the stakeholders, of the responsible parties, and the Government’s interest,

the trustees’ interest in restoring natural resources. As a member

of the panel said, it’s a restoration-based approach.

Senator SMITH. But you won’t even give us this as a starting

point. You’re basically saying it’s not even a starting point.

Mr. GARCIA. I don’t believe that I said that in my statement. I

would suggest, and the Administration would support, that we each

come to the table with our proposals and we discuss them. I acknowledged in my testimony that S. 8 had incorporated certain

provisions that acknowledge the concern of the trustees, but there

are other provisions that are of very serious concerns to us. Again,

I would suggest that we sit down with our proposal, the Administration’s proposal, and S. 8 and begin that discussion.

Senator SMITH. In the heading of your testimony, you say that

you speak on behalf of the U.S. Departments of Interior, Agriculture, Energy and Defense. Do they all agree with you? They to-
65

tally agree with your statement? There is no dissension among any

of those?

Mr. GARCIA. The statement was cleared through the interagency

process and my understanding is that we’re in full agreement on

these matters.

Senator SMITH. Mr. Lockner, I was somewhat interested in your

comments regarding the taxes. As you know, when CERCLA was

written, it’s 101.14, there is an exclusion for petroleum, including

crude oil or any fraction thereof as well as natural gas or liquified

natural gas from being covered under Superfund.

Now, are you saying now that no taxes is your position, no taxes

be collected whatsoever?

Mr. LOCKNER. No, I’m not saying that at all. Our position is that

the program needs reform, not only of the programmatic issues but

the tax base as well. The imbalance is clear. We’re paying 50 percent of the taxes, yet only have 10 percent of the liability. That’s

the issue. It’s an issue of fairness.

Senator SMITH. You don’t suggest we eliminate the petroleum exclusion, do you?

Mr. LOCKNER. No, I wouldn’t wish that CERCLA be placed on

those petroleum issues at all. Let’s be frank, let’s talk about what

that could do to the country. Our friend with the small business

here could face a problem, farmers could face problems, the users

of our products who would blame the complexity and bureaucracy

of CERCLA on the users of petroleum and petroleum products

would be a nightmare.

Senator SMITH. Aren’t you somewhat frustrated or are you somewhat frustrated that the taxes that are collected from the petroleum industry in many cases are not used directly for cleanup?

Mr. LOCKNER. Indeed. We’re 17 years now into a 5-year program

and they seem to be without end and they’re used for budget-balancing purposes, for nonrelated purposes and they just go on forever. We’d like to see some sort of finality to this, some sort of

agreement we could reach conclusion with this and that’s why we

support turning a lot of the program over to the States. Let them

manage the program. They seem to be well-equipped in a lot of instances.

Senator SMITH. Senator Baucus.

Senator BAUCUS. Thank you, Mr. Chairman.

Gentlemen, I’d like to explore the degree to which restoration

should include extrinsic value or sometimes known as non-use

value which is a big technical term, but basically it’s extrinsic

value or intrinsic value.

For example, the Grand Canyon, wilderness area, old growth forests, deep stream lakes, 30 or 40 feet down, I’d like you to tell us

the degree to which, Mr. Heig, I’ll start with you, the restoration

should include intrinsic value as well as lost human use. Let me

ask the first question, should it at all?

Mr. HEIG. I don’t believe it should.

Senator BAUCUS. At all?

Mr. HEIG. The real focus on NRD should be for restoration. Paying for past lost use and non-use is surplus to restoration. It is punitive.
66

Senator BAUCUS. So it doesn’t matter to you whether the Grand

Canyon is destroyed, even though you’ve not visited it? It does not

matter to you or the Washington Monument is destroyed or say a

wilderness area is no longer wilderness, so long as the human use

of that, if you can quantify the number of visitors and so forth is

met, it doesn’t matter to you or do you think it should not matter

to the American public?

Mr. HEIG. Well, first of all, I’m dealing with this mining situation.

Senator BAUCUS. I’m talking about the basic principle of intrinsic

value in an area that’s been destroyed or substantially damaged.

Mr. HEIG. If restoration occurs——

Senator BAUCUS. Should restoration deal with intrinsic value?

Mr. HEIG. In my opinion, no.

Senator BAUCUS. Mr. de Saillan, your view on that?

Mr. DE SAILLAN. We definitely believe that non-use values or passive-use values should be considered in determining the value of

natural resources. If you just consider natural resources based on

the value of the board feet of the timber in the forest, or the market value of the fish in the stream, you wind up undervaluing the

resources.

One of the difficult things in the natural resource damage program is how you put a value on the resources. By considering passive use values, it gives us an ability to comprehensively or more

fully place a value on resources which are very hard to quantify because they are not traded in the market. That’s what we’re trying

to get at with passive use values.

Senator BAUCUS. Your view is, even though they are hard to

quantify, they should be valued and considered in determining

their restoration?

Mr. DE SAILLAN. Absolutely. In our experience, even though it’s

not real easy to quantify it, most of these cases are negotiated, settlements are reached. The cases that are being litigated are really

the exception.

In New Mexico’s experience, we have not litigated a single natural resource damage claim. We sit down with the responsible parties, we give our arguments, they give their arguments, and we

come to a settlement.

Senator BAUCUS. Mr. Lockner, your view on this?

Mr. LOCKNER. The problem with the issue is that there’s no real

way to quantify the losses, if indeed they are losses. Every citizen

that might be questioned under a scheme such as contingent valuation, would have a different opinion.

Though I’m not an expert at NRD, these problems appear readily

apparent. I think if you would turn your attention to the testimony

that will be provided to the record by the Coalition of Legislative

NRD Reform, I think they will be more explicit in those issues.

Senator BAUCUS. But as difficult as it is to value, should an attempt be made to try to value it?

Mr. LOCKNER. Again, I think if an attempt is made, the answer

that is received is going to be completely without value. It’s going

to be based on esoteric values by individuals.
67

Senator BAUCUS. So you see no need to attempt to restore the

lost intrinsic value of a resource, the beauty of a resource. That

does not make any difference?

Mr. LOCKNER. Not based on the methods that are available.

Senator BAUCUS. That’s not the question I asked. The question

I asked is, should we make the attempt to try to deal with that or

not even make the attempt?

Mr. LOCKNER. I don’t see how you can.

Senator BAUCUS. So you don’t think it’s worth making an attempt to restore say the loss of the Grand Canyon?

Mr. LOCKNER. I think that’s a hypothetical situation.

Senator BAUCUS. I’m asking a hypothetical. I’m asking you to address the hypothetical.

Mr. LOCKNER. I really don’t see how you can arrive at those decisions based on the tools at hand today. I just don’t know how.

Senator BAUCUS. Should we try to find better tools?

Mr. LOCKNER. I think that’s very logical.

Senator BAUCUS. So you think maybe we should make the attempt?

Mr. LOCKNER. To find tools?

Senator BAUCUS. Yes. Should we make the attempt to find tools?

Mr. LOCKNER. To make a realistic assessment of what is really

involved here.

Senator BAUCUS. So you do think we should make the attempt

to find better tools to deal with this issue? I’m not trying to put

words in your mouth, I’m trying to find out where you are.

Mr. LOCKNER. Let’s try to focus on the loss of the services involved and I think that’s where we really need to turn.

Senator BAUCUS. We’re not dealing with that. That’s a separate

issue. I’m talking about lost intrinsic value.

Mr. LOCKNER. Again, I really haven’t given this a lot of thought.

I’m not an expert on those issues.

Senator BAUCUS. Mr. Garcia.

Mr. GARCIA. As my testimony indicated, absolutely, we believe

that those are real values, real values the public should be compensated for. There are two issues when a resource is injured. One

is primary restoration, bringing that resource back to baseline. The

other is compensating the public for the lost use of those resources,

both direct and indirect or non-use or passive use.

I grant you that it’s difficult to quantify those values, but it is

possible and has been done. I would also submit that the committee review the Administration’s proposal for dealing with injuries

to resources, including interim losses and the restoration-based approach that we have advanced in our proposal and which is contained in NOAA’s regulations—which does not involve quantification or monetization of the injury. Rather, it focuses solely on how

do you restore that injury; how do you restore the injured resource

itself, as well as how do you compensate the public for their loss,

whether it’s a direct use or a passive use.

Senator BAUCUS. I appreciate that. I know it’s an extremely difficult issue but in my personal opinion, it’s an effort we should undertake, how we deal with this and quantify this.

Do you want to speak to that, Mr. Spiegel?

Mr. SPIEGEL. Yes. I’d like to make a quick comment.
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One of the things this bill seems to do is engage in linguistic detoxification of chemical pollution.

Senator BAUCUS. What does that mean?

Mr. SPIEGEL. Linguistic detoxification means that you detoxify

with words but we like to use that phrase basically because it

seems like some of my colleagues here feel that allowing levels of

contaminants in the environment is acceptable.

One of the things I always felt, and I know that the people in

my community feel, is you really cannot put a price on clean air,

clean water, and clean land. You really can’t. It’s necessary for our

survival, it’s necessary for our children’s survival.

One of the things I’ve learned is the Indians use a seventh generation ideology which means they look at everything, how it’s

going to affect seven generations down the road, how it’s going to

affect not only their children, but all the way down, how it’s going

to affect the future.

I think that when we look at natural resource restoration, and

we look at natural resource damages, we should look at it not in

terms of is it strictly economics. Would it cost more to clean it up

than leave it dirty? Of course. What is reasonable? Is it reasonable

to leave elevated levels of contaminants because we don’t think

we’re going to use the natural resource? What about our great,

great grandchildren, may they use the resource?

Senator BAUCUS. I appreciate that. My personal view, and I believe this very strongly, that we have a duty to our country to try

to find some way to solve this question. Otherwise, a wilderness

area, for example, is destroyed or a portion of it is destroyed, the

solution will be to try to find alternate hiking days somewhere else

and not restore that wilderness or not try to do what we can do

reasonably to try to restore it.

This is a tough issue. We’re getting into nonlogical matters here,

but yet very, very important. It’s analogous to what is beauty, how

do we define beauty? It’s very hard to define.

Justice Potter Stewart, when asked to define something else, pornography, he said, I don’t know but I know it when I see it and

beauty is somewhat the same.

I think there is some basic, spiritual, something to do with one’s

soul. It’s very valuable when some special natural resources are destroyed—a Glacier Park in Montana. That’s a hypothetical but

there are some wonderful rivers and streams in this country which

have been seriously damaged.

Sure, we can measure damage by the lost use, people don’t fish

or hunt as much or what not but there is another value too, particularly because that river was so beautiful. It’s hard to describe

and we have to find some way to reasonably deal with that issue.

Otherwise, we’re not serving our people as well as we can or

should. It’s hard, I grant you it’s hard but I think we have an obligation to do whatever we can to try to address it in the most reasonable way.

As I read this bill, it essentially says those areas are off limits.

It cannot be compensated, it cannot include those intrinsic values

attempting to restore a damaged or lost natural resource. I think

that is wrong.
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Senator SMITH. Let me just pick up on that point, Senator Baucus. The whole premise, I believe, of NRD is that we can reduce

these things to a dollar amount. Your comment, Mr. Lockner, was

right on target, I think in terms of quantification.

The premise is that we can quantify it. The truth of the matter

is we can’t.

Senator BAUCUS. Can or cannot?

Senator SMITH. We cannot.

Senator BAUCUS. I think we can. There are ways to do it. In fact,

right now there are techniques being used by trustees to try to answer that question. I might say too that as we sit at this very moment, the State of Montana is in litigation and has techniques and

measurements and so forth to try to answer that question.

I grant you it’s a hard matter to measure, but I submit ever so

strongly, we should try to do our very best to try to find a way and

maybe devote our time in a hearing to all the various different

techniques and different tools to try to find the best way rather

than to categorically dismiss it.

Senator SMITH. I hear you but again, we’re using double standards on quantification. For example, in the area of eminent domain, when you go take granddad’s farmhouse and you decide it’s

worth $50,000, you’re going to build a new highway, do you quantify that? Do you get into the loss use, non-use of those people,

what’s the aesthetic value of that farm? We don’t do that. We don’t

do that at all.

So suddenly we come up with this NRD concept here and in the

case of natural resource damages, we now fly this quantification

standard that we don’t apply anywhere else. That’s what is wrong

with it.

When you come out and fully support when we take the old

farmhouse and we can say, these people are entitled, there are a

lot of people that like to look at that farmhouse, they like to walk

on that land, they like to hunt, they like to fish and when you reimburse those people for all of that, then OK, I’ll talk to you, but

that’s not happening.

We’re applying this standard one way and you cannot quantify

it. We’ve argued about this, we’ve discussed this. This is the problem. Meanwhile, while we argue it, we’re not restoring which is

what Mr. Heig said we want to do, to restore these properties to

their use where we can all enjoy them.

You said, Mr. Garcia, that you can put a real value and I think

you mean that. But all right, I want to use the Grand Canyon,

what’s that real value to me? Who much is it, give me a dollar

amount?

Mr. GARCIA. As I said, it’s difficult to quantify. Let me make a

point.

Senator SMITH. That’s the point, isn’t it, it is difficult. We’re trying to quantify it, that’s my point here. That’s what is so frustrating.

Mr. GARCIA. We have quantified those values in a number of

cases. What I wanted to suggest is that there is an alternative.

There is an alternative to rejecting the concept of passive use values, but there is a way of capturing those values.
70

The alternative, again, I submit is embodied in the Administration’s proposal. It is a restoration-based proposal. It focuses not on

the quantification or the monetization of the injury which leads to

litigation, is complicated but can be done, but rather it focuses on

how do you restore the injury so the entire inquiry is not what is

the value of that resource. Rather, it is how do you compensate the

public for the loss of that resource, how do you compensate the

public for the loss of the use of that resource without getting into

the quantification issue?

You develop a restoration plan as we’ve done a number of times

in accordance with NOAA’s regulations, in our damage assessment

process. We have laid out a proposal for the staff which I think allows the trustees to fulfill their obligation to make the public and

the environment whole as a result of an injury—by compensating

the public both for the loss of the resource as well as the loss of

the use of that resource and to do it without having to monetize

the injury.

The measure of damage under our proposal is the cost of the restoration project, not the value of the resource.

Senator SMITH. I don’t disagree with you on the restoration. We

should restore it and there is some argument about how much certain entities would have to spend to do that, but when you start

going beyond that, that’s where you get lost use, non-use, that’s

where you start getting into the dollars. You say it isn’t, but it’s

the money. There are numbers put on these NRD lawsuits, huge

numbers, but hundreds of millions of dollars in some of these cases

and I don’t know where they come up with the figures on lost use

and non-use.

As I said, somebody on the panel, tell me what is the dollar

amount for me not being able to see the Grand Canyon?

Mr. SPIEGEL. Senator, I think the way the argument is being

framed here is not exactly the best way to frame it. I think that

to sit there and ask people to spit out a dollar amount, to put on

a specific resource, I think is the wrong way to frame the argument.

Senator SMITH. That’s what we do.

Mr. SPIEGEL. The way you’re framing the argument right now I

think it is not positive. I think a positive way to look at the argument and frame it where you can get real debate as to which way

we should frame this in the bill is to look at potential use, there

are people who are experts in the field. How much would it cost

to restore this property, how much would it cost reasonably to safeguard against how people use it?

Where I live in Edison, about 70 sites are located right in my

general area, and they all drain into the river. There are fishing

advisories—you can’t fish because the fish have high levels of

PCPs. The river is gorgeous, teeming with life. You can’t eat the

crabs, you can’t eat the fish. They don’t want you to come in contact with the water. How do you put a number on that?

Senator SMITH. What about Barbara Williams’ lost use, non-use?

We’re not applying any lost use, non-use to her. What about all the

aggravation she’s had and the dollars that she’s spent in litigation

on a Superfund site where everybody admits she shouldn’t even be

in?
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Mr. SPIEGEL. I’m not going to comment on that because I don’t

know anything about it.

Senator SMITH. But I’m just using it as an example. The point

is we isolate these NRD cases and we say we’re somehow going to

put a specific number and we do put specific numbers and that’s

my point. If you look at these cases, they are very specific dollar

amounts and nobody can tell me where they come from.

I can understand the restoration. We may disagree on the

amount but I understand that, that’s specific because it cost x

number of dollars to be restored.

Senator BAUCUS. Mr. Chairman, I think what we ought to do is

use your analogy and give it to a jury because right now when we

are trying to wrestle with this issue, first, as you well know, we’re

only talking about those sites that are on the NPL, a certain

threshold has to be met before that’s triggered.

Then we begin to grapple with what the restoration should be.

In this case, it’s in the public interest and the trustees here are

trustees for the public. So the intrinsic value of a national resource

that is destroyed is valued by the public not just a single individual, it’s by the public and that I think means the trustees should

be held to a very high standard and it also means any determination they come up with is necessarily going to be perhaps a little

bit higher in amount of value because we’re trying to protect the

public interest here as opposed to the private interest.

Take the case of a taking, first of all, as a threshold what is not

a taking. Once that decision is made, then it goes to the jury usually for damages. The jury is going to sit down and try to figure

out what is the damage when the taking has been triggered.

They’re going to probably take intrinsic value into account.

They’re going to take a farmhouse, for example, the person can’t

use his farm anymore, it’s not there. What is the economic loss and

so on. I’ll bet you dollars to doughnuts that jury is also going to

think in the back of its mind, the lost intrinsic value to that individual, that is the beauty of the countryside, the value of working

the land and so forth.

Maybe the answer here is to just turn it over to a jury. People

have common sense. They know things pretty well. They can’t

quantify to the decimal point but they’ve got a sense here so maybe

the answer is let’s turn it over to a jury and the jury will determine

what the restoration plan will be.

I don’t think most people want to do that but at least people do

include intrinsic values into their conclusions as to what damages

should be and we just have to do our best, as difficult as it is, to

try to find some way apart from giving it to a jury, for us to develop some process to do the same.

Mr. GARCIA. I just wanted to make one point and that is we,

under our current approach, are restoring injuries to resources including the lost services, use and non-use, without monetizing the

injury, so we are doing it without presenting a bill to the responsible party that says here is the value that has been damaged or

destroyed.

Rather, we are presenting a bill that is for the cost of the restoration project and that restoration project compensates not only
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for the lost resource but for the lost services, both use and passive

and it can be done. We have done it, we’re doing it every day.

I would submit we would be happy to sit down with your staff

and discuss how we have done it. It’s embodied in our proposal.

You do not necessarily have to monetize the injury; there is another way to do it and you can still capture those passive use values which are true losses and must be preserved.

Senator SMITH. Truthfully, it is a tough issue and we’ve all been

willing to take it on. It’s been basically ducked in the past in this

reauthorization, so we’re going to try to deal with it, but it’s tough.

Did anybody else have a final comment?

Mr. SPIEGEL. I just to want to say that EPA currently is already

doing this. In my community, they have restored areas that have

been damaged by environmental destruction at the three sites.

They are engaged in restoration activities to try to minimize the

amount of damage to the environment, so it’s something that is already occurring.

I think if you can somehow strengthen it or quantify it, that’s

good, but it’s already occurring, so it’s not something you’re talking

about an abstract in the future. They’re already doing it.

Senator SMITH. Let me thank you all for coming.

Senator BAUCUS. If I might say, Mr. Chairman, I think it’s been

a very good hearing and I compliment you on it. In this wonderful

form of government we have called democracy, everybody is entitled to their point of view and I want to thank everybody here for

vigorously expressing his or her point of view.

I think it shows, Mr. Chairman, that we’ve got some work ahead

of us and there are very real differences on this bill, but I think

in reading between the lines, it’s clear that people do want to resolve it and find some solutions.

Thank you.

Senator SMITH. If members have questions they want to submit,

additional questions, they can do that by Monday and you’d have

until the following Monday to respond to those questions.

The hearing is adjourned.

[Whereupon, at 1:01 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

[Additional material submitted for the record follow:]
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PREPARED STATEMENT OF CAROL M. BROWNER, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good morning, Mr. Chairman, and Members of the Committee. I am pleased to

have this opportunity to appear before you to describe the Superfund program and

discuss legislative reform of Superfund in the 105th Congress.

Superfund is an important, and above all, a necessary program, dedicated to

cleaning up our nation’s hazardous waste sites. EPA has worked closely with the

Agency for Toxic Substances and Disease Registry (ATSDR) in evaluating the impacts of these sites on public health. ATSDR studies show a variety of health effects

that are associated with specific sites, including birth defects, cardiac disorders,

changes in pulmonary function, impacts on the immune system (the body’s natural

defense system from disease and sickness), and increases in chronic lymphocytic leukemia. These findings support EPA risk estimates that show the impacts of these

sites on public health. EPA also works with other Federal agencies to assess the

impacts of hazardous material releases on natural resources and the environment.

Together, the efforts of these agencies, working with EPA, provide the basis for targeting cleanups to protect public health and the environment, and show the need

for Superfund.

The Clinton Administration remains committed to responsible, Superfund legislative reform. We are also committed to participating in a process by which Republicans, Democrats, the Administration and a broad cross-section of stakeholder representatives work together to build consensus on the elements of Superfund legislative reform. As drafted, the Administration does not believe S. 8 provides the basis

for consensus based legislative reform. The Administration is ready to work with

you to craft Superfund reform legislation that can attract broad consensus support.

Only through a consensus based legislative process can we craft a proposal that is

fully protective and delivers on our commitment to the American people to accelerate toxic waste cleanup. By developing a broad consensus based process, we believe

we can achieve Superfund reform in the 105th Congress.

We are determined that our third try at legislative reform address today’s Superfund program, not out of date problems now resolved. The Superfund program is

fundamentally different and better. It is faster, fairer, and more efficient—reality,

not just rhetoric—than when the legislative debate started 4 years ago. Responsible

legislative reform must buildupon initiatives and reforms that have brought about

program improvements, and must address remaining legislative barriers to success

with an eye toward the 21st Century, in which we can all hope to see less exposure

from toxic waste sites for all Americans, and the return of these resources to productive reuse.

My purpose today is threefold: (1) to forge an understanding of where the Superfund program is today by sharing with you the substantial accomplishments EPA

has achieved over the past few years, not only maintaining, but accelerating the

pace of cleanup through three rounds of Administrative Reforms; (2) to discuss a

vision and potential components for responsible Superfund legislative reform; and

(3) to discuss our concerns with S. 8, which fails to meet our principles for responsible, Superfund legislative reform in this Congress.

Finally, the Administration remains concerned over the expiration of the authority to replenish the Superfund Trust Fund. Without the availability of these funds,

the Administration will be unable to continue cleaning up sites at the current pace,

or guarantee our ability to respond to environmental threats.

A FUNDAMENTALLY BETTER SUPERFUND PROGRAM

Proof of a faster, fairer, more efficient Superfund program can be found in three

simple indicators: first, We have completed cleanup at 423 sites on the National Priorities List, and 485 more are in construction. We have reduced by more than a year

the average duration of the long-term cleanup process, with much faster cleanups

at sites using presumptive remedies. The President’s budget request for Fiscal Year

1998 allows us to establish a new cleanup goal of 900 completions by the end of

the year 2000, representing approximately two-thirds of the sites on the NPL. Our

most recent analysis make us optimistic that we can achieve our goal of a 20 percent reduction, or 2 years, in the total cleanup process time; and second, responsible

parties are performing or funding approximately 75 percent of Superfund long-term

cleanups, saving taxpayers more than $12 billion. Meanwhile, EPA has succeeded

in removing over 14,000 small contributors from the liability system and has, in 1

year, offered orphan share compensation of more than $57 million to responsible

parties willing to negotiate long-term cleanup settlements; and third, costs of clean-
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ups, are decreasing because of a number of factors, including: the use of reasonably

anticipated future land use determinations, which allow cleanups to be tailored to

specific sites; the use of a phased approach or multiple approaches to groundwater

cleanups; EPA’s current policy of concentrating on principle threats at sites, not the

entire site; and EPA’s 15 plus years of implementing the program provided greater

efficiencies and lower costs when selecting cleanup options.

In addition, through the commitment of EPA, State, and Tribal site managers,

and other Federal agencies, EPA has achieved real results for public health and the

environment while experimenting with and instituting changes to our cleanup process through three rounds of Administrative Reforms. EPA is committed to further

administrative and regulatory (including NCP) improvements in the Superfund program in the years ahead. Our objectives for administrative reforms have been to:

• Protect public health and the environment over the long-term, while lowering

the cost of cleanups

• Increase the pace of cleanups

• Preserve the principle that parties responsible for contamination should be responsible for cleaning it up, while promoting fairness in the liability scheme, and

reducing transaction costs and litigation

• Involve local communities, States, and Tribes in decisionmaking

• Promote economic redevelopment at Superfund sites

The success of the Administrative reforms has been demonstrable. In a recent report, the Superfund Settlements Project (SSP), a private organization comprised of

industry representatives, published in December 1996, acknowledges EPA’s ‘‘substantial’’ track record ‘‘since EPA began implementing the October 2,1995 administrative reforms . . . especially in light of the severe obstacles that EPA encountered

during fiscal year 1996 as it began implementation of these reforms.’’ These positive

comments, from a group of large corporations involved in many Superfund cleanups,

echo the Agency’s recent Superfund Administrative Reforms Annual Report, for Fiscal Year 1996, which details specific program accomplishments.

Providing Protective Cleanups at Lower Costs

EPA has initiated a number of administrative reforms which promote cleanups

that are technologically and scientifically sound, cost-effective and appropriately

consistent. These reforms will lower cleanup costs, while assuring long-term protection of human health and the environment.

National Remedy Review Board

EPA has achieved significant success in creating substantial future cost reductions for parties at complex, high-cost Superfund sites across the country, by creating a national board of technical and policy experts within EPA to review high cost,

long term cleanups. This newly established National Remedy Review Board, comprised of both Headquarters and Regional experts is providing targeted review of

cleanup plans, prior to final remedy selection, without delaying the overall pace of

cleanup. The Board’s preliminary analysis indicates it has identified potential reductions in the range of $15–30 million in total estimated future costs for reviews completed during FY96.

Using Technology and Science Updates to Save Money

Approximately $280 million in future cost reductions are predicted as a result of

the Agency’s review and updates to previous remedy decisions made in the early

years of the Superfund program. These early remedies were based on ‘‘state-of-theknowledge-and-practice’’ available at the time. Where science and technology have

advanced and adequate levels of public health and environmental protection are assured, EPA is revising remedies where future cost reductions can be achieved while

still preserving appropriate levels of protection, and the current pace of the program.

Better Land Use Assumptions in Remedy Selection

EPA has improved its cleanup decisions by consistently using reasonable assumptions about current and future land use. Recognizing that land may be appropriate

for uses other than residential use can yield a more realistic risk assessment and

less expensive remedy. EPA is working with local land use planning authorities,

other government officials and the public as early as possible during site investigation to develop reasonable land use assumptions to use in the decisionmaking process. EPA also is making extra efforts to reach out to communities which may have

environmental justice concerns to ensure that they are fully informed and able to
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participate in these decisions. Currently, about 60 percent of EPA’s Records of Decision (RODs) include a land use scenario other than residential land use, typically

where there is no residential land use onsite or adjacent to the site.

Setting Priorities for Cleanups

To ensure that available funds are directed to the highest priority response

projects on a national basis, EPA established a National Risk-Based Priority Panel

(Panel) in August 1995. Prior to this reform, individual Regions established the relative priority of their cleanup projects which were then funded on a first-come, firstserved basis. This reform established a national priority system to fund cleanups

based on the principle of ‘‘worst problems first.’’ The Panel evaluates proposed cleanup actions, looking at the following factors: risks to humans and the ecology; stability and characteristics of contaminants; and economic, social and program management considerations. With the exception of emergencies and the most critical removal actions, cleanup projects are generally funded in order of priority based on

the recommendations of the Panel. By early 1997, the panel had ranked projects approaching $1 billion in cleanup costs.

Increasing the Pace of Cleanups

The completion of 423 Superfund toxic waste site cleanups (as of February 28,

1997) is a hallmark of the improved pace of cleanups. At the Lord-Shope Landfill

near Erie, Pennsylvania (the 400th site to be cleaned up), parties used innovative

technology to remove contaminants. Tons of industrial wastes had been dumped

over 20 years (including organic and inorganic chemicals, solvents, cooling acids,

and caustic agents) that resulted in groundwater contamination. Today, the community no longer needs to worry about the safety of drinking water, the impact on

farmland near the site, the effect on property values of their homes and businesses,

or the possibility of children wandering onto the site and playing among the drums

of toxic chemicals.

SACM

EPA (with the support of the Corps of Engineers and the Bureau of Reclamation

and their cleanup contractors) also has implemented reforms which streamlined its

rapid action cleanup authority. EPA’s Superfund Accelerated Cleanup Model

(SACM) accelerates cleanup and risk reduction at sites by consolidating site-assessment into a one-step process. SACM includes the following initiatives: taking early

actions while assessing long-term cleanup; using ‘‘presumptive’’ remedies where appropriate; initiating enforcement activities earlier; and addressing the worst threats

to people and the environment first. SACM reduces cleanup time through a single,

continuous site assessment and early action process.

Presumptive Remedies

The Agency is saving time and money by using standardized or ‘‘presumptive’’

remedies for certain types of sites. Presumptive remedies are based on scientific and

engineering analyses performed at similar Superfund sites and are used to eliminate duplication of effort, facilitate site characterization, and simplify analysis of

cleanup options. EPA issued presumptive remedy guidances for the following: municipal landfill sites; sites with volatile organic compounds in soil; wood treater sites

(with an update 2 years later); and a groundwater presumptive response strategy.

Regions are reporting significant reductions in costs and time required to complete

remedies. A recent Office of Inspector General report focused on an independent review of the use of a presumptive remedy and concluded that ‘‘Use of a Presumptive

Remedy increased consistency in decisionmaking by taking advantage of lessons

learned at similar sites, and allowed speedup of the Feasibility Study process.’’

Promoting Fairness in Enforcement

As I have stated, a core principle of the Superfund program is that the parties

responsible for contamination should be responsible for the cleanup. EPA’s ‘‘Enforcement First’’ strategy has assured that responsible parties perform or pay for approximately 75 percent of long-term cleanups, thereby conserving the Superfund

trust fund for sites for which there are no viable or liable responsible parties.

Over the course of the Superfund program’s implementation, however, stakeholders have expressed a variety of concerns regarding the fairness of the liability system. Issues related to excess litigation and associated transaction costs, the perceived inequities in the issuance of cleanup orders, the liability of parties contributing small amounts of hazardous substances to Superfund sites, the liability of par-
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ties that have limited assets, and the liability associated with the disposal of municipal solid waste, have all contributed to criticisms of the program. Through Administrative Reforms, EPA has addressed these concerns.

Recognizing the Orphan Share

EPA has fundamentally changed the way it conducts settlements at Superfund

sites through implementation of its 1996 ‘‘orphan share compensation’’ policy. Under

the new orphan share reform, EPA offers to forgive a portion of its past costs and

projected future oversight costs during every settlement negotiation for long-term

cleanup or non-time critical removal, to cover some or all of the orphan share at

the site. The orphan share policy encourages parties to settle, rather than to litigate, and enhances the fairness and equity of settlements. Without a settlement, responsible parties at a site are potentially liable under the Superfund law for the entire cost of the cleanup, including the share that might be attributable to other parties that are insolvent or defunct. EPA’s new approach creates a major incentive for

responsible parties to agree to perform the cleanup without litigation and the associated transaction costs. In FY96, the Agency offered over $57 million in orphan share

compensation to potential settling parties across the United States.

Getting the ‘‘Little Guy’’ Out Early

EPA’s reforms are removing thousands of small volume waste contributors from

the liability system. PRPs that are liable for cleanup costs have sometimes sued

huge numbers of small businesses that had little or no connection to the toxic contamination—sometimes simply by naming every business in the local yellow pages

as a defendant in a contribution lawsuit. EPA’s reforms have responded to the burden this can place on parties that made a very limited contribution to the pollution

at a site by using its settlement authority to remove small volume waste contributors from Superfund litigation. To date, the Federal Government has completed settlements with over 14,000 small volume contributors of hazardous waste at hundreds of Superfund sites. These settlements protect the settling parties from expensive private contribution suits. In addition, EPA has stepped in to prevent the big

polluters from dragging untold numbers of the smallest ‘‘de micromis’’ contributors

of waste into contribution litigation by publicly offering to any such party $0 (i.e.,

no-cost) settlements that would prevent lawsuits by other PRPs.

Site Specific Special Accounts

Prior to the Administrative Reforms, any funds recovered in early settlements at

a particular site were usually deposited in the Superfund Trust Fund, and could not

be spent until appropriated. When appropriated, these funds could be spent at other

sites. Through the use of Site Specific Special Accounts, EPA is able to direct settlement funds, as well as interest earned on those dollars, to future response actions

at a specific site. As of August 31,1996, $226 million in principal, and $35 million

in interest, had been set aside for exclusive use at specific sites.

Equitable Issuance of UAOs

To address the criticism that EPA routinely issues cleanup orders under section

106 of the Superfund law (unilateral administrative orders or UAOs) only to a subset of the parties identified at a particular site, EPA has established a protocol requiring a detailed explanation of the basis for not including certain parties when

issuing a UAO. This new requirement will ensure greater equity among parties receiving UAOs, because these orders will be issued to the largest manageable number of PRPs at each site.

Piloting Allocations

EPA is conducting pilot projects that test a fundamentally different approach to

the allocation of Superfund costs (called the allocations pilots) in order to promote

fairness in settlements. Allocations are one approach to determine PRPs’ share of

cleanup costs which may be used to settle their liability with the United States. A

neutral party, known as an allocator, selected by parties to the process, conducts

an out-of-court allocation. The allocator assigns shares of responsibility for cleanup

costs among all PRPs at a site. In concert with an allocation, EPA expects to pay

the ‘‘orphan share,’’ which includes the shares of parties which are defunct or insolvent. EPA has offered allocation pilots at 12 Superfund sites.

EPA is evaluating the pilot projects and has learned valuable lessons about the

relationship of allocations to settlement. We have learned, for example, that some
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PRPs prefer not to participate in a formal allocation process, instead preferring to

allocate shares of responsibility among themselves. We have also learned that a single allocation process is inappropriate for all sites, and that any process must be

flexible to meet site-specific needs and promote settlements. We hope our on-going

evaluation of the allocation pilots will continue to reveal valuable information about

the process of conducting allocations.

Reducing Costs for PRPs Through Reduced Oversight

PRPs incur costs at sites in part because of EPA’s need to oversee the quality of

cleanup work. Oversight is the process EPA uses to ensure that all studies and work

performed by PRPs are technically sound and comply with statutory requirements,

regulations, guidances, policies, and the signed settlement agreement. Oversight

may include reviewing reports submitted for approval, ensuring interim cleanup

milestones are met, or conducting site visits. As the Superfund program matures,

parties performing cleanup work have developed a considerable body of experience

in conducting response activities at sites. EPA can reduce oversight of such parties

while continuing to exercise sufficient oversight to ensure that the work is performed properly and in a timely manner.

EPA Regions have initially identified approximately 100 sites where reductions in

oversight of ongoing work for cooperative and capable PRPs have occurred or will

occur—significantly reducing PRP costs at some of these sites. EPA also may look

at opportunities to involve communities in deciding the appropriate level of PRP

oversight.

Involving Communities and States in Decisionmaking

The Agency supports the principle that communities must be involved in the

cleanup process from the time a site is discovered to the time it is finally cleaned

up.

Involving Communities in Remedy Selection

EPA is promoting ‘‘consensus-based’’ approaches to the remedy selection process

by involving community stakeholders in site pilot projects. This effort is intended

to empower local citizens and other stakeholders to be involved in the remedy selection process that ultimately results in EPA choosing common sense remedies that

meet statutory and regulatory requirements. For example, at the Lower East Fork

Poplar Creek Site in Oak Ridge, Tennessee, the cleanup strategy, agreed to in August 1995, reflected the concerns of the local community in the remedy selection

process. This included input into a change in cleanup goals. Through a citizen working group established by the Department of Energy, working in partnership with

EPA and the State of Tennessee, the citizens’ influence on the remedy selection decision averted the expenditure of more than $100 million and helped protect human

health and the environment more quickly.

Regional Ombudsmen

EPA established an Ombudsman in every Region to serve as a direct point of contact for stakeholders to address their concerns at Superfund sites. Prior to this reform, stakeholders raised concerns with Regional personnel, but had no formal

mechanism for having their issues elevated. The Ombudsmen now serve as

facilitators for stakeholders on concerns that have not been resolved between Regional personnel and the stakeholder through informal means. The Ombudsman reports to a top Regional management official in every Region to assure management

attention to issues raised.

Improving Public Access to Superfund Information

EPA recognized that improving communication with stakeholders and improving

access to Superfund information will help the public become more aware of, and informed about, Superfund. EPA is using electronic tools to improve communication,

including having sites for both the Office of Emergency and Remedial Response

(OERR) and the Office of Site Remediation Enforcement (OSRE) on the Internet,

with separate pages devoted to Superfund reform. Each Region also is developing

Internet ‘‘home pages’’ which will include information on Regional Superfund programs, such as Superfund site lists, site-specific information, successful site cleanup

actions, and links to State Superfund activities.
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State Programs Speed Cleanup of Non-NPL Sites

EPA recognizes the important role that State environmental agencies have in encouraging economic redevelopment of brownfields. EPA plans to provide $10 million,

earmarked in FY97 appropriations, to encourage the development or enhancement

of State programs that encourage private parties to voluntarily undertake early protective cleanups of less seriously contaminated sites, thus accelerating their cleanup

and their redevelopment. EPA recently issued a memorandum setting out an interim approach for its relations with State voluntary cleanup programs. The memorandum includes criteria for State voluntary cleanup programs that are enabling

EPA and the States to start negotiating a division of labor between EPA and the

States in memoranda of agreement (MOAs) as well as ensuring protection of public

health and the environment. Nine States have now signed MOAs with EPA regarding sites cleaned up under voluntary cleanup programs. The growing number of

States creating and operating voluntary cleanup programs provides a unique opportunity to respond to the brownfields cleanup and redevelopment issues.

Greater Power for States in Picking Remedies

The goal of this reform is to provide qualified States with an increased role in

the selection of cleanup alternatives at sites on the NPL, whenever possible. States

selected for this reform enter into ‘‘Participating States’’ agreements with EPA,

through which the States conduct the remedy selection process, consistent with applicable law and regulations. Participating States supervise the remedy selection

process with minimal EPA oversight or involvement, giving the State significantly

more control than usual over NPL site cleanups. Selected Federal facilities are

achieving similar success through incorporation of a lead agency concept in interagency cleanup agreements.

Promoting Economic Redevelopment

EPA is promoting redevelopment of abandoned and contaminated properties

across the country that were once used for industrial and commercial purposes

(‘‘brownfields’’). While the full extent of the brownfields problem is unknown, the

United States General Accounting Office (GAO/RCED–95–172, June 1995) estimates

that approximately 450,000 brownfields sites exist in this country, affecting virtually every community in the Nation. EPA believes that environmental cleanup is

a building block, not a stumbling block, to economic development, and that cleaning

up contaminated property must go hand-in-hand with bringing life and economic vitality back to communities. The Brownfields reforms are directed toward empowering States, communities, and others to work together to assess, safely cleanup, and

sustainably reuse these sites. EPA efforts have been accomplished through the

Brownfields Action Agenda-an outline of specific actions the Agency is conducting.

The initial Brownfields Action Agenda outlined four key areas of action for returning brownfields to productive reuse: (1) awarding Brownfields Assessment Demonstration Pilots; (2) building partnerships to all Brownfields stakeholders; (3) clarifying liability and cleanup issues; and (4) fostering local workforce development and

job training initiatives. A new Action Agenda for fiscal years 1997 and 1998 will further identify, strengthen, and improve the commitments EPA and its colleagues can

make to brownfields.

Brownfields Pilots are Encouraging Redevelopment

The Brownfields Assessment Pilots form a major component of the Brownfields

Action Agenda. EPA exceeded its commitment to fund at least 50 pilots by actually

funding 76 pilots at up to $200,000 each by the end of 1996. And, just this month,

EPA announced the addition of two more pilots, bringing the total to 78. These 2-

year pilots are intended to generate further interest in Brownfields redevelopment

by bringing together public and private efforts including Federal, State, and local

governments and affected communities. The Brownfield pilots will develop information and strategies that promote a unified approach to site assessment, environmental cleanup, and redevelopment. Many different communities are participating,

ranging from small towns to large cities. Stakeholders tell the Agency that

Brownfields development activities could not have occurred in the absence of EPA

efforts. As the National Community Reinvestment Coalition (NCRC) said ‘‘[W]e

wholeheartedly support the EPA’s Brownfields Economic Redevelopment Initiative.

NCRC believes that [EPA’s] multifaceted initiative represents a significant step forward by the Administration in working with distressed communities on the local

level in their revitalization efforts.’’
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Getting Sites off the ‘‘List’’

Prior to reform, EPA kept track of all potential hazardous waste sites in an inventory known as the Comprehensive Environmental Response and Liability Information System (CERCLIS). Even sites where no further Federal Superfund interest

was warranted remained in the CERCLIS inventory. This practice led to unintended

barriers to the redevelopment of these properties because sites listed in CERCLIS

could be automatically considered risky by some lenders, making it difficult for potential purchasers to secure loans to develop these properties. To avoid this result,

EPA redefined CERCLIS, deleting or archiving sites from the active CERCLIS inventory. EPA has archived approximately 30,000 sites (e.g., sites where ‘no further

Federal remedial action [is] planned’) from CERCLIS to date, and EPA expects to

archive over 2,000 additional sites from CERCLIS per year over the next several

years.

Deleting Clean Parcels from the NPL

Prior to the Administrative Reforms, EPA’s policy had been to delete releases

from the NPL only after evaluation of the entire site. However, deletion of entire

sites does not communicate the successful cleanup of portions of those sites. Total

site cleanup may take many years, while portions of the site may have been cleaned

up and become available for productive use before cleaning has been completed at

other portions of the site. Some potential investors or developers may be reluctant

to undertake economic activity at a cleaned up portion of real property that is part

of a site listed on the NPL. This reform allows EPA to delete portions of sites, as

appropriate, upon the receipt of petitions from interested parties, allowing redevelopment to occur quickly. Four parcels are currently moving through the deletion

process.

Removing Redevelopment Barriers Based on Liability Concerns

EPA is promoting redevelopment of contaminated properties by protecting prospective purchasers, lenders, and property owners from Superfund liability. EPA’s

‘‘prospective purchaser’’ policy is stimulating the development of sites where parties

otherwise may have been reluctant to take action by clarifying (through agreements

known as ‘‘prospective purchaser agreements’’) that bona fide prospective purchasers

will not be responsible for cleaning up sites where they did not contribute to or

worsen contamination. EPA issued new guidance in May 1995, which allowed the

Agency greater flexibility in entering into such agreements. The new guidance expanded the universe of sites eligible for such agreements to include instances where

there is a substantial benefit to the community in terms of cleanup, creation of jobs,

or development of property. Of the 50 agreements to date, 60 percent have been

reached since issuance of the May 1995 guidance. At the Indiana Woodtreating Site

near Bloomington, Indiana, the work performed under a prospective purchaser

agreement will prevent contaminants from entering Clear Creek, which is a drinking water source for the city of Bloomington, Indiana.

People owning property under which hazardous substances have migrated

through groundwater also feared liability under the statute. EPA responded by announcing that it will not take enforcement actions under CERCLA against owners

of property under which contaminated groundwater has migrated, but where the

property is not also a source of contamination. Further, EPA also will consider providing protection to such property owners from third party lawsuits through a settlement that affords contribution protection.

EPA has given reassurance to the lending industry and to government entities acquiring property involuntarily. EPA outlined in guidance what it considered appropriate actions a lender may undertake without becoming a liable party. In September 1996, Congress passed legislation very similar to EPA’s policy and guidance on

lenders. EPA also is providing assurances (‘‘comfort/status letters’’) in appropriate

circumstances to new owners, lenders, or developers which assure them that they

need not fear incurring Federal environmental liability.

The Agency is proud of the improvements to Superfund that have been made

through Administrative Reforms. Throughout the course of the reauthorization process, we have heard stakeholders express their concerns and have taken the opportunity to address those concerns. We recognize, however, that there are areas of the

law that could benefit from legislative provisions. Therefore, the Administration continues to seek responsible Superfund legislative reform to further improve the program.
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VISION FOR RESPONSIBLE SUPERFUND LEGISLATIVE REFORM

Legislative reform must buildupon the successes and lessons learned through the

Administrative Reform effort and provide solutions to the problems that cannot be

addressed administratively or through regulatory change. Our goals for legislative

reform are consistent with the objectives of Administrative Reforms. We want a

Superfund program that protects human health and the environment through costeffective cleanups which are reliable over the long term and foster economic redevelopment. We want a Superfund program in which those who pollute are held responsible, but allows parties to resolve their liability as efficiently as possible and does

not catch inappropriate parties in the liability net. We want a Superfund program

in which citizens are encouraged and supported in their efforts to participate meaningfully in the cleanup decisions that affect their lives. We want a Superfund program that supports the continued development of State and Tribal cleanup programs and fosters collaboration between the Federal, State, and Tribal governments

to divide up the enormous task of hazardous waste cleanup in this country in sensible, mutually supportive ways.

Long-Term, Cost-Effective Protection

Any legislative changes addressing cleanup decisions must, as a baseline, continue

to ensure that cleanups are protective of human health and the environment over

the long term. Cleanups should also be cost-effective, and foster productive reuse of

contaminated property, to the degree practicable.

In order to facilitate these goals, the Administration supports addressing statutory remedy preferences and supports treatment for those wastes that are highly

toxic and/or highly mobile, in light of the continuing challenges in ensuring the longterm reliability of engineering and institutional controls, as well as the limitations

that containment and institutional controls place on productive reuse or redevelopment of property. It is important to note that we can see the market impacts of the

treatment mandates under current law in the development of new, often in-situ

technologies which are giving us more alternatives to incineration, and a decline in

the costs of those technologies as they are used increasingly. These changes in the

treatment market are part of the reason for the decline in estimated remedy costs

I mentioned earlier.

Additionally, legislation should not alter our goal of restoring groundwater to beneficial uses. Over half of this nation’s population relies on groundwater as its source

of drinking water. Superfund has raised consciousness about the need to prevent

contamination of this resource by demonstrating the consequences—financial, technological, and practical—of contamination that threatens real people now and future

generations.

‘‘Smart’’ groundwater remediation as EPA has defined it in a series of Administrative Reforms is another major reason for declining remedy cost estimates. In the

early days of the program, we relied solely on extraction and treatment of groundwater to achieve cleanup objectives. In 1995, 60 percent of our groundwater cleanup

decisions reflect extraction and treatment being used in conjunction with other techniques, such as bioremediation, underground treatment walls, or monitored natural

attenuation, which is often used to reduce low levels of contaminants. In 1995,

about 25 percent of Superfund groundwater remedies included monitored natural attenuation of contamination. It is worth noting that our success in developing

groundwater cleanup policy is consistent and concurrent with ongoing developments

in science and technology and it uses the flexibility afforded under current law. Participants in the process of defining Superfund legislative reform in this Congress

will have to balance thoughtfully the desire to be clear and specific to promote

transparency and certainty, and the benefits of our current flexibility that permits

continuous improvements to be made as our knowledge progresses.

Fairness and Reduced Transaction Costs

In discussing any proposed legislative changes to the Superfund liability scheme,

it is imperative to retain the fundamental principle of holding the polluter responsible for the cleanup. This has been the cornerstone of our ability to obtain as many

cleanups as we have, and has left the Superfund trust fund available for truly abandoned sites and public health and environmental emergencies.

The Administration would support liability reform for de micromis parties. Their

liability is often less in dollars than the transaction costs they incur in defending

against a lawsuit. These are parties contribute truly small volumes of hazardous

waste. The government does not currently bring these parties into the system, but

they have occasionally been pulled in by other parties, with expensive and unfortunate results. Last year before this very committee, we heard from Ms. Williams,

who runs a restaurant in Gettysburg, Pennsylvania. She was pulled into litigation
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at the Keystone Superfund site, not by the government, not by the PRPs brought

in by the government, but as a fourth tier of PRPs pulled into the litigation by other

responsible parties. We do not believe that a party such as this should be involved

in the Superfund process, and we have worked to enter into settlements with these

parties to help get them out. A de micromis liability exemption would protect Ms.

Williams from other over-zealous PRPs.

Last year, EPA began offering orphan share compensation during every negotiation for long term cleanup and non-time-critical removal. The work we have done

with orphan share compensation has significantly enhanced the fairness of the

Superfund program. Although EPA does not need statutory authority to offer orphan share compensation, EPA would support legislation creating a separate mandatory spending account for orphan share, so that funds for orphan share do not

compete with cleanup dollars.

We would also like to address the liability of municipalities and others who generated or transported municipal solid waste. EPA and the Justice Department have

embarked on an exercise to address this issue through additional administrative reforms. As the legislative debate proceeds on Superfund reform, statutory provisions

that efficiently and fairly address the liability of municipalities and generators and

transporters of municipal solid waste should be considered. In addition, we believe

that we should address the issue of prospective purchasers in our efforts to make

sure that we can cleanup and reuse brownfield properties.

Finally, I reiterate that any changes to the liability and enforcement provisions

of Superfund must ensure that those who created the problems be held responsible

for cleanup. Further, changes in the law must not compromise the availability of

cleanup dollars or endanger the speed or thoroughness of site cleanups and our ability to accomplish the President’s goal of completing 500 additional cleanups by the

year 2000. Any exemptions or limitations on liability—or use of Trust Fund

money—must be considered against the backdrop of these principles. Therefore, the

Administration has consistently opposed, and continues to oppose site-based ‘‘carve

outs’’ that relieve viable, responsible parties of their obligation to clean up sites.

Meaningful Community Involvement

Through years of implementation of the program, EPA has determined that early

and meaningful community involvement can increase the overall pace of cleanups.

Though enhanced community involvement may add steps in the early portions of

the cleanup process, this investment generally accelerates later cleanup stages, as

all parties are informed and have had time to work through their concerns. EPA

has learned the hard way that a decision process that alienates the people our

cleanups are supposed to protect results in constant revisiting of decisions, not

quicker cleanups.

We have also learned that we need a variety of tools and resources, and the flexibility to tailor the application of those tools and resources, to meet the particular

needs of citizens at different sites. No two sites or communities are alike. We have

citizens who are disinterested in large-scale NPL cleanups, and keenly interested

citizens at smaller scale removal sites.

Consistent with our experience, we would like to see Technical Assistance Grants

(TAGs) available to citizens at non-NPL sites, in addition to NPL sites. Additionally,

the Administration would like to ensure direct input from citizens into the development of assumptions regarding reasonably anticipated land uses upon which remedies are based. While we support processes which build consensus within communities, the achievement of consensus should never be the price of admission into the

decisionmaking process. We must always listen to the diversity of views among citizens affected by hazardous waste sites.

Enhanced State and Tribal Efforts

In addition to the many changes and accomplishments that have occurred in the

Superfund program over the last 4 years, the context in which the program exists

is also dramatically different. We recognize and support the continued growth of the

State and Tribal regulated and voluntary programs which have greatly expanded

the number of hazardous waste sites cleaned up to protect human health and the

environment. Superfund legislation should address greater opportunities for States

and Tribes to address a full range of hazardous waste sites for which they have the

necessary response capacity, while providing the financial and technical support

needed to further improve existing programs. We must recognize that retention of

strong cleanup standards, enforcement authorities, and sufficient resources at the

Federal level provides States and Tribes with resources critical to the effectiveness

of their own programs. It is particularly vital that the Federal emergency preven-
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tion, preparedness, and response capabilities, which are looked to as a model, and

for support the world over, remain vital and effective.

Over the last 4 years, States, Tribes, and EPA have been finding their own ways

of dividing up the broad universe of contaminated site work. Under this emerging

model of customized partnerships, all regulators work together to determine which

sites should proceed under what authorities, and under whose lead, seeking to reduce overlap and duplication in favor of more complementary, mutually supportive

arrangements. In general, States and Tribes have the primary role in the process

of discovering new sites and making screening decisions about which sites warrant

action. In comparison to just a few years ago, States now exert substantial control

over not only which sites will be included on the National Priorities List, but also

in the CERCLIS inventory. By contrast, States, in many cases by their choice, are

in the lead at only roughly 140 of the 1300 NPL sites. However, the more interesting story here is the tremendous variety of arrangements EPA and States and

Tribes have worked out to address waste sites.

When it comes to the role of States and Tribes, Superfund legislative reform must

consider comprehensively the scope of the hazardous waste contamination problem

Federal, State and Tribal programs are trying to address across this country and

where we are succeeding today in our efforts to organize our collective resources to

achieve more protective cleanups by more parties. The types of authorities, resources, and flexibilities best suited to harness the positive forces of a Federal program in a manner which supports the cleanup efforts of States and Tribes and,

through their voluntary cleanup programs, private parties, needs to be considered

in that context.

Economic Redevelopment

The Brownfields Economic Redevelopment Initiative has achieved much initial

success. The continuing value of the Brownfields Initiative is its evolution and

promise for the future. To buildupon these successful first steps and launch others,

we must not lose sight of our overall goal to revitalize communities. Future efforts

under the Brownfields Economic Redevelopment Initiative must be viewed as an important component of any Superfund legislative reform strategy. With the breadth

and variety of activities and stakeholders converging on the brownfields issue, we

have tried to establish a framework that articulates a complete and comprehensive

brownfields program. It is against this framework that we will measure proposals

regarding the brownfields.

Brownfields legislative reforms should continue the progress made under EPA’s

administrative reforms and address the full range of Brownfield issues including:

technical assistance funding for brownfields identification, assessment, and reuse

planning; cooperative agreement funding to capitalize revolving loan funds for

brownfields cleanup; support for State development of voluntary cleanup programs;

liability protection for bona fide prospective purchasers and innocent landowners of

contaminated property; support for mechanisms for partnering with Federal, State,

local and tribal governments, and other non-governmental entities to address

Brownfields; and support and long-term planning for fostering training and workforce development.

In summary, the above discussion has highlighted some of the major elements we

believe could be addressed in order to achieve consensus based, responsible Superfund legislative reform. Our intent is to work within the Administration over the

next few weeks to develop a set of principles and associated key components for this

legislative reform process. These principles will also include the topic of Natural Resource Damages (NRD), which will also be addressed in other testimony before this

Committee today. When these principles are complete, the Administration will share

this product with your Committee.

THE SUPERFUND CLEANUP ACCELERATION ACT OF 1997

The Administration has evaluated S. 8, the Superfund Cleanup Acceleration Act

of 1997, against many of the same criteria which have guided our Administrative

Reform efforts and which describe our goals for legislative reform.

I was pleased to see that one of the top priorities of this body is Superfund reform.

The early introduction of S. 8 reflects the commitment with which you, Mr. Chairman, have approached the legislation. The Administration’s most serious concerns

are that: (1) the bill may fail to ensure long-term protection of human health and

the environment; (2) it will slow down cleanups; (3) it lets polluters off the hook and

shifts costs to taxpayers and consumers; and (4) it provides incomplete support for

communities, States, and Tribes, and economic redevelopment. But perhaps more

fundamentally, S. 8 does not reflect the current status of the Superfund program,

and fails to recognize the vast changes made to this program in the last 4 years.
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Inadequate Protection

Remedies under S. 8 would not assure protection of human health and the environment over the long term because highly toxic, highly mobile waste would not be

treated and because contaminated groundwater may not be cleaned up in most, if

not all, cases.

Elimination of Treatment for Long-Term Reliability

While S. 8 retains a decision process not dissimilar to the current program, in

which tradeoffs between cleanup options with respect to a common set of criteria

are balanced to select a cost-effective response, the results would be dramatically

different. S. 8 eliminates all of the treatment provisions of CERCLA, under which

EPA generally seeks to reduce the intrinsic hazards of the highly toxic and/or highly

mobile waste constituting the ‘‘principal threats’’ at a site. Treatment of highly toxic,

highly mobile wastes helps ensure that any materials managed onsite over the long

term would not pose a serious threat to human health and the environment, should

engineering and institutional controls fail at some point in the future. And obviously, the more contaminated material that remains onsite and the higher the potential risks it poses, the less likely productive reuse of that property, or significant

portions of that property, will occur. Despite improvements in our knowledge about

how to make engineering and institutional controls work, significant uncertainties

related to the long-term management of hazardous waste remain.

Worse still, S. 8 establishes a new ‘‘mega’’ technical impracticability waiver from

the fundamental requirement to protect human health and the environment in addition to the existing (and continued) waiver from applicable or relevant and appropriate requirements (ARAR) waiver for technical impracticability. This ‘‘mega’’ waiver can be invoked if ‘‘there is no known reliable means of achieving at a reasonable

cost the goals for remedy selection.’’ As a result of this finding, the protectiveness

goal is eliminated in favor of ‘‘remedial measures that mitigate the risk to human

health and the environment.’’ Under this process, cost would receive more emphasis

in deciding not only the method of protection for a site, (likely to be cheap exposure

controls such as fences), but whether to protect at all. S. 8 may leave the real business of cleanup to a future generation, and it reflects concerns with treatment of

wastes based on old anecdotes—not the current program.

Contaminated Groundwater Will Not Be Cleaned Up

Contaminated groundwater is a problem at over 85 percent of Superfund sites.

With over fifty percent of the U.S. population relying on groundwater for their

drinking water, the Administration holds firm to the belief that this critical public

health and environmental concern should continue to be addressed. I think you

would agree that the citizens of this nation want and deserve a safe and reliable

supply of water for drinking and household use, industry and agriculture, recreation, and many other beneficial uses, and to know that they will continue to have

such a supply available for the generations to come.

Despite this, S. 8 would replace the goal under the current program to restore

contaminated groundwater to beneficial uses, wherever practicable, with the tragically modest mandate to ‘‘prevent or eliminate any actual human ingestion of contaminated drinking water.’’ This goal could be met through treatment at the tap or

simply by preventing the use of the water. Though S. 8 does provide for protection

of uncontaminated groundwater, it relies too heavily on natural attenuation to provide this protection.

Even if actual cleanup of contamination in the groundwater were proposed as a

cleanup alternative, S. 8 sets up a burdensome three part test which must be passed

to justify its selection. The bill would require: (1) ‘‘a determination regarding the

technical practicability of restoration’’; (2) a justification that demonstrates that active cleanup can ‘‘substantially accelerate the availability of groundwater for use as

drinking water beyond the rate achievable by natural attenuation’’; and, in the final

analysis; (3) consideration of active cleanup ‘‘on an equal basis’’ with institutional

and engineering controls. Under S. 8, we may all need to buy our own water treatment plants. S. 8 reflects concerns about groundwater cleanup from the 1980’s—not

the current Superfund practices.

Other Concerns

S. 8 also fails to provide specific cleanup and protection standards for surface

water, and adds prescriptive language regarding risk assessment, which is a glaring

example of how the bill is out of touch with the Superfund program of today. Under

the Administrative Reforms, EPA has met with stakeholder representatives from industry, Indian Tribes, environmental groups, and local government and citizen rep-
356

resentatives from communities with hazardous waste sites to develop an agenda for

technical improvements to the Risk Assessment Guidance for Superfund and to improving stakeholder involvement in the process of conducting a risk assessment

which are very different than the technical and risk communication principles S. 8

would dictate by law. Risk assessment is a key area where policy needs to be able

to evolve with new scientific understandings and changing stakeholder needs.

S. 8 DELAYS CLEANUPS

The seminal mission of Superfund is to protect public health and the environment

through cleanup. To better accomplish this mission, a reformed Superfund must

speed the pace of cleanup. Unfortunately, S. 8 will involve more lawyers in the process and therefore increase the time required for cleanup decisions dramatically, resulting in slower cleanups. Transaction costs will also increase commensurate with

delays.

ROD Reopeners

The provision for ROD ‘‘reopeners’’ will cause significant disruption to and delay

of ongoing cleanups. The complex thresholds for reopening RODs are based solely

on cost savings anticipated, and thus have little to do with modifications of RODs

based on advances in science and technology. Delays and disruptions will occur at

sites where cleanups are well underway, and have been accepted by the community

and PRPs, yet the RODs will be reopened, unless vetoed by the Governor of the affected State. Not only will RODs have to be amended, but consent decrees and interagency agreements that incorporate these RODs would have to be modified as well.

This provision will increase, not reduce, transaction costs.

Multiple Reviews of Cleanup Decisions

In a marked departure from EPA’s successful Administrative Reform, which provides a review of costly remedies to see if savings can be made, S. 8 institutes a

series of decision points for a ‘‘remedy review board.’’ While the Agency’s National

Remedy Review Board was implemented to promote national consistency in prospective decisions in such a manner that minimizes disruptions or delays, the framework of S. 8 provides for a petition process that affects both prospective and past

cleanup decisions, and provides for many disruptions and delays that can only be

avoided if there is a finding that the delay is so unreasonably long that it threatens

human health and the environment. These provisions do not prevent delays, which

may cause increased costs as contamination spreads, nor do they give voice to the

communities affected by the site caught up in this process.

Overly Prescriptive Risk Assessments

S. 8 institutes new risk assessment provisions that can only be described as redundant, expensive, and time-consuming, but without apparent benefit. The requirement for risk ranges of 10¥4 to 10¥6 and risk distributions and central estimates

of average exposed individual risk for each facility only adds wasteful steps to the

evaluation process, as a central estimate would fall within either a range or distribution, and a distribution is merely a graphical representation of a range. Additionally, because of the requirement to utilize site-specific information, instead of

using valid assumptions, risk assessments will no longer benefit from time and cost

savings due to the Agency’s experience in performing these evaluations. Instead,

risk assessments are likely to be more expensive and take more time under S. 8,

delaying the cleanup. While we support appropriate uses of site-specific information

in risk assessments, the bill’s insistence onsite-specific data for all key variables

would be not only time consuming and impractical, but downright impossible for

many factors.

S. 8 HAS BROAD LIABILITY EXEMPTIONS

The Administration has several concerns regarding many of the liability provisions of S. 8. The proposed legislation exempts or limits the liability of parties that

are viable and liable and should remain responsible for cleanup of their sites. As

an example, S. 8 exempts generators and transporters of any waste, whether municipal solid waste (MSW) or extremely hazardous waste, found at a ‘‘co-disposal’’ site.

This provision exempts parties regardless of the hazard associated with their waste

or the impact that waste may have on the cleanup. At the Delaware Sand and Gravel Site, for example, S. 8 likely would exempt major industrial generators of hazardous substances merely because they chose to dispose of their hazardous waste at a

site which accepted MSW.

S. 8 also limits the liability of private owners and operators of ‘‘co-disposal’’

sites—a position EPA has never endorsed. Under the terms of S. 8, major waste
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management companies that are liable, viable and understand the costs of this business, would be relieved of their liability. At many sites, this could mean that cleanup costs will be shifted to the Fund through S. 8’s orphan share funding provisions.

In fact, as S. 8 is currently written, the collective ‘‘co-disposal’’ provisions result in

a de facto co-disposal carve out, which we believe is inconsistent with good public

policy.

The co-disposal provisions raise other issues of concern. Under S. 8, a ‘‘co-disposal’’ landfill is one at which there ‘‘may’’ be a ‘‘substantial portion’’ of municipal

solid waste. The term ‘‘substantial’’ is not defined. The absence of a definition is certain to encourage litigation. Further, where a site continues to receive municipal

solid waste, its status may change over time. These new and vague terms are fertile

ground for litigation.

The de minimis exemption found in S. 8 is another example of an exemption that

is broader than is needed to address the intended parties of concern. This provision,

probably intended to exempt only those very small contributors of waste which we

all agree should not be forced to incur the transaction costs associated with Superfund liability, goes well beyond exempting contributors of very small amounts of

waste. The 1 percent cutoff of this provision potentially will exempt parties that

have contributed very large amounts of hazardous waste, and may leave very few

responsible parties remaining liable. For example, at the Bypass 601 Site in North

Carolina, a 1 percent contribution represents approximately 3 million pounds of

lead-bearing materials. Only 20 of the approximately 4,000 responsible parties at

this site contributed volumes in excess of 1 percent. This is another example of an

exemption that violates the principle that parties that are responsible for the contamination should remain responsible for the cleanup.

Finally, the liability exemptions and limitations in S. 8, when read together with

the Orphan Share Funding provisions, would create an enormous obligation for the

Trust Fund and could divert funds from cleanups. Because orphan share funding

is not provided from a source separate from cleanup dollars, cleanups will be competing for the same dollars as the Orphan Share claimants. To make matters worse,

S. 8 provides that orphan share funding is an entitlement. As such, claims for orphan share funding would be legally superior to other claims against the Fund, including the costs of cleanups.

S. 8 also requires EPA to reimburse responsible parties for costs that exceed their

allocated share—this includes in many cases, costs and work that parties have already agreed to perform. These provisions for ‘‘Fund Contribution’’ present several

problems. First, they require EPA to repay recalcitrant parties working under an

order in the same manner we would repay a cooperative party working under a consent decree. This would be a windfall to the recalcitrant parties. Second, these provisions require EPA to pay costs within 1 year. If large numbers of applications are

received at once, this could cause funding shortfalls and resource drains resulting

in major cleanup delays. Third, final settlements will be reopened and parties who

have previously incurred the costs of negotiations will have to proceed through an

allocation to determine their share of liability for the purpose of reimbursement.

Such reconsideration of liability effectively duplicates transaction costs previously

incurred.

Narrow and Unworkable ‘‘Illegal Activity’’ Exception

S. 8 attempts to prevent a person from claiming a liability exemption where a

court determines, within the applicable statute of limitations, that the person violated a Federal or State law relating to the hazardous substances at issue. Because

Superfund addresses the results of acts that frequently took place many decades before cleanup, and at a time when applicable laws may have been unclear, proof of

illegal or culpable behavior may have been impossible at most sites, as the provision

requires court action at the time of the activity.

The Allocation Process is Broad and Prescriptive

The Administration has a number of concerns with S. 8’s allocations provisions.

First, the large number of sites subject to a mandatory allocation will result in extraordinary allocation costs, will increase transaction costs, and will slow the settlement process. S. 8 requires formal and prescriptive allocations at all multi-party

sites on the NPL where post-enactment costs are outstanding, even where the parties are exempt under S. 8. In addition, Under S. 8, the allocator alone makes the

determination as to which parties not already settled out are to be considered exempt or liable. These provisions preclude EPA from excluding small volume contributors or parties with an inability to pay, and thus from protecting them from the

transaction costs associated with an allocation. As drafted, courts could interpret

S. 8 to require EPA to accept ‘‘cashout’’ settlement offers. This provision could rap-
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idly turn Superfund into a public works program, with the government undertaking

the cleanups. Finally, S. 8 allows no means for the allocation process to be set aside

if some parties wish to settle, rather than proceed with the allocation. This allows

just one party to hold other parties hostage, even in cases where a settlement could

be easily reached.

In 1994, as part of Administrative Reforms, EPA implemented an Allocations Pilot

Project at 12 Superfund sites. Although the pilots are not yet complete, much has

been learned about the strengths and weaknesses of the allocations process. Based

on this experience, EPA cannot support a mandatory allocations process at every

multi-party site. For example, some responsible parties do not want to use an allocation process, even where EPA has offered orphan share compensation. Based on our

experience with allocating and our allocation pilot projects, EPA is reevaluating the

need for legislation establishing a detailed allocations process.

Other Liability Concerns

S. 8 imposes a bar on additional enforcement, cost recovery or even private party

actions against a party after the issuance of an administrative order, even in situations where an order is used as an interim measure to address an emergency, or

where orders are used to achieve portions of work at large or complex sites. Another

provision of S. 8 precludes Federal or administrative enforcement action at any facility that is subject to a State remedial action plan. There are no exceptions to this

provision for emergencies, threats to human health or the environment, or in cases

where the State requests EPA to act. S. 8 further requires that where a facility is

not subject to a State remedial action plan, that is, in cases where the State is not

taking the lead, all CERCLA section 106 orders issued by the U.S. relating to that

facility cease to have effect after 90 days if the State does not affirmatively concur

on the order. This would put a huge burden on the States, creates a potentially duplicative system, and could disrupt cleanups. Each of these provisions inappropriately impose restrictions on the ability of the U.S. to enforce Federal law, and to

act to protect public health and the environment.

S. 8 PROVIDES INCOMPLETE SUPPORT FOR COMMUNITIES

The Administration supports the principle that communities must be involved in

the cleanup process from the time a site is discovered to the time it is finally

cleaned up. Because one out of four Americans lives within five miles of a hazardous

waste site, Superfund is a Federal program that truly has local impacts. Additionally, EPA recognizes and supports the continued growth of State regulated and voluntary programs, and the successes States have achieved in addressing their sites.

Community Response Organizations

While S. 8 adds many provisions regarding enhanced community involvement,

there are significant weaknesses. The bill establishes Community Response Organizations (CRO) to serve as the primary conduit of information to and from the community to appropriate Federal, State and local agencies and PRPs concerning development and implementation of remedial actions. Among the concerns the Agency

has with the provisions addressing communities, the CRO provisions limit participation to the remedial action phase of cleanups. We support meaningful community

involvement throughout the cleanup process and from the earliest possible opportunity during site assessment and before NPL listing. The Agency supports giving

substantial weight to CRO recommendations on future land-use and other significant decisions throughout the cleanup process. The CRO should represent community concerns directly to the Agency, as opposed to the mere requirement for CRO

consultation (assuming a CRO exists) on input from the local land use authority.

Unfortunately, involvement of this type is absent from the provisions of S. 8.

Technical Assistance Grant Limitations

Another concern with the community involvement provisions of S. 8 is the implementation of a changed Technical Assistance Grant (TAG) program. The purpose of

the TAG program is to provide local citizens with resources to obtain and evaluate

technical information. S. 8 requires that if a CRO exists, it is the preferred recipient

of a TAG. Aside from the inherent conflicts of interest that may arise from PRP participation in CROs, by requiring that the TAG be awarded to a CRO, the bill eliminates the opportunity for other community-based organizations to access TAG funds.

Giving preference to CROs when awarding TAGs is not the way to ensure that the

local citizen’s groups will bring an equal voice to the table. In addition, S. 8 limits

TAG grants to sites listed or proposed to the NPL, limiting community involvement

in other facets of the Superfund program (i.e., removal actions and non-NPL cleanups).
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S. 8 PROVIDES INCOMPLETE SUPPORT FOR STATES AND TRIBES

Problematic State Delegation Process

S. 8 sets up an elaborate ‘‘menu’’ approach for providing delegation of the Federal

program to States, which allows States to pick and choose authorities they would

like to undertake. Unlike prior legislative provisions that had EPA support, it raises

the potential for increased delays and costs due to uneven divisions of labor and

could hamper coordination among Federal agencies. Partial or limited delegations

can allow States to undertake portions of cleanup activities or studies, and then require EPA to perform the portions that the State declined to perform, either on a

site by site or State by State basis. In some cases, this could lead to implementation

delays and higher costs associated with attempting to implement a State plan at

the Federal level using different personnel or contractors. It could also create inconsistent approaches, confusion, and could greatly compromise cost recovery if the

work is Fund-lead.

Even the delegation process itself is problematic in S. 8. The bill provides for no

public notice or comment on a proposed approval or disapproval of a State application to take over the program. RCRA, the program most closely related to the Superfund program requires such procedures, however, S. 8 does not. In the case of S. 8,

where the decision as to the lead regulatory agency is made on a site-specific basis,

this is very troubling. In many cases, the public has very strong views about which

agency is best suited to oversee the cleanup. In addition, the default approvals of

State programs could have unintended consequences, and could even lead to a lack

of protection of public health and the environment in cases where a State is automatically approved to take over a site because of the default provisions, but does

not currently have the resources available to devote to the particular site.

Limiting Application of State Law

One of the most troubling aspects of S. 8’s treatment of the role of States in the

Superfund program is the effective preemption of State law involving remedy selection. Under S. 8, this occurs when a delegated State attempts to select a remedy

more costly than what EPA would have selected, in which case the State must pay

the difference in cost and cannot recover the costs through State or Federal cost recovery, even if it would otherwise be covered by their own State cleanup requirements. Aside from the question of costs or resources necessary to duplicate the State

remedy process for comparison purposes every time a remedy is challenged, this represents a preemption of the State’s ability to select remedies under its own authority, as well as a preemption of the State’s liability scheme.

Other State Issues

Besides the issues listed above, there are other potential problems with the provisions of S. 8. For example, the new State cost share requirements could add $90 to

$100 million to the cost borne by the Trust Fund, based on 1994 estimates, and

under S. 8, this cost may be increased by State petitions for further reductions. Additionally, early authority to delist sites from the NPL could negatively impact sites

where cleanup has not been completed, or at RCRA facilities or other sites with ongoing activities which might give rise to new problems or releases. S. 8 does not recognize Indian Tribes at all.

S. 8 FAILS TO ADEQUATELY PROMOTE AND ENHANCE ECONOMIC REDEVELOPMENT

One of the most important aspects of any Superfund legislation is its ability to

promote and enhance economic redevelopment at Superfund sites. Because of this

EPA is very encouraged to see substantial Brownfields provisions, as well as voluntary cleanup program provisions, within S. 8. However, in reviewing the provisions, several concerns were apparent.

Brownfields Grants are Limited

One of the major concerns with S. 8’s Brownfields characterization grants provision is the exclusion of States from the list of eligible recipients for the program.

EPA’s experience with the Brownfields Pilot Program has taught us that in the case

of many smaller communities, it may make more sense and be more efficient to provide the grants directly to States. Additionally, the limitation on funding per year

for these grants may restrict and inhibit the grant recipient from efficiently managing and benefiting from the grant itself. Finally, in the definition of Brownfields,

S. 8 improperly excludes sites where removals have occurred, or are planned to

occur, and sites deleted from the NPL with ‘‘No Action’’ RODs. These sites may be

appropriate candidates for redevelopment. In addition, EPA has first-hand experience with prospective purchaser redevelopment of these properties.
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Voluntary Cleanup Program Concerns

The Administration is opposed to provisions in S. 8 regarding voluntary cleanup

that would eliminate the authority of EPA and other Federal agencies to respond

to releases of hazardous substances whenever a State remedial action plan has been

prepared, whether under a voluntary response program, or any other State program.

Under S. 8, the mere existence of such a cleanup plan eliminates any Federal authority to respond to a release or threatened release of hazardous substances—even

where there may be an imminent and substantial endangerment to human health

and the environment. This compromise of public protection is alarming. The provisions of S. 8 could leave us powerless to respond to immediate threats from the

worst toxic sites (Voluntary Response Programs are given authority to clean up NPL

sites) even where the State’s VRP program lacks the resources and expertise to

‘‘qualify’’ under the provisions of S. 8.

In addition, the level of community involvement provided by S. 8 is questionable.

The bill limits the community to an ‘‘adequate opportunity’’ for public involvement

and does not guarantee participation in all levels of the cleanup process or determinations regarding end uses of the property. Finally, the preclusion of all private

and citizen suits belies the apparent commitment in S. 8 to strengthen community

participation.

OTHER CONCERNS

The problems discussed above are not a complete list of problems in S. 8. The bill

significantly restricts restoration of natural resources injured as a result of hazardous waste contamination. Further, the bill prematurely limits Federal involvement

in the effort to clean up hazardous waste sites by mandating that only a limited

number of sites may be added to the National Priorities List (NPL) over the next

several years. EPA estimates that hundreds of sites currently meet the eligibility

criteria for NPL. Without adequate Federal involvement, these sites would become

the responsibility of State and local governments that may not have the resources

to address them.

The Administration views these and other problems I do not have time or space

to mention here as sufficiently numerous and serious to suggest that S. 8 is probably not an effective vehicle by which to forge consensus regarding Superfund legislative reform in this Congress.

CONCLUSION

The Clinton Administration believes that responsible, consensus based Superfund

legislative reform is necessary to remedy some inherent problems in the existing

statute. However, any such reform must be based upon an understanding of where

the program is today. I have tried in my testimony today to start the process of forging a common understanding of the current Superfund program by describing our

accomplishments under the Administrative Reforms. We need to continue this dialog through a consensus building process in which the full array of stakeholders participate so that we can clear away phantom issues that cloud our ability to share

a common vision of what the Superfund program of the future should look like. We

are prepared to start over, and work together to develop Superfund reform legislation. The Administration is fully committed to participating in such a process and

to seeing that responsible, consensus based Superfund legislative reform is enacted

in the 105th Congress.

Mr. Chairman, thank you for this opportunity to address the Committee. Now

we’ll be happy to answer any questions you or the other Members may have.
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RESPONSES OF CAROL M. BROWNER TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. EPA’s administrative reforms are welcome and recognize a need to improve the current program. However, a number of States and private parties say

that these reforms, while meritorious, have not been implemented consistently, nor

have they achieved the kind of results that your testimony suggests. Are EPA’s administrative reforms being implemented consistently by each region?

Response. One of the main goals of EPA’s administrative reforms is to promote

national consistency in the Superfund program. EPA has achieved significant successes through implementation of the reforms to date. For example, through the National Remedy Review Board, a panel of national experts is ensuring that costs are

given an appropriate role in remedy selection. EPA’s orphan share compensation reform has produced a fundamental and nationally uniform change in the enforcement

process—orphan share compensation is now offered at every eligible site to parties

agreeing to perform cleanups. The General Accounting Office currently is evaluating

development and implementation of the administrative reforms and will soon issue

a report that provides additional information about the reforms’ implementation on

a national basis.

Question 2. Is EPA the lead agency for articulating the Administration’s position

on Superfund.

Response. EPA is the lead agency on behalf of the Administration on Superfund

reauthorization issues. EPA will continue to work together with other Federal agencies as the Administration addresses Superfund reauthorization issues in the 105th

Congress.

Question 3. Ms. Browner, page 1 of your testimony states ‘‘the Administration

does not believe that S. 8 provides the basis for consensus based legislative reform.’’

Are you aware of whether this is a new precondition for negotiations.

Response. The Superfund program has been considerably improved and has produced significant accomplishments over the past 4 years. Therefore, Superfund legislation should reflect the current status of the program. EPA does not believe S. 8

reflects the current status of the program, thus, it does not provide the basis for

consensus based legislative reform.

Question 4. One of your administrative reforms is a remedy review board. I congratulate you on this particular reform. Apparently, in only 12 reviews you have

saved over $15 million dollars. However, the decisions of this board, even if they

are equally effective and less costly, are not binding on the Region. Why is this the

case? Do you support looking at remedies through a remedy review board?

Response. In general, EPA policy and guidance recognizes the need for decisions

tailored to site-specific circumstances. The National Remedy Review Board (the

Board) focuses on achieving cost effectiveness and appropriate consistency with EPA

policy and guidance for high cost remedies prior to the development of a proposed

plan, but it was never intended to supersede Regional decisionmaking authority. Because National Priorities List (NPL) sites are generally large and complex cleanup

projects that require intense study and planning, it is the Regional personnel who

are the most familiar with these sites, their cleanup strategies, and other criteria

that are essential to sound cleanups (e.g., the preferences of the community). EPA

believes that combining the Board’s senior policy expertise with the experience and

site-specific knowledge of the Regions will result in the most effective remedies.

Although the Board’s recommendations are not binding, EPA Regional decisionmakers give them substantial consideration when proceeding with a cleanup decision. We expect that Regions will adopt all Board recommendations that are appropriate to the site-specific circumstances, and are consistent with the interests of the

local community.

EPA is extremely encouraged by the success of the National Remedy Review

Board so far. As you know, focusing our efforts on high-cost, high priority cleanups

has generated estimated future cost savings of between $15 million and $30 million

in fiscal year 1996 alone.

The proposed remedy review boards in S. 8 substantially expand authority beyond

that of EPA’s Remedy Review Board. The involvement of multiple review boards in

reopening remedies, proposing alternative remedies and making recommendations

to the Administrator appears to interfere with EPA’s current policy of delegating decisions to Regional officials and could substantially delay cleanups and undercut

community involvement in the remedy selection process. In addition, EPA does not

support submitting all potential remedies to the Remedy Review Board. EPA specifically designed the National Remedy Review Board to ensure: that it enhances the
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remedy selection process; that it avoid delays in cleanup; and that it avoids the alteration of the public’s role in remedy selection.

Because the Board’s review takes place before a remedy is formally proposed, community members and other stakeholders still retain their ability to participate in

the remedy selection process through their review and comment of the proposed

remedy. Our careful consideration in designing the review process, and the decision

to focus on high-cost, high priority NPL sites, has played a large part in the Board’s

success, and has provided significant estimated fixture cost savings, while minimizing delays in cleanup. This does not mean, however, that the impacts of the Board

are limited to the remedies it reviews.

Question 5. To address the problem of co-disposal site litigation, Senator Chafee

and I thought it made a lot more sense to take the taxes collected from polluting

industries, recognize that these sites are a national problem, and get them cleaned

up. In your testimony you disagree with this proposal stating that major waste management companies’’ (p. 21) would get off the hook.

However, in the proposal you made last year, you were willing to waive liability

from entities that had fewer than 25 employees and less than $2 million in gross

revenue. How is it that you say it is OK to let to let those polluters off the hook,

but kick up such a fuss when we try to deal with these contentious co-disposal sites?

I am particularly curious about this because when Congressman Sherry Boehlert

floated this idea 2 years ago, you said it was a pretty good idea.

Response. I have always been opposed to any site carve-out. I agree that the so

called ‘‘co-disposal sites’’ offer unique problems, and that there are parties that Congress never intended to be caught up in the liability ‘‘net’’ (e.g., pizza parlors, beauty

salons, homeowners, other small parties with purely MSW). However, I oppose a codisposal site carve-out because many contributors of large volumes of hazardous

waste are exempted; Fund dollars that should be spent at orphan sites are used for

providing relief to large viable parties; and defining what is a ‘‘co-disposal’’ site is

difficult. For example, at just the Delaware Sand & Gravel Site (DE) and the Global

Sanitary Landfill Site (NJ), approximately $40 million would be shifted to the Fund

in order to provide companies such as E.I. Dupont, Chevron, BFI, and General Motors with liability relief.

The Administration has always supported providing relief to those parties that

were never intended to be caught up in the Superfund at these co-disposal sites.

We can provide these parties liability relief, eliminate the lawyers and the

‘‘contentiousness’’ of cleanup, without exempting the large industrial and hazardous

waste generators and transporters. The longer we delay the passage of a Superfund

bill, the longer the parties that we both want to help are left with little or no relief

at all.

Question 6. Since May 26, 1995, only 50 sites have been cleaned up and deleted

from the NPL. Is this an acceptable pace for toxic waste cleanup?

Response. Over the past several years, EPA has made it a priority to improve the

Superfund program through a number of initiatives to make it work faster. In 1993,

EPA began to focus on Construction Completions as a more representative measure

of program accomplishments than deletions. At more than 420 sites (roughly onethird of the sites on the National Priority List (NPL)), cleanups have been completed, and an additional 485 have long-term cleanup construction activities underway. EPA plans to accelerate the program, in conjunction with the President’s

Superfund budget proposal, so that we can increase our goal for construction completions in the year 2000 from 650 to 900. That represents roughly two thirds of

the NPL. EPA believes this will represent an appropriate rate of progress for the

program, and is working hard to ensure that cleanups are completed as quickly as

possible. In fact, this is one of the principles we have taken into account in evaluating proposals for legislative changes to the program—the need to avoid disrupting

or slowing cleanups.

Question 7. The issue we keep coming back to when we discuss Superfund is liability. This is the issue that gets lawyers involved and lengthens cleanup and inflates costs. Now we all believe that law breakers should be punished, but, is that

the situation we have here? I’m speaking about those sites which we consider codisposal sites. These are the sites where sometimes hundreds of individuals and

companies paid to have their waste safely disposed of only to face lawsuits when

the firm handling the site under Superfund turns around and sues them. This

doesn’t seem fair. Our bill changes that and lets individuals, small business, and

other generators and transporters that followed the law out of the Superfund web.

What is wrong with that?
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Response. I agree that the so called ‘‘co-disposal sites’’ offer unique problems, and

that there are parties that Congress never intended to be caught up in the liability

‘‘net’’ (e.g., pizza parlors, beauty salons, homeowners, other parties with purely

MSW). However, I oppose a co-disposal site carve-out because many contributors of

large volumes of hazardous waste are exempted; Fund dollars that should be spent

at orphan sites are used for providing relief to large viable parties; and defining

what is a ‘‘co-disposal’’ site is difficult. For example, at just the Delaware Sand &

Gravel Site (DE) and the Global Sanitary Landfill Site (NJ), approximately $40 million would be shifted to the Fund in order to provide companies such as E.I. Dupont,

Chevron, BFI, and General Motors with liability relief.

The Administration has always supported providing relief to those parties that

were never intended to be caught up in the Superfund at these co-disposal sites.

We can provide these parties liability relief, eliminate the lawyers and the

‘‘contentiousness’’ of cleanup, without exempting the large industrial and hazardous

waste generators and transporters. The longer we delay the passage of a Superfund

bill, the longer the parties that we both want to help are left with little or no relief

at all.

RESPONSES BY CAROL M. BROWNER TO ADDITIONAL QUESTIONS FROM

SENATOR THOMAS

Question 1. Is the prompt and effective cleanup of contaminated sites your highest

priority.

Response. Specific hearing questions about the Natural Resources Damage program are better addressed by Mr. Terry Garcia, who testified on behalf of NOAA

and the Department of Commerce, the Department of Interior, and the Department

of Agriculture. The protection of human health and the environment through the

cleanup of hazardous waste sites and the restoration of natural resources is a high

priority for EPA and the Administration.

Question 2. Is it the Administration’s position that making NRD liability more

predictable and adding more certainty to the cleanup process would impede response actions.

Response. Specific questions about the Administration’s NRD position are better

addressed by the Department of Commerce or other Federal Trustee agency. The

Administration’s NRD legislative reform position is based upon the following principles: Restore injured resources to baseline; and restore the losses the public suffers

from their inability to use the resources from the time of injury until restoration

is complete.

Question 3. Does the Administration support any reforms to CERCLA’s NRD provisions?

Response. Specific questions about the Administration’s NRD positions are better

addressed by the Department of Commerce or other Federal Trustee agency. The

Administration supports the reforms contained within the legislative proposal transmitted to the committee in October 1996.

RESPONSES OF CAROL M. BROWNER TO ADDITIONAL QUESTIONS FROM

SENATOR ALLARD

Question 1. In a handout before the subcommittee from EPA, it was noted that

77.6 percent of all Superfund dollars went to cleanup/response. The amount indicated is $1,594.7 billion. Below that number are numerous subcategories, could EPA

please provide us with funding for each subcategory, along with a more detailed description of each category?

Cleanup/Response—$1,594.7

• Brownfields ($80.9)—Funding used to address abandoned, idled, or under-used

industrial and commercial properties where expansion or redevelopment is complicated by real or perceived environmental contamination.

• Feasibility Study ($4.1)—Used to develop and evaluate potential remediation alternatives to clean a hazardous waste site and forms the foundation for the Record

of Decision (ROD) which codifies the remedy that is selected to abate ecological and

human health risks at a site, and addresses site conditions and proposed future land

use.
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• RD (RP/Fund) ($60.0)—Remedial design is a CERCLA design that establishes

the general size, scope, and character of a project, and details and addresses the

technical requirements of the RA selected in the ROD.

• RA (RP/Fund) ($766.5)—Remedial action is performed upon approval of the remedial design and represents the actual construction or other work necessary to implement the remedy selected.

• Early Actions ($300.0)—Incidents where a response is necessary within a matter of hours (e.g., threats of fire or explosion) and time critical removal actions to

protect human health and the environment.

• USACE/BUREC ($5.5)—USACE/BUREC contributes to the direct cleanup at

many sites. These Federal Partners implement most high cost Fund-financed remedial actions, provide on-site technical expertise, and ensure that project management is consistent between Fund and PRP financed projects.

• Lab Analysis ($36.4)—Management of the process by which site samples are

scheduled and analyzed. Includes acceptance of CLP data to ensure consistent and

accurate validation of CLP data packages according to established protocols and

standard operating procedures, and consistent with established data quality objectives.

• Site Assessment ($78.0)—Assessing ecological and human health risks at sites

brought to the Agency’s attention by States, Tribes, Federal agencies, citizens, or

other sources. Assessment information is used to determine the course of response

actions, including removal and remedial actions.

• Response Mgmt ($51.3)—Management of the Superfund program including contract support and NPL listings and evaluation of program implementation activities

to determine effect of program policies.

• State/Tribal ($27.7)—Through cooperative agreements, funding to State/Tribal

governments is used to assess and cleanup hazardous waste sites in their jurisdictions increasing the resources available for direct cleanup.

• Community Involvement ($19.2)—Community relations activities serve to encourage valuable communication with affected citizens and public participation in

the decisionmaking process. Funding helps communities become more involved so

that cleanup decisions make the most sense at the community level. Technical Assistance Grants provide citizens with information and support to be active participants in site decisions that affect their communities.

• Federal Facilities ($16.8)—The Superfund Federal Facilities response program

supports the cleanup of federally owned or managed hazardous waste sites on the

NPL.

• TIO ($5.2)—The Technology Innovation Office contributes to a more cost effective and efficient site assessment and cleanup process by advancing the use of innovative site characterization and remediation technologies.

• CEPPO ($4.1)—The Chemical Emergency Response program supports strong

emergency response preparedness. This provides the necessary emergency response

capability to address the Nation’s worst chemical accidents and hazardous waste releases.

• Salary/Expenses ($136.0)—Salaries/expenses.

• ORD Tech Support ($3.0)—Office of Research and Development Technical Support.

Question 2. Is it true that if a State is not satisfied with a Superfund cleanup

undertaken by the Federal Government that the State could utilize its RCRA authorities subsequently, to go after the same issue?

Response. One of EPA’s highest priorities is to foster a productive relationship

with States, and to minimize duplication of effort between EPA and the States. In

the Superfund program, it is commonplace for EPA and a State to sign a cooperative

agreement which identifies the appropriate lead agency for the NPL sites in the

State. EPA also enters ‘‘memoranda of understanding’’ which give States resources

and technical support in developing voluntary cleanup programs. In addition, in

September, 1996, EPA issued a guidance which specifically sought to minimize duplication between the RCRA and Superfund programs. Although the law does not

explicitly address whether a State may use RCRA authority if it is not satisfied with

EPA’s cleanup under Superfund, EPA believes that cleanups under RCRA corrective

action or CERCLA will substantively satisfy the requirements of both programs.
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RESPONSES OF CAROL M. BROWNER TO ADDITIONAL QUESTIONS FROM

SENATOR LAUTENBERG

Question 1. Oklahoma Sites: Senator Inhofe referred to two sites in Oklahoma

that he said had comparable hazardous waste problems, but different cleanup approaches and durations, depending upon whether these were conducted under State

or Federal auspices. Please provide information on the two sites, including the pace

and cost of cleanup, the nature of the problem at each, etc.

Response. Please refer to the attached letter of March 12, 1997 to Senator Inhofe,

which outlines the differences between the two cleanups.

Question 2. Co-disposal Sites: Please indicate whether EPA has identified the

number of NPL sites which could qualify as ‘‘co-disposal’’ sites under the definition

contained in S. 8 (sites where ‘‘a substantial portion of the total waste disposed of

at the landfill consisted of municipal solid waste or sewage sludge that was transported to the landfill from outside the facility’’). Please indicate the effect on the program if liability were eliminated for these sites. Please identify the types of parties

that might profit from this exemption. What would happen, under S. 8, for example,

at a site like the Lipari Landfill in New Jersey.

Response.

Number of ‘‘co-disposal’’ sites

It is uncertain how many sites would be considered ‘‘co-disposal’’ sites as defined

by S. 8 for a number of reasons:

S. 8 defines co-disposal sites to be those where a ‘‘substantial’’ portion of the waste

at the site was MSS or MSW. S. 8 does not define what ‘‘substantial’’ means. This

creates a great deal of uncertainty in determining how many sites would be considered to have a ‘‘substantial’’ amount of MSW or MSS. There could be a large incentive to litigate the issue of how much waste is ‘‘substantial’’ and to define it as liberally as possible. For example, if there is a determination that a site has a ‘‘substantial’’ amount of MSW or MSS, then all generators and transporters (including

the industrial, hazardous waste generators/transporters) at the site will be exempt.

However, if at the same site, there is a determination that there is not a substantial

portion of MSW or MSS, then only the MSW or MSS generators and transporters

are exempt. Obviously, large industrial and hazardous waste generators and transporters will have an incentive to litigate this issue and to make sure that a ‘‘co-disposal’’ site has a ‘‘substantial’’ amount of MSW or MSS.

Additionally, S. 8 expands the definition of MSW to include appliances such as refrigerators, washers, dryers, etc. The expanded definition of MSW could increase the

sites ‘‘carved out’’ by S. 8.

Effect on program

The ‘‘co-disposal’’ site provisions in S. 8 are a de facto site carve-out. Thus, approximately 1⁄4 of the work currently performed by PRPs (or more depending on the

issues raised above) would shift to the Fund. The money that could have been spent

on addressing sites that were truly orphan (e.g., no available, viable owners and operators) would be spent on providing a windfall to large commercial generators and

transporters of hazardous and industrial waste.

Types of parties likely to profit

Some of the responsible parties that might benefit from the liability provisions in

S. 8 include all generators of materials which happened to be disposed of at a site

where MSW was also taken. These parties include: Waste Management, BP America, E.I. DuPont, Chrysler, General Motors, Chevron, Hercules, Zenica Inc. (formerly

known as ICI America), Occidental Chemical Corp, and Browning-Ferris Industries

(BFI). These represent parties that benefited directly by transporting waste, or parties that were large industrial producers of waste, that benefited from cheap disposal.

Examples:

At the Global Sanitary Landfill site, the elimination of generator and transporter

liability under S. 8 would shift an estimated $30 million in future cleanup costs to

the orphan share of the Superfund Trust Fund. Major generators and transporters

at the site include Browning-Ferris Industries (BFI), DuPont, and Chevron. Eightysix thousand citizens live within three miles of this site. Contaminants from the site

have reached the aquifer directly beneath the landfill and have impacted nearby

wetlands and marsh. The Global Sanitary Landfill site qualifies for the exemption

because several municipalities contributed municipal solid waste to this privately

owned and operated landfill. Although as much as 75 percent of the waste is munici-
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pal solid waste, this waste is not contributing significantly to either the contamination or cost of the cleanup. The commercial and industrial waste generated and

transported by many small and large private companies is the chief cause of the

dangers posed by the site.

Question 3. De minimis Exemption: Does EPA support an exemption for de minimis parties? Are there other sites like the Bypass 601 site, where the majority of

parties contributed 1 percent or less by volume, and therefore, would be exempt

under S. 8?

Response. EPA does not support an exemption for de minimis parties. However,

EPA holds strongly to the belief that many of these parties should be given the opportunity to settle their responsibility early in the cleanup process, enabling these

parties and others to reduce their transaction costs. Any formal absolutely categorize de minimis parties should provide for a site-specific determination to be

made, if appropriate. For certain sites, 1 percent of the volume (as defined by S. 8)

could be a very large volume in absolute terms.

For example, at the Tonolli Site in Pennsylvania, 1 percent is over 1 million gallons of waste from a single responsible party. At this site, an exemption for contributors of 1 percent or less would exempt a total of almost 40 million gallons of waste.

This volume is much larger than the total volume of waste disposed of at some

Superfund sites. Finally, if the cutoff for the exemption is so high that it exempts

an inordinate numbers of responsible parties, too few responsible parties will remain liable, and the cleanup of the site will be shifted to the Fund. At the Operating

Industries site in California, with a cutoff of 1 percent of the total industrial waste

(waste containing hazardous substances), only three generator parties, of the approximately 4,000 responsible parties would remain responsible for cleanup of the

enormous contamination at the site. These three parties are responsible for only 14

percent of the industrial waste at the site.

Question 4. Non-Municipal Owners of Co-Disposal Sites: S. 8 limits the liability

of non-municipal owners/operators of co-disposal NPL sites. Please indicate whether

any major national waste companies would benefit from this limitation. Please describe the effect of this limitation on the Superfund program.

Response. Under S. 8, the aggregate liability of private parties who own or operate a ‘‘co-disposal’’ facility is limited to 30 percent of the costs at the site. This provision severely reduces the liability of many large, viable responsible parties. Many

of these companies acquired contaminated sites with full knowledge of the contamination. Further, because these companies are in the business of MSW and hazardous waste management, they are often in the best position to prevent the problems

associated with contamination. Further, these same businesses are often the most

culpable parties at these sites. The public policy justification for elimination of this

category of liability is unclear.

Question 5. Illegality: S. 8 excludes from its liability exemptions and limitations

persons who violated RCRA or other requirements relating to disposal of MSW or

MSS. Do you think the exclusion will leave liability intact in most instances?

Response. The exception to which you refer is extremely narrow and will have little impact in retaining liability as to those parties who have acted irresponsibly—

the ‘‘bad actors.’’ S. 8 provides that the exemptions and limitations established in

S. 8 would not apply to any person whose act, omission, or status that is determined

by a court or administrative body, within the applicable statute of limitation, to

have been a violation of any Federal or State law pertaining to the treatment; storage, disposal or handling of hazardous substances, if the violation pertains to the

substance or release that caused the response costs to be incurred. The effect of this

provision is to divide the world of violators into two groups, those who got caught

and those who benefit from the ‘‘rewards’’ of exemption or repayment.

This provision requires successful court or administrative action to have been

taken at the time of the activity (within the statute of limitations of the law applicable at the time of disposal), and does not apply to actions which were pursued under

common law (i.e., nuisance) or local law or regulation. Since many of these actions

took place (1) before there were Federal laws in place, and (2) when there were very

few State laws in place that directly pertained to the treatment, storage, disposal

or handling of hazardous substances, this provision would be inapplicable in most

cases. Further, since Superfund addresses the results of acts that frequently occurred many decades before cleanup, proof of illegal or culpable behavior may be

impossible at most sites. Also for this reason, documentary evidence typically is

scarce or non-existent and witnesses are unavailable or have incomplete memories.

Further, since activity at Superfund sites occurred many years ago, it may not be
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clear today what behavior was permitted and what was prohibited by a given law,

including State law, even if a prosecution was successful.

Question 6. RACs: Please identify the number of times that EPA has indemnified

Response Action Contractors (‘‘RACs’’), and the cost to EPA of providing such indemnification. In your experience, have RACs been sued so often that pre-emption of

State negligence laws is warranted?

Response. Prior to the publishing of the Final Indemnification Guidelines in 1993,

EPA routinely offered indemnification to its RAC contractors. Sixty-eight contracts

contained indemnification provisions and approximately 100 subcontractors were

provided indemnification. A small subset of these contractors were authorized to

purchase insurance to offset the Governments liability. The cost of providing indemnification was thus the dollars expended on insurance premiums in addition to the

cost of defending RAC claims (note that the original indemnification was unlimited

in scope until renegotiated following the publication of the Final Guidelines. Fifty

five of the 68 contracts have been renegotiated to insert indemnification limits).

Since offering indemnification, EPA has been presented with 11 claims for indemnification coverage. Approximately 1.2 million dollars have been paid out for these

claims, primarily to pay for defense costs. No judgments have been made against

a RAC under 119 provisions; half of the claims were dismissed in court, 2 are still

in process.

Since 1993 EPA has only offered limited indemnification 4 times. Indemnification

was offered where there was inadequate competition and indemnification was cited

as a reason for the lack of competition. All other RAC procurements have not included indemnification, although some firms have purchased insurance (as a reimbursable expense) to cover their pollution release liability.

This Administration has consistently opposed preemption of State response action

contractor laws. EPA has not seen any information about litigation against RACs

that would suggest a change in the Administration’s position.

Question 7. Recycling: Please describe the effect on the program generally if liability were eliminated for generators and transporters who ‘‘recycled’’ their waste.

Please describe how S. 8 expands the exemption from that seen in previous [Senate]

legislative proposals, and the effect of such expansion. Is it correct to state that

former ‘‘recycling sites’’ pose some of the worst environmental problems? Please provide examples.

Response. S. 8 is different than previous recycling provisions in that it expands

the definition of ‘‘scrap metal’’ to include mining waste. S. 8’s definition of scrap

metal includes mining tailings, slags, skimmings, and drosses—materials that are

products of the mining process. EPA has never supported including this language

in the definition of scrap metal.

The other provisions in S. 8 are similar to the recycling provisions proposed by

the Senate in S. 1834 and in S. 607. At a site that met the criteria established in

S. 8, the generators and transporters would be exempt, thus shifting their share of

the liability to the Fund. The parties that would benefit from this provision is not

limited to small business and individuals, but also large industrial and fortune 500

companies, entities that clearly have the financial resources to pay for their fair

share.

Since the generators and transporters would be exempt, the owners and operators

would have to perform the cleanup at the site. For those sites without viable owners

and operators, the cost of cleanup for the entire site would be shifted to the Fund.

Since many of the recycling sites owned or operated by small business with limited

resources, the recycling site provisions in S. 8 may have the effect of creating another de facto site carve-out.

Question 8. Small business: Please describe the potential impact on the program

of S. 8’s ‘‘small business’’ exemption. Please explain whether persons such as those

responsible for the methyl parathion problem in Mississippi, and now, Louisiana,

might not avail themselves of the exemption.

Response. S. 8 would exempt ‘‘small business’’ which is defined as those businesses with fewer than 30 employees or less than $3M in annual gross revenues.

The ‘‘or’’ provision results in an exemption for all businesses that have 30 employees, regardless of its revenues, and an exemption for all businesses with revenues

of $3 million or less, regardless of the number of employees. In addition, the exemption would apply even in those situations where the small business is the owner/

operator of the site, has impeded cleanup, has not complied with CERCLA § 104(e)

or other applicable laws, or has been uncooperative in allowing EPA to address the

contamination. Finally, the exemption would apply even where hazardous substances generated or transported by the business have contributed significantly to
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the costs of the response or to natural resource damages. Thus, S. 8’s ‘‘small business’’ exemption is overbroad and would result in many parties being relieved of liability inappropriately.

The Administration previously has supported a narrower ‘‘small business’’ exemption. The Administration proposal would have exempted those small business generators or transporters who have annual gross revenues less than $2 million, have

25 or fewer employees, have not impeded cleanup, and are not affiliated with any

other liable party. Furthermore, the exemption would not apply if the small business had not complied with requests under CERCLA § 104(e) or if the hazardous

substances generated or transported by the business contributed significantly to the

costs of the response or to natural resource damages.

EPA does not have information indicating whether persons involved with the

methyl parathion problem in Mississippi and Louisiana would meet the definition

of a ‘‘small business’’ under S. 8.

Question 9. NFIB: Please describe the nature and volume of waste disposed by

Barbara Williams at the Keystone Sanitation Company, Inc. Superfund site; and

steps taken by the United States to get Barbara Williams, and parties like her, out

of the litigation regarding that site. Please describe whether instances of multiparty and multi-tier litigation, such as that occurring at Keystone, are the norm.

Please provide examples of instances where EPA has successfully deterred the type

of joinder that has occurred at Keystone. Please describe whether S. 8’s, or last

year’s democratic alternative, would have relieved Mrs. Williams from litigation like

that at Keystone if her small business contributed waste consisting of materials

other than MSW. Please explain whether relief for small contributors, or MSW parties, is in your view a rejection of the ‘‘polluter pays’’ principle?

Response.

Keystone—Barbara Williams

Ms. Williams is a fourth-party defendant, involved in this litigation because other

companies have brought her into this lawsuit seeking contribution. The United

States did not pursue Ms. Williams for its costs, or for cleanup. However, other companies have joined her in this litigation in Federal district court (U.S. V. Keystone

Sanitation Company et al., Case No. 1: CV–93–1482 (M.D. Pa.), Chief Judge Sylvia

H. Rambo). The United States sued 11 parties (three site owners and eight companies who disposed of industrial waste at the landfill) to recover the costs of cleanup.

The United States is also using its enforcement authorities against the same 11 parties to clean up the site.

EPA has made and continues to make significant progress in this case to eliminate small parties from the litigation, and implement one of the key administrative

reforms. EPA has prepared a settlement with 167 de micromis parties in which these parties will resolve their liability for only $1.00. The settlement is currently

pending entry by the court.

In November 1994, the court entered an expedited de minimis settlement between

the United States and 8 parties, each of whom certified that they brought no more

than 6,500 cubic yards of waste to the site. In the spring of 1995, prior to Ms. Williams’ joinder, EPA initiated a second de minimis settlement for third-party defendants (using the same volumetric cutoff of 6,500 cubic yards).

In September, 1995, the approximately 170 third-party defendants sued approximately 590 fourth-party defendants, including Ms. Williams. Ms. Williams certified

that her restaurant sent at most 4,346 cubic yards of waste to the site consisting

of food and paper refuse; other responsible parties allege that she sent over 11,000

cubic yards. Mrs. Williams was not a candidate for a de micromis settlement for

$1.00 because she certified that she sent more than 1,800 cubic yards of waste to

the site. However, the United States is continuing to explore a settlement with the

remaining non-de micromis third-and fourth-party defendants. Recently, liaison

counsel provided information requested by EPA that allowed the Agency to consider

a settlement offer to resolve the involvement of third-and fourth party defendants

at the site. EPA is soon to respond to the offer.

EPA’s Protection of Small Volume Waste Contributors from Litigation

EPA has used its settlement authority to protect more than 14,000 small volume

contributors. EPA established a policy to provide these de micromis parties (parties

that have contributed 110 gallons or 200 pounds of materials containing hazardous

substances) with contribution protection through settlements with the United States

for the amount of $1.00 (EPA has revised this policy to now settle with these parties

for $0 dollars). Further, to reduce the litigation against small volume waste contributors that contributed somewhat greater amounts of waste to the site, and therefore

do not qualify for de micromis status, EPA has established guidance to provide de
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minimis settlements (the Agency established a presumption that a de minimis party

is one that has contributed less than 1 percent of materials containing hazardous

substances to the site, a presumption that can be deviated from depending uponsite

specific circumstances). For a dollar amount based on the volume of waste the party

contributed to the site, parties are offered an opportunity to settle their liability

early in the cleanup process, thereby receiving contribution protection and avoiding

the transaction costs associated with litigation brought by other responsible parties.

Countless parties fall within the de micromis category. EPA only offers a de

micromis settlement to parties whom are actually being sued, face the concrete

threat of suit or have requested a settlement because they expect to be sued and

EPA has determined that such an expectation is reasonable. EPA established this

policy primarily to deter parties from suing de micromis parties. As to EPA’s de

minimis settlement policy, as of January 1997, EPA has completed settlements with

over 14,000 parties.

Legislative Approaches to Relieving Small Volume Waste Contributors and Small

Businesses of Liability Where the Party Has Sent Waste Other than MSW

EPA cannot assess whether Mrs. Williams’ business would qualify for special

treatment that would be accorded small businesses under the Administration’s past

liability proposals or under S. 8 because we do not have information regarding the

number of the business’s employees or the annual gross revenues. However, the Administration believes that parties who contributed very small amounts of waste

should not be caught up in Superfund liability. In the past, the Administration has

supported three approaches to reducing the number of small volume contributors

and small businesses caught up in Superfund. The Administration has supported an

exemption for parties that sent less than 110 gallons or 200 pounds of materials

containing hazardous substances. S. 8 expands the definition of de micromis to parties that have contributed up to 1 percent of the waste at a site. The Administration

opposes such an expansion because it would inappropriately relieve contributors of

substantial amounts of hazardous materials from liability.

A second approach, presently EPA policy, is to settle with de minimis parties that

have contributed less than 1 percent of materials containing hazardous substances.

This is distinguishable from S. 8, in that parties settling under the policy are paying

their share of responsibility for a site, but are also resolving their liability and any

litigation. EPA seeks early settlement with these parties because such settlements

reduce transaction costs for both the de minimis party and other parties. Finally,

during negotiations in the last Congress, the Administration proposed exempting

some small businesses, those with less than $2 million in gross revenues and no

more than 25 employees. The Administration is still open to considering various

methods of relieving the burden on small businesses.

Relief for Small Volume Contributors or MSW Contributors is not a Rejection of the

‘‘Polluter Pays’’ Principle

We continue to believe that when Congress enacted CERCLA and SARA, it never

intended to hold ‘‘homeowners and pizza parlors’’ responsible for disposing of household, or similar wastes. We believe that to do so is patently unfair; and while EPA’s

policies seek to protect these parties, a ‘‘bright line’’ is necessary to provide protection from third-parties seeking reimbursement through litigation or other means.

Further, it is unfair for responsible parties to incur litigation costs that would exceed their share of responsibility. As we have indicated, because de minimis parties

settle for their share of responsibility at a site, the treatment of these parties is consistent with the ‘‘polluter pays’’ principle. Finally, the proposals supported by the

Administration provide that where the materials contributed by the party contributed significantly or could contribute significantly to the costs of response or to natural resource damages, or the party has not complied with all CERCLA section 104

information requests, the party would not be eligible for the liability protection.

Question 10. Groundwater Remedies: You mentioned in your oral testimony that

‘‘the NRC’’ had recently reported that groundwater plumes may indeed be cleaned

up. Please provide a copy of this report. Please explain whether S. 8’s rules for selecting groundwater remedies take into account findings such as these.

Response. The National Resource Council (NRC) report referenced during the testimony was taken from a book entitled ‘‘Alternatives for Groundwater Cleanups,’’

which was jointly written by the Committee on Groundwater Cleanup Alternatives,

the Water Science and Technology Board, the Board on Radioactive Waste Management, and the Commission on Geosciences, Environment, and Resources. It was

published in 1994, by the National Academy Press.

The text makes several references to groundwater remediation (pertinent text attached), generally finding that ‘‘cleaning up large portions of these [groundwater]
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sites is possible, even if limited areas remain contaminated.’’ The text supports

EPA’s efforts to treat groundwater as an important environmental resource, and

shows that efforts to provide treatment of contaminated groundwater are generating

benefits.

Assuring the availability of clean groundwater is a very high EPA priority, as

groundwater constitutes 86 percent of the fresh water in the United States. Additionally, over 50 percent of the United States population gets its drinking water

from groundwater; in rural areas, 95 percent of households depend on groundwater.

Thirty-four of the 100 largest cities in the United States rely completely or partially

on groundwater for their drinking water supplies.

Despite these facts, S. 8 would replace the goal under the current program to restore contaminated groundwater to beneficial uses, wherever practicable, with the

very different mandate to ‘‘prevent or eliminate any actual human ingestion of contaminated drinking water.’’ This goal could be met through treatment at the tap or

simply by preventing the use of the water. Though S. 8 does provide for protection

of uncontaminated groundwater, it relies too heavily on natural attenuation to provide this protection.

Even if actual cleanup of contamination in the groundwater were proposed as a

cleanup alternative, S. 8 sets up a burdensome three part test which must be passed

to justify its selection. The bill would require: (1) an affirmative finding that restoration was technically practicable; (2) a justification that demonstrates that active

cleanup can ‘‘substantially accelerate the availability of groundwater for use as

drinking water beyond the rate achievable by natural attenuation’’; and, in the final

analysis; (3) consideration of active cleanup ‘‘on an equal basis’’ with institutional

and engineering controls.

The current provisions of S. 8 make no acknowledgment of the successes EPA has

achieved in its efforts to clean up contaminated groundwater, and the benefits such

treatment provides. This is a clear difference in premise from the text identified

during the testimony, which shows that groundwater remediation is not only possible in many instances, but beneficial.

Question 11. Remedy Selection: In your testimony, you referred to a ‘‘63 percent’’

figure regarding consideration of land use. Could you please clarify this reference

and explain its significance?

Response. The 63 percent figure refers to the frequency at which EPA selected a

land use ‘‘other than residential’’ in its Records of Decision (RODs) for FY95. It

should also be noted, however, that multiple uses can be, and in fact are, assumed

in the same ROD, if the future land use is uncertain. Based on EPA’s review of

these RODs, it is evident that EPA assumed a residential land use in only 37 percent of FY95 RODs typically where there was residential use onsite or adjacent to

the site. This is a very important response to those who claim that EPA defaults

to clean ups for residential use in all cases, or are unaware of the current practices

pertaining to remedy selection.

Based on an internal analysis of EPA’s fiscal year 1995 RODs, containing a potential site universe of 231 sites, 127 involving soil cleanup, the reasonably anticipated

land use assumed in those decisions (i.e., 127 sites) were as follows (because of multiple uses as some sites, the total exceeds 100 percent):

• 37 percent (48 sites) assumed residential use.

• 61 percent (78 sites) assumed industrial/commercial use.

• 10 percent (13 sites) assumed recreational use.

• 9 percent (11 sites) assumed use as landfills/waste management units.

• 7 percent (9 sites) assumed the site would remain a military installation.

• 5 percent (7 sites) assumed agricultural use.

• 3 percent (4 sites) were remediated because of ecological concerns.

Question 12. Administrative Reforms: Senator Baucus inquired about the number

of sites where EPA has ‘‘updated’’ RODs. Please provide information about the number of instances, criteria, and results, where ROD’s were ‘‘updated.’’

Response.

Number of Instances

As part of implementing the Update Remedy Decisions Reform (Third Round of

Superfund Reforms, October 1995), EPA has been tracking the remedy updates

made, and their associated cost savings throughout FY96 and in the first quarter

of FY97. In FY96, remedies with cost savings were updated at 30 sites, while in

the first quarter of FY97, remedies with cost savings were updated at 9 sites.
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Criteria

Modifications to the record of recision (ROD) must still comply with policies regarding remedy selection, treatment of principal threats, preference for permanence,

establishment of cleanup levels, applicable or relevant and appropriate requirements (ARARs) waivers, or the degree to which remedies must protect human

health and the environment. The goal of the 18 reform is to promote the use of the

best science and most appropriate technologies at Superfund sites while limiting the

impacts to the pace of cleanups, not to reopen RODs solely on the basis of cost savings.

Results

For FY96, 30 sites resulted in a total estimated future cost reduction of over $280

million. Of this $280 million, approximately $250 million resulted from remedy updates of the kind identified in EPA’s reform guidance (dated September 27, 1996).

Approximately 63 percent (19 of 30) of the changes were Explanation of Significant

Differences (ESDs) while approximately 33 percent (10 of 30) of the changes were

ROD Amendments. Some 50 percent of the changes were EPA-initiated while the

remaining 50 percent were initiated by other parties (e.g., PRP, State, etc.). Approximately 63 percent (19 of 30) of the changes related to the soil media alone,

while only 20 percent (6 of 30) of the changes related to the groundwater media

alone.

For the first quarter of FY97, 9 sites resulted in a total estimated future cost reduction of over $28 million. Over 66 percent (6 of 9) of the changes were ESDs,

while approximately 22 percent (2 of 9) of the changes were ROD Amendments.

About 56 percent (5 of 9) of the changes were EPA-initiated, while the remaining

44 percent (4 of 9) were initiated by other parties. Approximately 67 percent (6 of

9) of the changes related to the groundwater media alone, while only about 22 percent (2 of 9) of the changes related to the soil media alone.
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PREPARED STATEMENT OF RICHARD GIMELLO, ASSISTANT COMMISSIONER FOR SITE

REMEDIATION, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

INTRODUCTION

Good morning Mr. Chairman. I am Richard Gimello and I am Assistant Commissioner for Site Remediation for the New Jersey Department of Environmental Protection. This testimony is presented on behalf of the National Governors’ Association

(NGA). NGA has a strong interest in Superfund reform and believes that a variety

of administrative as well as legislative and regulatory changes are needed to improve the Superfund program’s ability to clean up the nation’s worst hazardous

waste sites quickly and efficiently. We realize the importance of passing legislation

this year, and we want to ensure that the collective interests of the states are considered carefully in the development of a final bill. We recognize that Superfund reform is particularly critical this year because the taxing authority has lapsed. Funding is essential to the continuation of site cleanups, the ultimate objective of the

Superfund program.

The Governors appreciate the opportunity to review and comment on S. 8. I would

like to begin by stating that NGA is very appreciative of the many improvements

made in this bill over last year’s bill, S. 1285. The Governors acknowledge the vast

compromises that this bill reflects and commend the committee for introducing legislation that addresses many state concerns with the Superfund program. We would

like to continue working cooperatively with you to develop a final bill that enjoys

bipartisan support. We truly believe that this type of support requires the types of

moderate compromises that you’ve made in S. 8. Today, I would like to address

NGA’s overall assessment of the bill and suggest a few areas where improvements

could be made.

BROWNFIELDS REVITALIZATION AND VOLUNTARY CLEANUP PROGRAMS

The Governors believe that brownfields revitalization is critical to the successful

redevelopment of many contaminated former industrial properties, and we commend

the committee for including brownfields language in the bill.

The Governors would like to emphasize the importance of state voluntary cleanup

programs in contributing to the nation’s hazardous waste cleanup goals. Many

states have developed highly successful voluntary cleanup programs that have enabled sites to be remediated more quickly and with minimal governmental involvement. It is important that any legislation supports and encourages these successful

programs by providing clear incentives and by ensuring that any minimum program

criteria set by the Environmental Protection Agency (EPA) are extremely flexible.

It is the view of NGA that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of federal CERCLA liability. We

strongly support the provisions in S. 8 that encourage potentially responsible parties

and prospective purchasers to voluntarily clean up sites and reuse and redevelop

contaminated property, respectively. S. 8 achieves this goal by precluding subsequent federal enforcement at sites where cleanup has occurred under state programs and by providing needed liability protections for prospective purchasers and

owners of property contiguous to contaminated sites. However, in the event EPA

discovers an imminent and substantial threat to human health and the environment

at a site, it should be able to continue using its emergency removal authority. Any

assignment of liability, however, must be consistent with liability assigned under

state cleanup laws.

STATE ROLE

The impacts of hazardous waste sites are felt primarily at the state and local levels. The Governors are very supportive of the efforts that Senators John H. Chafee

and Robert C. Smith have made to strengthen the role of states in this program.

We appreciate the inclusion of options for both noncomprehensive and comprehensive delegation in the bill and feel that this allows for maximum flexibility to meet

state needs and objectives. We especially support allowing states to operate their

programs in lieu of the federal program. States need to be able to apply state applicable standards at any site without any cost differential.

We cannot support allowing EPA to withdraw delegation on a site-by-site basis.

Withdrawal of delegation should be consistent with the approval or rejection of a

state’s application for delegation. In addition, EPA should periodically review state

performance instead of involving itself in site-by-site oversight.

The Governors strongly support a 10 percent state cost share for both remedial

actions and operations and maintenance and appreciate the inclusion of this provision in S. 8. However, we do not support any change that would require a state cost
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share for removal actions. States are not currently required to cost-share removals,

and we would like to ensure that this remains the case.

In addition, the Governors would like to express concern about the provision for

states to petition the Office of Management and Budget (OMB) as a mechanism to

deal with any cost shifts resulting from changes in liability. States must have assurance that adequate funding is available and that cost shifts will not be an issue.

SELECTION OF REMEDIAL ACTIONS

The Governors believe that changes in remedy selection should result in more

cost-effective cleanups; a simpler, streamlined process for selecting remedies; and a

more results-oriented approach.

As you know, allowing state applicable standards to apply at both National Priorities List (NPL) and state sites is an area of great importance to the Governors. We

greatly appreciate and strongly support measures to allow state applicable standards and promulgated relevant and appropriate requirements (RARs) to apply to all

site cleanups.

The Governors agree with the importance of considering different types of land

uses when determining cleanup standards and appreciate the inclusion of provisions

in S. 8 that provide the opportunity for state and local control in making determinations of foreseeable land uses. We would like to ensure that, when appropriate, feasible, and cost-effective, the cleanup standards chosen allow for unrestricted use of

the site. In addition, we would like to ensure that land-use decisions are not secondguessed by EPA.

The Governors believe groundwater is a critical resource that must be protected.

The use of state applicable standards and the opportunity for state and local authorities to determine which groundwater is actually suitable for drinking are essential during the remedy selection process. We appreciate the addition of language in

S. 8 offering greater protection for groundwater and surface water that is or could

be used as a drinking water source and would like to recognize this provision of the

bill as an area of significant improvement over last year’s bill.

The Governors recognize that there are some records of decision (RODs) that

should be reopened because of cost considerations or technical impracticability.

However, we believe the Governor should have the final decision on whether to approve a petition to reopen a ROD in a state. As we understand the bill, a Governor’s

decision to reject a petition can be denied by EPA’s remedy review board. This is

a provision we cannot support.

Finally, as we understand Section 134(c)(1), EPA could release a responsible party

from any and all future liability, including state and local laws, if a site is cleaned

up and deemed available for unrestricted use. This represents a clear preemption

of state law that we cannot support.

LIABILITY

The liability scheme employed in any hazardous waste cleanup program is critical

to the success of that program. The current CERCLA liability scheme serves some

purposes well. It has proved effective at encouraging better waste management, and

it has provided resources for site cleanups. However, the current system has a history of leading to expensive litigation and transaction costs. Therefore, the Governors are not averse to changes in liability, though we are concerned with the resulting effects on the states.

In general, we support the elimination of de minimis and de micromis parties and

believe the liability of municipalities needs to be addressed. However, we question

broader releases of liability for other categories of responsible parties. In any case,

we would like to see convincing analysis that any changes in the liability scheme

are adequately funded so that sites can continue to be cleaned up and so that there

will be no cost shifts to the states.

Further, we support the concept of an allocation process so that costs are assigned

appropriately to responsible parties, but we need assurance that funding will be

available for this process, including support for state allocation programs.

Finally, as I mentioned earlier, we fully support a release of federal liability at

non-NPL sites where a release of liability has been granted under state cleanup

laws protective of human health and the environment. We greatly appreciate the

addition of language in S. 8 that addresses this issue.

FEDERAL FACILITIES

The Governors support legislation that ensures a strong state role in the oversight

of federal facility cleanups. The double standard of separate rules applying to private citizens and the federal government has a detrimental effect on public con-
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fidence in government at all levels. Therefore, the Governors believe that federal facilities should be held to the same process and same standard of compliance as private parties. We would like to make sure that this is the intent of language in the

bill that we have interpreted as allowing state applicable standards to be applied

at federal facility sites in the same manner that they apply at non-federal facility

sites.

In addition, we believe that states should be able to obtain comprehensive delegation for federal facilities and that the self-certification process should be the same

as for private sites. We believe this is not the case in S. 8 as written. Our interpretation is that federal facilities may be delegated to states, but that they must use

the federal remedy selection process. We do not understand the justification behind

this language.

In addition, in virtually every other environmental statute, Congress has waived

sovereign immunity and allowed qualified states to enforce state environmental

laws at federal facilities. A clearer, more comprehensive sovereign immunity waiver

should be proposed that includes formerly used defense sites. Several states have

proposed language for this waiver.

NATURAL RESOURCE DAMAGES

The current natural resource damage provisions of CERCLA allow federal, state,

and tribal natural resource trustees to require the restoration of natural resources

injured, lost, or destroyed as a result of a release of a hazardous substance into the

environment. The Governors feel this is an important program that must be maintained.

Although this title is greatly improved from last year’s bill, there are still a few

issues of concern to the Governors. We urge you to strengthen the program by

amending the statute of limitations to run three years from the completion of a

damage assessment; removing the prohibition on funding natural resource damage

assessments from the trust fund; and not eliminating the ability to receive compensation for nonuse damages.

MISCELLANEOUS

The Governors would like to respond to the provision in this title that limits new

listings on the NPL to a specific number each year. Although this approach differs

slightly from last year’s provision to cap the NPL, we still feel that it greatly jeopardizes the intent of the Superfund program—namely, to clean up contaminated

sites and protect human health and the environment. Further, by requiring the

Governor’s concurrence on any new listings, a sufficient and appropriate limitation

is placed on new listings. We do not feel that further limitations are necessary. Because of differences in capacities among states, the complexities and costs of some

cleanups, the availability of responsible parties, enforcement considerations, and

other factors, the Governors are concerned about severe limitations on new listings.

We need assurance that there will be a continuing federal commitment to clean up

sites under such circumstances.

CONCLUSION

The National Governors’ Association would like to thank you for your hard work

on this important program and for providing me with the opportunity to communicate the views of the Governors on Superfund reform. Again, the Governors are

very supportive of the direction you have taken with this legislation, and we look

forward to working with you to develop a bill that enjoys broad bipartisan support.

TESTIMONY OF KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL DEFENSE FUND

I. INTRODUCTION

On behalf of the Environmental Defense Fund and its 300,000 members, I want

to thank Chairman Smith, Ranking Member Lautenberg, and the other members

of the Committee for this opportunity to discuss S. 8, the ‘‘Superfund Cleanup Acceleration Act of 1997,’’ amending Superfund. EDF has been actively involved in the

Superfund reauthorization process, serving on EPA’s NACEPT Committee on Superfund and on the National Commission on Superfund, and testifying repeatedly on

Superfund during the last two Congresses.

While EDF supports an improved Superfund program, we believe that S. 8 would

weaken rather than strengthen the program. In many instances, the bill’s ‘‘cures’’

are far worse than the problems they purport to address. S. 8 fails to acknowledge
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1There are certain elements of the bill we do support. These include dropping the existing

requirement for matching contributions and allowing up-front payments for Technical Assistance Grants. [SCAA § 301(a), adding CERCLA § 117(f)(3)(A) & (B), p. 70]. 2This testimony is by no means exhaustive. For example, EDF also has serious concerns

about the Natural Resources Damages provisions in Title VII of S. 8; the structure of the allocation process and the number of sites at which it is mandated; the level of spending authorized

by the bill, which is too low to permit the program to meet the additional burdens the bill imposes on it (e.g., orphan shares, allocations, etc.); and the 20% reduction that the bill imposes

on the budget of ATSDR, which is charged with assessing public health at Superfund sites.

that the Superfund program today is faster and more streamlined than was the case

in earlier years. According to EPA, cleanups have been completed (except for ongoing groundwater treatment) at some 400 sites; at nearly another 500, construction

is now underway. While many of these cleanups were too long in coming, S. 8 would

either retard the pace of cleanups, or make them faster by cutting out essential

safeguards.

The bill’s most objectionable features include provisions:

• putting polluters in charge of cleanups without effective government or public

oversight, both at Superfund sites and at so-called ‘‘voluntary’’ cleanups sites

(which may themselves be Superfund sites);

• letting costs to polluters trump community health and resource protection in

choosing remedies;

• dumping cleanup problems on States, regardless of whether they can handle

them;

• further retarding cleanups by reopening hundreds of existing decisions; and

• creating new kinds of corporate welfare by rolling back liability even for many

large industrial polluters who dumped waste at certain sites, and by requiring

expansive ‘‘polluter paybacks.’’

Accordingly, EDF strongly opposes S. 8.1 Some of our key concerns are detailed

below.2

II. S. 8’S REMEDY SELECTION PROVISIONS: A RECIPE FOR CRUMMY CLEANUPS

Among the most critical features of any Superfund bill are the provisions governing what standards actually apply to cleanups, and how specific cleanup decisions

are made. S. 8 comes nowhere close to being acceptable on this count. Procedurally,

it largely puts polluters in control; substantively, it sets inadequate cleanup standards that are further weakened by a variety of loopholes. Each flaw aggravates the

other.

A. Putting Polluters in Control of Cleanups.

One of the most startling aspects of the bill is its sweeping use of default provisions, including those for default approval of polluter-written cleanup plans. Parties

who are potentially liable under the statute (Potentially Responsible Parties, or

PRPs) may prepare the Remedial Action Plan (RAP) if they want to do so; if EPA

fails to take action within 180 days of the RAP’s submission, ‘‘the plan shall be considered to be approved and its implementation fully authorized’’ [SCAA § 404, adding CERCLA § 133(b)(5)(F)(ii), p. 121].

Because EPA will have extremely limited resources to review these highly technical RAPs, PRP-written RAPs will be implemented without receiving adequate

oversight. PRPs naturally have an incentive to save themselves money; this bill creates no countervailing mechanism through which remedies will be selected that actually protect communities, not just polluters’ pocketbooks. Such cleanups will lack

public credibility, and deservedly so. To make matters worse, EPA is only allowed

to review ‘‘the work plan, facility evaluation, proposed remedial action plan, and

final remedial design’’ [§ 133(a)(1)(C), p. 107]. These limitations could preclude EPA

from reviewing important underlying data, rendering effective oversight impossible.

It’s as if taxpayers were invited to select their own tax bracket, with the IRS getting only 180 days to review the return. And if the IRS does reject a taxpayer’s return, there are no penalties the taxpayer just has to prepare another return, which

the IRS again only gets 180 days to review!

Simply put, default approvals of PRP-written plans are entirely unacceptable, particularly in a program as complex and controversial as Superfund. This ‘‘cure’’ is far

worse than the delays sometimes occasioned by slow governmental review of cleanup proposals submitted by PRPs.

These concerns are especially acute because EPA must allow a PRP to take the

lead if the PRP demonstrates financial resources and ‘‘expertise’’ [§ 404, adding

CERCLA § 133(a)(1)(D)(i), p. 108–109]. Under these provisions, a PRP that hires a

consulting firm could take the lead even if the company is under criminal indict-
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3 Although community views are to be taken into account, this applies only in choosing a remedial alternative ‘‘from among alternatives that achieve the goals’’ [SCAA § 402, amending

CERCLA § 121(a)(1)(D), p. 93]. 4The bill also fails to address the inherent underlying flaw in risk assessment as it is currently practiced: contaminants are presumed to be safe absent considerable information, both

qualitative and quantitative, about toxicity. Current risk assessments also make no pretense at

evaluating synergistic effects of multiple contaminants. These deficiencies mean that decisions

based on risk assessments are, at best, of uncertain protectiveness.

ment for illegal dumping at the site, or has a history of recalcitrance at other sites.

Absolutely no consideration is given to whether the community has any confidence

in the PRP.

Moreover, even after a cleanup plan is adopted, PRPs can disregard it at will,

since PRPs need not get prior approval of RAP modifications. Rather, the bill provides that if a PRP ‘‘has deviated significantly’’ from a RAP, EPA notifies the PRP,

who at the PRP’s option either complies with the RAP or submits a notice for modifying the plan [SCAA § 404, adding CERCLA § 133(c)(1), p. 124].

In short, the PRP is at liberty to depart from the RAP: if it gets caught, it gets

to choose whether to comply with the RAP or modify it. RAPs won’t be worth the

paper they’re written on.

B. Inadequate Cleanup Standards

1. Overview

S. substantive cleanup provisions are extremely weak. The basic cleanup goals are

inadequate, and various loopholes undercut even those limited goals. The inadequacies in the goals are critical, because EPA can select only those cleanups that are

‘‘cost effective’’ in meeting the narrowly formulated goals [SCAA § 402, amending

CERCLA § 121(a)(l)(A), p. 84].3 Particularly conspicuous is the absence of a goal of

restoring land to productive use where doing so is practical.

2. The Overriding Role of Cost

Before turning to specific deficiencies in cleanup goals, it must be noted that the

bill expressly provides that all goals—even protection of community health—can be

overridden based on cost considerations. Specifically, the bill provides that cleanup

goals need not be met if doing so is ‘‘technical infeasib[le],’’ i.e., if ‘‘there is no known

reliable means of achieving at a reasonable cost’’ the specified goals [SCAA § 402,

amending CERCLA § 121(a)(2), p. 94–95]. ‘‘Reasonable cost’’ is not defined.

This open-ended language is particularly outrageous given that the bill severely

constrains EPA and public oversight of PRP cleanup decisions, leaving PRPs liberty

to construe this term for themselves. In effect, PRP willingness to pay will become

the determining factor in determining the stringency of remedies, including the level

of health protection provided to communities. Such an approach is especially unacceptable with regard to health protection goals, as it is always possible to especially

protect community health through relocation if by no other means.

3. Additional Factors that Undercut Strong Cleanups

Several additional factors further contribute to weak cleanups. First, the current

preference for permanent treatment is wiped out, even for highly contaminated

areas [SCAA § 402, striking CERCLA § 121(b), p. 83]. Instead, the bill expressly provides that institutional and engineering controls ‘‘shall be considered to be on an

equal basis with all other remedial action alternatives’’ [SCAA § 402, amending

CERCLA § 121(a)(5), p. 101]. Taken with the cost-effectiveness requirement, this

means that put-up-a-fence remedies will prevail. Adding insult to injury, states may

apply their own more-protective standards only by paying the incremental cost

[SCAA § 201, adding CERCLA § 130(d)(3)(B)(ii), p. 44–45].

4. Weaknesses in Specific Goals

a. Health: Unprotective Goals Are Exacerbated by Flawed Risk Assessment

Provisions.4

S. 8 fails to establish a national uniform cleanup goal that would assure communities around the country of a baseline level of protection. Instead, the bill sets an

explicit cancer risk-range goal that spans two orders of magnitude (one in a million

to one in ten thousand [SCAA § 402, amending CERCLA § 121(a)(1)(B)(i)(I), p. 85].

The requirement to use a ‘‘cost-effective’’ remedy option, along with the fact that

cleaning up more-stringently is inherently costlier than cleaning up less-stringently,

means that as a practical matter the one-per-ten-thousand standard will always prevail.
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5 In addition, the bill calls for comparisons of ‘‘risks from the facility to other risks commonly

experienced by the community’’ [SCAA § 403, adding CERCLA § 131(c)(4) p. 105]. The approach

ignores critical attributes such as whehter those other risks are also involuntary, allowing PRPs

to produce risk characterizations that ignore critical factors.

In addition, the bill’s risk-assessment provisions are written in a way that may

undercut protection. For example, the bill requires use of ‘‘central estimates’’ of risk

[SCAA § 403, adding CERCLA § 131(c)(3), p. 104–105]. This tilts risk assessment toward considering the average risk to the average individual and fails to assure protection of those who are highly exposed or highly susceptible, such as children, those

with chronic diseases, and others such as subsistence farmers and fishers. Any legislation must expressly require evaluation of risks to groups with higher exposure or

susceptibility than average, so as to ensure that cleanup plans—including those

written by polluters—cannot ‘‘overlook’’ them.

Concerns also arise from the bill’s emphasis on evaluating exposures ‘‘considering

the actual or planned or reasonably anticipated future use of the land or water

resources’’ in facility-specific risk evaluations [SCAA §403, adding CERCLA

§ 131(b)(1), p. 103]. While it may be appropriate to consider future land use, there

are two major problems with the approach taken in S. 8. First, the bill apparently

focuses solely on current and future use of the site itself, ignoring the uses of neighboring parcels even though many Superfund sites directly adjoin residential neighborhoods. Superfund must protect the health of site neighbors, not just individuals

who will be present on the site itself, given the well-documented ability of contaminants to migrate off-site (e.g., as wind-blown contaminated dust or as vapors).

Second, the bill defines a ‘‘reasonably anticipated future use’’ as one that the local

land use planning authority, in conjunction with the community response organization, determines has ‘‘a substantial probability of occurring based on recent (as of

the time of the determination) development patterns in the area in which the is located and on population for the area’’ [SCAA § 401, amending CERCLA

§ 101(41)(B)(i)(II), p. 82]. As discussed below in section II.B.4.d, this is an unworkable standard—and one that may well lead to cleanups that turn out to be inadequate following land-use changes that were plausible but didn’t rise to the ‘‘substantial probability’’ level.

More generally, the role of facility-specific risk assessments is also confusing at

best and profoundly disturbing at worst. Under the bill, cleanups are to meet the

specific cleanup goals and comply with other applicable laws ‘‘on the basis of a facility-specific risk assessment’’ [SCAA §402, amending CERCLA §121(a)(1)(A), p. 84].

The bill is silent as to what happens if a PRP’s risk assessment purports to find

that complying with applicable standards is not necessary in order to meet the

cleanup goals. Even apart from these substantive concerns, allowing the validity of

applicable standards to be rehashed at every Superfund site is a guaranteed way

of delaying cleanups, increasing transaction costs, and infuriating communities.

Moreover, the bill provides PRPs with ample opportunities to manipulate risk assessments in a direction that minimizes their cleanup costs. The bill calls for use

of ‘‘the most scientifically supportable’’ assumptions [SCAA §403, adding CERCLA

§ 131(c)(3), p. 105], potentially allowing challenges to default assumptions that are,

as a matter of sound public health policy, intentionally crafted to be protective in

the face of scientific uncertainty. Likewise, the bill calls for using ‘‘chemical and facility-specific data . . . in preference to default assumptions’’ [SCAA § 403, adding

CERCLA § 131(b)(3), p. 103]. Even a single data-point, or data of questionable reliability, could be used to replace protective defaults. As a result, risk assessments

could seriously understate risks.5

b. Environment: A Scientifically Unworkable Standard

The bill’s stated environmental goal is protecting ‘‘ecosystems from significant

threats to their sustainability’’ [SCAA § 402, amending CERCLA § 121(a)(1)(B)(ii), p.

85], and sustainability is defined as ‘‘the ability of an ecosystem to continue to function within the normal range of its variability absent the effects of a release of a

hazardous substance’’ [SCAA § 401, adding CERCLA § 101(42), p. 83]. The bill thus

puts on the government the burden of demonstrating that particular contaminants

threaten ecosystem sustainability. That burden is likely to prove unmanageable in

many instances, not only because of the scarcity of federal and state resources, but

also because of current limits of scientific knowledge. As a result, resources will be

written off during Superfund cleanups not because they truly lack value, but because there is not enough evidence to demonstrate their impact on sustainability.
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6 Even assuming agruendo that natural attenuation may sometimes be appropriate, the bill

conspicuously fails to include appropriate safeguards, such as thorough characterization of all

contaminants, ongoing monitoring to assure that attenuation occurs as expected, and designation of fall-back approaches if attenuation fails or if the water is needed earlier than was originally anticipated. 7Point-of-use systems (whether at individual homes or at municipal facilities) simply let contamination continue to spread unchecked, forcing public and private well owners to either conduct costly testing in perpetuity or gamble that their wells won’t be hit by a contaminated

groundwater plume. Should such contamination occur, it will persist for dozens or hundreds of

years. While point-of-use devices may be the only practical option in some circumstances, they

should be the last, not the first, resort. Moreover, At-tap treatment systems force homeowners

to obtain and install replacement filters periodically, a chore many families lack time to add

to their busy schedules. 8The ‘‘delisting’’ provisions of section 134 [p. 130] are ambiguous, but it is far from clear that

PRPs would be responsible for securing alternate water supplies if groundwater covered by an

attenuation remedy is needed earlier than initially anticipated.

c. Groundwater: An Illusory Goal of Resource Protection

Although the bill nominally protects uncontaminated groundwater as a resource,

this is illusory. Four provisions of the bill undercut the no-contamination provision: • First, the ‘‘reasonable cost’’ loophole [SCAA § 402, amending CERCLA

§ 121(a)(2)(B)(i), p. 95], which will allow PRP-written cleanup plans to declare

that avoiding contamination is too expensive; • Second, the ‘‘natural attenuation’’ loophole, bill’s provision that expressly allows

natural attenuation where it won’t interfere with anticipated future use [SCAA

§ 121(a)(4)(C), p. 97], despite the inherent uncertainties of predicting when

groundwater will be needed;6

• Third, the bill’s express proviso that engineering and institutional controls ‘‘to

be considered on an equal basis with all other remedial action alternatives’’

[SCAA § 121(a)(5), p. 101]; and • Fourth, the bill’s express proviso allowing point-of-use treatment devices [SCAA

§ 121(a)(4)(D)(iv)(II), p. 99–100].7

The upshot will be that PRPs will be able to claim that preventing contamination

is too expensive compared to waiting until the water cleans itself up, forbidding its

use, or sticking a filter on the tap. In short, the bill fails to protect groundwater

as a resource for future generations.

In essence, under the natural attenuation loophole, clean groundwater is allowed

to get dirty in the hope that it will clean itself back up before the water is needed.

This approach implicitly assumes that it is possible to reliably project (i) long-term

groundwater flows, (ii) long-term attenuation patterns, and (iii) future groundwater

needs. In actuality, each of these is uncertain at best; taken together, they amount

to Congressional endorsement of gambling with groundwater. Decision makers can

only reliably predict future groundwater movement, and future groundwater needs,8

for a handful of years at a stretch. Absent the rare case where natural attenuation

can confidently be predicted to restore groundwater within an equally short time

frame, these ‘‘remediation’’ techniques should be used only if no others are available.

These provisions are especially objectionable because they would apparently ‘‘trump’’

state groundwater laws that require protection of uncontaminated groundwater as

a resource (i.e., without having to be specifically identified as a future source of

drinking water within a particular time).

Finally, by weakening Superfund’s groundwater cleanup provisions, the bill undercuts important incentives for currently managing wastes in a way that protects

groundwater. Anyone familiar with the current hazardous-waste regulatory system

is painfully aware that innumerable wastes, though hazardous in fact, are not now

regulated as hazardous. Superfund’s aggressive groundwater cleanup requirements

help prompt responsible behavior today, and need to be maintained.

d. The Missing Goal: Restoring Land to Productive Use

An especially notable weakness of the goals is the one that simply isn’t there: restoring land to productive use when doing so is feasible. Moreover, the interplay of

several provisions will operate to discourage returning land to productive use. As

noted above, in the absence of a land-resource goal, the requirement to use a costeffective remedy and the proviso that institutional and engineering controls ‘‘shall

be considered to be on an equal basis with all other remedial action alternatives’’

[SCAA § 402, amending CERCLA § 121(a)(5), p. 101] means that put-up-a-fence remedies are likely to prevail.

The fundamental problem is the bill’s heavy emphasis on containment-based remedies—remedies that inherently limit a site’s potential availability for future rede-
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9 As noted above, the ‘‘community acceptability’’ criterion for remedy section [SCAA § 402,

amending CERCELA § 121(a)(1)(D), p. 93] does not alleviate this problem, because those criteria

are to be used in selecting between remedies that meet the goals. In any event, individual criteria are not permitted to predominate in choosing from among alternatives. 10K. Johnson, ‘‘Where Zoning Law Failed, Seeds of a New York Revival. New York Times, p.

1, April 21, 1996. 11D. Sneider, ‘‘To Halt Sprawl, San Jose Draws Green Line in Sand,’’ Christian Science Monitor, April 17, 1996. 12 A few statistics help illustrate how dramatically land uses change in a few decades. Urban

areas in America have expanded from 15.5 million acres in 1960 to over 56.6 million acres in

1987. U.S. Dept. of Agriculture, Economic Research Service (1991), Major Uses of Land in the

United States: 1987, p. 33, Agricultural Economic Rep. No. 643.

During the first decade following Superfund’s enactment, the population in the Western U.S.

grew by 22.3%, an increase of nearly 10 million people. United States Bureau of the Census

(1994), Statistical Abstract of the United States: 1994 (114th Edition), p. 27. The state of California alone accounted for 25% of the total national growth, increasing its population by over 6

million; its urban land area grew from 4.2 million acres to over 5.2 million acres. U.S. Department of Agriculture (1991), Major Uses of Land in the United States: 1987, p. 33.

Continued

velopment. Even assuming that such remedies effectively protect health if appropriately maintained, they restrict the community’s flexibility to use that land over

time: if a site is capped with contamination in place, that cap must then be maintained in perpetuity. Doing so generally rules out excavation and construction activities. While containment-based remedies may make sense in a limited set of circumstances, they should not be the remedy of first choice given that they deprive

communities of future flexibility in using the site.

For instance, suppose a particular community wanted to be able to use a site that

is now a Superfund site and, like most Superfund sites, not currently used—for an

industrial park following a cleanup. Surrounding properties are also industrial, but

no developer has expressed a specific interest in redeveloping that particular site.

The PRPs have proposed a cleanup under which the site would be capped, with the

cap maintained for the indefinite future, thus (supposedly) avoiding human exposure. The PRPs argue that such a plan is consistent with the land uses allowed to

be considered under § 121: the actual use (here, no current use); the planned use

(here, no current plans exist); or the ‘‘reasonably anticipated future use,’’ defined as

one that has a ‘‘substantial probability of occurring’’ (here, none specifically identified). Further, suppose that capping the site is substantially cheaper than to treating or removing the contaminated materials.

In such a scenario, the cap would apparently be selected as a cost-effective remedy

that meets the bill’s narrowly defined goals. At the end of the process, however, the

community would be left with a permanent dead zone that cannot be put to productive use. The PRPs may be better off, but the community has not shared those benefits.9

The scenario spelled out here may well prove to be the rule rather than the exception. Many Superfund sites are abandoned industrial properties. Only rarely will a

developer have proceeded far enough that a potential redevelopment will be the

‘‘planned’’ use for a site following cleanup. Similarly impractical is the criterion that

a particular use has ‘‘a substantial probability of occurring.’’

Rather than this convoluted and unworkable approach, the bill should establish

an explicit objective of returning land to productive use where technologically and

economically feasible. That approach will provide communities with the flexibility

they need to grow and prosper through redevelopment for years and decades into

the future.

Such redevelopment often occurs in ways that may not be easily ‘‘anticipated’’ and

even a few years ago would not have been viewed as having ‘‘a substantial probability of occurring.’’ For example:

• The New York Times recently described significant urban redevelopment that

was not envisioned, and indeed was sometimes marginally legal, under the

City’s zoning regulations (but occurred nonetheless and reportedly has proven

largely beneficial).10

• Similarly, the Christian Science Monitor has reported on the growing phenomenon of ‘‘infill development.’’11 A recent article cites efforts underway in San

Jose, California; Portland, Oregon; Boulder, Colorado; and Minneapolis—St.

Paul, where ‘‘[t]he idea is to shift growth to the inner part of a city, using vacant or underdeveloped areas for new housing and businesses.’’

• More generally, significant portions of the U.S. experienced more than 25% population growth in their metropolitan areas in the single decade following Superfund’s enactment in 1980.12
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On a more localized basis, the 10 years after Superfund became law saw the Los Angeles’ metropolitan area population expand by 26% (3 million people), while the Phoenix metropolitan area

increased by almost 40%, and the Las Vegas metropolitan area increased by 61.5%. U.S. Bureau

of the Census (1994), Statistical Abstract of the United States: 1994, Fig. No. 42. Many smaller

cities of the region also showed substantial expansion, with cities such as Reno, Modesto, Sacramento, and Tucson all experiencing growth between 25% and 40%. Ibid.

See also, Testimony of EDF on Superfund Reauthorization before the House Committee on

Transportation and Infrastructure’s Subcommittee on Water Resources and the Environment,

June 21, 1995. 13 In order to obtain technical assistance funds from EPA, state voluntary programs must

meet certain criteria such as ‘‘adequate opportunities for public participation, including prior notice and opportunity for comment in appropriate circumstances, in selecting response actions,’’

and ‘‘oversight and enforcement authorities or other mechanisms that are adequate to ensure

that voluntary response actions will protect human health and the environment [SCAA § 102(b),

adding CERCLA § 128(b)(2), (4), p. 15]. However, this provision is independent of the CERCLA

override in section 129. To add to the confusion, states apparently may self-designate as having

a qualifying voluntary response program; there is no mechanism for EPA review of whether

state program actually has the required elements, nor any opportunity for public participation

in determining the adequacy of a state program. Furthermore, the ‘‘as appropriate’’ qualifier for

public participation means that the level of public participation is left to the State’s whim. 14The only exception is that NPL and NPL-proposed sites must ‘‘implement applicable provisions [CERCLA] or of similar provisions of State law in a manner comporting with State policy’’

so long as the remedy protects health and the environment as specified in § 121 [SCAA § 102(b),

adding CERCLA § 128(c), p. 17]—provisions that are non-protective, as discussed above. Moreover, nothing requires compliance with CERCLA’s public participation mechanisms. 15See for example, Coffey, ‘‘Environmental Firms Assume Cleanup Risks,’’ Seattle Daily Journal of Commerce, 02/11/97 [Retrieved from ttp://www.djc.com/data/news/19970211/10020180.htm

2/27/97]. The article describes a ‘‘radically different approach to soil and groundwater cleanups

that is slowly catching on in the environmental industry. A handful of firms are guaranteeing

cleanup costs for their clients and, in some cases, providing definite dates for when the cleanup

work will be finished.’’ The article continues, ‘‘Not only are these companies promising to bring

sites up to [Washington] Department of Ecology standards within a certain amount of time, they

also are assuming the financial risks involved if the schedules for site closures can’t be met.

This new approach is being hailed as the missing link needed to get the state’s hundreds of

abandoned contaminated properties, or ‘‘brownfields,’’ cleaned up and redeveloped.’’ Similarly,

conferences with titles such as ‘‘Realizing Profits in Brownfields,’’ which advertise a ‘‘unique opportunity for all parties involved with Brownfields properties to locate and initiate their next

In short, S. 8’s narrow approach to future land use invites, and even forces, communities to be short-sighted. This may save PRPs money, but the costs thus saved

are shifted to our children.

5. The ‘‘Voluntary’’ Cleanups Loophole for Superfund Sites

Under S. 8, site-specific state remedial action plans (RAPs) override all CERCLA

enforcement authorities [SCAA § 103, adding CERCLA § 129(a), p. 18]. Apparently,

such RAPs need not even be issued under a qualifying state voluntary response program [SCAA § 102, adding CERCLA § 128, p. 15],13 but rather can be any document

designated by any state as a RAP—regardless of whether there has been any public

participation whatsoever in development of that RAP, regardless of whether there

have been any effective state review of a polluter-written RAP, regardless of whether RAP will be protective, regardless of whether the RAP is actually being complied

with, and even regardless of whether the state has the legal or practical capacity

to enforce the RAP. Once a state RAP exists, EPA is barred from acting even where

a site presents an imminent and substantial endangerment to health or the environment (save by using the Fund, without cost-recovery). This approach is indefensible.

Apparently, even current Superfund sites (i.e., those already listed on the National

Priorities List), as well as sites proposed for NPL listing, can be thus removed from

Superfund’s ambit.

There are no substantive standards whatsoever for state RAPs. Unless a state

opts to establish regulations, each site’s plan will be issued an ad hoc basis with

no baseline standards to assure the safety or adequacy of cleanups,14 meaningful

public participation, judicial review, or any other safeguard. Tens or hundreds of

thousands of sites may be dealt with on an ad-hoc basis, making effective public

oversight completely impossible even apart from the fact that the bill makes no provisions for community technical assistance. And meanwhile, Superfund’s authorities

are banished.

We strongly oppose these sweeping and unjustifiable limits on Superfund authority. While carefully crafted liability relief for prospective purchasers may well be desirable (assuming community participation rights are assured), wholesale roll-backs

of Superfund authorities for a large but amorphous range of sites are indefensible.

They are also unnecessary: the private market is increasingly providing mechanisms

for moving forward brownfield redevelopment today, with Superfund in place.15
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profit making real estate deal,’’ are increasingly common. [Flier for conference scheduled for

April 10–11, 1997, Philadelphia, PA]. 16These include investigation/evaluation; alternatives development/remedy selection; remedial

design; performance of remedial action; information collection/liability allocation. EPA cannot

delegate research and development, or issuance of community Technical Assistance Grant [§ 130

(a)(8), p. 36]. 17Otherwise, EPA may act only upon determining that ‘‘an emergency * * * poses an immediate and significant danger’’ [SCAA § 201(a), adding 130(e)(4)(C), p. 54]. This is a new statutory

standard of uncertain meaning that will give rise to litigation and retard swift preventive action. 18The term ‘‘State Registry’’ is not defined, but some states have very limited registries. In

addition, nonlisted sites are limited to 1/8th of all TAGs [§ 117(f)(6)(B), pp. 71–72]. 19 CROs will have 15 to 20 members including local residents, local medical personnel, public

interest groups, local governmental officials, and local businesses. ‘‘Local residents’’—but not

necessarily those most heavily affected by the site—are to comprise at least 60% of the members

[§ 117(e)(6)(C) & (D), pp. 67 & 68].

III. SHUTTING THE PUBLIC OUT: WEAKNESSES IN S. 8’S PUBLIC

PARTICIPATION PROVISIONS

Numerous provisions of S. 8 undercut meaningful and effective public participation in cleanup programs, such as the state delegation provisions of Title II (and,

as discussed in section II.B.5 above, the ‘‘voluntary cleanup’’ provisions of Title I).

Moreover, the explicit public participation provisions in Title III have a number of

weaknesses. And ultimately, of course, public participation is meaningless if the

bill’s key provisions on the quality of cleanups are inadequate.

In addition to the problems noted below, S. 8 fails to strengthen public participation adequately. Specifically, it fails to require EPA to provide reasonable public notice and a public hearing (if requested) before critical steps in the cleanup process,

including undertaking the health assessment, preliminary assessment and site investigation; and completing the facility work plan. S. 8 also fails to provide for the

creation of state-wide organizations to ensure wide dissemination of information

about toxic sites in a community-friendly manner. Creating citizen-run state-wide

organizations would be an important step toward ensuring that those living next to

or on toxic dump sites have the necessary tools at their disposal to make sound

judgments about the future of their communities.

A. Shutting the Public Out of State Delegation Decisions

Under S. 8, states can obtain delegation of one or more of 5 categories of authorities16 [SCAA § 201(a), adding CERCLA § 130(a)(2), p. 32–34]. EPA has 60 days to

approve or disapprove a petition for delegation (120 days for 8 states without RCRA

corrective action authority) [SCAA § 201(a), adding CERCLA § 130(c)(3)(A), p. 39].

If EPA doesn’t act in that time, the delegation petition is approved by default

[§ 130(c)(3)(B), p. 40].

Conspicuous by its absence is any provision for public participation in EPA review

of state program adequacy, and the ridiculously short time limits preclude meaningful participation in any event. To make matters worse, once a state obtains delegated authority, EPA’s hands are largely tied absent state concurrence even if the

state is failing to act and thus delaying cleanup at the site, or if state actions are

not protective [SCAA § 201(a), adding 130(e)(5), p. 54].17 S. 8’s delegation provisions

are thus doubly deficient.

B. Shutting the Public Out through Inadequate Technical Assistance Provisions

Under S. 8, Technical Assistance Grants (TAGs) are limited to a $100,000 cap,

with no exceptions [SCAA § 301(a), adding CERCLA § 117(f)(7)(B), p. 72] even

though many of the remedies likely to be selected under the bill will be institutional

controls or natural attenuation remedies for which long-term community oversight

would be needed. In addition, TAGs are limited to sites listed on or proposed for

the NPL, or on a State Registry [§ 117(f)(5), p. 70].18 TAGs cannot be used for collecting field samples [§ 117(f)(8)(B), p. 73], so if PRPs take inadequate samples, the

community will lack resources to collect appropriate samples.

Moreover, the ‘‘preferred’’ recipient of a technical assistance grant is the ‘‘Community Response Organization,’’ if any [§ 117(e)(5)(A), p. 66].19 This restriction may exclude local environmental or community groups with a greater need for, or ability

to use, a TAG.

Finally, it appears that the funds made available for TAGs may be grossly inadequate. The authorization for Technical Assistance Grants is only $15 million

through 2002 [SCAA § 906, adding CERCLA § 111(t), p. 258]. On average, that’s

$11,500 per site an amount clearly insufficient, particularly given the widespread

availability of re-openers for many sites with already-decided cleanups. (This provision appears to be inconsistent with another under which 2% of annual appropria-
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20 Even for future cleanup decisions, S. 8 unjustifiably provides differential access to decision

makers. Specifically, although PRPs who prepared a cleanup plan or are implementing a cleanup can get the plan reviewed by the Remedy Review Board, the community is not able to initiate

Board review [SCAA § 404, adding CERCLA § 133(a)(5)(E)(ii), p. 118]. White the PRPs are able

to meet with the Board, the community is not [§ 133(a)(5)(E)(v), p. 120]—even though the Administrator is required to give ‘‘substantial weight’’ to the Board’s determination as to whether

the remedy meets the cleanup requirements, is feasible, and is reasonable in cost

[§ 133(a)(5)(E)(iv) & (v)(II), pp. 119–120]. Such differential access is unjustifiable. 21The Administrator may extend this period ‘‘for good cause.’’ 22 As noted in section IV.A., EDF strongly opposes the ROD reopener provisions on a variety

of grounds beyond public participation concerns.

tions, or roughly $28 million annually, may be used for TAGs [SCAA § 301, adding

CERCLA § 117(f)(6), p. 70].)

C. Shutting the Public Out of Cleanup Decision Revisions20

As discussed in section IV.B below, provisions for widespread reopening of existing cleanup decisions essentially eliminate opportunities for meaningful public participation. Given that review boards are to complete their review within 180 days 21

[SCAA § 406, adding CERCLA § 135(b)(2)(A), p. 134], communities will not be able

to participate meaningfully. This is particularly true at sites where no Technical Assistance Grant is currently in effect. Even where TAGs are already in place, the

flood of simultaneous petitions will make it impossible for the limited number of

community-oriented technical experts to provide effective support at the large number of sites where reopener petitions are likely to be filed.22

Similarly, as discussed in section II.A above, PRPs are at liberty to ignore RAPs

until EPA catches them at it—and then have the option of changing the remedy or

of conforming to the original one. Such provisions for after-the-fact changes to cleanup decisions render community participation little more than a mirage.

D. Shutting the Public Out through Silent Vetoes

Yet another way the public is shut out of meaningful participation arises from

provisions under which new sites can be added to the Superfund list ‘‘only with the

concurrence of the Governor of the State’’ in which the sites is located. [SCAA § 802,

adding CERCLA § 105(i)(3), p. 253]. Similarly, State can block any administrative

cleanup order under § 106 by failing to concur within 90 days (orders automatically

expire after 90 days without state concurrence) [SCAA § 103, adding CERCLA

§ 129(a), p. 18].

While it may be appropriate to give states ‘‘first dibs’’ on cleanups at sites that

will be appropriately addressed through state action, this provision goes much too

far. A state could, through simple inaction, bar an NPL listing or a 106 order even

though the site will not otherwise be cleaned up. The State need not even give any

reasons for failure to concur, inviting potential abuses (if, for example, a major PRP

at the site also happened to be a campaign contributor to a high-ranking State official). Moreover, these provisions invite creation of ‘‘pollution havens’’ by Governors

seeking to lure business from other states by declaring an indefinite moratorium on

NPL listings. EPA should defer to a state only upon affirmatively determining that

the State will conduct an adequate, timely cleanup absent the listing or 106 order.

IV. SUPERFUND SLOWDOWN

A. Slowdowns Through Weak and Ambiguous Cleanup Provisions

Though styled the ‘‘Superfund Cleanup Acceleration Act,’’ S. 8 ironically contains

a host of provisions that will delay cleanups by introducing confusing (and weak)

new standards for cleanups, as discussed in section II.B above. For example, the bill

is replete with new terms that invite lengthy argument, e.g., whether assumptions

used in the risk assessment are ‘‘the most scientifically supportable;’’ whether a particular projected land use has ‘‘a substantial probability of occurring based on recent

development patterns’’; whether particular substances pose ‘‘significant threats to

[ecosystems’] sustainability.’’ Cleanups will be delayed while these and other new

terms are endlessly debated.

B. Slowdowns from ‘‘Re-opener’’ Petitions

S. 8 also expressly invites the filing of petitions to reopen (and weaken) existing

cleanup decisions, potentially several hundred of them, with attendant diversion of

resources from ongoing cleanup efforts. These reopener provisions are as unnecessary as they are poorly constructed. EPA already has ample discretionary authority

to consider requests to modify existing cleanups decisions where particular circumstances warrant.
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23 Re-opener petitions are to be reviewed by ‘‘remedy review boards’’ comprised of ‘‘independent technical experts within Federal and State agencies’’ with cleanup responsibilities

[§ 135(b)(1), p. 134, referencing § 133(a)(5)(E), p. 118–120]. 24Factors that may be raised in such petitions include future land use [SCAA § 135(b0(3)(c),

p. 138]; it is not clear what if any role the community would play in determining future land

use. 25This provision, enacted as section 121(b) of the Superfund Amendments and Reauthorization Act of 1986, was not codified but appears as a note to 42 U.S.C.A. 9621. Pub. L. No. 499,

99th Cong., 2d Sess. 100 stat. 1613, 1678. 26 U.S. General Accounting Office, Impact on States of Capping Superfund Sites. GAO/RCED–

106R. March 1996. 27 Ibid., p. 2.

The bill’s reopener provisions are unwieldy and unworkable.23 Within 90 days of

the bill’s enactment, the implementor of a current cleanup decision may petition to

substitute an alternate remedial action. The petition must be granted if the proposal

satisfies § 121 and meets certain cost thresholds [SCAA § 406, adding CERCLA

§ 135(b)(3) & (4), pp. 137–141]. For pre-construction sites, the cost threshold is

$1.25–$2.5 million, depending on cost and type of cleanup [§ 135(b)(3)(B) & (4)(B),

pp. 137 & 140], but no threshold applies ‘‘if the petitioner demonstrates that technical data generated subsequent to the issuance of the [ROD] indicates that the decision was based on faulty or incorrect information’’ [§ 135(B)(3)(D), p. 139].24

Hundreds of existing cleanup decisions may be eligible for reopening; at the least,

PRPs will be able to flood EPA with petitions that will have to be reviewed to see

if they in fact cross the cost thresholds, much less meet the other criteria. The associated resource drain will slow cleanups across the board; make it all the more likely that EPA won’t be able to meet the 180-day turnaround for new RAPs thus triggering default approvals; and encourage PRPs to drag their heels in carrying out

an existing cleanup at a particular site in hopes of getting it revamped.

Moreover, the generous opportunities given to PRPs to force EPA to reopen decisions and apply this bill’s weaker standards forms a dramatic contrast with the lack

of analogous reopeners when Superfund’s standards were strengthened in the 1986

amendments. There, the bill as enacted expressly provided that the new standards

‘‘shall not apply to any remedial action for which the Record of Decision was signed,

or the consent decree was lodged, before date of enactment,’’ while RODs signed

within 30 days of enactment were required to meet the new standards ‘‘to the maximum extent practicable.’’25

Simply put, S. 8’s re-opener provisions should be dropped.

V. THE NPL CAP: DUMPING CLEANUPS ON COMMUNITIES AND STATES

Another highly objectionable feature of the bill is its inclusion of an arbitrary cap

on the number of additional sites that can be added to the National Priorities List.

Under S. 8, EPA cannot add more than 100 sites to the Superfund National Priorities List until 2001, and then 10 sites/year thereafter [SCAA §802, adding CERCLA

§ 105(i)(1)(A), p. 251–252]. A cap has profound consequences because, unless a site

is listed, EPA cannot undertake cleanup activities (other than a short-term, low-cost

emergency removal). In effect, this provision dumps the problem of Superfund site

cleanups into the laps of the States—regardless of whether they have the resources

or capacity to conduct those cleanups.

The General Accounting Office recently estimated that the cap could force States

to accept responsibility for 1,400 to 2,300 sites (1,100 already identified by EPA,

along with an estimated 300–1,200 yet-undiscovered sites). The estimated cleanup

costs range from $8.4 to $19.9 billion.26

The GAO report makes painfully clear that the States are in no position to take

on this added burden. Indeed, States are having difficulty securing resources for

their current cleanup efforts. Of the states surveyed by GAO,

‘‘three of the seven states with active programs said that taking on these additional cleanups would exacerbate an already difficult financial situation. Two

other states said that they expect to face funding shortfalls beginning in fiscal

year 1997 that will make it difficult to absorb the additional cleanup responsibilities, at least for a few years subsequent to that time. Another two states said

that while they had sufficient funds to manage their own inventories, funding the

additional cleanups would be difficult.’’27

This provision also undercuts two of the valuable incentives created by Superfund:

that which prompts voluntary cleanup of non-NPL sites in order to avoid a potential

future NPL listing, and that which prompts careful management of wastes generated now.
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28 ‘‘Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,’’ Greenwire (electronic newsletter),

June 14, 1995 (synopsis of story from June 11 Cleveland Plain Dealer). 29GAO, p. 3.

An example of Superfund’s effectiveness in the former arena emerges from a recent story in the Cleveland Plain Dealer about the Ashtabula River Partnership, a

group that is working to avoid a potential Superfund listing by creating ‘‘a betterthan-Superfund cleanup plan’’ for the river’s heavy-metal and PCB contamination

problems. The paper quoted Rep. Steve LaTourette (R–OH) as remarking that ‘‘[t]he

prospect of a Superfund designation has proven to be a more effective tool than the

Superfund itself. Without Superfund, however, most parties wouldn’t even be at the

table.’’28

Similarly, GAO noted that State program managers ‘‘pointed out that a major incentive for private parties to clean up sites is to avoid having their properties added

to the list of the most contaminated sites in the country.29 In short, a cap on the

number of Superfund sites may have the perverse effect of creating a greater need

for more Superfund listings, by reducing incentives for non-Superfund voluntary

cleanups.

The NPL cap will also undercut incentives for sound prospective waste management. Facilities will be able to gamble that states will lack, or forego use of, cleanup

enforcement authorities for tackling sites created after the NPL list is effectively

closed. The continuing nominal availability of litigation authorities under § 107 is

far from an adequate substitute, given that § 107 suits can only be brought to recoup

expenditures thus requiring cash-strapped States to front all the cleanup money.

Where they are unable to do so, today’s polluters will evade cleanup responsibilities,

and sites will remain unaddressed.

In short, the cap should be eliminated.

VI. OVERLY BROAD LIABILITY ‘‘REFORMS’’: CORPORATE WELFARE BY ANOTHER NAME

There is no dispute that Superfund’s existing liability system has often been

abused by some PRPs who have filed massive contribution actions against entities

with minimal or no connection to the site. Curbing these abuses is necessary, but

does not necessarily require legislation, since EPA clearly has ample authority to

provide contribution protection to settling parties.

Even if legislation on this point were viewed as desirable, S. 8 goes far beyond

the boundaries of common sense. The bill inappropriately rolls back liability for vast

numbers of companies that are well able to help pay for cleaning up their own

messes, and who should remain responsible for doing so. In several instances, these

overly broad carve-outs apply to future as well as past conduct, undercutting Superfund’s vitally important incentives for safely managing today’s wastes.

A. Overly Broad Exemption for ‘‘Co-disposal’’ Sites: Letting Large Industrial Polluters and Dump Owners Off the Hook

S. 8 repeals polluter-pays liability for generators and transporters of wastes at

hundreds of ‘‘co-disposal’’ sites at which industrial wastes were dumped along with

municipal trash [SCAA § 501(b), adding CERCLA § 107(q), p. 148]. Even giant chemical companies will get entirely off the hook for wastes they sent to those sites. And

even private dump-owners—those in business to make a profit—get their liability

capped at 30% of cleanup costs (or the cost of closure) [§ 501(b), adding CERCLA

§ 107(t), p. 150].

B. Overly Broad Exemption for ‘‘Small’’ Businesses

While EDF does not necessarily oppose curtailing liability for truly small businesses with a limited connection to a site who have limited ability-to-pay in any

event, the current exemption is ill-crafted. First, the $3 million annual-revenue

threshold is simply too high [SCAA § 501(b), adding CERCLA 107(s), p. 150]. Moreover, the exemption applies to companies with either fewer than 30 employees, or

less than $3 million gross revenues. This potentially exempts wealthy corporations

that happen to have few employees.

In addition, the exemption applies to conduct in the future, thus eliminating incentives for small businesses to manage hazardous substances carefully in the future: an unjustifiable ‘‘pollute with impunity’’ clause for small businesses. In addition, any liability exemption for small businesses should be conditioned on cooperating with appropriate information-gathering and cleanup activities. Similarly, the exclusion should be inapplicable where the Administrator determines that the material has or may significantly contribute to the response costs at the site (cf. SCAA

§ 501(b), adding CERCLA § 107(r)(2), p. 149 (exception to exemption for de minimus

contributors)).
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C. Overly Broad Exemption for ‘‘Recyclers’’ Including Mineral Wastes

In another unfortunate example of ‘‘corporate welfare,’’ the partial exemption for

certain recyclers inappropriately includes ‘‘metal byproduct[s] (such as slag, skimming or dross)’’ in the definition of scrap metal [SCAA § 510(a), adding CERCLA

101(48)(A)(ii), p. 214, and SCAA § 510(b), adding CERCLA § 107(w), p. 215]. While

it may be appropriate to craft a narrow liability exemption to encourage the collection of post-consumer recyclables i.e., materials that otherwise become part of the

municipal waste stream slags and drosses are industrial by-products that come nowhere close to fitting within that rationale.

D. ‘‘Polluter Paybacks’’ That Compete Directly with Cleanup Dollars

Although parties who have already received cleanup orders must carry out the

cleanup, they get repaid for all costs attributable to a party whose liability is limited

[SCAA § 502, adding CERCLA § 112(g)(1) & (2), p. 157]. These paybacks apparently

apply even for all future costs incurred under existing settlements. Payback payments ‘‘shall be made upon receipt’’ of an application [§ 112(g)(3), p. 157–158], and

must be made within a year [§ 112(g)(6), p. 158–159]. In addition, parties to an allocation are entitled to be promptly reimbursed for any costs they incur attributed to

an orphan share [SCAA § 503, adding CERCLA § 136(o), p. 192–193].

This language creates a legal entitlement, as contrasted with discretionary authorization to use the Fund for cleanups and other purposes, so paybacks will have

first claim on the funds. Because there is no ‘‘firewall’’ between funds for paybacks

and funds for cleanups, all of the moneys in the Superfund could be exhausted providing polluter paybacks, leaving none for actual cleanups, oversight, and enforcement by EPA, as well as vitiating programs for Technical Assistance Grants. If moneys remaining in the Superfund are inadequate, one of three unacceptable outcomes

will occur: taxes will have to be raised, cleanup standards will have to be further

weakened, or cleanups will again slow to a snail’s pace.

VII. CONCLUSION

Thank you for this opportunity to present our views. We would welcome an opportunity to work with you in crafting a Superfund reform bill that protects public

health, particularly children and other vulnerable groups; preserve community land

and water resources; holds polluters, rather than taxpayers, responsible for cleanup costs; assures meaningful community participation in Superfund decisions, while

making the program more efficient and streamlined, and reinstating the Superfund

Trust Fund taxes.

PREPARED STATEMENT OF LINDA H. BIAGIONI, VICE PRESIDENT, ENVIRONMENTAL

AFFAIRS, BLACK & DECKER CORPORATION

Thank you Mr. Chairman and members of the Subcommittee for inviting me to

testify on this important matter. My name is Linda H. Biagioni and I am Vice President for Environmental Affairs at The Black & Decker Corporation. In recent years

I have also served as Chair of the Environment Management Council of the Manufacturers Alliance for Productivity and Innovation, a policy research organization

with 500 members from among the leading manufacturers in America. I am currently Chair of the International Environment Forum of the World Environment

Center, a global, non-profit organization whose purpose is to create bridges between

participants from industry, government, and academic and non-governmental organizations to contribute to sustainable development worldwide. My professional training is in the field of chemistry. I am not a lawyer, but Superfund has taught me

a great deal more about litigation and about this law than I ever expected to know.

The Black & Decker name is one of the most widely known brands in the world.

Headquartered in Towson, Maryland, Black & Decker manufactures and markets

products and services in more than 100 countries and is the world’s largest producer

of portable electric power tools, power tool accessories, residential security hardware, and electric lawn and garden tools. It is also the largest global supplier of

engineered fastening systems to the automotive and other markets we serve. Our

household products business is the North American leader and a major global competitor in the small electric appliance industry, and our plumbing products business

is one of the three largest faucet manufacturers in North America. Black & Decker

also produces products as diverse as golf club shafts and glass container making

equipment. We employ several thousand people at more than 30 manufacturing facilities in 16 States in the United States and at Black & Decker Service Centers

throughout the country.
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Black & Decker’s manufacturing operations are not heavy industry, and with one

exception Black & Decker is not the owner, operator, or a predominant generator

at any Superfund National Priorities List site. Nevertheless, because of our wellknown name and the perception that we are a deep pocket, we have been forced

to devote very substantial resources, in the range of tens of millions of dollars, to

what often should be relatively straightforward or low priority environmental problems. A large part of our expenses and energies in this field have also been spent

on litigation in connection with private cleanup sites that are not on the National

Priorities List and with our insurance carriers over their contractual obligations to

cover Superfund cleanup expenses.

I am pleased to participate in this Hearing because I believe that, for Black &

Decker and for many other American businesses, the existing Superfund law frequently misdirects our energies and our resources. The problem of cleaning up old

hazardous waste sites is important, but existing law causes us to proceed too slowly

on many serious sites, while at the same time causing us all to spend too much time

and money on low-priority environmental concerns and far too much money on legal

proceedings. While the EPA has made increasingly vigorous efforts to reform Superfund by administrative action, apparently with some success, the most important

failings of the Superfund law and program can only be cured by Congress.

Black & Decker has no Washington office and no full-time lobbyists, but we have

devoted significant efforts to Superfund reform for the last several years, working

with the Superfund Action Alliance, the National Association of Manufacturers, and

other trade associations to promote comprehensive improvements in this law.

Frankly, we are quite disappointed and frustrated by the failure of the 103d and

the 104th Congresses to resolve these urgent issues. We hope the 105th Congress

can find the middle ground and finish reauthorization this year, before electoral politics once again polarizes all discussion of this issue.

From what we can see, the Senate is off to a good start in 1997. Superfund has

been identified as a high-priority objective by the Majority Leader, and the Members

and staff of the Environment and Public Works Committee from both parties appear

to be moving forward constructively. We hope that the early introduction of S. 8 by

the Majority, followed closely by the introduction of S. 18 by the Minority, will set

the stage for prompt action. Our own reading of S. 8 leads us to believe that it is

a balanced and thoughtful attempt to resolve the crucial problems that bedevil the

Superfund program. We understand that it reflects the months of negotiations between Majority and Minority staffs and the Administration last year. We commend

the Committee and its staff for their diligent efforts to craft a workable approach

that can attract bipartisan support.

Like every interested party in this process, we would of course prefer certain

changes in S. 8, and I will mention a few of them in this testimony. But the desire

for a more perfect bill should not obscure the fact that overall, S. 8, just as currently

written, would be a vast improvement over existing law. We believe it deserves careful consideration by every Member of this Subcommittee, and prompt action to make

whatever changes are necessary and reauthorize the law.

The two areas that I will address in some detail are the liability scheme and the

remedy selection criteria. In each of these areas, the existing Superfund law is seriously flawed and needs immediate repair.

LIABILITY REFORM

With respect to liability reform, let me say at the outset that Black & Decker accepts that it should bear a reasonable portion of clean-up costs where it contributed

hazardous substances to a disposal site that has become an environmental hazard.

We also recognize the necessity for the business taxes that support the Superfund,

and we urge their reauthorization as a reasonable means of financing the Superfund

clean-up program. Black & Decker has not advocated an across-the-board repeal of

retroactive liability. Moreover, we recognize that in some contexts the strict liability

system has a salutary effect in facilitating cleanup; for example, to reinforce the viability of the allocation system proposed in S. 8.

But the price of the current retroactive strict joint and several liability system is

simply too high. This Subcommittee has heard extensive testimony over the past 4

years about the adverse consequences that flow from the existing liability scheme,

and I will not repeat those facts here. It is sufficient to say that in practice the

structure of the current law delays cleanups, misdirects the focus of responsible

party activities, and generates enormous transaction costs.

The liability title of S. 8 would significantly reduce those costs. First, it would free

a great many small contributors from the legal tangle of strict joint and several liability. The exemptions for 1 percent (1 percent) de minimis parties, de micromis
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parties, generators and transporters of materials sent for recycling, municipal

waste, and certain small businesses, along with the limitations on liability for municipalities, will remove the threat of liability for thousands of parties at hundreds

of Superfund sites. The small quantity exemptions are particularly appropriate because their volumetric contribution is virtually always of minimal environmental

significance, and their participation in the planning and management of the site is

non-existent.

These changes alone will eliminate an important part of the aggravation associated with Superfund for Black & Decker. We accept the necessity of participating

in the cleanup of sites where we were a significant generator. But the necessity, because of joint and several liability exposure, to participate actively on clean-up committees at sites where Black & Decker has de minimis status is disproportionately

expensive and a frustrating headache.

For the greater-than-one-percent responsible parties who remain liable for National Priorities List sites, the allocation system proposed in S. 8 promises to be an

enormous improvement over the current litigation-laden approach to allocation. The

explicit provisions for orphan-share funding should also greatly facilitate settlements on terms that responsible parties will consider reasonable. S. 8 would be

fairer to responsible parties if it expanded the orphan share to cover fully the

unallocable shares, not just shares of known insolvent parties and parties whose liability is capped or eliminated by the bill. But even as written S. 8 will ameliorate

much of the unfairness inherent in the current system.

There is one aspect of the liability system that S. 8 does not address: as written,

the small-party exemptions and the allocation system only apply to National Priorities List sites. Other sites, which have been the subject of a tidal wave of private

litigation, would still be governed by the inequitable retroactive strict joint and several liability provisions of the existing law. We believe that for these sites the best

solution to liability reform is to return this lawmaking power to the States. S. 8’s

provisions for expanded State responsibility and the proposed limitations on the

number of sites that can be added to the National Priorities List reflect a congressional desire to transfer to the States as much of the hazardous waste cleanup responsibility as possible. As part of this objective, Congress should also turn over to

the States the crafting of the liability scheme for non-NPL sites. It could accomplish

this result by limiting the application of Section 107(a) to National Priorities List

sites and other sites where the Federal Government has either conducted or ordered

remediation or restoration activity under Superfund. Almost all States currently

have Superfund-type legislation with similar, though not identical, liability provisions, so the short-term impact of this change would be relatively small. But over

time, State legislators could decide for themselves the extent to which they believe

that retroactive strict joint and several liability, with or without various exemptions,

is appropriate. Without this change, the reforms in S. 8 will fail to address a large

segment of the litigation that the existing law generates.

Again, our desire for changes to the proposed liability title of S. 8 does not detract

at all from our enthusiasm for S. 8 as compared to the status quo, and we urge Congress to proceed as quickly as possible to mark up this title and enact the needed

reforms.

REMEDY SELECTION

Selection of the most appropriate remedy for each site is the heart of the Superfund program. The choice of remedy determines what benefits will be achieved, how

much will be spent, and what it will be spent on. When Superfund was enacted in

1980, Congress gave the EPA little guidance on how to determine the desired cleanup levels and how to relate those levels to cost and technical feasibility constraints.

The Agency, itself relatively inexperienced in these matters, borrowed a variety of

existing legal standards, some of which were designed for very different contexts,

to fill this gap. Then in 1986 Congress codified those standards and added others,

creating a series of arbitrary rules requiring a preference for permanence and treatment, compliance not only with applicable State and Federal laws but also with ‘‘relevant and appropriate regulations,’’ and a groundwater requirement that has been

read to mean that, with few exceptions, all potentially usable groundwater at Superfund sites must meet drinking water standards in the ground as soon as possible.

These inflexible remediation standards have contributed significantly to the misdirection of resources into remedial activities that produce little or no benefit to public health or the environment.

In reality, Superfund sites vary widely in the nature of the risks they present and

in the nature of the geological, land use, locational, and other circumstances that

fundamentally shape what remedial technologies can usefully be employed. In many
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cases, the EPA and State personnel know full well that the remedies they are now

requiring have little practical utility, but they are driven by the requirements of the

Act to impose them anyway.

S. 8 fundamentally changes this approach by dropping most of these arbitrary requirements. It directs the EPA and the States to focus on the real risks to public

health and the environment posed by each site using site-specific data wherever possible, and to ameliorate those risks and meet the protectiveness standards within

the bounds of technical practicability and reasonable cost, taking into account reliability, effectiveness, public acceptability, the nature of existing land and water uses

and the nature and timing of reasonably anticipated future uses.

In particular, the role of cost considerations in remedy selection is, with a few exceptions, appropriately addressed in S. 8. Cost is one of several co-equal factors to

be balanced in the good judgment of the Agency in selecting the remedy. It is not

an overriding consideration, and there is no mandate to choose the most cost-effective solution, but neither is it a subordinate or irrelevant factor in remedy selection,

as is so often the case under the present law.

Unfortunately, S. 8 does not appear to carry through fully with this risk-based approach with respect to groundwater. While it is true that, unlike soil, groundwater

moves and that in the long run many aquifers are interconnected, the same intellectual inquiry and the same criteria should apply to remediation of groundwater as

apply to other media and other exposure risks; namely, what real risks to existing

and reasonably anticipated uses of the resource can be identified, and what remedial measures should be employed to ameliorate those risks within the bounds of

technical practicability and reasonable cost. The notion that certain natural resources should be preserved for their own sake independent of any measurable risk

to human health or the environment or entirely without regard to cost or feasibility

considerations is a prescription for irrational expenditure of funds, whether public

or private. We urge the Subcommittee to take a hard and skeptical look at inflexible

rules for remedy selection, whether with respect to groundwater or any other medium.

Finally, the provisions in S. 8 for the review of remedies already selected for

Superfund sites under the existing law are a crucial element of remedy selection reform. Having learned from more than a decade of experience that our existing remedy selection criteria are not well suited to the task, it would be foolish not to direct

the EPA to reconsider previously selected remedies, at least where significant cost

savings could result from applying the new criteria that this Congress establishes.

While we cannot recover funds already misspent, there is no reason to extend the

mis-expenditure into the future. The EPA has recognized this fact in its recent administrative reform on ‘‘relooking at existing remedies.’’ The provisions for objection

by the State Governor in case of unreasonable delay provide additional, though perhaps not necessary, protection against abuse.

COMPREHENSIVE REFORM

As it should, S. 8 also addresses brownfields, State roles, community participation, Federal facilities, natural resource damages, government contractors and funding. None of those issues has a particular impact on Black & Decker, but each of

them deserves your attention as part of a coherent reshaping of this program. Attention should also be directed to those elements of the program that will grow in

importance in the future, such as long-term operation and maintenance costs,

delisting, and site reuse.

As I mentioned, Black & Decker is participating actively in the Superfund Action

Alliance, which recently adopted the attached ‘‘Superfund Fundamentals,’’ a set of

principles that address many of these concerns. We believe that the SAA Superfund

Fundamentals are practical, well-reasoned policy recommendations, and we encourage the Congress to use them as a guide in its work on Superfund reauthorization.

CONCLUDING COMMENTS

In conclusion, let me reiterate the important point: it is time for Congress to act.

We need to get past polarization and on to consensus and compromise. The years

of serious criticism of the existing Superfund program from virtually every segment

of the political spectrum have damaged its credibility and periodically paralyzed its

progress. While the EPA’s administrative reforms have helped in some respects,

only Congress can correct crucial deficiencies and put the Superfund Program back

on track. The Superfund Program needs a new congressional imprimatur, public

support, and assured funding. I hope that this Subcommittee and the 105th Congress can finally succeed in this effort where the 104th Congress and 103d Congress

could not.
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I commend the Subcommittee for its work and thank you again for this opportunity to present our views.

SUPERFUND ACTION ALLIANCE

SUPERFUND FUNDAMENTALS

The 105th Congress has the opportunity to pass legislation that will accelerate

cleanup of Superfund sites across the country. After 4 years of deliberation on

Superfund reauthorization, this is the time to make comprehensive reform happen.

The following document outlines some of the key provisions that need to be included when Superfund is reauthorized.

Remedy Selection

• Human health and the environment must be protected by Superfund response

actions which balance reasonable cost and technical feasibility and which accelerate

the progress of remediation.

• Remedy selection should reflect actual and reasonably anticipated future uses

of land and water resources, taking into account the nature and timing of that use.

• The remedy selection process should be simplified and performance goal-driven.

• Site-specific risk assessments should be used to guide selection of remedies

rather than generic relevant and appropriate standards (RARs) and preferences for

permanence and treatment.

• Substantive applicable state standards should be considered and their implementation balanced by such factors as reliability, community views, cost, technical

feasibility, short-term risk, effectiveness.

• In selecting remedies to protect usable groundwater or remediate contaminated

ground water needed for drinking in the future, due consideration should be given

to the nature and timing of the use of the groundwater and the cost and technical

feasibility of remediation.

• Consistent with timely protection of health and the environment, the benefits

of reform should be available at existing sites.

• Early and informed local community involvement should be encouraged and

supported with technical resources where needed.

Liability

• Superfund’s liability system should be reformed to maximize the flow of resources to cleanup, not lawyers.

• Reforms that eliminate inequities and reduce transaction costs, including allocation mechanisms that ensure cooperative parties are not forced to pay more than

their own share of cleanup costs, are critical.

• Liability limitations or exclusions for any group should be contemplated only as

part of the meaningful Superfund reauthorization described in this paper.

• Liability limitations or exclusions granted any party should be assumed by the

Fund and not reallocated to other parties at sites.

Brownfields

• The revitalization of cities is a critical national issue worthy of efforts by, and

funds appropriated to, a number of federal agencies. Efforts to redevelop brownfields

cannot, and should not, be funded from the Superfund cleanup fund but instead

should represent a broader national effort.

• Finality is important. Reluctance by U.S. Environmental Protection Agency to

issue a statement indicating work is complete and liability extinguished, and the inability of states to do so in lieu of the Federal Government, have discouraged property owners (potential ‘‘sellers’’), developers and other potential buyers from investing in brownfields. Liability protection for prospective purchasers is also necessary.

• Incentives should be provided to encourage states to develop and enhance voluntary cleanup programs which reflect due consideration for current and future use

of resources.

State Role

• Devolution of Superfund authority to the states is desirable, and the appropriate roles of the Federal and State governments at future remediation sites should

be addressed in reauthorization.

• It is important that each Superfund site have a ‘‘single master’’ overseeing remediation in order to encourage cleanup by providing certainty and eliminating duplication.
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Funding

• Superfund’s business taxes should be dedicated to cleanup of NPL sites, and the

program’s administration funded from the existing Trust Fund surplus as well as

general revenues, just like the Clean Air and Clean Water Acts. • Consistent with future NPL cleanup needs, limits should be placed on the duration and amount of tax responsibilities. • Taxes for Superfund must be accompanied by legislative reform that improves

the program. Both the legislative reforms and the examination of taxes must be consistent with fundamentals outlined in this paper.

Natural Resources Damages

• It is important to clarify the scope of natural resource damage claims and to

limit them to restoration of services provided by injured public resources.

• NRD restoration plans should be cost-effective, based on ecosystem/population

impacts, and achievable over a reasonable period of time.

• NRD liability should apply equally to private and public PRPs.

SUPERFUND ACTION ALLIANCE

3M

Aerojet

Allied Signal Inc.

American Automobile Manufacturers Association

American Car Rental Association

American Crop Protection Association

American Iron & Steel Institute

American Textile Manufacturers Institute

American Trucking Associations

AMP Inc.

Apex Environmental, Inc.

Association of American Railroads

Associated Builders and Contractors, Inc.

The Bankers Roundtable

Bayer Corporation

Bethlehem Steel Corporation

Biotechnology Industry Organization

The Black & Decker Corporation

BP America, Inc.

Browning-Ferris Industries

Burlington Northern Sante Fe

Chemical Manufacturers Association

Chevron Corporation

Chrysler Corporation

Ciba Specialty Chemicals

The Dow Chemical Company

Dresser Industries, Inc.

DuPont

Electronic Industries Association

Environmental Industry Association

The Flexible Packaging Association

FMC Corporation

Ford Motor Company

General Electric

General Motors

Georgia Pacific

Gulfstream/Stablex

Harris Corporation

Hazardous Waste Action Coalition

Hercules Incorporated

Hoechst Celanese Corporation

Hughes Electronics

Independent Lubricant Manufacturers Association

Institute of Scrap Recycling Industries

The Int’l Assoc. of Environmental Testing Laboratories

The Int’l Assoc. of Independent Tanker Owners

Lockheed Martin Corporation

LTV Steel Company
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Mobile Corporation

Monsanto Company

Motorola

National Association of Convenience Stores

National Association of Manufacturers

National Automobile Dealers Association

National Electrical Manufacturers Association

National Realty Committee

National Rural Electric Cooperative Association

National Steel Corporation

Northrop Grumman Corporation

Olin Corporation

Petroleum Marketers Association of America

Philips Electronics

PPG

The Raytheon Company

Rohm and Haas Company

Society of Independent Gasoline Marketers of America

Union Carbide Corporation

Union Pacific

United Technologies Corporation

Westinghouse Electric Corporation

WMX Technologies, Inc.

Zeneca Inc.

RESPONSES OF LINDA H. BIAGIONI TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. Ms. Biagioni, our bill includes an allocation process which attempts

to fairly determine how much a company is responsible for at a toxic waste site.

It allows small business and individuals out of the process, but larger companies

would stay in most cases. Do you think the allocation process in S. 8 would reduce

the litigation which surrounds the current Superfund process?

Response. Definitely yes. The Superfund Fundamentals adopted by the Superfund

Action Alliance state that ‘‘Reforms that eliminate inequities and reduce transaction

costs, including allocation mechanisms that ensure cooperative parties are not

forced to pay more than their own share of cleanup costs, are critical.’’

As I noted in my written testimony, the establishment of an allocation system

would be ‘‘an enormous improvement over the current litigation-laden approach to

allocation.’’ Moreover, the exemptions for small businesses and for all de minimis

contributors will dramatically reduce the number of parties, often to a much more

manageable level, at many National Priorities List [NPL] sites. Together, these two

changes, which have been supported in concept by Members from both political parties and by the Administration for several years, hold great promise for rapid and

efficient resolution of the ‘‘who pays how much’’ question at multi—party NPL sites.

Question 2. You stated in your testimony that you were uncomfortable with the

groundwater cleanup provisions contained in S. 8. Could you please expand on these

comments.

Response. The Superfund Fundamentals state that ‘‘In selecting remedies to protect usable groundwater or remediate contaminated groundwater needed for drinking in the future, due consideration should be given to the nature and timing of the

use of the groundwater and the cost and technical feasibility of remediation.’’

One important result of enacting S. 8 would be the elimination of several inflexible rules on remedy selection in the current law that prevent the EPA from acting

on a rational evaluation of the risks presented by an NPL site and the relative desirability of possible remedies to ameliorate those risks.

Unfortunately, with respect to groundwater, certain provisions in S. 8, such as the

language about protecting ‘‘uncontaminated groundwater,’’ seem to impose equally

inflexible new rules on remedy selection, undercutting the inclusion of natural attenuation as an acceptable remedy and ignoring the real feasibility limits on our

technological capability to remove contaminants. We have learned over the past decade that for various contaminants the expenditure of large sums for active groundwater pump-and-treat systems does not produce significantly faster remediation

than would reliance on natural processes. Black & Decker believes that the overall

approach to evaluation of the remedial alternatives in S. 8, based on the balancing

of factors set out in the bill, should be applied to groundwater remediation as well.
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Question 3. Ms. Biagioni, currently it is common that industrial sites are cleaned

up to residential standards, even if it is known that the site will be zoned industrial

in the future. Is it possible to justify cleanup standards based on future-use siterisk?

Response. The Superfund Fundamentals state that ‘‘Remedy selection should reflect actual and reasonably anticipated future uses of land and water resources, taking into account the nature and timing of that use.’’

Black & Decker believes that it is irrational to expend funds to clean up hazardous waste to levels in excess of those necessary to safely allow the foreseeable

human uses and environmental functions of the affected properties (whether or not

they are formally designated as part of the ‘‘site.’’) Limitations on future use can

and normally are reinforced with zoning restrictions and deed restrictions, thus necessitating the involvement of government officials and the public in any change

from the anticipated future uses and placing the burden of further cleanup that may

be necessary on those who wish to use the property in a manner that was not foreseeable at the time the remedy was selected.

S. 8’s overall remedy selection scheme takes a rational approach to this matter,

and we support that approach. As noted in response to Question 2, this approach

is equally applicable to groundwater, and the same policies should apply.

Question 4. You stated in your testimony that you thought this bill required a

more moderate approach to Superfund reform. Do you know of any reasons why any

member of this Committee, or the Senate for that matter, should not be a cosponsor

of this legislation?

Response. As I noted in my written testimony, ‘‘[T]he desire for a more perfect

bill should not obscure the fact that overall, S. 8, just as currently written, would

be a vast improvement over existing law.’’ While we recognize that Superfund reform is an extremely complex, multi—faceted subject, we believe that S. 8 is a balanced bill that carefully addresses the central issues of Superfund reform in a manner that largely reflects the consensus of the affected communities. We hope that

the Committee will be able to proceed soon to mark up S. 8 to refine and reinforce

that consensus. After 6 years of hearings and debates on Superfund reform, Congress should move quickly to a bipartisan consensus on legislation to accomplish

this vital objective this year.

RESPONSE OF LINDA H. BIAGIONI TO AN ADDITIONAL QUESTION FROM

SENATOR LAUTENBERG

Question. Your written testimony indicated that you are affiliated with the Superfund Action Alliance. Were you testifying on behalf of Black & Decker or were you

also testifying on behalf of the Alliance? Does the Alliance endorse the positions

taken in your testimony?

Response. As the membership list attached to my testimony indicates, the Superfund Action Alliance is a broad—based organization representing a large number

and wide variety of businesses and trade associations who agree on the necessity

for prompt Superfund reform. The Alliance has been in existence for some years,

but it has only recently taken substantive positions on specific elements of Superfund reform. Black & Decker has been an active participant in the Superfund Action

Alliance and participated in the process of formulating the Superfund Fundamentals.

Beyond the Superfund Fundamentals, however, Black & Decker’s testimony was

not formally endorsed by the Alliance. It reflects our own experience as a company

that has been named as a responsible party at a number of sites, but with one exception is not the owner, operator, or a predominant generator at any NPL site.

Other members of the Alliance might have given greater priority to other issues.

PREPARED STATEMENT OF BARBARA WILLIAMS, OWNER OF SUNNYRAY RESTAURANT,

GETTYSBURG, PA

Welcome to how Superfund ‘‘works’’ for the people of the Gettysburg-Hanover

Area of Pennsylvania, specifically the ‘‘Keystone Landfill.’’

• 1982—Local residents and the Commonwealth of Pennsylvania were aware of

offsite residential water supply contamination. The Commonwealth of Pennsylvania

allowed dumping to continue at the site.

• 1984—Environmental Protection Agency (EPA) Field Investigation.

• 1987—Site placed on the National Priority List of Superfund Sites. Pennsylvania-Division of Environmental Resources and US-Environmental Protection Agency allowed dumping to continue at the site.
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• 1990—Site ceased to accept waste because it was filled to capacity.

• 9/27/93—EPA filed suit against site owners and 11 original/generator defendants.

• 8/30/94—The original/generator defendant site owners, NOT THE EPA, filed

suit against 180 small businesses, boroughs and school districts.

• 10/5/95—The third part defendants, NOT THE EPA, filed suit against over 550

other small businesses and individuals.

• 2/5/97—EPA discovered buried waste outside the area listed for capping. Cleanup was delayed again.

• Current Keystone Status: The site cleanup has not started YET. No one is out

of the lawsuits YET.

I sincerely thank the chairman and members of the committee for inviting me

back.

I am Barbara Williams. My business is SunnyRay Restaurant in Gettysburg,

Pennsylvania. I have been a member of the National Federation of Independent

Business (NFIB) since 1982. Joining NFIB was one of the best business decisions

I have ever made. Every small business needs all the help it can get. NFIB has been

my coach and cheerleader. You cannot beat teamwork like that.

Speaking of teams, I want to thank my staff. They know that I am fighting to

save their jobs. Some of these great people have been with me since I opened almost

16 years ago. I am proud of the tremendous job they do. I am grateful for their loyalty.

I am a fourth party defendant at Keystone. I have been sued by my friends and

neighbors. Why did they do this? Because the only options they were given by their

attorneys was to either pay the exorbitant amount of money that the first and second parties had sued for, or to sue others in order to lessen the amount they would

be forced to pay for settlement.

My being brought into this suit defies common sense. I have recycled for years.

I have used the trash hauler that was approved and permitted by my borough government. I am told that my trash was then dumped into the Keystone landfill, a

site permitted by the Commonwealth of Pennsylvania. I would appreciate someone

explaining how I have become liable even after I obeyed all State and local regulations. What was I supposed to do with the food scraps? What have I disposed of

that is not found in every household?

I am being sued for $76,253.71. That is a lot of money to me, more money than

I pay myself a year. The continuing cost of legal representation is not included in

that figure.

I want clean air and water for myself and the generation that will follow me. I

am not the enemy of the environment. My trash is not the problem. Small businesses are not the enemy of the environment. I am here to tell you again that your

wonderful idea of cleaning up our country’s environment through the EPA and

CERCLA does not work in the real world. Your intentions were not followed. You

legislated for results. You got bureaucracy, regulations and litigation. Legions of environmental attorneys, not environmental solutions, were created.

I fight not only the unjust burden of this lawsuit, but the injustice of a landfill

on the Superfund National Priority List—10 years, and still NO CLEANUP HAS

STARTED.

I have no graphs or charts, no auditors reports. I am not here to toss about facts,

figures and percentages. I do not intend to enter the fray over the number of sites

cleaned, the time it takes to clean them or even to debate the number of billions

spent on litigation and administration. All day could be wasted on whose figures are

correct. I believe we can all agree on this: TOO MUCH TIME. TOO MUCH

MONEY. TOO FEW RESULTS.

I want to tell you how Superfund impacts lives in south central Pennsylvania.

This area has many extremely frustrated people for many reasons. People who live

in the area of the landfill are physically sick, frustrated and still waiting for the

promised cleanup from 10 years ago. People who recently bought and built houses

in the area and are just now finding out their neighbor is an uncleaned Superfund

site and they are livid.

I would like to share some quotes from Mary Minor, a Hanover Pennsylvania

women, who has fought to have the pollution problem resolved long before the EPA

was involved. She has lived daily with the effects of pollution and the stress of waiting for the promised cleanup.

• ‘‘Living near a Superfund site is very stressful.’’

• ‘‘Stress is a global disease.’’

• ‘‘Stress and the mind and body’s responses can shatter individuals, communities, entire societies.’’
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• ‘‘Dealing with agencies and institutions who have power over people and are

most often non-responsive or inefficient only exacerbates the stress, resulting in

psychophysiological health effects.’’ • ‘‘We cannot afford this as a society.’’ • ‘‘It is unjust for these problems not to be resolved.’’ • ‘‘Everyone in our communities suffer.’’

These remarks were taken for the paper There Is No Away, presented at the

International Conference on the Effects of Hazardous Waste on Human Health and

the Environment in Atlanta, Georgia.

Take it from me, the third and fourth party defendants in the Keystone case are

extremely stressed and frustrated and we are still waiting for a solution.

Please remember the more than 700 third and fourth party defendants are not

businesses which regularly produce hazardous or toxic waste. We are in this suit

not because of what we discarded, but because of how much waste someone has estimated we threw away. We simply and legally put out the trash according to local

and State regulations.

CERCLA is unfair because it imposes strict liability on the public without any

real notice as to what we should or should not put in the trash. I am told that ball

point pens are hazardous waste. However, I still have not purchased a ball point

pen with directions for hazardous waste disposal. Present CERCLA prohibits disposal of hazardous substances, but there is no evidence that any third or fourth

party defendants sent hazardous substances to the site.

Our guilt is based on an expert’s report which assumes some hazardous material

is in all garbage, but there is no real evidence. We simply put out the garbage. And

even though that is not what CERCLA was aimed at, we are told we are guilty and

expected to meekly write our checks without even being given total and complete

indemnification against further claims for additional money.

For small businesses this suit can be devastating. It is an uninsured loss. After

years of premiums for liability and umbrella liability policies, we are told we are

not covered for our attorney fees or for possible settlement costs. The money for settlement is considered a penalty so it will not be deductible as a business expense.

Small businesses will have to make enough money to pay this on top of our other

bills and payroll.

Allow me to introduce you to some of my fellow defendant: restaurants, like myself, campgrounds; apartment owners; antique shops; furniture stores (not furniture

manufacturers); motels; laundromats; dress shops; pizza shops; department stores;

trailer parks; convenience stores; ice cream shops; book stores; pet shops; flower

shops; groceries; theaters; delis; and gift shops. We are small business owners. Another example is the Vietnam Vet who’s dream was to own a neighborhood tavern.

But now he is fighting the government that he not long ago fought for.

We, our employees, and our children live with this cloud over us every day. A

child should not have to worry about what’s going to happen to her family’s business. A 9-year old, Sierra Bair of Hanover Pennsylvania, in her letter to President

Clinton says, ‘‘My family owns restaurants and they serve food not hazardous stuff.

Since when is food bad for us. Isn’t it a shame so many are getting punished for

a few.’’

Why is this happening? What are we doing to our children? Do you think they

will want to grow up and own a small business after they have seen their parents’

hopes and dreams destroyed. Our legal battle has been a never-ending expensive

roller coaster ride. And the ride is not over yet. Everyone is still paying local and

liaison attorneys.

So here we are: The landfill is not cleaned up and the litigation goes on. Now it

is the time to change. If we do not change our actions we will never change our

results.

When I testified last April, I was encouraged by your statement that you understood our situation and were resolved to remedy it. That hope was reinforced when

I read S. 8. I am very pleased to see that S. 8 addresses many areas I was concerned

about: municipal solid waste, small business defendants and co-disposal landfills. I

believe you listened and responded. It means a great deal to learn that our voices

were heard.

I believe that you know how critical the wording of this bill is. The best example

is that current and former Members of Congress have told me that they did not

write CERCLA to force people like myself and my fellow third and fourth party Keystone defendants to pay cleanup costs for Superfund sites. Yet the law, or its interpretations by the courts, and the EPA now hold us liable.

In the small business exemption section, should ‘‘30 employees’’ be amended to

read ‘‘30 employees or the full time equivalent of 30 employees?’’ I would emphasis

the importance that the bill continue to read ‘‘employees or’’ NOT be changed to
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read ‘‘employees and 3,000,000 gross revenue.’’ I would respectfully request that the

manner of proving $3 million gross revenue be explained. Will the definition of Municipal Solid Waste begin more lawsuits? It appears plain to me that your intentions

are to resolve the issues that have been used to allow litigation to take precedence

over cleanup.

But my concern is that others will not see it so clearly. I am concerned that there

will always be a well-meaning EPA official who believes he knows better than you

what you meant when the law was written or an attorney upset to see his potential

life’s work evaporating before his eyes. My fear is that these officials will challenge

the authority and intentions of Congress and the President; that some judge somewhere will listen and rule that you did not write the law to say what you meant,

and their course of action will continue indefinitely.

I would also like to see work on public awareness and education. If we continue

the same action, how will we ever get different results? What, if any, incentive is

there to industry business, science, education and research to creatively reduce,

eliminate or resolve the problem of pollution? I believe we have the creative minds

and entrepreneurial spirit that could revolutionize the technology of clean air and

water. The public and businesses need to be encouraged and educated, not penalized

for obeying existing laws—as we are being penalized for operating legally.

I have been told that I am too old to be naive enough to believe that the system

works. If the nay sayers who tell me I am wasting my time are right, if one American citizen crying out against injustice cannot make a difference, if regulations are

more important than rights and results, then sadly we do no longer live under a

government of the people, by the people and for the people—and the thousands who

have given their lives to protect this grand experiment of government truly died in

vain.

When Lincoln came to Gettysburg he expressed concern for our system of

government . . . of the people, by the people, for the people shall not perish from

the earth. My concern is that we are perilously close to losing the government Lincoln described, not because of outside enemies but because of an ever-growing, allpowerful bureaucracy.

You are our hope. Thank you.
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PREPARED STATEMENT OF KAREN O’REGAN, ENVIRONMENTAL PROGRAMS MANAGER,

CITY OF PHOENIX, AZ

Chairman Smith and members of the Subcommittee, the International City/

County Management Association, the National Association of Counties, the National

League of Cities, the National Association of Towns and Townships, the U.S. Conference of Mayors, the Municipal Waste Management Association, and the American

Communities for Cleanup Equity respectfully submit this testimony on S. 8 and ask

that it be made part of the hearing record.

Collectively, our organizations represent thousands of cities, towns, and counties

across the United States. Hazardous waste sites impact the health of our citizens

and the environmental and economic viability of our communities. As a result, we

are well qualified to provide the Subcommittee with a truly representative view of

how local governments and their citizens have been affected by Superfund and to

offer some suggestions as to how the program may be improved.

My City is a member of the International City/County Management Association

and has been substantially involved with formulating the ICMA and Phoenix’s Federal and State Superfund policy. We are currently involved in reforming the State

of Arizona’s Superfund program and have faced many of the same challenges being

addressed at the Federal level. Despite the competing interests of different Arizona

stakeholders, we are developing a growing consensus on a fair and streamlined

cleanup program.

Like many other local governments, the city of Phoenix has many Superfund

roles. At various sites, we are a generator of municipal solid waste and an owner

and an operator of a co-disposal site; a water provider charged with protecting

drinking water aquifers; expected to represent our citizens on local hazardous waste

concerns; asked to offer up streets and rights-of-way for wells and remedies; and

charged with revitalizing brownfields and blighted areas. We also experience economic and environmental impacts because there are four Federal Superfund sites

and nearly a dozen state Superfund sites within or adjacent to the city of Phoenix.

Many of those sites are large areas of regional groundwater contamination that

have caused closure of drinking water wells.

In our many roles, the city of Phoenix has, since passage of the original Superfund

statute in 1980:

• paid approximately $20 million for response costs at Federal and state Superfund sites;

• been a plaintiff in Superfund cost recovery actions regarding two landfills; and

• commented on numerous proposed Superfund remedies onsites within our borders.

While these experiences were not enjoyable, they did give us ideas of what the

most pressing needs and concerns of local governments are with respect to Superfund and how to resolve them. We have reviewed S. 8 and would like to offer suggestions, beginning with its proposed liability scheme.

LIABILITY RELIEF

Across America, unjustified litigation is saddling local governments with expensive legal cons and exposing us to millions of dollars of threatened liability simply

because we owned or operated municipal landfills or sent garbage or sewage sludge

to landfills that were also used by generators and transporters of hazardous wastes.

This problem has severely affected hundreds of communities and school boards and

their citizens. Many of us have seen our budgets for essential services threatened

and reduced.

Simply put, local governments are in a unique situation that justifies statutory

relief. Local governments are required to provide waste collection and disposal services for public health purposes and as a service for our citizens.

It is also undisputed that Municipal Solid Waste contains, at most, a de minimis

amount of Superfund hazardous substances. Most local governments are drawn into

Superfund because of the past co-disposal of municipal trash with more toxic industrial hazardous waste.

There is a strong consensus in support of the position that local governments

should be provided relief. We appreciate the attention that has been given to this

issue by the Subcommittee and believe the municipal liability provisions outlined in

S. 8 are a step in the right direction. After the date of enactment local government

generators and transporters—as well as private parties—will be relieved of costs incurred attributable to all municipal solid waste and sewage sludge activities and

any waste activities at co-disposal sites. In addition, local government owners and

operators at co-disposal sites would receive a liability cap based on population.
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We appreciate the committee’s efforts to address our concerns, and the proposals

in the bill are positive steps. However, there are some shortcomings in the liability

relief proposal that will leave some local governments exposed to significant liabilities and many others bearing significant transaction costs. The following are our

overall comments: • Limiting the application of the local government owner and operator and generator/transporter relief provisions to costs incurred after the date of enactment leaves

local governments open to potentially large payments and transaction costs related

to clean up expenses incurred prior to the date of enactment. For example, if a PRP

incurred costs to clean up a site and is now suing local governments for recovery,

the bill provides no relief from liability exposure. This means that the exposure of

generators and transporters could be significant and in the case of owners and operators, much greater than 20 percent. For instance, the city of Phoenix’s estimated

response costs already incurred at two co-disposal sites it owned or operated is at

least $17 million. Although the city has recovered some of those costs through litigation, none of the costs incurred will be credited toward the 20 percent cap.

Recommendation: For these reasons, any liability relief that is provided to local

governments for activities related to municipal solid waste and sewage sludge

should include relief for costs incurred prior to the date of enactment that have not

yet been settled. We hope that any local government liability relief provisions will

be structured to provide certainty and limits on the amount of liability. For example, a cap or some type of limit on local government generator and transporter liability for cleanup costs incurred prior to the date of enactment of the bill and crediting cleanup costs already incurred by local government owner and operators

against the 20 percent cleanup cap, would go a long way to alleviate.transaction

costs and provide effective relief for local governments. We will be happy to provide

the Subcommittee with further information on these suggestions for possible options

to achieve effective liability relief for local governments. • The conditional nature of the relief for Subtitle D facilities is also troubling. S. 8

would make the Subtitle D liability cap at co-disposal sites unavailable to a facility

that was not operated in ‘‘substantial compliance’’ with local laws and permits. Nor

would a local government receive liability relief if it violated regulations related to

vector control.

Recommendation: We suggest that the language be crafted in a more specific manner to ensure that local governments are not penalized. The legislation should ensure that the cap will not be subject to minor infractions having no impact on public

health and safety or the integrity of the environment. • Under S. 8, local governments who were owners and operators of co-disposal

sites would be asked to pay up to 20 percent of the cleanup costs, while private industries who generated hazardous waste that many times caused the contamination

at these sites would be asked to pay nothing. Local governments, who often had to

accept the hazardous waste at their landfills, do not believe that such a liability

scheme is properly balanced.

Recommendation: We suggest that you develop an allocation system, with a percentage for the private generators and transporters of hazardous waste at sites

owned or operated by municipalities.

We hope that the committee will ensure that whatever liability relief program is

enacted into law is workable within the financial limits of the trust fund and the

demands of the cleanup program. This will warrant that sites are cleaned up in an

effective and timely manner.

Finally, an area of importance to local governments not addressed in the legislation is the potential liability arising from municipal ownership and operation of public sewer systems and related treatment works. Citizens generally take for granted

the existence of a functional, convenient sewer systems; indeed, most people believe

they have a right to such systems. Accordingly, municipalities and other public bodies provide these facilities to protect the public health and welfare of the community.

The operation of a sewer system can require a municipality to maintain and repair hundreds of miles of unseen, underground pipeline. Because the underground

grid of pipes making up sewer systems can be so extensive and because it is essentially invisible, detection of leaks or releases from the system can be difficult. In addition, because a municipality cannot police every sewer drain connection, it has

limited control over the type of materials illegally disposed into the system.

Nevertheless, local governments became liable for releases of hazardous materials,

which were improperly discharged to the receiving sewers in the first place or for

discharges from POTWs in excess of permitted limits caused by improper industry

discharges to the sewers. For instance, the Washington Suburban Sanitation Commission was found by a Maryland Federal court to be liable for leaks from its sewer
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pipes of hazardous substances that were improperly disposed of by a dry-cleaner.

This finding of liability was made despite the fact that the disposal of the hazardous

substances into the sewer was prohibited by the Sanitation Committee. These are

recurring liability problems that need to be addressed by the legislation.

Recommendation: We believe S. 8 should extend the same liability relief to owners

and operators of publicly owned treatment works as it does to municipal owner and

operators of co-disposal sites.

REMEDY SELECTION

The current system frequently discourages parties from implementing timely

source control and containment because of the threat that impossible measures such

as fill aquifer restoration will be required. By demanding the impossible, we frequently fail to get the reasonable.

Cleanup standards should be site-specific, where appropriate, and based upon actual or reasonably foreseeable risk. Where more relaxed cleanup standards are used,

permissible property uses should reflect the level of cleanup. Institutional standards

should also be considered to supplement risk-based decisions.

S. 8 endorses many of these concepts; however, we are concerned that the bill’s

focus upon treatment at the point of use does not adequately protect the groundwater resource. We urge the Subcommittee to require containment of contaminant

plumes when drinking water is threatened. As growth continues, and water supplies

become even more precious, we will need to rely upon aquifers with water of lesser

quality. Allowing migration of contaminants into lesser quality aquifers will only increase local governments’ treatment costs when that day arrives.

In addition, the proposed Remedy Review Board appears to have broad powers,

and without further information on its members and structure, we have reservations about the need for another regulatory body. We are concerned that this Board

would overturn agreements reached after years of negotiations and undermine hardfought remedy selection decisions made by stakeholders, including citizens and local

governments. We propose instead that an Advisory Board be established to provide

guidance on remedy selection and monitor the Superfund program on a national

basis. We urge that local governments be a mandatory part of any advisory or Remedy Review Board.

BROWNFIELDS

Revitalization of brownfields is a critical issue for local governments around the

country. We applaud the efforts made in this bill regarding brownfields revitalization. Many urban centers contend with environmental, public health, and economic

threats posed by abandoned and contaminated industrial and commercial properties.

The grants proposed in the bill are critical to assisting local governments remediate and reuse brownfields sites, and enhance and promote redevelopment activities.

However, grants are only a piece of the brownfields puzzle. Because many communities want to encourage private investment activities, other incentives, including

Federal tax incentives, should be considered.

We look forward to working with the community to further refine these proposals.

COMMUNITY PARTICIPATION

Local government officials are the elected representatives of the communities directly accountable to citizens. Our role in the decisionmaking process should be commensurate with our representative status. S. 8 does not recognize local governments’ authorities for the determination of reasonably anticipated uses of land and

water resources.

For example, S. 8 establishes the Community Response Organization (CRO) as

the conduit of information between the community and the Federal and state regulators and PRPs. The CRO serves as the representative of the local community during the remedial action planning and implementation process. Yet, representatives

of local governments are designated as only one of many groups included for membership on the CRO. Local governments do not oppose the CRO, but we are concerned that the bill establishes the CROs as the only formal mechanism for local

governments to participate in the decisionmaking process.

Recommendation: Local governments should have a separate and distinct route for

input on decisions affecting their communities.

S. 8 requires that the Administrator ‘‘shall consult with the [CRO] in developing

and implementing the remedial action plan.’’ However, there is no language indicating that local governments represent the affected the community.
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Recommendation: S. 8 should be amended to require the Administrator to directly

consult with the affected community as represented by the local government in developing and implementing the remedial action plan.

CONCLUSION

In conclusion, the Superfund program must ensure that sites are cleaned up

quickly and effectively without threatening the economic viability of our communities. To achieve those goals, the Superfund program must provide adequate funding for site remediation and establish cleanup standards that are protective of

human health and the environment. This will ensure that sites are not continuing

problems for communities in the future. Further, it will ensure that local governments will not be left with sites that are not remediated, contributing to an already

overwhelming brownfields problem.

We appreciate the opportunity to comment on the bill. We thank you for giving

attention to local government liability relief. We hope that any reauthorization will

include effective liability relief for local government activities related to municipal

solid waste, sewage sludge and publicly owned treatment works incorporate the recommendations that we raised in our testimony.

We again thank you for your attention to this matter and we look forward to

working with you and your staff on this matter.

RESPONSES OF KAREN O’REGAN TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. S. 8 includes a remedy review board with more power than that created by the EPA. In your statement, you say that you believe that local governments should have a role in this process. Do you support the use of remedy review

boards that are included in S. 8?

Response. As stated in my oral and written testimony, local governments have

reservations about the broad authority apparently given to the proposed Remedy

Review board in S. 8. Without additional information on its structure, members and

scope, the local governments that I represent have reservations about the need for

yet another regulatory body. Those local governments are also concerned that this

Board could overturn agreements reached after years of negotiations, and undermine hard-fought remedy selection decisions made by stakeholders, including citizens and local governments. We propose instead that an Advisory Board be established to provide guidance on remedy selection and monitor the Superfund program

on a national basis. We also urge that local governments be part of any Advisory

or Remedy Review Board.

Question 2. It is my understanding that there is legislation moving through the

Arizona legislature to modify the State hazardous waste cleanup statute (hearings

were held in February) which: (1) repeals joint and several liability; (2) limits small

business and de minimis contributor liability; and (3) provides that any PRP who

voluntarily accepts its cost allocation will have 25 percent of its cleanup cost paid

for by the Water Quality Assurance Revolving Fund—a fund derives from taxes on

hazardous waste disposal, industrial discharge fees, corporate taxes and landfill tipping fees.

Do you agree that parties should only be held responsible for their own waste,

not the pollution caused by someone else? (In other words, not subject to joint and

several liability).

Included in S. 8 is an allocation system that would similarly have the effect of

eliminating joint and several liability. Do you agree that this should result in much

less litigation than under the current system?

Response. Senate Bill 1452 and related amendments, which reform Arizona’s

Water Quality Assurance Fund (WQARF), were developed through a long and arduous consensus-based process by a state-wide Groundwater Task Force and Legislative Study Committee. The legislature plans to adjourn by April 18 of this year and

we expect additional revisions prior to final passage. Draft Senate Bill 1452 repeals

joint liability in favor of allocated proportionate share liability; has special settlement provisions for ‘‘qualified’’ small businesses and those facing financial hardship;

and, subject to certain criteria, provides a 25 percent early settlement discount to

Responsible Parties who accept their share of cleanup costs based upon the Arizona

Department of Environmental Quality’s allocation. I have attached a brief Fact

Sheet prepared for Arizona legislators which provides an overview of the bill’s major

components, and would be pleased to provide the Committee with additional information on the bill.
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Currently, WQARF’s primary revenue source is a statewide per gallon assessment

on water purveyors, which includes municipalities and irrigation districts. This assessment is charged to our citizens on their water bills. The next major revenue

sources for WQARF are the State’s general fumd and cost recovery actions, followed

by miscellaneous fees on pesticide /fertilizer/ landfill registrations, interest on the

fund, hazardous waste fees, and several discharge permit fees. Currently, corporate

taxes do not fund WQARF, although that funding source is proposed under Senate

Bill 1452.

Like Congress, Arizona stakeholders have debated whether parties should be subject to a proportionate or fair share liability scheme instead of joint and several liability. The fairness of joint liability was hotly contested both this year in the Task

Force and during last year’s legislative session. The removal of joint liability was

only agreed upon by many of the participants if, and only if, adequate, dedicated

funding for the WQARF program is concurrently provided for in the law. A municipal coalition representing cities in the Phoenix metropolitan area took the position

that, if joint liability were to be removed, the WQARF program funding level would

need to be greatly increased to provide funding for the resultant orphan shares (i.e.

shares of responsibility attributable to unknown or non-viable responsible parties).

As a result of the proposed WQARF reforms, including the elimination of joint liability, the current annual funding level for WQARF is proposed in Senate Bill 1452

to be raised from around $3 million to an annual amount of about $18 million.

Under the consensus version of the current WQARF bill, the additional funding will

be provided by earmarking existing corporate income tax revenues, which are not

currently a WQARF revenue source.

With respect to a national local government position on the Federal Superfund liability scheme, local governments understand that joint liability can be criticized as

not necessarily fair; however, it is an effective enforcement mechanism to ensure

that remedial activities and orphan shares will be funded. We are concerned that

if joint liability is eliminated, and adequate funding for orphan shares is not provided, cleanups may not be accomplished, further exacerbating environmental and

public health problems associated with Superfund sites. Therefore, many cities

would only support the removal of joint liability if adequate, dedicated funding for

orphan shares is provided for in the Federal Superfund statute.

The second part of your question asks if an allocation system will result in less

litigation than the current system. As you know, the proposed Arizona WQARF reform bill proposes an allocation system with incentives for early settlement and disincentives for litigation. For example, parties that settle early with ADEQ based

upon the agency’s determination of their share are entitled to a 25 percent early

settlement discount. Conversely, all parties, including the State, who choose to litigate rather then accept the allocation, can be held responsible for all attorneys’ fees

and litigation costs. While the proposed system has not been tested, the varied and

numerous stakeholders hope that it will streamline and clarify what has been a contentious, slow, and undefined process.

Question 3. It is my understanding that a committee of the Arizona Legislature

that recently reviewed the State hazardous waste cleanup law recommended that

all the revenues from the State Water Quality Assurance Revolving Fund be dedicated solely to the hazardous waste program. As you may know, even though Superfund is funded with corporate taxes, and although the Superfund trust fund has a

surplus of $3 billion, the effect is that these moneys are being utilized to balance

the Federal budget. Do you agree with the Arizona committee’s recommendation

that tax revenues collected for hazardous waste cleanup should actually be used for

that purpose? If so, shouldn’t we also do that in regards to Superfund?

Response. The parties that have been reforming WQARF have generally agreed

that the State Superfund program needs to have adequate funding which is dedicated to WQARF program activities, including administration of the program, site

characterization activities, legal support, removals and remedial activities, and

other WQARF-related activities. We believe that the Federal Superfund should also

have adequate funding dedicated to performing all of the necessary Superfund activities.

SENATE BILL 1452—WQARF PROGRAM AMENDMENTS

Senate Bill 1452 is a comprehensive overhaul of the Arizona Water Quality Assurance Fund (‘‘WQARF’’) program, also known as the Arizona Superfund program. It

is the product of the ongoing work of the Groundwater Cleanup Task Force (appointed by the Arizona Department of Environmental Quality ‘‘ADEQ’’ and the Arizona Department of Water Resources ‘‘ADWR’’) and the Joint Select Committee on
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WQARF (appointed by the Legislature pursuant to Chapter 290, 1996 Laws a/k/a

HB 2114).

SB 1452 represents significant headway toward a true consensus on WQARF reform; however, it must be viewed as a ‘‘work in progress.’’ Some important issues

are yet to be resolved. However, the SNRAE amendment embodies the following key

elements of a developing agreement: • Permanent elimination of joint liability for hazardous substance cleanup;

• Non-litigation procedures for determining the fair share of each responsible

party, with incentives for quick settlement and disincentives to litigation;

• Relief for qualified, small businesses that cannot afford to pay even their fair

share of cleanup costs;

• Dedicated funding ($18 million annually—$3 million from existing dedicated

sources and $15 million from corporate income tax collections) for ADEQ site investigation, responsible party identification, remedy selection, and orphan shares;

• Limitation on the State’s ability to bring lawsuits under Federal law, to the extent inconsistent with State law;

• Prioritization of sites with greater emphasis on risk to human health;

• Enhanced community involvement and public participation at all stages of the

cleanup process;

• Flexibility and common sense in determining appropriate cleanup methods;

• Removal of regulatory & liability barriers to transport and use of remediated

water;

• Inspection and remediation or abandonment of wells contributing to groundwater contamination;

• Ongoing review of the WQARF program by a new WQARF Advisory Board and

periodic Program Authorization Review (‘‘PAR’’).

The Groundwater Cleanup Task Force and the Joint Select Committee on

WQARF believe that the revisions proposed SB 1452 will result in a more fair and

effective WQARF program. The stakeholders will continue to work through the details to implement GCTF and Joint Select Committee recommendations. We urge

your support of SB 1452.

PREPARED STATEMENT OF TERRY D. GARCIA, ACTING ASSISTANT SECRETARY FOR

OCEANS AND ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Good morning, Mr. Chairman and Members of the Committee. I am Terry Garcia,

the acting Assistant Secretary for Oceans and Atmosphere for the National Oceanic

and Atmospheric Administration (NOAA) of the Department of Commerce. I am

here today representing the interests of the U.S. Department of Commerce, the U.S.

Department of the Interior (DOI), the U.S. Department of Agriculture (USDA), the

Department of Defense, and the Department of Energy in their role as natural resource trustees.

I would like to reassert for the 105th Congress the Clinton Administration’s steadfast commitment to protecting and restoring the Nation’s valuable natural resources. My testimony begins by reviewing recent progress made by the trustees toward restoring natural resources under the existing laws and rules governing damage assessment activities. I will then highlight reforms to the natural resource damage (NRD) provisions of the Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA or Superfund) that this Administration proposes. The

final portion of my testimony will focus on provisions in the Superfund Cleanup Acceleration Act of 1997 (S. 8) that would impede the efforts of State, tribal and Federal natural resource trustees to protect and restore the Nation’s natural resource

heritage.

CERCLA was enacted to address the legacy of hazardous substance contamination

created by over 100 years of harmful disposal practices in this country. The statute

provides important authorities not only to protect human health, but also to protect

and restore this Nation’s natural resources. These natural resources represent a

critical component of our Nation’s commerce—and the foundation of our future.

Harm to the public’s natural resources from years of improper handling and disposal of hazardous substances at sites throughout the country persists to this day.

Losses to society and the U.S. economy from the public’s inability to use and enjoy

natural resources are potentially enormous. Over 76 million Americans enjoy birdwatching, photography and other nonconsumptive uses of wildlife, contributing $18

billion a year to the economy. Annually, 50 million anglers contribute nearly $70

billion to the Nation’s economy. Moreover, these and other citizens gain an enjoyment, serenity, and sense of community and national pride from unspoiled natural

resources that transcend such economic impacts. The original drafters of CERCLA
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made a commitment to the American people that waste sites would be cleaned up

and natural resources restored.

The natural resource damage provisions of CERCLA allow us to reclaim our environment and restore those natural resources that have been degraded or destroyed

by years of harmful hazardous waste disposal. CERCLA provides that natural resources that have been lost as a result of the disposal of hazardous waste into the

environment will be restored for the people of the United States. To curtail the ability of trustees to be fully effective in their efforts is to deprive the people of this

Nation of the right to have their natural resources fully restored to health and productivity.

Hazardous substances can be toxic to fish and wildlife at extremely low concentrations. Common effects of hazardous substances include death, cancer, impairment

of reproduction, disruption of normal fetal development, impairment of growth, reduction of central nervous system functions, and impairment of normal behavior

patterns essential for survival. Very low concentrations of dissolved zinc or copper

in water are highly toxic to developing fish larvae. Some of the more serious contaminants in the environment are those that persist for long periods of time and

buildup in the tissues of fish and birds. For example, the bioaccumulation of dioxins,

PCBs, and DDT can disrupt delicate hormonal systems and prevent normal reproduction. Relatively low concentrations in soil or sediment can accumulate and increase in concentration up through the food chain, causing harm in higher level animals. Effects can extend far beyond individual organisms, resulting in the collapse

of populations, food chains, or even entire ecosystems, as the substances are transferred from one level of a system to another over long periods of time. With these

potential losses at stake, and knowing how strongly Americans feel about protection

of their natural resources, CERCLA’s NRD provisions should only be revised if the

changes strengthen the trustees ability to ensure effective restoration of the public’s

natural resources.

Significant progress has been and is being made by State, tribal, and Federal

trustees toward restoring natural resources injured by hazardous substances. By

working within the U.S. Environmental Protection Agency’s (EPA) remedial process,

trustees have reached agreements with responsible parties to restore habitat and injured resources at more than 25 hazardous waste sites as part of negotiated comprehensive government settlements. For these sites, trustees have been able to obtain small restoration projects that provide significant cumulative benefits for natural resources. Trustees have also obtained settlements and advanced restoration as

a direct result of natural resource damage assessment activities. I’d like to highlight

some of the restoration that has occurred since we last testified before this Committee:• Baytown, Texas. Restoration is complete at the French Limited Superfund Site,

where a sand pit was used to dispose of enormous quantities of sludge and sediment

contaminated with polychlorinated biphenyls, polycyclic aromatic hydrocarbons and

other organic compounds between 1966 and 1971. Chemical residues from the pit

contaminated groundwater and subsoils near the site, injuring trust resources such

as migratory birds and crabs. Working within the EPA cleanup process, Federal

trustees reached a settlement with the responsible parties to restore a marsh that

would provide for the replacement of natural resources that had been injured, destroyed or lost. To achieve this end, the responsible parties worked cooperatively

with the city of Baytown, Texas, to create a 60-acre wetlands reserve, including: 40

acres of saline to brackish marsh; 10 acres of forest land containing freshwater

pools; and 10 acres of stream channels. Natural resources that previously used the

area for food and shelter are returning to the restored marshland and local residents can now use the restored area for nature walks and fishing.

• New Castle County, Delaware. A restoration plan has been completed for the

Army Creek Superfund site, where a sand and gravel pit was used as a landfill for

municipal and industrial wastes during the 1960’s. Untreated groundwater was discharged into Army Creek, a tributary of the Delaware River, to prevent additional

contamination of private drinking water wells. Working within EPA’s remedial process, trustees protected natural resources during the cleanup and reached a settlement that provided for recovery of injured natural resources, including migratory

birds, anadromous fish and their habitats. Two offsite habitat enhancement projects

are proposed in the restoration plan: the first involves improving and restoring fish

and wildlife habitat in Lower Army Creek through modification of an existing water

control structure; and the second project involves the acquisition and rehabilitation

of approximately 60 acres of marsh and upland habitat to compensate for the loss

of similar upland acreage.

• Tacoma, Washington. Efforts continue to restore and enhance habitat for fish

and wildlife injured by years of pollution in Commencement Bay. Two seasons of
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planting have been completed at the Middle Waterway Shore Restoration Project,

converting 4.7 acres of industrial uplands to a mix of clean, replanted upland habitat, intertidal salt marsh and intertidal mud and sand habitats. The goals of this

project were to create productive and diverse estuarine habitats for fish and wildlife

and to provide a model for the use of volunteer assistance in carrying out coastal

restoration. In October 1995, volunteers planted over 600 native upland trees and

shrubs as part of this effort. In October 1996, an additional 300 trees and shrubs

were planted by natural resource trustees. • New Bedford, Massachusetts. Cleanup is ongoing in New Bedford Harbor and

the trustees are moving forward aggressively with restoration efforts. The trustees

have issued a Restoration Plan/Environmental Impact Statement for restoration actions not directly dependent on the progress of the cleanup and have undertaken

an extensive outreach effort to solicit public input. The plan was developed by the

trustees in cooperation with local citizens, businesses, academic institutions, State

and local governments and non-profit organizations. It identifies 12 preferred restoration actions to restore a broad range of natural resources and human uses

throughout the New Bedford Harbor environment. The trustees are proposing restoration priorities that include marshes and wetlands, recreational areas, water

quality, fish and shellfish, and endangered species, and expect project implementation to begin within the next 6 months. • John Day River, Oregon. Restoration of the John Day River is ongoing in response to the February 1990 spill of 3,500 gallons of hydrochloric acid into this river

in north central Oregon. A final restoration plan has been issued that identifies 12

potential restoration projects for improving spawning and rearing habitat for both

resident and anadromous fish. In addition to the restoration funding provided under

the settlement, the trustees have successfully solicited matching funds for habitat

restoration from the Bonneville Power Administration, the Forest Service and the

Nature Conservancy. Two projects currently underway will improve spawning and

rearing habitat for salmonids by reducing erosion and the buildup of sediment in

the river, increasing streamside vegetation and restoring the natural pond and riffle

characteristics of the streams. • Lake Charles, Louisiana. Natural resource trustees and Conoco are formalizing

two agreements that will enhance habitats for fish and wildlife to compensate for

natural resource injuries associated with a March 1994 release of ethylene dichloride into the Clooney Island Loop area of the Calcasieu Estuary. A cooperative effort

between trustees and Conoco will result in the creation and long-term protection of

more than 200 acres of habitat on former farmland in the Hippolyte Coulee-Black

Bayou area. More than 60,000 1-year old native tree saplings have recently been

planted to restore habitat that provides sanctuary to many wildlife and fish species.

Conoco is also voluntarily funding a Louisiana State University study to evaluate

the success of the restoration project.

• Salmon, Idaho. As part of a 1995 natural resource damage settlement for the

Blackbird Mine case, responsible parties agreed to restore the water quality in Panther Creek to support all life stages of salmonids by the year 2002. Pending restoration of water quality onsite, the responsible party is pursuing offsite compensatory

restoration under the provisions of the consent decree. Specific reaches of stream

have been identified for habitat improvement through livestock exclusion. The responsible party is now negotiating with land owners to exclude cattle from seven

miles of potentially excellent habitat for salmon and other fish in the Snake River

basin. In addition, detailed plans for restocking and improving habitat in the Panther Creek watershed are under review for immediate implementation once water

quality improvement is confirmed by monitoring.

• Central California Coast. Significant progress has been made to reestablish

common murre colonies in the areas where colonies were extirpated or severely injured by the 1986 Apex Houston oil spill. Decoys and other attractants have been

deployed at historic breeding sites: Murres have landed and have already bred at

these sites. The common murres will be monitored to further refine and evaluate

the recolonization effort. As part of this restoration effort, work began in 1995 to

purchase old growth forest as nesting habitat near current populations of marbled

murrelets. Trustees are in the process of negotiating a purchase with the property

owner.

To accelerate restoration, Federal trustees have adopted several administrative

changes aimed at expediting the restoration of injured natural resources. These include new natural resource damage assessment regulations and proposed amendments to CERCLA’s natural resource damages provisions. In 1994, the Department

of the Interior finalized revisions to the CERCLA natural resource damage assessment regulations. The new regulations require trustees to focus their assessment

work and base their claims on a publicly reviewed plan for restoring injured re-
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sources to their baseline condition (i.e., the condition that would have existed in the

absence of the release). In January 1996, NOAA issued final natural resource damage assessment regulations under the Oil Pollution Act of 1990. The OPA rule extends the restoration-based approach of the 1994 CERCLA regulations. Before trustees present a claim for an oil spill under the OPA rule, they must develop a plan

not only for restoring baseline, but also for restoring the services lost in the interim

until baseline is re-established. The OPA rule specifies that for the vast majority

of oil spills, the trustees will no longer assess monetary damages for interim losses

based on economic values. Responsible parties then have the option of either implementing the plan or funding the trustee’s implementation of the plan.

This new paradigm is being used for the North Cape oil spill, where natural resource trustees and the responsible party continue to work cooperatively to assess

the effects of the spill and to determine appropriate restoration actions for Rhode

Island’s coastal environment. Four teams of experts have examined impacts to salt

pond communities (fish, shellfish and vegetation), marine communities (lobster and

surf clams), birds, and human uses (charter boat fishing, tourism and recreation).

The restoration planning efforts of these teams are nearing completion, and a draft

restoration plan will be released for public review and comment in late spring of

1997.

The Department of the Interior is working to further improve the assessment

process during the ongoing biennial review of the CERCLA regulations. DOI is currently evaluating public comments and expects to issue a proposed rule by January

1998. The Department is examining how the mechanics of up-front restoration planning for interim losses can be adjusted at hazardous waste sites to minimize the

cost of assessment work while at the same time ensuring that such work produces

reliable results. The Department is also carefully reviewing the injury determination provisions of the regulations, which establish specific injury thresholds that

must be met before trustees can pursue a claim. The Department is conducting an

extensive technical review to determine how these provisions should be revised to

reflect the current level of scientific knowledge.

These developments demonstrate that State, tribal, and Federal trustees are making progress toward restoring natural resources harmed by releases of hazardous

substances. As confirmed by the recent General Accounting Office (GAO) report

‘‘Status of Selected Federal Natural Resource Damage Settlements,’’ trustees across

the Nation are using funds recovered from responsible parties for restoration. The

GAO report also notes that restoration takes time and is often delayed by many factors beyond the control of the trustees. Nevertheless, the Federal trustees have been

working hard to effect changes that accelerate the restoration of injured resources.

THE ADMINISTRATION’S PROPOSAL FOR NATURAL RESOURCE DAMAGES UNDER CERCLA

Last October, the Administration forwarded to this Committee, and other committees with jurisdiction, a proposal for reforming the natural resource damage provisions of CERCLA (Administration proposal). Federal trustees carefully considered

criticisms of NRD that had been raised during previous reauthorization efforts. Our

proposal for reform is specifically designed to shift the emphasis away from spending money on litigation and toward restoring injured natural resources. The proposal also contained changes that are based on our practical experience with the

natural resource damage assessment and restoration process. These reforms are designed to improve the NRD programs by providing greater clarity concerning restoration, by assuring more timely and more orderly presentation of claims and by

discouraging premature litigation. NOAA and the other Federal trustees encourage

you to consider this proposal as the foundation for reform of Superfund’s NRD provisions during the 105th Congress.

The Federal trustees believe that revision of CERCLA’s NRD provisions should

be based on the following principles:

• Restore injured resources to baseline; and

• Restore the losses that the public suffers from the impairment of natural resources from the time of injury until restoration is complete.

The Administration proposal embodies these principles and was intended to

achieve two critical goals: strengthen the focus on restoration; and reduce the costs

associated with damage assessment claims by eliminating or reducing unnecessary

litigation. Specific reforms include:

Adopt the Restoration-based Approach Developed in The Natural Resource Damage

Assessment Regulations: The Administration’s proposal shifts the emphasis of

CERCLA damage assessment efforts toward restoration and away from arguing over

the value of, or method for, calculating economic damages. This fundamental shift

will avoid litigation and expedite the restoration of injured resources. The proposal
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contains definitions for primary restoration (return to baseline) and compensatory

restoration (replacement of resources and services lost pending return to baseline)

that parallel the concepts used in the natural resource damage assessment regulations promulgated under the Oil Pollution Act of 1990. This approach should eliminate disagreements over the valuation of natural resources by refocusing on

CERCLA’s overriding goal of restoring injured natural resources and establishing

the cost of restoration as the primary measure of damages—not the monetary value

of the lost resource.

Reduce Uncertainty and Ensure the Orderly Presentation of Claims: The current

statute of limitations provisions have created a lack of certainty both for responsible

parties and for natural resources trustees. To preserve claims, natural resource

trustees have been forced to file natural resource damage claims before the completion of restoration planning or prior to effective coordination with EPA. To address

this uncertainty, the Administration’s proposal contains provisions that would require a claim for damages to be presented within 3 years from the date of completion of a damage assessment by a trustee in accordance with the regulations, or the

completion of a restoration plan adopted after adequate public notice. In addition,

it ensures that claims can be filed in an orderly sequence, by specifying that a natural resource claim may be brought after an initial action to recover response costs.

These revisions would clarify the sequential claims issue to reduce premature filings, protect against claim splitting, and provide time for effective restoration planning, thus preserving important public trust rights.

Require Fair and Cost-Effective Restoration: The trustees agree that restoration

should not be gold plated and our proposal requires a cost-effectiveness test to maintain that priority. ‘‘Cost-Effective’’ is defined as the least costly activity among two

or more restoration measures that provide the same or comparable level of benefits.

In addition, the Administration proposal constrains compensatory restoration to replacing only those services that were lost as a result of the release under consideration, thereby providing protection against open-ended liability for responsible parties. These changes mirror the definition of cost-effectiveness in the CERCLA and

OPA regulations, and ensure that the American public is adequately compensated

for their losses while responsible parties are protected from unreasonable demands

for restoration.

Provide for Judicial Review of Restoration Plans Based on an Administrative

Record: The present standard for judicial review of natural resource damage assessments under CERCLA is unclear, providing an incentive for all parties to keep their

information confidential. In the absence of clear guidance, trustees have generally

assumed that their assessments will be used as evidence at trial and will not be

afforded great deference. Consequently, the incentive is for trustees to keep their

assessment studies confidential except to the limited extent that disclosure to parties is required in litigation discovery, and for private parties to delay providing information during litigation, rather than during the assessment process. This approach has generated more costly assessments, increased transaction costs, and inhibited the open review and debate that the trustees would like to foster.

The Administration’s proposal recommends the designation of a lead administrative trustee to establish a publicly available administrative record to guide the selection of a restoration plan. This is coupled with provisions to limit judicial review

of the restoration plan to review of the administrative record with an ‘‘arbitrary, capricious or contrary to law’’ standard of review. The process would be facilitated by

new regulations for public participation in the development of the administrative

record. Providing for judicial review of an administrative record would enhance public participation; increase certainty, predictability and trustee coordination; support

the focus on restoration-based claims; reduce litigation costs; and allow adequate

time for proper assessment and restoration planning.

Impose Requirements on the Performance of Damage Assessments: The Administration’s proposal would require damage assessments to be performed, to the extent

practicable, in accordance with regulations and generally accepted scientific and

technical standards and methodologies. The proposal also recommends that injury

determination, restoration planning, and quantification of restoration costs be based

on facility-specific information to the extent practicable. These revisions codify the

approach currently used by natural resource trustees to conduct damage assessments. This provision is designed to ensure the validity and reliability of assessment

results.

Other changes to CERCLA’s NRD provisions recommended by the Administration

are designed to facilitate the process for both trustees and responsible parties. These

changes include: improved coordination between damage assessment and remedial

activities; restrictions on the use of damage recoveries; and contribution protection.
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The Association of State and Territorial Solid Waste Management Officials, the

National Governors’ Association, and the National Association of Attorneys General

have voiced support for revisions similar to those contained in the Administration’s

proposal for reforming CERCLA’s natural resource damage provisions.

NATURAL RESOURCE DAMAGE REFORM AND THE SUPERFUND CLEANUP ACCELERATION

ACT OF 1997 (S. 8)

The Federal natural resource trustees applaud the efforts of this Committee to

move the Superfund reauthorization debate forward and appreciate the thought and

hard work that went into drafting S. 8. While there are provisions in S. 8 that reflect the concerns of the natural resources trustees, the Administration believes that

S. 8 does not present an acceptable basis for achieving bipartisan consensus on

Superfund Reform. Several of S. 8’s provisions would severely impede the efforts of

the natural resource trustees to protect and restore the Nation’s natural resource

heritage. We strongly urge the Committee to substitute the Administration’s proposal for the natural resource damage provisions contained in S. 8. Our specific concerns with S. 8 are as follows——

S. 8 Precludes Restoration of Non-Use Values. Non-use values are real, though difficult to measure. For example, non-use values are based on knowing that a river

exists, that our children will be able to swim and fish in that river in the future,

and that the river will continue to be an integral part of our natural environment.

S. 8 provides that there shall be no recovery for impairment of non-use values. This

provision limits the ability of trustees to restore the full value of injured resources

by prohibiting the consideration of the full range of values in determining restoration actions.

The Administration sees no reason to exclude the non-use component of resource

values. If CERCLA imposes a cost-reasonable standard for restoration recoveries,

the Administration feels that all components of value should be represented in applying the cost-reasonable test. To exclude non-use values, as specified in S. 8,

means that the public will not be fairly and fully compensated for loss of resources.

Restrictions on The Recovery of Interim Loss: CERCLA currently prohibits recoveries for hazardous substance releases where the damage occurred wholly before December 11, 1980 (i.e., the injury occurred and the resource recovered before 1980).

S. 8 appears to prevent the recovery of any interim loss at sites where injury first

occurred prior to 1980, regardless of the magnitude of those losses or whether those

injuries persist today. If interpreted in this way, S. 8 would dramatically restrict the

recovery of interim losses at sites where the injury started prior to 1980 and continues to this day, benefiting responsible parties at some of the biggest sites of contamination, and blocking compensation for loss of public resources. The Administration’s reform proposal contains a better approach to restricting the recovery of restoration costs for pre-1980 losses.

Cost Effective Instead of Cost ‘‘Reasonable’’ Restoration. S. 8 would only allow

trustees to restore injured natural resources if the restoration project has a ‘‘reasonable cost,’’ and does not define ‘‘reasonable.’’ This provision apparently assumes that

the existing protections against the use of excessively expensive restoration option

are inadequate. However, the D.C. Circuit recently reached exactly the opposite conclusion in Kennecott Utah Copper Co. v. Department of the Interior, holding that the

trustees’ obligations under damage assessment regulations to evaluate a range of alternatives in a public process, and to consider cost-effectiveness, are enough to ensure that appropriate projects will be selected. Instead of introducing a new ‘‘cost

reasonableness’’ requirement that will need to be defined through litigation, and

that may prevent or delay needed restoration, the Administration urges the adoption of a cost-effectiveness standard for evaluating restoration alternatives.

Installment Payments Based on Restoration Needs, Not on Duration of Injury. S. 8

requires that responsible parties be allowed to pay for natural resource restoration

over time, based on ‘‘the period of time over which the damages occurred.’’ Trustees

often agree to installment payments in negotiated settlements to reflect a responsible party’s limited ability to pay or the time that will be needed for restoration.

However, the amount of time over which the damage to resources occurred should

not be considered in a payment schedule.

CONCLUSION

The natural resource trustees are firmly committed to implementing CERCLA’s

directive to restore injured natural resources in a timely and efficient fashion. This

Administration has been working diligently to implement administrative changes

that would facilitate the process for responsible parties and trustees while advancing the mission of fully restoring natural resources for the use and benefit of the
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American public. The efforts of State, tribal and Federal trustees are starting to

show real restoration results across the country. The Administration’s proposal for

reforming NRD addresses many concerns that were voiced during previous reauthorization discussions, as well as provisions that would clarify and expedite the

natural resource damage assessment process. S. 8’s natural resource damage provisions, by contrast, would severely impede the efforts of State, tribal and Federal

natural resource trustees, and deprive communities of their right to full restoration

of the natural resources that support their economies and their way of life.

Thank you for providing me with the opportunity to present the Clinton Administration’s position on reforming CERCLA’s NRD provisions. The trustees look forward to working with this Committee to develop a proposal that truly will strengthen the natural resource damage assessment and restoration provisions of CERCLA

so that all affected constituencies can support Superfund reform in the 105th Congress. I will be pleased to answer any questions that you might have.

RESPONSES OF TERRY D. GARCIA TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. Last November, the GAO issued a report on selected Federal natural

resource damage settlements. According to the report, as of July 1, 1996 of the $33.8

million awarded for NRD settlements at 62 sites, only approximately 19 percent

(about $5 million) has been spent on damage assessments, planning or restoration.

Thus, most of the money was just sitting waiting for something to spend it on. Can

you explain why these moneys have been lying dormant?

Response. Under the Comprehensive Environmental Response, Compensation and

Liability Act of 1980 (CERCLA), natural resource trustees are required to use recovered damages only to restore or replace injured resources or to acquire the equivalent. The GAO report ‘‘Superfund: Status of Selected Federal Natural Resource

Damage Settlements’’ (November 1996) presented the following results: As of July

1,1996, in addition to the settlements for the five largest cases, settlements had

been reached at 62 sites, resulting in $33.8 million in awards to Federal trustees.

Of the $33.8 million awarded, about 80 percent had been collected. Of the collected

funds, about 19 percent had been allocated for performing damage assessments,

planning, or restoration. One site had been restored, and seven were in various

stages of restoration. The trustees’ use of the remaining 81 percent of the collected

funds was awaiting the completion of restoration plans or other activities, such as

cleanups or settlements with other responsible parties at the same site.

GAO’s report objectively characterizes the time-consuming obstacles that trustees

encounter when a restoration action is needed subsequent to clean up. As the report

states, these time-consuming factors may include:

• waiting for final selection of a remedy;

• waiting for implementation of a cleanup before onsite restoration proceeds;

• the need to collect information for restoration planning that wasn’t procured

through the remedial process;

• the need to conduct separate public review and permitting processes for restoration activities;

• the need to plan and design restoration projects; and

• the actual collection of damages from responsible parties.

Despite these obstacles, there are numerous examples of restoration projects that

are proceeding. Here are two:

New Bedford Harbor: The trustees have evaluated and solicited public review of

offsite actions to restore lost human uses. This represents a small percentage of the

total restoration effort that will be conducted, but onsite restoration must await implementation of the remedy at this NPL site.

Blackbird Mine: While awaiting selection and implementation of the remedy at

this NPL site, the Trustees are focusing on offsite projects that will benefit the endangered chinook salmon by removing livestock from 7 miles of prime salmon habitat in the Salmon River basin. This represents a small portion of the restoration

package, but only planning can be done for the onsite work until the water quality

in Panther Creek is restored.

The GAO report clearly shows that the trustees are diligently pursuing meaningful restoration with funds recovered from those who injured the resources. Recovered moneys have not been used for any purposes other than those allowed: restoration, replacement or acquisition of the equivalent injured natural resources. Trustees are carefully managing the use of recovered funds to ensure that moneys are

applied in a way that is consistent with the legislative intent to protect and restore

natural resources for future generations of Americans.
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Question 2. I am concerned That NRD restoration may overturn remediation decisions. For example, natural attenuation and biodegradation are two promising techniques for dealing with groundwater contamination [for which currently there are

no effective cleanup solutions. I can foresee a situation where The remediation and

the restoration decisions could be contradictory. Is this an acceptable situation?

Response. Trustees do not ‘‘overturn’’ EPA decisions. CERCLA’s coordination requirement, which applies to both EPA and the trustees, was designed to provide

safeguards against inconsistencies or conflicts between remedial and restoration decisionmaking. Memorandums of understanding are in place or are being negotiated

to ensure effective coordination between EPA and the natural resource managers on

remedial decisions. In most EPA regions, there are biological technical assistance

groups (BTAGs) composed of scientists from resource management agencies which

work closely with EPA when EPA conducts ecological risk assessments. For example, NOAA has placed a staff person in each one of the coastal EPA regional offices

to work with Superfund project managers on a day-to-day basis, and biologists from

the Department of the Interior have long been involved in the BTAGs advising EPA.

However, restoration decisions and remediation decisions, while clearly related,

are not necessarily identical. The goal of remediation is to protect the public and

the environment from being harmed or threatened by releases or potential releases

of hazardous substances. To reach this goal, remediation focuses on reducing the

risks posed by hazardous substances releases. The goal of restoration, on the other

hand, is to return natural resources that have already been harmed by hazardous

substance releases to the State they would have been in if the release had not occurred. At sites such as NPL sites, where remediation is already focusing on the

necessary measures to reduce risk, restoration focuses not on risks associated with

exposure to hazardous substances but rather on the condition of natural resources.

Close coordination between EPA and the natural resource managers helps ensure

that the risks to both human health and ecological resources are evaluated thoroughly during remediation and that EPA designs a remedy that eliminates, reduces

or controls risks to human health and the environment. The elimination, reduction

or control of risks caused by contamination, however, while usually stopping additional natural resource injuries directly caused by hazardous substances, does not

necessarily redress past injuries to natural resources. Additional actions, whether

onsite or offsite, sometimes are necessary and appropriate for restoration. Generally,

these additional actions not only serve a different goal but are also of a different

type than remedial actions. For example, they may involve reseeding plant life or

restocking fish. This type of restoration simply complements EPA’s remedial actions.

At sites where EPA is selecting a remedy under CERCLA and the NCP, trustees

have no authority to second-guess EPA’s decision on cleanup. However, as recognized by the Court of Appeals in the recent Kennecott decisions, trustees separate

decisions on restoration may, in some circumstances, lead to actions to address contamination that the remedial action has left in place. See Kennecott Utah Copier v.

DOI, 88 F. 3d 1191, 1218–19 (D.C. Circuit 1996). Effective natural resource restoration requires that this authority be preserved for trustees. Nevertheless, it would

be an unusual development for a trustee action to address contamination left in

place by a remedial action because of existing constraints on trustee activities. For

example, under the CERCLA natural resource damage assessment regulations, in

selecting a restoration alternative trustees must consider a range of restoration alternatives, including natural recovery, and must justify their selected restoration

plan after considering the respective cost, benefits, degree of consistency with response actions, and degree of technical feasibility posed by each alternative. If EPA

were unable to justify taking certain actions to remove contaminants from the

groundwater, it is unlikely that a trustee would be able to justify taking the same

actions as restoration. The most likely result would be that the trustee would rely

on natural recovery to restore the groundwater to its baseline condition and then

seek compensation for the losses, if any, that the public incurs pending completion

of natural recovery.

Question 3. I am interested in understanding what happens in instances where

a trustee and The EPA disagree over cleanup levels. If a party undertakes a cleanup

satisfying EPA’s standards, or settles with the EPA and has a convenant not to sue,

the trustee could overide the EPA remedy and file an NRD claim? If EPA does a

cleanup, or determines that no cleanup is necessary, The trustee cannot require additional cleanup for natural resources.

Response. For reasons stated in our response to Question 2, coordination between

EPA and the trustees to ensure that the remedy adequately addresses ecological

risks makes it unlikely that EPA would choose a cleanup level that fails to satisfy

the trustees concerns about residual contamination causing injuries to natural re-
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sources. If, despite full coordination and consultation, EPA and the trustees cannot

agree on the appropriate cleanup level to eliminate, reduce or control unacceptable

risk from hazardous substances, the EPA-selected cleanup level is implemented. It

is EPA’s job to pick protective cleanup levels, remedies that protect human health

and the environment, and to ensure the reduction of risk to acceptable levels. Subsequent to the cleanup, the NRD claim focuses on actions necessary to restore or replace resources that were injured by contamination. CERCLA directs trustees to act

on behalf of the public to restore, replace, or acquire the equivalent of injured natural resources. Trustees would be neglecting their fiduciary responsibilities if they

did not pursue actions that would restore or replace the public’s natural resources.

If the continuing presence of contaminants after cleanup affects natural resources,

in choosing a restoration plan the trustees could face the same constraints as EPA

in selecting restoration actions, including technical feasibility and cost effectiveness.

PREPARED STATEMENT OF LARRY L. LOCKNER, ON BEHALF OF THE AMERICAN

PETROLEUM INSTITUTE

The American Petroleum Institute (API) strongly supports reform of the Superfund program. Comprehensive reform of Superfund is important to accomplish during this Congress; a mere refunding of the program is insufficient. API members believe that S. 8, the ‘‘Superfund Cleanup Acceleration Act of 1997,’’ incorporates

many important and necessary reforms to the program. It is an appropriate vehicle

to continue the Superfund reform process.

Petroleum companies—as community members, as potentially responsible parties

(PRPs), and as taxpayers—will be greatly affected by the changes that Congress

elects to make to the Superfund program. Moreover, the petroleum industry has a

unique perspective with regard to Superfund. It is estimated that the petroleum industry is responsible for less than 10 percent of the contamination at Superfund

sites; yet the industry has historically paid over 50 percent of the taxes that support

the Trust Fund. This inequity is of paramount concern to API members and has

caused the industry to focus on those elements that affect the costs of the program

and the authorized uses of the Trust Fund.

When Superfund was enacted in 1980, Congress envisioned a program that would cost $1.6 billion and be complete within 5 years. Almost 17 years later, however,

billions have been spent, but relatively few sites on the National Priorities List

(NPL) have been cleaned up. The program appears to be without end.

API members are pleased that the Senate bill would reduce the number of sites

to be added to the NPL and commend the sponsors for taking this important step.

Limiting new additions to the NPL ensures a more reasoned Federal program with

reduced future funding requirements. Additionally, we support the bill’s provisions

that would delegate Superfund remedial authority to the States at non-Federal NPL

sites. In general, the States have well established programs and have demonstrated

capability at cleaning up sites. We urge subcommittee members to add provisions

to the bill limiting the Federal program to emergency removal actions at newly discovered sites.

The following sections of this testimony provide specific comments on liability/

funding reform, remedy selection, natural resource damages as well as exploration

and production wastes.

LIABILITY/FUNDING REFORM

API member companies support liability reform. Reform in this area will expedite

cleanups and reduce transaction costs. Clearly, under current law, too much money

is wasted on high legal costs. However, as an industry that has borne a highly disproportionate share of the taxes that support the Trust Fund, the petroleum industry is concerned about the impact that any liability changes would have on program

costs.

At this point, we do not know how much the liability reform outlined in S. 8 will

cost. For example, under the liability provisions contained in S. 8, the Fund would

pick up orphan-share costs as well as post-enactment response costs at co-disposal

landfills for generators, transporters, and arrangers who contributed wastes prior to

January 1, 1997. Moreover, municipal owners’ and operators’ liability would be

capped at such landfills. In addition, de micromis, de minimus parties and others

would be exempt.

We need to understand whether the cost savings associated with the remedy selection and the administrative-process provisions are sufficient to offset the additional costs arising from the shift in liability from PRPs to the Fund or, whether

the program as envisioned under S. 8, would place increased demands on the Fund.
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As the largest group of taxpayers to the Fund—which is expected to cover most of

the future costs of the Federal Superfund program—API members cannot conclude

their evaluation of the legislation without fully understanding these cost ramifications.

Without substantial reform of the underlying Superfund program and the tax system supporting the fund, API opposes authorization of any Superfund taxes. It is

critical that Congress restructure the taxes that support the Fund. Superfund sites

are a broad societal problem, and taxes raised to remediate these sites should be

broadly based rather than focused on specific industries.

EPA has found wastes from all types of businesses at most hazardous waste sites.

As consumers, as residents of municipalities, and as residents and taxpayers of a

nation, our entire economy benefited in the pre-1980 era from the lower cost of handling waste. To place responsibility for the additional costs resulting from retroactive CERCLA cleanup standards on the shoulders of a very few industries when

previous economic benefits were widely shared is simply unfair.

The additional costs to the Fund from exempting parties from liability must be

offset by other reform measures including remedy selection reform. Thus, API offers

the following comments on several additional reform provisions.

REMEDY SELECTION REFORM

API members have long advocated remediation standards that are site-specific

and risk-based. The remediation process should provide protection of human health

and the environment through methods that are practical and achievable in a costeffective fashion. The remedy reform measures contained in the S. 8 largely reflect

these attributes, and API members endorse many of the approaches taken in the

bill. Specifically, API members support the provisions in S. 8 that would:

• Eliminate the preference for permanence and treatment (a major factor in delay

of cleanups);

• Establish a protective risk range of 10¥4 to 10¥6 for all remedies;

• Establish facility-specific risk evaluations;

• Allow PRPs to prepare facility evaluation work plans for sites;

• Establish the reasonableness of cost as a remedy selection criterion;

• Give consideration to future land and water use;

• Consider all remedial alternatives on an equal basis, including engineering and

institutional controls; and

• Streamline the current remedy selection process.

API also endorses the use of the remedy selection balancing criteria and is

pleased to see that S. 8 would establish the reasonableness of cost as a remedy selection criterion. In selecting a remedy, the incremental benefits of the remedy

should justify any additional costs. The balancing criteria are the keystone of the

remedy selection process, and API thinks that all remedy selection procedures and

applications should be subject to them.

The bill would also allow the use of ‘‘applicable’’ Federal and State laws and State

standards in selecting remedial alternatives. In our view, ‘‘applicable’’ laws should

be subject to the balancing factors and technical practicalities; otherwise, there will

be diminished savings, increased costs and little appreciable benefit to human

health and the environment. Clearly, the Fund should pay for remediation only

when applicable laws have been subject to the balancing criteria.

Finally, the bill requires protection of uncontaminated groundwater and restoration of contaminated groundwater. It needs to be made clear that the requirement

to protect or restore groundwater is subject to the balancing criteria and considers

natural attenuation or biodegradation.

API’s detailed comments on the remedy selection provisions contained in S. 8 are

outlined in an attachment to this testimony.

NATURAL RESOURCE DAMAGES (NRD)

API is an active member of the Coalition for Legislative NRD Reform and strongly

supports the coalition’s positions and testimony they may submit. API believes that

legislation should confirm and clarify existing statutory limitations on liability for

natural resource damages. API’s five core principles with respect to NRD reform

would:

• Reestablish the focus of the NRD program on restoring the functions of public

natural resources in the most cost-effective manner;

• Eliminate liability for damages in excess of the reasonable costs of restoration

(i.e., so-called ‘‘lost use’’ and ‘‘non-use’’ damages);

• Clarify NRD limitations adopted in 1980 to provide

• prospective application of NRD,
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• a $50 million cap on recoveries, • prohibition of double recovery; • Repeal the rebuttable presumption by requiring the courts to treat NRD claims

in the same manner as other damage claims; and • Require consistency between the environmental component of remedy selection

and the NRD program.

API is pleased that many of these provisions are addressed in the bill. We are concerned, however, that the bill does not clarify the strict $50-million cap on recoveries that Congress intended when CERCLA was originally enacted.

EXPLORATION AND PRODUCTION WASTE

API believes that the exploration and production waste language in the law needs

clarification. Some court opinions have misinterpreted congressional intent to exempt high volume, low-toxicity wastes, which EPA has determined do not need to

be treated as hazardous wastes. Congress should clarify that these wastes are excluded under Superfund.

CONCLUSION

In summary, API commends members of the Subcommittee for their efforts to

craft and to advance meaningful Superfund reform. The cost constraining measures

contained in S. 8 are fundamental, and any weakening of these provisions may jeopardize Superfund reauthorization. We believe it is important that the reauthorization process continue, and we look forward to working with subcommittee members

to accomplish this goal. We would like to provide additional comments to staff as

we continue our review of the bill

ATTACHMENT: COMMENTS ON REMEDY SELECTION PROVISIONS

PROTECTION OF HUMAN HEALTH

• The bill says that a remedial action shall be considered to protect human health

if a residual risk from exposure to threshold carcinogenic and noncarcinogenic hazardous substances does not exceed a hazard index of 1. This is overly prescriptive.

API recommends using the wording ‘‘shows no appreciable risk of deleterious effects’’ as opposed to a specific index number.

STATE APPLICABLE STANDARDS

• The bill allows for the application of more stringent State standards. States

should have the flexibility to impose—where appropriate—less stringent State

standards. • States may apply more costly remedies at delegated NPL sites but should not

be able to recover incremental costs from PRPs, other agencies, or the Fund. • Waiver provisions are established where the Administrator determines that it

is not appropriate for a remedial action to attain a Federal or State standard. Historically, waivers have been difficult to obtain. Rather than being established as

conditions for a waiver, these provisions should be set out as conditions where Federal and State standards would not apply. • New State laws that may create standards with general applicability should be

subject to a rulemaking process.

LAND AND WATER USE CONSIDERATIONS

• In determining reasonably anticipated future land use, the appropriate local authority should consult with the broadest spectrum of stakeholders including facility

owners and operators as well as potentially responsible parties. • Governmental units would determine the reasonably anticipated future use of

water resources. A broad group of stakeholders including CROs and PRPs should

be consulted in this process.

GROUNDWATER

• The bill would require protection of uncontaminated groundwater that is suitable for use as drinking water by humans or livestock. The term livestock should

be deleted because it would require regulation of extremely saline groundwater that

could not be consumed by humans. • The bill also needs to make clear that the requirement to protect uncontaminated groundwater or restore contaminated groundwater is subject to the balancing criteria and considers natural attenuation or biodegradation.
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• The bill requires contaminated groundwater to be restored if technically practicable. Does technical practicability include cost considerations?

JUDICIAL REVIEW

• Provisions should be made that would allow pre-enforcement judicial review.

RISK ASSESSMENTS

• The bill establishes requirements for facility-specific risk evaluations. Such requirements are supported by API members.

• The bill should also include language to clarify that facility-specific risk evaluations are tiered. A full risk assessment may be unnecessary at every site.

• Additionally, the bill should make clear that PRPs have the right to conduct

risk assessments in States with comprehensive delegation authority.

ROD REOPENERS

• API supports the concept of reviewing proposed remedies and previously negotiated RODs as expressed in the bill. However, qualifications for members of the

remedy review board and PRP participation must be clarified.

PRESUMPTIVE REMEDIAL ACTIONS

• A PRP should have the right to conduct a risk-based response action in lieu of

a presumptive remedy.

FUTURE USE OF A FACILITY

• The bill provides that a facility deemed suitable for unrestricted use would be

subject to no further liability while a facility available for limited use would be reviewed every 5 years and potentially required to conduct additional remedial action.

A facility available for reuse of any type should be subject to no further liability or

review; otherwise the bill may have a negative impact on brownfield programs.

RESPONSES OF THE AMERICAN PETROLEUM INSTITUTE TO ADDITIONAL QUESTIONS

FROM SENATOR SMITH

Question 1. One of the criticisms raised about S. 8 is that 180 days is an insufficient amount of time for EPA to decide whether to approve or disapprove of a cleanup plan prepared by a PRP. Do you agree? Would a delay longer than this be an

acceptable practice in private industry?

Response. API believes that the 180-day provision for Agency review of a cleanup

plan is reasonable. The focus of S. 8 is to streamline and to improve the efficiency

of remediation. Limiting EPA’s review of cleanup plans to 180-days helps achieve

this goal. Since EPA is involved in reviewing each step of the remediation planning

process (including the work plan and facility evaluation) prior to review of the remedial action plan, API believes that a 180-day review period is sufficient. Moreover,

cleanups reviewed by the Remedy Review Board are subject to a 180-day (or longer)

review period in addition to the EPA 180-day review period. To extend the review

any longer would unduly delay the remediation process.

Question 2. You have stated that S. 8 should be modified to address the issues

of exploration and production wastes. Could you expand on that position.

Response. API members believe that the statutory language relating to exploration and production (E&P) waste should be clarified during Superfund reauthorization. E&P waste currently is exempt by reason of its exemption from RCRA subtitle C regulation. After an extensive study, EPA confirmed the exemption because

generally such waste is high in volume but low in toxicity and poses little or no

threat to human health and the environment when properly managed. The current

regulation of E&P waste and waste sites under Federal and State authority is effective and efficient. State oil and gas regulators have developed programs to address

abandoned E&P sites. Additionally, the Interstate Oil and Gas Compact Commission, working with EPA, has developed guidance for these State programs.

The complexity of the manner in which the exemption is stated has raised litigation issues at a number of sites, and clarifying the law would help minimize such

litigation. As a practical matter, without the E&P waste exclusion under CERCLA,

existing regulatory agencies and emergency response authorities would be overwhelmed by the reporting of routine operations already controlled by State programs.
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We would be happy to meet with you to discuss the intricacies of this issue and

API’s position.

Question 3. Do you believe that the allocation system in S. 8 will help to eliminate

some of the unnecessary litigation at these sites?

Response. The allocation system in S. 8 creates so many litigation disincentives

that it would, as a practical matter, virtually eliminate PRP litigation challenging

the allocation. While we believe that excessive litigation could impede the cleanup

process, we do not agree that all litigation is unnecessary. The judicial system provides checks and balances to Agency action by ensuring that the allocation process

is applied equitably. Penalties which have the practical effect of prohibiting PRPs

from exercising their right to seek judicial review should be eliminated.

Question 4. I would like to get your position on the ROD reopener provisions contained in S. 8. Do you think that these provisions are too expansive and will result,

as some would suggest, in virtually every ROD being reopened?

Response. APl believes that the ROD reopener provisions in S. 8 are already subject to numerous checks and balances. Rods can only be reopened if specified cost

saving are achieved and the ROD satisfies the remedy selection criteria in S. 8.

Moreover, State Governors can veto a ROD reopener if they think such an action

will cause unreasonable delay and adversely affect human health and the environment or cause a disruption of planned future use of the site. In fact, in our opinion,

there may be circumstances where the ROD reopener provisions need to be made

more flexible.
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RESPONSES OF CHARLES DE SAILLAN TO ADDITIONAL QUESTIONS FROM

SENATOR SMITH

Question 1. Does the Chief Executive of your State, Governor Gary Johnson (R–

NM) agree with the positions articulated in your statement?

Response. The positions articulated in our statement are fully consistent with the

positions taken by New Mexico Governor Gary E. Johnson. In formulating our positions, we have consulted with the New Mexico Environment Department, and the

New Mexico Office of the Natural Resources Trustee, both Executive agencies that

report to the Governor and that are headed by Governor Johnson’s appointees.

While Governor Johnson has not reviewed the Superfund legislation with the

same level of detail that we have in the Office of the Attorney General, he has taken

very similar positions on most issues. His positions are stated in his February 29,

1996 letter to Senators Bob Dole and Thomas Daschle. A copy of the letter is enclosed herewith. Governor Johnson’s appointee as Secretary of the New Mexico Environment Department, Mark Weidler, has also taken very similar positions. Secretary Weidler’s positions are stated in his November 3, 1995 letter to Senator Pete

V. Domenici. A copy of that letter is also enclosed.

In addition, the positions articulated in our statement are consistent with the National Governors’ Association Policy on Superfund. A copy of that Policy is also enclosed.

Question 2. You raise concerns in your testimony about the technical impracticability sections of S. 8 as it relates to groundwater. Please explain to me what

is wrong with using point of use treatment where it is technically impractical to

clean up groundwater?

Response. Point-of-use devices, such as activated carbon filters, are often ineffective in treating drinking water. Studies have demonstrated numerous problems with

such devices. For example, chlorine or other organic chemicals in source water can

result in undetected ‘‘breakthrough’’ of contaminants from the filter into drinking

water. Filters may also provide a medium for the growth of disease-causing bacteria.

Moreover, in order to work properly, the devices must receive regular maintenance

such as replacement of the filter. Experience has shown that homeowners often do

not properly maintain the filters. See generally, Benjamin W. Likens, Jr., Robert M.

Clark & James A. Goodrich, Point-of-Use/Point-of-Entry for Drinking Water Treatment 173–195 (Lewis Publishers 1992)

Part of our concern stems from the undue emphasis on point-of-use devices that

the bill would create in the statute. Such devices should be used, if at all, only as

a temporary measure or as a last resort when nothing else is possible—as is the

case under current law. An express statutory reference to such devices as a technique for addressing contaminated groundwater makes their use much more acceptable, notwithstanding their limited effectiveness. The bill strongly implies that if

groundwater remediation is technically impracticable—based on modelling or projections—then installation of point-of-use devices is all that is necessary. Implementing

agencies will need to take this statutory provision into consideration, as will reviewing courts. The provision no doubt will be seized upon by attorneys for responsible

parties seeking—as some do—the cheapest way out. It will be more difficult for EPA

and State environmental agencies to require cleanup of contaminated groundwater

or, where cleanup is impracticable, to require a more protective but more expensive

alternative such as hooking residents up to a municipal water supply.

Our concerns over the emphasis on point-of-use devices are heightened by other

provisions in the bill that we fear would render containment of contaminated

groundwater, rather than treatment, the norm. As stated in our testimony, the bill

would eliminate any preference for treatment of contaminated groundwater; it

would require containment remedies to be considered on an equal basis with treatment remedies; it would limit the goal for protection of groundwater to preventing

or eliminating ‘‘actual human ingestion’’ of contaminated groundwater; it would

eliminate MCLG’s and even MCL’s as groundwater cleanup standards; it would

allow a determination that groundwater cleanup is technically impracticable based

on modelling and projections, without any effort to remediate the groundwater or

even to reduce contaminant levels; it would place unnecessary emphasis on natural

attenuation, dilution, dispersion, and biodegradation.

Question 3. When do we draw the line in natural resource cleanups and who

makes that decision? Let me use an example: let’s say you have a stream where

sediments may have been deposited 20 years ago, but since that time there have

not been any new releases, yet the natural resources have not fully recovered. One

alternative to deal with the stream contamination is to dredge the stream which

would kill everything there in the hope things would recover. Or do we let nature
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take its course and let the stream continue to naturally recover? Who makes that

decision?

Response. Under the Department of the Interior (DOI) natural resource damage

assessment regulations, the trustee agency or agencies consider a range of alternatives for restoration of injured resources. 43 C.F.R. § 11.82(c). In the hypothetical

situation you posit, these alternatives might include dredging the stream to eliminate all further releases; enhancement of the injured resources to speed up their

natural recovery; acquisition of equivalent resources to compensate the public for

the lost resources; no action; and various combinations of the foregoing.

Under the DOI regulations, the trustees would consider, among other things, the

technical feasibility of each alternative; the relationship of the expected costs and

the expected benefits of each alternative; the cost-effectiveness of each alternative;

the potential for additional injury resulting from the proposed alternative; the natural recovery period of the injured resources; and the ability of the natural resources

to recover without any action. 43 C.F.R. § 11.83(d). The trustees would seek public

comment from interested persons, including the responsible parties, on the various

alternatives. 43 C.F.R. § 11.81(d) (2). Based on these considerations, and public comment, the trustees would select the most appropriate restoration alternative. 42

C.F.R. § 11.82(a).

Question 4. Apparently, out west there are high natural concentrations of elements such as arsenic, mercury and lead (I understand that the most productive

uranium mining district in the country is in New Mexico) that can leach out when

touched by water. Is this taken into consideration in determining water standards

in your State? Have there been instances where remedies have mandated cleanup

of groundwater to levels lower than background?

Response. New Mexico has localized occurrences of relatively high levels of naturally occurring arsenic in some of its groundwater. Naturally occurring lead and

mercury are less common. Lead and mercury are relatively insoluble in water at

normal pH, and thus rarely create water quality problems.

New Mexico does take background levels of contaminants into consideration in determining appropriate cleanup levels. The regulations issued under the New Mexico

Water Quality Act set standards for contaminants in groundwater and surface

water. The regulations provide that ‘‘[i]f the background concentration of any water

contaminant exceeds the standard... pollution shall be abated by the responsible

person to the background concentration.’’ New Mexico Water Quality Control Commission Regulations § 4101 (B). There have been no instances in New Mexico of remedial actions that mandated cleanup to standards below background levels.

RESPONSE OF CHARLES DE SAILLAN TO AN ADDITIONAL QUESTION FROM

SENATOR LAUTENBERG

Question. On behalf of NAAG, are you aware how many States have Superfund

statutes, and of those that do, how many of these have liability schemes that are

retroactive? How many are strict? How many are joint and several?

Response. Because ‘‘Superfund statute’’ is not a precise term, it is not possible for

us to provide a definitive number of States that have enacted such laws. By our

count, at least 38 States have laws providing for the cleanup of hazardous substances similar to CERCLA. Several other States have features similar to CERCLA

in their water quality or hazardous waste management statutes, which we have not

included among the 38.

Of those 38 States with Superfund-type cleanup laws, some 26 have laws that

provide for strict, joint and several, and ‘‘retro-active’’ liability similar to CERCLA.

The laws of 36 States—all but Illinois and Michigan—provide strict liability. The

laws of 36 States—all but California and Iowa—apply liability to preenactment disposal. The laws of 31 States provide for joint and several liability, either by statute

or common law; the laws of Alabama, Arizona, Arkansas, California, Illinois, Tennessee, and Utah expressly preclude joint and several liability. The laws of several

other States limit joint and several liability, most frequently by allowing proportionate liability if the responsible party can demonstrate a reasonable basis for apportionment, which is not unlike the current CERCLA scheme.

In addition, many States with no State Superfund laws rely on water quality laws

or hazardous waste management laws to require cleanup. Many of these laws include strict, joint and several, and ‘‘retroactive’’ liability. The New Mexico Water

Quality Act, N.M. Stat. Ann. §§ 74–6–1 to 74–6–17, is an example.

Furthermore, several States that place limitations on liability under their own

statute rely on the Federal CERCLA statute to obtain cleanup. For example, the

California Hazardous Substance Account Act, Cal. Health & Safety Code §§ 25300

et seq., does not provide for joint and several liability or liability for preenactment
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disposal. Consequently, California relies heavily on the liability provisions of

CERCLA, and has brought numerous cost recovery actions under CERCLA.

We base this information on an EPA study entitled, ‘‘An Analysis of States Superfund Programs: 50-State Study 1993 Update,’’ and on informal surveys conducted

by State attorney general staff.

We request that this letter, the enclosed letters from Governor Gary E. Johnson

and from Secretary Mark Weidler, and the enclosed National Governors’ Association

Policy, be included as part of the hearing record.

We appreciate the opportunity to provide this information to the Subcommittee.

If you have any further questions, do not hesitate to contact our Office. I can be

reached by telephone at (505) 827–6939 or by telefax at (505) 827–4440.
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PREPARED STATEMENT OF RICH HEIG, SENIOR VICE PRESIDENT, KENNECOTT CORPORATION

My name is Rich Heig, and I am Senior Vice President for Engineering and Environment of Kennecott Corporation.

I appreciate having the opportunity to appear before this Committee on behalf of

Kennecott, and express our views on S. 8, the ‘‘Superfund Cleanup Acceleration Act

of 1997’’. There is a lot that we like about this bill. Kennecott supports a balanced

reform of Superfund, designed to correct the program’s many problems—problems

that have led to little cleanup, and a tremendous amount of litigation. Superfund

reform should have as its goal, expedient cleanup based upon good science, and

should include natural resource damages (NRD) provisions that clearly focus on restoration of services. S. 8 is a positive step toward this goal.

Kennecott Corporation is headquartered in Salt Lake City, Utah, and provides

management services to various Kennecott affiliates. Kennecott companies include

the third largest producer of copper metal, and the third largest producer of clean

burning, low sulfur coal in the United States. The operations of Kennecott Utah

Copper Corporation near Salt Lake City have produced more copper than any other

mine in history, and are a significant supplier of gold, silver, and molybdenum, with

employment for more than 2,300 Utah residents. Over the last 10 years, Kennecott

Utah Copper has invested more than $ 2 billion in modernizing its mining and processing facilities. Our new smelter, when operating to full design capacity, will be

the world standard for reducing SO2. In addition to Utah, Kennecott companies

have base and precious metal operations in the States of Alaska, Nevada, South

Carolina, and Wisconsin, and coal mines in Colorado, Montana, and Wyoming.

Kennecott is very familiar with the inefficiencies of the existing Superfund law,

and since 1990 has undertaken proactive cleanup measures at Kennecott Utah Copper’s Bingham Canyon Mine. Mining in the Bingham Canyon area can be traced to

the 1860’s when a number of lead and silver mines and mills became active. In the

1920’s, Kennecott consolidated various holdings and began the mining of copper.

Early miners, along with the rest of society, did not have the benefit of modern technology and understanding of environmental values in their practices of waste management.

We believe the results of Kennecott’s proactive approach speak for themselves.

Over the past 5 years, Kennecott has expended over $230 million for remediation.

Twenty-five (25) million tons of historic mining wastes have been properly disposed.

Over 5,500 acres have been reclaimed for wildlife habitat and recreational uses. Significant progress has been made in containing and controlling affected groundwaters. This has all been accomplished to EPA and State of Utah specifications.

These efforts have not been easy under the current Superfund law which lacks

flexible mechanisms to accomplish proactive and voluntary cleanups. After years of

attempting to negotiate a formal comprehensive consent decree to address the cleanup work, negotiations failed. In January 1994, Kennecott Utah Copper sites were

proposed for Superfund listing, despite having spent over $85 million on cleanup at

14 source sites (with cleanup completed at seven of those sites). To avoid the negative ramifications of a Superfund listing, Kennecott mounted an extensive challenge

to the proposed listing. All the while, Kennecott proceeded with cleanup activities

and discussions with EPA to develop a non-traditional Superfund approach to address the numerous cleanup activities.

A site visit by Environmental Protection Agency (EPA) Administrator Carol

Browner and her staff, combined with recognition of Kennecott’s successful cleanup

efforts and ongoing commitment, resulted in a Memorandum of Understanding

(MOU) established in September 1995. In the MOU, Kennecott, EPA, and the State

of Utah agreed that the Superfund listing of the Kennecott sites would be deferred

if Kennecott completed certain specified cleanup programs and studies—most of

which were already underway.

Kennecott’s goals for its environmental cleanup program include expeditiously reducing real risks by characterizing the problems fully and efficiently, considering

both proven and innovative solutions, and utilizing those technologies that are readily implementable and cost-effective. This has been done on a parallel track with

regulatory and legal discussions, and, at the same time, continuing full and open

communications with the affected communities. This approach has minimized transaction costs, and continues to avoid the negative effects of a Superfund listing on

a viable operating facility and the adjoining communities.

Kennecott continues to work with EPA and the State in completing these projects,

including, a remedial investigation and a feasibility study for groundwater contamination, an ecological risk assessment, and completion of source control and elimination efforts. Kennecott appreciates the foresight, and we believe, good judgment
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exercised by Administrator Browner in adopting this approach to Kennecott’s cleanup activities.

The results achieved by Kennecott Utah Copper, acting as an environmentally

pro-active company, are in sharp contrast to Kennecott’s experience at other Superfund sites, such as the Ekotek NPL site located in North Salt Lake. Over $19 million has been spent since 1989, approximately half of which went to EPA oversight

costs and legal fees, and the final cleanup remedy is yet to be implemented, even

though the potentially responsible parties (PRPs) are eager to proceed.

Kennecott Utah Copper also has experience with the natural resource damages

provisions of Superfund. In the midst of all the Superfund cleanup activity, the NRD

Trustee for the State of Utah maintained a $129 million action for natural resource

damages for contaminated groundwater. An initial settlement was rejected by the

Federal court, and the parties entered a second round of negotiations. It was difficult to develop a settlement of the NRD Trustee’s lawsuit prior to any remedial

determination on the groundwater. Kennecott needed a resolution that would not

require it to pay for a cleanup twice—once for NRD damages, and once for a Superfund cleanup remedy.

Ultimately such a settlement was reached. The settlement required Kennecott to

complete source control measures already begun as part of Kennecott’s proactive

cleanup and to pay $9 million in damages, primarily for increased costs of municipal

water delivery and future lost use resulting from restoration activities. Additionally,

Kennecott established a letter of credit currently valued at $35 million to be held

in trust to restore municipal water services that would have been provided by the

groundwater. If Kennecott develops a qualified program to provide municipal quality water, either as part of the Superfund remedy or as part of the NRD settlement,

it can utilize the letter of credit to help fund that effort. How the final remedial

action and NRD settlement will be coordinated has not yet been determined.

Kennecott’s Superfund experiences have led to the following conclusions:

• As currently structured, Superfund is slow, costly and cumbersome. It does not

provide a simple mechanism, at either the Federal or State level, for voluntary

cleanups, such as that undertaken at Kennecott Utah Copper.

• Trustees are authorized by Superfund to recover natural resource damages resulting from releases by PRPs without being limited to actual lost values, and without a reasonable cap on ultimate liability.

• The criteria for cleanup standards has often been based on overly conservative

or unrealistic risk assessments, without regard for reasonably anticipated land or

water uses.

• The remining of historic mining sites has been hindered by Superfund’s retroactive, joint and several liability provisions.

Kennecott is, therefore, pleased to see the efforts being made by the sponsors of

S. 8 to amend and bring about the much-needed reform of Superfund. Toward that

goal, we would respectfully ask the Committee to consider the following comments

in their deliberations on this bill.

TITLE I—BROWNFIELDS REVITALIZATION

This Title includes a provision to assist States to establish and expand voluntary

response programs. Kennecott believes that provision should be made for voluntary

cleanups as part of the Federal program. PRPs should be encouraged to undertake

voluntary cleanups, whether or not a site is listed or proposed for listing as a Superfund site. Voluntary cleanups can significantly reduce the costs and delays of Superfund, and be completed in a manner acceptable to EPA or the States.

TITLE IV—SELECTION OF REMEDIAL ACTIONS

Kennecott supports the remedial action provisions of Title IV that require the selection of remedies that are cost-effective, that are based onsite-specific conditions

and risk assessments, and that consider reasonably anticipated future uses of land

and water. Kennecott also supports those provisions that allow for the consideration

of natural attenuation and biodegradation in groundwater remediation, that recognize institutional and engineering controls, and that eliminate the preference for

permanence and treatment.

TITLE V—LIABILITY

Kennecott supports the provisions in Title V to fairly allocate response costs at

non-Federal sites, including the mixed funding for orphan shares.

We recommend a provision be added that would allow remining of historic mining

sites for the economic recovery of metals or minerals without the imposition of
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Superfund liability for past releases. Because of the size and nature of these sites,

remining may be the only practicable approach to a cost-effective cleanup.

TITLE VII—NATURAL RESOURCE DAMAGES

S. 8 recognizes the need to reform the cleanup and remedy provisions of Superfund. This includes the need to have a rational approach to determine how clean

is clean. This approach should be based on reasonable risk assumptions in light of

current and reasonably anticipated land and water use scenarios. In order for the

remedy and liability reforms of Superfund to succeed, the objectives of the NRD program must work harmoniously with those provisions. The improvements to be

gained in the cleanup provisions will be lost if NRD Trustees, under the guise of

restoration, can still require payment for additional cleanup beyond that necessary

to achieve protection of human health and the environment. While Kennecott and

the State of Utah NRD Trustee were able to reach a compromise that so far allows

Kennecott to avoid a double cleanup, this type of result could be formalized for all

NRD claims, rather than left to an NRD Trustee’s discretion.

NRD should not be a secondary or substitute cleanup program. Superfund reform

legislation should clarify the role of the NRD program by clearly limiting NRD damages to restoring the public uses provided by the natural resource that were lost

or impaired by the release of hazardous substances. It also includes defining injury

in terms of actual injury to measurable and ecologically significant functions provided by the resource that were committed or allocated to public use just prior to

the time an injury occurred. Restoration programs should be cost effective and reasonable, based upon actual restoration needs, and damages should be spent on restoration. To be cost effective, the cost of restoration should not exceed the benefits

of the restoration activity. Surplus or punitive recoveries of past lost use or nonuse damages should be eliminated.

The NRD Title of S. 8 is a good beginning from which to address these concerns.

In particular, we concur in the elimination of non-use damages, and the elimination

of assessment costs for studies using the contingent valuation method (CVM). However, we believe CVM should be eliminated altogether as a damage calculation

methodology. We agree that regulations should be required to take into consideration the ability of a natural resource to recover naturally, as well as the availability of replacement or alternative resources. We also believe it would be appropriate

to clarify that natural recovery should also be applied to reduce the amount of the

overall recoverable damages.

Kennecott offers the following suggestions to clarify the provisions of Title VII:

• The limitation on double-recovery now appears to be less protective than the existing prohibition. The proposed language seems to limit the existing prohibition on

double recovery only with respect to the same person and to the same injury. This

could allow two different Trustees to obtain damages for different injuries to the

same natural resource caused by the same release of hazardous substances.

• The NRD program should continue to include a reasonable limitation on liability. The existing $50 million cap should be included in any Superfund reform, and

should pertain to the entire area affected by the release of hazardous substances.

• The recovery of NRD damages should be clearly limited to releases occurring

after 1980.

• Not only should EPA be required to take into account potential resource injury

that could result from remedy selection, there also should be a bar to recovery of

NRD damages resulting from the selected remedy.

• The NRD provisions limiting judicial de novo review of restoration plans should

not eliminate de novo adjudication of damage claims.

• There should be a precise statute of limitations that runs from the time the

Trustee knew, or should have known, of the injury.

• The authority of trustees to issue Section 106 orders should be clarified to ensure that trustees and EPA are not using different standards of what is necessary

to protect the environment, and to ensure that trustees do not use Section 106 orders to bypass statutory provisions governing NRD claims.

In conclusion, Kennecott believes that S. 8 offers several positive improvements

to the Superfund program. We appreciate this opportunity to testify and offer our

suggestions for additional improvements to Superfund.

RESPONSES OF RICH HEIG TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1. Mr. Heig, you state in your testimony that it was because of your voluntary cleanup efforts that the Bingham Canyon project was successful. Are the vol-
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untary cleanup provisions in S. 8 that would provide for more State control and the

ability to provide finality, an improvement to the current system?

Response. Title I of S. 8 provides in Section 102 for ‘‘qualifying State voluntary

response programs,’’ and defines the elements of such programs. Further, in Section

103, S. 8 provides finality to response actions completed under a State program, as

well as requiring State concurrence with Federal Section 106 orders within 90 days

after issuance. Kennecott supports these provisions, and believes they represent a

significant improvement over the existing system in Superfund. Volunteer response

programs would act to eliminate or minimize litigation, reduce costs, and result in

quicker cleanups to the benefit of all. As noted in our testimony, Kennecott also recommends that the volunteer response provisions in S. 8 be extended to the Federal

program. The benefits to be gained under a State program would be equally valuable to the Federal program, and would be complementary to other cooperative initiatives recently undertaken by EPA.

Question 2. Your statement demonstrates that there is a strong need to coordinate

remediation efforts and NRD claims. Do you believe that the changes made by S. 8

in this regard are an improvement?

Response. Yes, a number of changes made by S. 8 improve coordination of the

cleanup and NRD provisions of CERCLA. Specifically, S. 8 improvements to the

NRD program include:

• Eliminating non-use damages;

• Elminating recovery of assessment costs for CVM studies;

• Requiring response actions and restoration measures to ‘‘not be inconsistent’’

with one another and to be implemented in a coordinated and integrated manner;

and

• Requiring natural recovery of a resource to be considered in injury and restoration assessments.

Nevertheless, for the remedial and NRD programs to be implemented as effectively as possible, further changes should be considered:

(1) to avoid conflicting standards between remedial authorities and NRD trustees

that essentially result in dual cleanups; and

(2) to avoid duplicative damages and transaction costs.

(1) Avoid Conflicting Standards Essentially Resulting in Dual Cleanups

It is Kennecott’s understanding that at a CEQ meeting on January 27, 1997, to

discuss the Section 106 Executive Order 13016, Administration officials asserted

that trustees have cleanup responsibilities in addition to EPA’s cleanup responsibilities. The example given was that EPA might require the cleanup of contaminated

sediments to a level necessary to protect human health and the environment, but

that trustees might decide additional cleanup is necessary. This results in what

some proponents of NRD reform refer to as the ‘‘Cleanup 1 and Cleanup 2’’ scenario.

Essentially, ‘‘Cleanup 1’’ is EPA’s required cleanup to a level protective of human

health and the environment; ‘‘Cleanup 2? is a trustee’s required cleanup to a level

beyond that necessary to protect human health and the environment and possibly

beyond that necessary to restore the services provided by the resource in question.

(See, ‘‘Superfund’s Natural Resource Damages Program Should Not Be a New

Cleanup Program, ‘‘Attachment 1.) Without coordination, problems addressed by

S. 8 in the cleanup program ultimately may be shifted to the NRD program.

There are a number of instances where uncoordinated application of conflicting

standards will result in wasted resources. The attached document, entitled ‘‘NRD

Site Examples’’ (Attachment 2), illustrates various cases where the differing remediation and NRD goals will result in potential double cleanup expenditures, the very

issue Kennecott attempted to avoid in structuring its NRD settlement.

The proposed S. 8 requirement for coordination of response and restoration measures is a good beginning to avoid these unfair results. However, this mandated coordination should not become a means for the NRD restoration to drive the remedy

based upon cleanup goals that are inconsistent or more onerous than remediation

goals. This is particularly important where NRD trustees seek restoration at ‘‘cleanup’’ levels beyond those required by EPA (or any similar to the proposed revisions

contained in Title IV of S. 8). For example, EPA, as well as provisions of proposed

Title IV, are working toward a sustainable ecosystem approach to remedy selection.

Conversely, some NRD trustees are seeking restoration to address any contaminants

causing a measurable adverse impact on the chemical, physical or biological environment (See, 43 C.F.R. §§11.14(v) and 11.15; IS C.F.R. §§990.30 and 990.51(c)), regardless whether contaminants left in place following remediation impair the ability

to restore the services provided by the resource to the public. This issue could be

addressed by including a restoration standard in S. 8 based on restoring the meas-
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urable and ecologically significant functions of the natural resources that provided

services to the public.

(2) Avoid Duplicative Damages and Transaction Costs

Kennecott did not face an NRD issue involving multiple trustees at the Bingham

Canyon site; however, this is not true for many sites. As Kennecott noted in its testimony, efforts at addressing this issue in S. 8 appear to unintentionally eliminate

existing protections against double recovery. S. 8 includes a good addition designed

to prevent a trustee from recovering damages not only under CERCLA, but also

under other laws. However, the modification in S. 8 appears to apply only to the

same ‘‘person’’ and could be misconstrued to allow a party that has first recovered

damages under another law to proceed with recovery under CERCLA. Consequently,

this provision should be clarified to preclude recovery of duplicate damages by more

than one trustee for injuries to the same resource caused by the same release(s) of

hazardous substances. It should also preclude recovery of the same damages under

multiple laws, regardless if the claim is brought first under laws other than

CERCLA.

Question 3. Would you have progressed as far as you have at the Bingham Canyon site, if that facility had been placed on the NPL? Are the cleanup provisions

in S. 8 and improvement to this problem?

Response. Kennecott believes the cleanup efforts at the Bingham Canyon site

have progressed further and more quickly than would have been possible had the

site been listed on the NPL. As you are aware, the traditional Superfund process

hinders the ability to quickly achieve cleanup. Under the approach utilized by

Kennecott with the oversight of EPA and the State of Utah, of the 20 sites (source

areas) initially identified, Kennecott has completed cleanup at 10, cleanup is in

progress at 8 other sites, and 2 sites were determined not to require additional

work. To date, the percentage of costs spent on actual cleanup at Kennecott sites

is still over 90 percent and at times exceeds 95 percent. These percentages are likely

to remain close to this level, particularly given EPA’s recent policy that makes the

Kennecott sites eligible for reduced oversight costs. Spending over 90 percent of

costs on actual cleanup is not likely to be achievable at an NPL site.

Key to the success of the proactive approach utilized by Kennecott has been the

ability to proceed quickly while utilizing community participation, and to focus efforts on removing potential sources of contamination through area by area removal

actions. If Kennecott were required to conduct all of its cleanup activities under the

process found in the cleanup provisions of S. 8 (Title IV), it is not clear that the

results would be as efficient and effective as they have been to date.

However, assuming that the provisions of Title IV do not eliminate the ability to

address contamination through accelerated removal actions, some of the provisions

appear to be beneficial. For example, Kennecott is conducting a remedial investigation and feasibility study (RRFS) relative to groundwater contamination (and is initiating a separate remedial investigation regarding a different area of groundwater

contamination.) A number of changes proposed by S. 8 that could benefit the continued efficiency of achieving a cost-effective remedy include:

• Remedial actions based on the current, planned, or reasonably anticipated use

of the surface water, groundwater, or land;

• Providing that a remedial action using institutional and engineering controls be

considered on an equal basis with other remedial action alternatives;

• Requiring consideration of natural attenuation or biodegradation;

• Emphasis on allowing PRPs to develop work plans;

• Preference for using facility-specific data; and

• Comparison of risks posed by the facility to other risks commonly experienced

by the local community.

Additionally, the ‘‘results-oriented approach’’ contained in Title VIII, requiring

procedures to minimize the time required to conduct response actions, expedite facility evaluations and risk assessments, limit engineering studies and require streamlined oversight, appears to be a constructive approach for timely response actions

in comparison to the typical Superfund process. However, the ability to quickly and

efficiently conduct a cleanup should not be encumbered with additional procedures

unless existing procedures are eliminated. Again, these procedures, even if expediting, should not impede the ability to conduct timely removal actions to address the

majority of the contamination at a site if appropriate.

Question 4. As you know, President Clinton recently issued an executive order

which would allow the Department of interior, or any other Department to issue orders under Section 106. You state in your testimony that this section should be

clarified so that there is consistence among the Departments about what is nec-
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1See, Administration August 28, 1996, Press Release ‘‘Protecting All Communities From Toxic

Pollution;’’ and June 20, 1995 Testimony of Asst. Sec. Oceans Atmosphere, National Oceanic and

Atmospheric Administration, before the Subcommittee on Commerce, Trade, and Hazardous Materials, House Commerce Committee. 2 Interview with Assistant Administrator for Solid Waste and Emergency Response, Superfund

Report, October 2, 1996.

essary to protect the environment. How would you modify S. 8 to address these

issues under Section 106?

Response. The executive grant of Section 106 authority to Federal NRD trustees

was unnecessary to fix any problems in CERCLA’s cleanup program. Yet, with this

new grant of Section 106 authority comes the concern that the problems of

CERCLA’s cleanup program will not only be magnified five times, but that the authority granted to Federal NRD trustees by Section 106 may encourage trustees to

blur distinctions between cleanup and NRD. Consequently, the simplest means to

address the concerns raised by Executive Order 13016 is to modify Section 106 by

limiting the delegation of Section 106 authority to those agencies that have had the

authority for the last 16 years—the Environmental Protection Agency and the National Coast Guard.

This approach would avoid potential problems that can result from the broad

duplicitous delegation of Section 106 authority to five additional Federal agencies

which are also NRD trustees. This approach also would alleviate the improper use

of Section 106 authority as a pretense for Section 107 NRD purposes and the magnification of problems already identified in the implementation of Superfund. Even

all of EPA’s Administrative reforms will have little impact on other agencies not

bound by those policies. At a minimum, if Federal NRD trustees are allowed to retain Section 106 authority, such authority should be clearly limited to emergency

situations and be unavailable if the trustee is also a PRP at a site. These minimal

limitations are discussed further below.

DISCUSSION

Giving trustees Section 106 authority raises many concerns about fairness, particularly where in many instances, the Federal trustee may also be a PRP at the

site in question. The concerns that some trustees might use this new power improperly are not suspicious rhetoric. The Administration has made a number of alarming

statements about the purpose of the Executive Order. For example, when the Administration issued the Executive Order, public statements indicated that the authority is directed at cleanup [Cleanup 2] of ‘‘natural resources that support hunting, fishing, tourism and recreation in local economies.’’ This is the objective of the

Administration’s stated NRD program of ‘‘restoration’’ for injured natural resources

that support hunting, fishing, tourism and recreation in local economies.1 CEQ’s

Twenty-Fifth Anniversary Report furthers this notion when it states:

‘‘Superfund moneys are not available, however, to fund natural resource restoration, and thus the natural resource damage programs have had more limited support than EPA’s remedial program. To enhance the program authority

of natural resource agencies that now lack access to the Superfund, Executive

Order 13016 provides these agencies with authority to issue administrative orders to compel responsible parties to perform response work.’’

Moreover, an EPA official indicated that the new authority will enable trustees

to compel PRPs to conduct natural resource damages assessments.2 That is not

what Section 106 authority is intended to address.

If the authority granted by the Executive Order is improperly utilized for purposes of Section 107 NRD, the few procedural and substantive safeguards provided

by Section 107 could be circumvented, including: • Evasion of a PRP’s rights to an Article III court hearing where the trustee must

prove its case; • Circumvention of the retroactive and monetary limitation on liability that currently exists under Section 107; • Avoidance of statute of limitations and the prohibition on double recovery; and • Bypassing the requirement that a trustee prove that the PRP’s release was the

cause of the actual injury.

Furthermore, where a trustee improperly utilizes Section 106 authority, the

Superfund is at risk for recovery of response costs by those subject to improperly

issued orders.

Part of the concern for misuse of the authority lies in the minimal standard for

issuing Section 106 orders. The current standard for exercising Section 106 authority is the existence of an ‘‘imminent and substantial danger to public health and
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3 Under Section 106 of CERCLA, 42 U.S.C. 9606, EPA’s main avenues to compel PRPs to conduct removals, studies or remediation include issuing a Unilateral Order (UAO) or making a

referral for a judicial enforcement action. A judicial referral under Section 106 could result in

an order compelling compliance and exacting penalties. If the PRP refuses to conduct a response

action pursuant to a UAO, EPA could conduct a fund-financed response action. The EPA could

then recover its costs and may be able to recover punitive damages up to three times the

amount of the cost of the cleanup as well as seek penalties up to $25,000 per day. 42 U.S.C.

9606 and 9607. Now those authorities appear to have been granted to five Federal trustees.

Even if a Federal NRD trustee issued a UAO beyond the scope of authority granted by Section

106, a PRP would be placed in an extremely difficult position to refuse the order at the rib of

penalties and treble damages. 4See, United States v. Conservation Chemical Co. 619 F. Supp. 162 (W.D. Mo. 1984). ‘‘Substantial’’ endangerment exists ‘‘if there is reasonable cause for concern that someone or something may be exposed to risk of harm by release or threatened release of hazardous substance

if remedial action is not taken, keeping in mind that protection of public health, welfare, and

environment is of primary importance.’’ Id.

welfare or the environment’’ from the ‘‘actual or threatened release of a hazardous

substance.’’ 3 While, to the average reader, this standard appears to apply only in

emergency cases, it has been indulgently construed so the standard is more a catch

phrase than a criteria for issuing 106 orders. For example, ‘‘imminent’’

endangerment exists if ‘‘factors giving rise to it are present, even though harm may

not be realized for years.’’4 Similarly, the definition of ‘‘release’’ has been applied

broadly by some courts to include ongoing, passive ‘‘releases’’ from a source that was

disposed of historically.

With such a flexible standard, Federal trustees should, at a minimum, be limited

to utilizing Section 106 authority only in true emergency situations. Limiting the

trustees’ use of Section 106 authority to emergency situations requires either (1) a

clarification of the ‘‘imminent and substantial endangerment’’ standard applicable to

all agencies with authority under Section 106 or (2) modification of the standard relative to NRD trustees’ Section 106 authority. For example, to modify the Section

106 standard with respect to the authority of NRD trustees, the authority should

be eliminated for historically contaminated sites. Those sites should already have

been identified for CERCLA response if such was necessary. Emergency authority

is more applicable to current or future incidents caused by current or future conduct.

Furthermore, a trustee should be prohibited from exercising Section 106 authority

where the trustee is a potentially responsible party. In that situation, if an emergency response needs to be undertaken, the trustee can undertake the removal itself

and seek to recover response costs from other parties if appropriate, or the trustee

can rely upon EPA or the Coast Guard to exercise Section 106 authority.

Kennecott respectfully requests that as part of its response to this question, Attachments 3 and 4 be incorporated and considered. Attachment 3 contains the comments of several companies, including Kennecott, concerning the Implementation of

Executive Order 13016. Attachment 4 contains the comments prepared by the

Chemical Manufacturing Association (CMA) that are referred to in Kennecott’s comments contained in Attachment 3.

Question 5. You state that at the Ekotek NPL site, you have spent $19 million

on legal fees and oversight costs since 1989 (8 years), yet no cleanup remediation

has been implemented. Do you believe that the changes proposed in S. 8 would have

avoided this problem?

Response. The Ekotek Site is a former used oil recycling center in Salt Lake City,

Utah. In 1988, EPA took over the site and in 1989 the Ekotek Site Remediation

Committee was formed to respond to EPA cleanup orders and conduct emergency

removal. The site contained many leaking drums and tanks, oil sludge ponds and

other materials left behind when the owner, Ekotek, Inc., abandoned the site and

declared bankruptcy. Over the life of the Committee it has been made up of some

400 of 3,000 potentially responsible parties at the site and is currently at 60 as a

result of settlements. To clarify, although final remediation cleanup at the site has

not occurred, approximately $10 million of the $19 million was spent by the Committee on the emergency removal, including EPA’s response and oversight costs.

Several of the changes proposed in S. 8 may have resulted in benefits to the overall process and costs at the Ekotek site.

• Title I—Brownflelds

In 1996, the Ekotek Site Remediation Committee (Committee), requested EPA to

consider the Ekotek site as a candidate for the Brownfields Pilot Programs nationwide. The Committee believes the site would be a good candidate for Brownfields

as a means of encouraging its redevelopment once remediation is completed. Al-
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though the Committee has not received a response regarding the Brownfields request, Kennecott would not want to see any future opportunity for Brownfields

treatment eliminated because S. 8 excludes NPL sites. Even if the final remediation

is conducted by responsible PRPs, the benefits to be gained under Brownfields that

limit the liability of a prospective purchaser and encourage development of the property into a new viable commercial facility will be of great benefit to the neighboring

community.

• Title IV—Remediation

It appears that many of the concepts of the proposed remediation provisions of

S. 8 potentially could have avoided some of the delays and expenses incurred at the

Ekotek site. For example, EPA’s proposed remedy at the site included a pump and

treat requirement for groundwater contamination related primarily to hydrocarbons.

The Committee expended considerable time, effort and money to establish a technical case showing that the proposed pump and treat remedy for groundwater at

the site was not cost-effective, would pose more of a threat to uncontaminated

groundwater and the groundwater could be effectively remediated through intrinsic

bioremediation. These same concepts relative to groundwater are formally addressed

within the remedial groundwater provisions of S. 8. If the remediation provisions

had been in place at the time of the RI/FS and remedy selection process it is possible that the proposed pump and treat remedy would not have been selected by

EPA as the initial proposed remedy and much of the time, effort and money expended on rebuffing that proposal would have been saved. The difference between

EPA’s initial proposed pump and treat remedy and the intrinsic bioremediation remedy is approximately $4–6 million based on the Committee’s estimates.

Although unknown at the time to the Committee, the proposed remedy for the

Ekotek site was one of the remedies reviewed by the Administration’s Remedy Review Board. Following the Board’s review and consideration of comments received

by interested parties, EPA Region VIII selected the alternative that included intrinsic bioremediation for the groundwater. Additionally, the second major component

of the proposed remedy called for thermal desorption (incineration) of contaminated

soils. The Committee sought a containment remedy for the contaminated soils, with

removal of hot spots rather than the incineration remedy, as a cost-effective method

of addressing the contamination and while remaining protective of human health

and the environment. Ultimately, the selected remedy is the containment option.

The overall cost difference between the two soils remedies is estimated by the Committee to be $10 million.

The Committee was pleased that at the end of the day EPA chose the more costeffective yet protective remedies urged by the Committee. There are, however, a

number of contingencies tied to the implementation of the selected remedy that

could result in increased remediation costs in the future, notwithstanding the efforts

of the Remedy Review Board.

• Title V—Allocation

The ability to fairly allocate liability at a site like Ekotek is important if the overall unfairness of Superfund with its strict joint and several liability is not otherwise

addressed. The parties carrying the primary responsibility at the Ekotek site did not

own or operate the site. Whether large or small, many of the PRPs sent only used

motor oil to the site for recycling into useful products. It is possible the site would

qualify as a ‘‘mandatory allocation’’ site under S. 8, and as such, allocation of the

response costs could have been fairly allocated among the parties. However, any allocation process must necessarily take into consideration the toxicity of parties’

wastes at a site. At Ekotek, some parties sent substances contaminated with PCBs.

The cleanup costs associated with PCB contamination have the potential to increase

the cleanup costs at the site by several million dollars.

At some sites, including Ekotek, the 1 percent threshold for a liability exemption

could result in large numbers of PRPs and waste volumes fiL1ling in the exempt

category. At a mandatory allocation site, it appears that the exempt category would

be covered by orphan share funding. However, it appears that at requested or permissive allocation sites, this exempt share would be unfairly distributed to the remaining PRPs. For example, the total volume of hazardous substances sent to the

Ekotek site is estimated at between 30 and 50 million gallons. One percent is

300,000 to 500,000 gallons, and it is estimated that all but a few dozen of the thousands of Ekotek PRPs would fall into the exempt category with at least 50–60 percent of total site gallonage exempted.

• Title VIII—Accelerated Remediation

‘‘Results-Oriented Approach—The time for the completion of the RD/RA process

for Ekotek (assuming only 60-day review period by EPA on submittals) has been
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projected to take another 3.3 years, making the total response time at the site approximately 13 years. Given the length of time lost between the removal action and

the issuance of a final ROD and the final remediation, accelerating the time to complete the remedial planning process would help to reach the final cleanup more

quickly and presumably avoid delays and additional costs.

Queston 6. 1 would like to ask you about the issue of remining, which is not addressed in S. 8. Could you explain what remining consists of why it is prevented

by Superjund’s joint strict, several and retroactive liability system, and why it could

be environmentally beneficial for former mining sites?

Response. By the term ‘‘remining’’ we mean the recovery of mineral values from

historic mining sites by extraction, beneficiation, or re-processing of the remaining

in situ ore and/or residual materials. Early mining and mineral processing methods

were not as efficient as those employed today, and, consequently, mineral values

were not always fully recovered. In some instances operations closed prematurely

because of downturns in the market or lack of adequate capital. With modern equipment and technology, it may now be technically and economically feasible to reenter

some historic sites and recover those values left behind.

Minesites by their nature are located at naturally occuring concentrations of minerals, often the metals identified as hazardous by Supcefund, and, as such, some

historic sites have been candidates for the CERCLIS list. The CERCLA list contains

a number of historic mining-related sites. Under the existing law, if a miner acquires a historic mining site, with contamination from historic operations (e.g.,

groundwater contamination), the miner can become a PRP subject to the joint, several and strict liability provisions of Superfund. The added burden of litigation,

oversight, and other Superfund costs would likely overwhelm the economic incentives to remine the site. If the miner could acquire or enter the site to reprocess

waste materials and recover additional minerals without becoming strictly liable for

contamination caused by historic operations, some of the contamination sources

could be eliminated.

Remining not only results in the recovery of valuable minerals or metals but also

allows the residual materials to be managed with modern technology and practices

that are protective of the environment. Remining would be conducted with the oversight and safeguards of current regulatory controls that act to protect air and water

quality during operations, and require reclamation of the disturbed areas before

final closure.
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STATEMENT OF THE ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE

MANAGEMENT OFFICIALS (ASTSWMO)

The purpose of this statement for the record is to reflect the views of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) regarding the reauthorization of the Comprehensive Environmental Response, Compensation and Liability Act (commonly referred to as Superfund) during the 105th Congress. Specifically, we understand that the Senate Superfund, Waste Control and

Risk Management Subcommittee held a hearing on March 5, 1997 on S. 8. We respectfully request that this statement be included as a part of the record for that

hearing.

ASTSWMO is a non-profit association which represents the collective interests of

waste program directors of the nation’s States and Territories. Besides the State

cleanup and remedial program managers, ASTSWMO’s membership also includes

the State regulatory program managers for solid waste, hazardous waste, underground storage tanks, and waste minimization and recycling programs. Our membership is drawn exclusively from State employees who deal daily with the many

management and resource implications of the State waste management programs

they direct. As the day-to-day implementors of the State and Federal cleanup programs, we believe we can offer a unique perspective to this dialog. Since we share

in Congress’ and the public’s desire to achieve effective and timely cleanup of our

nation’s contaminated sites and the restoration of injured resources, associated with

these sites, ASTSWMO has marshaled the comprehensive experience of our membership to provide our unique perspective to the debate surrounding Superfund Reauthorization during this first session of the 105th Congress.

We would like to begin by commending Senators Chafee and Smith on the many

modifications made to S. 1285 in producing S. 8. It is evident that the Senators

sought to introduce a bill which would reflect compromises from their own positions

in an effort to produce a viable, workable starting point for the 105th congressional

Superfund debate. We look forward to working with the Committee throughout the

debate.

BROWNFIELDS REVITALIZATION

We are pleased that the Senators have chosen to recognize the clear importance

of Brownfields by allowing it to occupy the first title of S. 8. Brownfields comprise

the vast majority of sites which are currently being remediated by State agencies.

The majority of sites classified as Brownfields will never be placed on the NPL. Currently, the biggest impediment to effectively remediating and redeveloping

Brownfield sites is the inability of State agencies to provide for releases of liability

from both State and Federal laws. While we support concepts such as providing

Superfund liability protection to bona fide prospective purchasers, lenders, and fiduciaries, we believe the real key to solving our country’s Brownfields problem is to

allow the State Waste Agencies to grant releases of Federal liability once a site has

been cleaned up to State standards under a State program. We can no longer afford

to foster this illusion that State authorized cleanups may somehow not be adequate

to satisfy Federal requirements. Over thirty States have enacted Voluntary Cleanup

programs and 42 States have adopted State Superfund programs. These programs

have remediated over 3,000 sites and the number is growing. It is imperative that

any Brownfields legislation clarify the State-Federal roles and potential liability

consequences under the Federal Superfund program. We believe S. 8 has accomplished this task. We would recommend however, one modification to the provision

as written. In situations which are deemed emergencies and where the State requests assistance, we believe the Federal Government should be able to address the

site and if necessary hold the responsible party liable. Emergency actions should be

the only exceptions to the releases from Federal liability.

We are also pleased to see that S. 8 recognizes the importance of Voluntary Cleanup programs and enables States to receive Federal funding for both the establishment and maintenance of already highly successful programs. We would caution

that the funding criteria should remain as flexible as possible in order not to unintentionally disrupt working programs. However, we are concerned that a number of

States which are pursuing innovative approaches, such as privatization of cleanups,

may not qualify. The funding criteria should encourage innovation not constrain it.

We would also recommend that legislative history for this bill direct EPA to distribute grants for voluntary cleanup programs through their normal grant processes,

i.e., through the EPA regions, and that EPA shall not be allowed to attach additional burdens onto State grant recipients in the guise of ‘‘accountability’’.

Lastly, we believe the explicit provision requiring local governments to comply

with State laws in order to receive Federal grants is a well-thought out provision
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and will serve to avoid much confusion in the long run. Ultimately, these sites are

State sites and will have to be remediated under State auspices and according to

State laws.

STATE ROLE

Maximum flexibility is a necessity when dealing with fifty vastly different State

programs. S. 8 appears to have accomplished this goal by allowing States to be both

delegated and authorized the Federal Superfund program or to retain the status quo

if the State so desires. Some States will desire delegation of all sites within their

borders, others may only apply for one or two sites, and States in the early stages

of development may seek delegation for only parts of the remediation process. The

Committee did well to recognize the unique needs of State programs and to provide

a wide array of options for assuming the lead at Federal Superfund sites. State programs have grown remarkably in sophistication and we are therefore pleased that

S. 8 has chosen to streamline the Federal Superfund program by allowing States to

utilize their own laws when implementing the Federal Superfund program. The only

way to truly capitalize on the benefits of the State Superfund programs and to

transfer the many innovations which have been adopted at the State level to the

Federal Government is to allow States to be authorized to implement the Superfund

program. Authorization will also provide the needed consistency which is currently

lacking within States due to the implementation of two Superfund programs within

State borders: the Federal program and the State program. States would like the

opportunity to implement one program at all sites which fall within their State borders. That is why, while we are pleased with the authorization provision, we cannot

support provisions which would require the State to pay the difference should their

laws be more stringent than the Federal Superfund program. We can see no reason

why Federal sites should be held to a lesser standard when all other sites within

the State must meet State standards. As of today thirty States either have or are

in the process of promulgating State cleanup standards. States have answered the

question of ‘‘how clean is clean’’ and this answer should apply to all sites within

the State borders.

Another cost saving technique which has been added to this title which we support is the ability of States to receive funding for conducting emergency and timecritical removals. State Waste Managers have long contended that they can perform

these functions for less cost than EPA, essentially leveraging more ‘‘bang for the

buck’’. Simply put, States are physically closer to the removals which occur within

their own borders than either representatives from U.S. EPA regions or headquarters. This is a common sense change.

We are also pleased that S. 8 streamlines the program by providing a fixed State

cost share, namely 10 percent of remedial action costs and 10 percent of operation

and maintenance costs. The current cost share system has served only to exacerbate

the tension which exists between State Waste Agencies and the U.S. EPA. Under

the status quo the financial incentives for EPA and the States are diametrically opposed when considering final remedies for a site (States desiring more capital intensive remedies and EPA seeking remedies with lower capital costs and higher operation and maintenance costs). State Waste Officials believe this is a fair and wellreasoned position. We strongly recommend that it should be explicitly stated in statute that States should not be required to cost share on removal actions in order to

provide the needed direction to EPA in this area.

We are concerned, however, that as we alleviate the current tensions between

States and EPA on the issue of State cost share that we are merely redirecting

these tension into a new area namely withdrawal of delegation/authorization. As

written, S. 8 allows EPA to withdraw delegation/authorization on a site by site basis

rather than on a programmatic basis. This essentially creates a site by site veto authority by EPA should EPA program managers disagree with a State selected remedy. We support the concept of withdrawing delegation/authorization from a State

which is consistently failing to implement the provisions of the Superfund program

in a sound manner, but to allow EPA field managers the ability to second guess

State field managers on a site by site basis appears to be antithetical to the stated

goals of S. 8.

REMEDY SELECTION

As we indicated earlier, over thirty States are either in the process or have promulgated cleanup standards/models. The States have not waited for the Federal

Government to promulgate national cleanup standards, but instead have moved out

ahead. We are pleased that S. 8 recognizes the work which has occurred at the

State level and maintains the provision for State applicable standards to be factored
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into the Federal remedy selection process. Where State goals and standards have

been established, they should be applied consistently at all sites subject to CERCLA

liability in that State regardless of the lead agency. This includes not only NPL sites

but brownfield/voluntary cleanup sites and Federal facilities. A uniformly applicable

cleanup process will eliminate the often paradoxical inconsistency found where similar sites in close proximity are cleaned up to different levels for reasons which have

little to do with the actual risk posed. It provides an expectation of consistency to

responsible parties, nearby residents and other stakeholders involved in the cleanup

process. In States which have not developed goals and standards, EPA should continue to use the risk range established in the NCP.

State Waste Managers do support the concept of eliminating RARs—relevant and

appropriate requirements in favor of a process where States will promulgate all relevant standards, criteria and requirements in a separate rulemaking for use in the

remedy selection process. We believe this will streamline the remedy selection process and provide a greater level of certainty to responsible parties and to the public.

We also support the determination of future land use early in the remedy selection process prior to the calculation of site specific cleanup levels. This is a positive

change which has been implemented by most State Superfund programs and should

serve to promote the redevelopment of existing industrial areas rather than encouraging industrial development in currently non-industrial areas. We also agree with

the elimination of the current preference for permanence in the CERCLA statute.

Neither EPA nor the majority of States are implementing permanent remedies and

it is time that the statute reflected reality. States are selecting remedies which are

protective of human health and the environment, cost-effective and implementable.

That said, ASTSWMO does recommend that institutional controls and other designated restrictions necessary to implement a particular remedy be made legally enforceable, run with the land, and be binding among all parties to implement the restrictions. Financial responsibility mechanisms should also be identified to provide

for the perpetual maintenance of these sites in case the responsible parties are unable to do so. Last, we also agree with the six factors proposed to balance the remedy selection process, i.e, the reliability of the remedial action in achieving the protectiveness standard over the long term; any short term risk to the affected community; the acceptability of the remedial action to the affected community; the

implementability and technical feasibility of the remedial action from an engineering perspective and the reasonableness of cost. We believe that when all the remedial alternatives have been evaluated, the remedies which meet all applicable standards, are protective of human health and the environment and which fall within the

risk range should be considered and the least costly remedy selected. The cost of

implementing the alternative, including long-term monitoring and operation and

maintenance must be considered. ASTSWMO believes that assessments of costs

should reflect as realistically as possible the costs of perpetual monitoring and maintenance. The application of the cost effectiveness test should be applied to all sites

equally with no consideration given to whether it is a fund or responsible party lead

site. When the cost of achieving the target risk cleanup level results in costs which

are disproportionate to the risk reduction benefits an economic waiver should be

available.

While we support the above mentioned provisions as outlined in S. 8, we ultimately believe the remedy selection process should be conducted by qualified States

using State law and procedures. We believe this is the only true mechanism for providing citizens and responsible parties a measure of consistency. Consequently, we

question the provision in Section 133(a)(I)(B) which appears to trump the authorization provisions outlined in Title II of this bill. We respectfully request clarification

of this provision.

We have three other questions/comments concerning the remedy selection procedures as outlined in S. 8. First, we question how the Committee plans to define a

remedial action which is deemed protective if it protects an ecosystem from significant threats. What definition is the Committee using for ‘‘significant threats’’ and

how will this definition relate to CERCLA natural resource damages provisions?

Second, we question the construct of the remedy review boards as outlined in S. 8.

Specifically, will these remedy review boards apply to sites which have been delegated/authorized to a State and in the case of authorization/delegation, who will be

in charge of the review board the Governor or the Administrator? Also, who will pay

for the States’ time to participate on these review boards? Last, why did the Committee find it necessary to preempt State law by releasing NPL sites which are

cleaned up to unrestricted use from both Federal and State liability. Does this assume the sites were cleaned up to State standards and who will make this determination will a State concurrence be required? More importantly, States are not

part of the problem when it comes to returning sites to productive use. It is not
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State liability laws which are keeping sites from being redeveloped. This is a Federal statute and only Federal liability should be addressed in this statute.

ASTSWMO opposes this provision.

LIABILITY

As State Waste Managers, our principal concern is ensuring the timely and effective cleanup of contaminated sites. The current liability scheme may not be entirely

equitable to some responsible parties, but in the past it has provided a stable source

of funding. Equity must also be extended to protect those Americans living near,

and suffering the effects of, contaminated waste sites. Reforms are needed and we

believe those outlined in title V of this bill will serve to address many of the statute’s current inequities without disrupting the flow of cleanups. For example, in

1993 State Waste Managers developed and adopted a proposal advocating the carve

out of municipal solid waste landfills from the Federal Superfund program. We do

not view this as a ‘‘compromise solution’’, but rather a smart move from a practical

implementation perspective. State Waste Managers have found these sites to be illsuited for the current Federal Superfund liability program. Municipal Solid Waste

Landfills are, for the most part, large sites which involve numerous responsible parties, served a broad societal function, and have a presumptive remedy associated

with their remediation, i.e., capping. We support your decision to carve these sites

out of the current Superfund liability program, however, we question the scope of

the term ‘‘co-disposal’’ landfill as outlined in S. 8. We would be happy to work with

you to develop an acceptable definition of co-disposal site. We also concur with your

decision to more clearly define and more actively utilize the liability relief tools of

de micromis and de minimus settlements. Ultimately, we caution that any final liability scheme which may be accepted by the Committee must ensure sufficient

funding to adequately cleanup sites to a level which is protective of human health

and the environment and ensure the continuation of the States’ ability to enforce

their own laws and to provide for no cost shifts to State governments. The nation’s

Governors have outlined a series of criteria for revision of the CERCLA liability

scheme, and we recommend that the Committee evaluate these proposals by those

criteria.

FEDERAL FACILITIES

Our overall comment regarding the Federal facilities section of S. 8, is that Federal facilities should not be treated any differently than other Superfund sites. The

Federal Government should be held to the same standards as other responsible parties and therefore, State applicable standards should not be waived at these sites.

In addition, we believe States should be able to be both authorized and delegated

to implement remedy selection at Federal facilities. Therefore, we recommend that

States be allowed to self-certify for either delegation or authorization for Federal facilities sites as is specified for non-Federal sites There is no reason why the streamlining and cost savings of the Superfund program which has occurred at the State

level should not be transferred to the Federal Government at Federal facility sites.

NATURAL RESOURCE DAMAGES

Of all the titles in S. 8, we believe this title is the most markedly improved from

S. 1285 and we commend Senators Chafee and Smith for acknowledging the importance of restoring our country’s injured natural resources. This title is extremely important to State Waste Programs as the majority of States currently utilize the Federal CERCLA Natural Resource Damages provision rather than State law at nonNPL sites. In general, while S. 8 places new restrictions on trustees, it will still enable trustees to continue to provide a level of primary restoration for injuries to natural resources caused by these sites. However, we question the Committee’s desire

to eliminate non-use damages and the intended definition of ‘‘reasonable cost’’ and

request that the Committee consider adding the component of ‘‘timeliness’’ as a factor when evaluating restoration alternatives. While we recognize the Committee’s

desire to provide flexibility in the payment of damages, we are concerned that the

trustees have sufficient funds available to initiate restoration work at the earliest

possible time and to be able to complete the restoration of injured resources and the

services they provide to the public.

ASTSWMO has three primary recommendations for further improving the natural

resource damages process. First, the issue of scheduling payment of damages as well

as other issues raised by both industry and trustees could be addressed through one

overarching revision to the title: a provision that requires the integration of NRD

into the cleanup process. While S. 8 already reflects the Committee’s desire to coordinate restoration and response, this movement toward integration could be car-
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ried further in order to ensure that NRD is routinely considered not only at the

remedy selection stage, but during the investigative stage of the site cleanup process. Integration of NRD assessment into the remediation process reduces transaction costs and liability by enabling the collection of NRD information during the

site investigation and identifying restoration options that can be made part of the

remedial action. An integrated process will promote prompt resolution of NRD

issues as part of the overall settlement at a site, facilitate timely and efficient restoration and address most of the industry and trustee concerns that have been

raised throughout the Superfund debate. Second, we believe the statute of limitations should be clarified in order to significantly improve the program, prevent unnecessary litigation and provide certainty to both the trustees and responsible parties, and compensate the public in a timely manner. We understand the current tensions between responsible parties and regulators and the need to balance the interests of both. Responsible parties want assurances that the NRD assessment process

will have an end point. However, the trustees need sufficient time to be able to perform thorough assessments in order to accumulate as much pertinent information

as possible before filing a claim. One possible solution which could meet the goals

of both interests is the following: upon the signing of a ROD, a trustee will have

3 years to begin a natural resource damage assessment and upon completion of the

assessment, the trustee will have 3 years to file a claim. We believe this may serve

to meet the needs of both parties as well as the public, and to streamline a highly

ambiguous area of the law.

Third, in order for trustees to meet the goals of achieving cost-effective restoration

methods, it becomes even more crucial for trustees to have access to the fund for

assessing these sites. If the prohibition of using the fund for assessments is lifted,

trustees will have the resources readily available to accomplish these assessments

in a more timely manner, ultimately benefiting the responsible parties, the public

and the environment.

MISCELLANEOUS

ASTSWMO supports the requirement to obtain Governor concurrence in order to

list a site on the NPL. This ensures that the NPL is used as a strategic tool for

cleaning up sites. We are concerned, however, with the Committee’s desire to limit

the listing of NPL sites to a specific number per year. We do not believe this provision is necessary as the Governor’s concurrence requirement will limit the number

of sites placed on the NPL to those meriting such treatment (note: in 1996, 50 percent of the sites EPA proposed for listing did not receive a Governors’ concurrence).

Also, EPA’s internal listing process is very time-intensive. We believe with the Governor’s concurrence provision and EPA’s own listing backlog, a cap is not necessary

and may serve to undermine State enforcement efforts.

CONCLUSION

Again, we commend the Senators on a bill which incorporates many of the State

Waste Managers’ recommendations and we look forward to working with you as the

Superfund debate continues.
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